IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Regular Second Appeal No.401 of 1998. Judgment Reserved on: 01.04.2009 Date of decision: 26.05.2009 Hukam Chand …Appellant Versus Kunti Devi & Others …Respondents Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 No. For the Appellant: Mr.G.D. Verma, Senior Advocate with Mr.B.C. Verma, Advocate. For the Respondents: Mr.Bhupender Gupta, Senior Advocate with Mr.Neeraj Gupta, Advocate. Dev Darshan Sud,J. This appeal has been preferred by the plaintiff against the concurrent findings of the Courts below declining relief of declaration and permanent injunction claimed for by the plaintiff. The facts as pleaded were that Smt.Malti Devi wife of Jangi Ram had been inducted as a tenant by the forefathers of the plaintiff and proforma defendants who are recorded as such in the record of rights. She died in the year 1973 at village Dhalli, Tehsil Kasauli, District Solan. The land under the occupancy and 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2 possession of Malti Devi was resumed by the owners. The possession of the land was allegedly taken by the plaintiff and proforma defendants and since then they are coming in uninterrupted possession of the suit land. It was pleaded that they never inducted any person as a tenant after the death of Malti Devi. The plaintiff alleges that the land is being cultivated and possessed by the owners of the land since the year 1973 after the death of Malti Devi. Defendant No.1 Bali Ram is son-in- law of Malti Devi and defendant No.2 Kunti Devi is her grand daughter. The case pleaded is that Bali Ram in connivance with the revenue officials manipulated the entries in the revenue record in the name of his wife Punni Devi whom he had shown as her tenant in the year 1973. This fact was not within the knowledge of the plaintiff and proforma defendants and on the basis of wrong entries, the defendants now want to take over the entire land. Mutation No.38, sanctioned on 27.1.1976 in the name of Punni Devi, is wrong, illegal and not binding on the interest of the plaintiff. The cause of action for filing the suit accrued when a complaint was filed by defendant Kunti Devi with the police on 7.3.1986 and hence the present suit. The suit was resisted on number of grounds including maintainability, non-joinder of necessary parties, locus standi and limitation. The defendants plead that the plaintiff’s suit is barred as an earlier suit instituted by the predecessor-in-interest of the plaintiff titled: Muni Lal vs. Puni Devi was dismissed. The 3 subject matter and cause of action for filing that suit was the same. It is pleaded that after the death of Malti Devi, Puni Devi and Kunti Devi were in possession of the land as her heirs and they alongwith defendant No.2 have become owners of the suit land. The allegations regarding manipulation of the revenue record are denied. The learned trial Court settled seven issues. The first three issues, namely, whether the plaintiff is owner in possession of the suit land, was held against the plaintiff, the second issue with respect to possession of Smt.Punni Devi after the death of her mother Malti Devi and the legality of mutation No.38 was held in favour of defendants. The Court also held that the suit was not maintainable. In appeal preferred the grounds urged on behalf of the appellant did not find favour with the learned appellate Court which dismissed the appeal. The learned appellate Court, considered the submissions made on behalf of the appellant herein viz., that after the death of Malti Devi, the predecessor-in- interest of the plaintiff resumed possession and the land has been cultivated by them since the year 1973. The learned appellate Court notices that the plaintiff pleaded abandonment of tenancy by Malti, who, according to them, had died issueless. PW-1 Hukum Chand, plaintiff, has stated that during the life time of Malti, the possession of the land was delivered to the owners by her and they cultivated the land and this possession was never abandoned by them or given to Punni Devi and Kunti Devi. PW-2, 4 Mohan Singh, tried to establish that during her life time, Malti had relinquished the possession and left Kasauli. PW-3 Sant Ram, stated that Malti had left in the year 1972 when she fell ill and never returned thereafter. The learned Court notices the pleadings of the plaintiff that possession was resumed by them and not obtained on account of abandonment of the tenancy. The case regarding relinquishment of tenancy cannot be accepted as the evidence is not trustworthy as held by the courts below. Moreover, in Jethu through Km.Guddi and Others vs. Gobind Singh, 1995(2) Sim.L.C. 296, this Court has held that tenancy can be terminated only through the process of law. How and in what circumstances the tenancy came to an end has not been established on the record of the case. The Court holds that the oral evidence with respect to possession is inconsistent and contrary to the revenue entries which are consistent since 1973 showing Kunti and earlier to her Punni in possession of the land. The Courts below have accepted in-fact that on the death of Smt.Malti in 1973, Punni was entered as non-occupancy tenant in the Girdawari from Kharif 1974 to Rabi 1975, Ex.D-4, and thereafter vide mutation No.38, Ex.PW- 1/A, sanctioned on 15.6.1976, Punni has been declared to be the owner in terms of Section 104 of the H.P.Tenancy and Land Reforms Act, 1972. On her death, vide mutation No.49, Ex.PX/1, Smt.Kunti, her daughter, has been entered into possession in Khasra Girdavawaris, Ex.D-5, for the year 1978-79, Ex.D-6 for the year 1984-85 and Ex.D-7 for the year 1990-91. She has been 5 recorded as owner in possession in Jamabandi, Ex.PX/3, for the year 1989-90. On the submissions made by the appellant that Punni could not have inherited the tenancy from her mother as the law governing inheritance of tenancy did not provide for such inheritance. The learned Court placed reliance on a decision of this Court in Smt.Charno Devi and Others vs. Dali Mal (deceased) through his L.Rs.Shamsher Singh and Others, 1994(2) Sim.L.C. 279, where interpreting the scope of Section 45 of the H.P. Tenancy and Land Reforms Act, 1972, Devinder Gupta, J. held that in the absence of persons mentioned in clauses (a) to (d) of Section 45 of the Act, the daughters would inherit the tenancy as provided by the Hindu Succession Act, 1956. The last and final submission made by the appellant herein that in the written statement Ex.DW-2/B filed in the earlier suit an admission has been made on behalf of Punni Devi that she was not the tenant and that Bali Ram her husband was a Khana Damad, the Court holds and rightly so that the name of Malti Devi has been correctly entered in the column of possession showing Bali Ram as Khana Damad alongwith Punni Devi in cultivating possession of the land as they were living together as husband and wife. This appeal has been admitted on the following four substantial questions of law:- “1. Whether the courts below are right in recognizing the rights of 6 succession to the tenancy in favour of respondent No.1 ignoring the rights acquired by the plaintiff before succession could be changed? 2. Whether in the year 1973, due to death of Malti land was resumed by owners and they became owner in possession of suit land? 3. Whether in view of section 45 of the H.P. Tenancy and Land Reforms Act right to succession is not available to the daughter? 4. Whether in absence of any order by Land Reforms Officer with respect to suit land neither Smt.Punni Devi nor Smt.Kunti Devi has acquired any interest over the suit land? Questions No.1 to 3: These questions are required to be taken up together. At the very outset I must state that no factual foundation either in the pleadings or evidence has been set up to urge these questions in this appeal. It is trite that a question of law for determination must have factual foundation supported by evidence on record. The primary and central question is as to whether the plaintiff had resumed possession of the suit land after the death of Malti Devi. Both the Courts, on consideration of the evidence on record, have concurrently held that there is no fact on the record establishing this claim of the 7 plaintiff. In these circumstances, the decision on these questions would be merely academic. I also find from the record that though the provisions of H.P. Tenancy and Land Reforms Act were not applicable at the time of the death of Malti Devi, yet there is no pleading or any material on the record to show or establish that the area where the land was situated was in Pepsu or in Punjab where-after it merged with Himachal Pradesh. This fact has neither been pleaded nor proved. This did not require any expert evidence but merely placing on record Notification(s). The learned appellate Court has made general observations regarding the area being in different States without realizing the import of what has been said in the absence of any material on the record. In these circumstances, the general law of Succession, the Hindu Succession Act, 1956, would govern succession to tenancy and it cannot be said that the daughter is excluded from inheriting the tenancy rights of her mother. Learned counsel urged with some vehemence that Mutation No.49 Ex.PX/1 has not been passed and attested by an officer competent to do so. Again, all that need to say is that this submission cannot be accepted as the mutation has been attested by Assistant Collector without his grade being mentioned. There is nothing on the record to show or establish that there has been a violation of the principles of natural justice while attesting such a mutation or that it was attested by an officer not competent to do so. Pleadings and factual foundation are lacking. In these circumstances, these questions are decided against the appellant. 8 Question No.4: Mutation, of-course, does not determine title but is only corroborative piece of evidence to support the existence of a particular state of affairs. In these circumstances, having held questions No.1 to 3 against the plaintiff, question No.4 is also decided against the appellant-plaintiff. This appeal is accordingly dismissed. There shall be no order as to costs. May 26, 2009. (Dev Darshan Sud) (aks) Judge.