HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 646 of 2000 Decided on: 27.7.2010 Bhim Singh and others ………Appellants. Versus Fazala and another. ………Respondents. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the appellants: Mr.N.K. Thakur, Advocate. For respondent No.1: Mr.R.K. Gautam, Senior Advocate, with Mr.Vikrant Chandel, Advocate. V.K. Ahuja, J.(Oral): This is a regular second appeal filed by the appellant/defendants under Section 100 of the CPC against the judgment and decree, dated 30.9.2000, passed by the learned District Judge, Una, H.P., whereby the judgment and decree of the court of learned Sub Judge Ist Class, Court No.II, Una in Civil Suit No.105 of 1991, dated 27.6.1995, was affirmed. 2. Briefly stated the facts of the case are that respondent No.1, hereinafter referred to as the plaintiff, filed a suit for possession of land measuring 17 marlas comprised in Khasra Nos.6900/757 old, new Khasra No.862, as detailed in the plaint, against the appellant/defendants. It was alleged by the plaintiff that ______________________________ Whether reporters of local papers may be allowed to see the judgment? Yes. - 2 - he has been coming in possession of the suit land as a tenant on payment of Chakota and has become owner by virtue of operation of H.P. Tenancy and Land Reforms Act and mutation No.4987 regarding conferment of ownership rights has also been sanctioned in his favour on 26.8.1988. He alleged that he continued as tenant regarding the share of Lachmi Devi and Chindo Devi. The defendants allegedly took forcible possession of the suit land two years ago and constructed a room and also laid foundation and as such the defendants are trespassers. Hence the suit filed by the plaintiff. 3. Defendants took up preliminary objections in regard to mis-joinder and non-joinder of necessary parties, cause of action etc. On merits, it was pleaded that Jai Ram was in possession of the suit land as Hissedar and constructed abadi over it and mutation had been wrongly sanctioned in favour of the plaintiff. 4. On the pleadings of the parties, the following issues were framed by the learned trial Court: 1. Whether the defendants have taken illegal possession of the suit land and his built room over it as alleged? OPP 2. Whether the suit is not maintainable? OPD 3. Whether the suit is bad for mis-joinder and non- joinder of necessary parties? OPD 4. Whether the plaintiff has got no cause of action against the defendants? OPD 5. Relief. 5. The parties led their evidence and the learned trial Court vide its judgment decided Issues No.1 to 4 in favour of the plaintiff and against the defendants - 3 - and consequently decreed the suit of the plaintiff for possession. 6. On appeal, those findings were upheld by the learned District Judge vide its impugned judgment. 7. I have heard the learned counsel for the parties and have gone through the record of the case. 8. The appeal has been admitted on the following substantial questions of law: “1. Whether the owner, who is in possession by way of his abadi/super structure before the sanction of mutation under Section 104 of the H.P. Tenancy and Land Reforms Act, can be termed/treated as trespasser after the sanction of such mutation in the name of the tenant? 2. Whether a right-holder can maintain a suit for possession against the other right- holder who is in joint possession. 3. Whether the impugned judgments and decrees are vitiated for misconstruction and misinterpretation of the oral as well as documentary evidence?” 9. On appraisal of the evidence led before the learned trial Court, it is clear that the plaintiff was duly recorded in possession in the copy of Missal Hakiat Ext.P-1 for the year 1982-83, Ext.P-2 Jamabandi for the year 1976-77, Ext.P-3 Jamabandi for the year 1972-74, Ext.P-4 Jamabandi for the year 1977-78 and Khasra Girdavaris from Ext.P-5 to P-8 from the 1973 onwards to 1991. Thus, presumption of correctness was attached to the long standing entries in the jamabandi showing the plaintiff as in possession as tenant under Jai Ram and other co-owners. To rebut this evidence, defendant No.2 Bhola Nath appeared in the witness box as DW-1 and also - 4 - examined DW-2 Janki Devi and DW-3 Hasna to prove his ownership and possession over the suit land. The defendant also took up the plea that the plaintiff never remained in possession of the suit land. It was rightly observed by the courts below that defendant’s father never took any steps for correction of the entries and, therefore, presumption of correctness attached to copies of jamabandis showing the plaintiff in possession was not rebutted by the oral evidence led by the defendant. According to the witnesses of the plaintiff, it has come up that Jai Ram has raised the construction over the suit land about two years ago, though he claimed to be in possession for the last 8-9 years for which there is no entry in favour of the defendant. The findings have been given by the learned trial Court, which findings have been affirmed by the learned District Judge, that the plaintiff had been duly proved in possession over the suit land and the said entries in favour of the plaintiff have not been rebutted by any cogent and reliable evidence led by the defendant. My attention has been drawn to the admission made by PW-1 Fazal Din in his cross examination that the father of defendants No.1 and 2 was a co-sharer in the land. Even if he was a co-sharer in the land, it did not give him a license to forcibly take possession of the suit land in possession of the plaintiff as a tenant and, therefore, the learned trial Court, in its findings, had rightly concluded that the plaintiff was entitled to decree for possession and the said findings were rightly affirmed by the learned - 5 - First Appellate Court. After the sanction of the mutation, the plaintiff could not be deprived of possession forcibly taken by one of the co-owners. 10. In view of the above discussion, it follows 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. July 27, 2010. (V.K. Ahuja), (TILAK) Judge.