HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No.: 357 of 1999. Reserved on: 2.1.2010 Decided on: 23.2.2010 Kala Devi and others ………Appellant/defendants. Versus Sat Pal and others ………Respondent/defendants. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? Yes. For the appellants: Mr.H.K. Bhardwaj and Mr.Y.Paul, Advocates. For the respondents No.1(a) to 1(g): Mr.K.D. Sood and Mr.Sanjeev Sood, Advocates. V.K. Ahuja, J.: This is a regular second appeal filed by the appellant/defendants under Section 100 of the Code of Civil Procedure, against the judgment and decree passed by the learned District Judge, Una, dated 24.6.1999, vide which he affirmed the judgment and decree passed by the learned Senior Sub Judge, Una, dated 4.9.1993, vide which the learned trial Court had decreed the suit of the respondent/plaintiffs. ___________ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. - 2 - Briefly stated the facts of the case are that Baldev Raj, the predecessor-in-interest of the respondents, filed a suit for permanent injunction as against Siri Ram and Telu Ram, the predecessor in interest of the appellants. It was alleged by the plaintiff that the land in suit measuring 4 kanal & 7 marla, as detailed in the plaint, was coming in possession of the plaintiff alongwith Rama as tenant on will, on payment of rent under the owners since long. It was further alleged that on coming into force of H.P. Tenancy and Land Reforms Act, the plaintiff and heirs of Rama became its owner on the appointed day i.e. 3.10.1975. It was alleged that the defendants are threatening to take possession of the suit land from the plaintiff. Hence the suit for permanent injunction filed by the plaintiff. Defendants No.1 and 2 took up preliminary objections in regard to the locus standi, maintainability and cause of action. On merits, they pleaded that the plaintiff is not in possession of the suit land and the revenue entries were wrong, which have been corrected by the Land Reforms Officer, Una vide his order, dated 28.3.1990. They also pleaded that on the basis of wrong entries, a mutation under Section 104 of the H.P. Tenancy and Land Reforms Act was entered in favour of the plaintiff but the same was rejected by the Assistant Collector 1st Grade on 9.2.1984 on the statement of the plaintiff that he was never in possession of the suit land. The defendants - 3 - pleaded that they are in possession of the suit land as owners and are cultivating the suit land and as such the suit is liable to be dismissed. The suit was tried by the learned trial Court, which held that the plaintiff is in possession of the suit land and was entitled to the relief of injunction. Those findings, on appeal, were affirmed by the learned District Judge, hence this appeal. The appeal was admitted mainly on substantial question of law as to whether the courts below have misread and misconstrued the oral as well as documentary evidence available on the record. In regard to other two substantial questions of law No.1 and 3 formulated at the time of admission of the appeal, no specific arguments were advanced nor there is anything on record to substantiate them. I have heard the learned counsel for the parties and have gone through the record of the case. The submissions made by the learned counsel for the appellant/defendants were that the copy of the order passed by the Settlement Officer Ext.D-1 proved that one of the tenants Baldev Raj had admitted at the spot that he was not in possession of the suit land. It was also submitted that the evidence led showed that at the spot the land could not be identified by the witnesses or the plaintiff and on the basis of the statement made by him at the spot before the Settlement Officer, the correction was - 4 - ordered to be made and mutation entries Ext.D-2 and D-3 proved this fact. Thus, it was submitted that since the document Ext.D-1 was prepared by the Revenue Officer in the discharge of his duties, therefore, the same conclusively established that the plaintiff was not in possession and mutation had also been attested changing the revenue entries and as such the findings to the contrary are liable to be reversed. It was also submitted that the learned First Appellate Court had observed that the defendants have not examined the Nambardar or the Tehsildar and on that basis had not believed the claim of the defendants which observation is incorrect. On the other hand, the learned counsel for the respondents had supported the impugned judgment for the reasons given therein. It was submitted that there were long standing entries in favour of the plaintiffs and those could not be rebutted by an order passed by the Settlement Officer in summary proceedings conducted by him. It was submitted that no statement of the plaintiff recorded on oath by the Settlement Officer was proved on record and, therefore, the said order of the Settlement Officer was rightly ignored by both the courts below. Coming to the evidence led by the parties, the plaintiff had proved on record Ext.P-3, copy of the jamabandi for the year 1965-66, Ext.P-4 jamabandi for the year 1973-74, Ext.P-5 copy of Khasra Girdavari from Kharif 1985 to Ravi 1989, Ext.P-1 copy of jamabandi for the year - 5 - 1981-82 and Ext.P-2 copy of Khasra Girdavari from Kharif 1982 to Ravi 1988, which showed that the land in suit was entered in the ownership of the defendants and plaintiff and one Rama were shown in possession of the suit land as tenants. Thus, there were long standing entries in favour of the plaintiff showing him in possession over the suit land as tenant. The plaintiff had taken up the plea that on the basis of these entries, on coming into operation the H.P. Tenancy and Land Reforms Act, from the appointed day i.e. 3.10.1975, the plaintiff had become owner of the suit land and the conferment of the proprietary rights was automatic. According to the provisions of Section 104 of the H.P. Tenancy and Land Reforms Act, 1972, the plaintiff was to be conferred with the proprietary rights and this conferment was automatic. The plaintiff pleaded that he has become owner by operation of law and the defendants in their written statement took up a specific plea that the mutation under Section 104 of the H.P. Tenancy and Land Reforms Act was entered in favour of the plaintiff but it was rejected by the Assistant Collector Ist Grade on 9.2.1984. Thus, the defendants admitted that the proprietary rights were conferred upon the plaintiff under Section 104 of the H.P. Tenancy and Land Reforms Act. Once the proprietary rights had been conferred upon the plaintiff under these provisions, the jurisdiction of the Civil Court was barred to look into the question of conferment of proprietary rights according to the Full - 6 - Bench decision of this Court in Chuhniya Devi versus Jindu Ram, 1991(1) Shim.L.C. 223. This question was not considered by the courts below since the copy of the mutation entered was not placed on the record by both the parties. However, the defendants admitted that such a mutation was entered into, but it was pleaded that the same was rejected by the Assistant Collector Ist Grade on 9.2.1984. Once the defendants admitted the factum of conferment of proprietary rights, it was for them to have proved that it was rejected by the Assistant Collector Ist Grade on 9.2.1984 as pleaded by them, but the said document never saw the light of the day and there is nothing on the record to show that any such order was passed by the Assistant Collector Ist Grade canceling the mutation entered in favour of the plaintiff. It follows from the above discussion that it has to be concluded that the mutation of conferment of proprietary rights under Section 104 of the Act was attested in favour of the plaintiff but the defendants failed to prove that the said order was set aside. Coming to the documents relied upon by the defendants, the defendants have relied upon a copy of the order passed by the Tehsildar Settlement in a correction application moved by the owners. It appears that the Tehsildar went to the spot, considered the statements of the witnesses produced by both the parties and after making observations at the spot that the tenants i.e. the - 7 - plaintiff has failed to prove his possession or identify the land and on the basis of the alleged admission made by the plaintiff, it was concluded that the entry is liable to be corrected in favour of the owners/defendants. Once there were long standing entries in favour of the plaintiff showing his possession as tenant and he had become owner by operation of law, which fact was not disputed by the defendants, no such order could have been passed by the Tehsildar Settlement in such proceedings. These proceedings were summary in nature and even if such an order had been passed, it was not binding on the Civil Court and both the courts below have rightly ignored the said order being of no consequence. Coming to the observations made by the learned First Appellate Court that the defendant should have examined the Tehsildar or the Nambardar, who was present at the spot, I am of the opinion that these observations ere uncalled for since their examination would not have proved the case of the defendants because in case the defendants are relying upon some admission made by the plaintiff, it was for them to have proved the said statement made by the plaintiff on oath before the Revenue Officer, if any. In case no such statement has been proved on record, the examination of the Nambardar present at that time or the Tehsildar, who conducted such inquiry, would not have substantiated the case of the defendants in any manner. The mutation entries Ext.D-2 and Ext.D-3 showing - 8 - that a mutation was attested on the basis of Ext.D-1 and some statement made by the plaintiff Baldev Raj that he was not in possession are of no help to the defendants since the statement made on oath, if any, had to be proved according to law. Moreover, the proprietary rights had been conferred upon the tenants. There could not have been any relinquishment in favour of the owners which had to be in favour of the State. No plea of relinquishment or abandonment was taken by the defendants or proved on record and, therefore, all these documents i.e. Ext.D-1 to Ext.D-3 are of no help to the defendants. This document Ext.D-1 and the order passed therein cannot be said to be conclusive so as to hold that the long standing entries in favour of the plaintiff were liable to be ignored. In view of the above discussion, it is clear that there was no misreading of evidence, oral as well as documentary, by both the courts below while granting relief of permanent injunction in favour of the plaintiff and as against the defendants. Thus, the findings recorded by both the courts below do no call for an interference by this Court. I accordingly hold that there is no merit in the appeal filed by the appellants, which is dismissed accordingly. However, the parties are left to bear their own costs. February 23, 2010. (V.K. Ahuja), (TILAK) Judge.