IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 390 of 2011. Reserved on: 06.09.2011. Decided on: 29.9.2011 ________________________________________________ Ram Parkash. …Appellant. -Versus- Surtia and others. …Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1No. __________________________________________________________ For the appellant. : Mr. V.S. Chauhan, Advocate. For the respondents. : None. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge: This Regular Second Appeal is directed against the judgment and decree dated 06.06.2011, passed by the learned Additional District Judge, Mandi, District Mandi, H.P. Camp at Karsog in Civil Appeal No. 44 of 2008. 2. Material facts necessary for adjudication of this Regular Second Appeal, are that the respondent-plaintiff, namely Surtia (hereinafter referred to as “the plaintiff” for convenience sake) has instituted a suit against the appellant-defendant No.1, namely Ram Parkash and respondents No. 2 to 13, namely Smt. Drapoti, Smt. Jugani, Smt. Meena, Prem Dass, Laja Ram, Dagan, Sh. Nagandru, Santu, Vidya Devi, Puran Chand, Pawan Kumar and Sarla Devi for declaration to the effect that land comprised in Khata No. 23, Khatauni No. 42 and 43, Khasra numbers 119 to 123, plots-5, measuring 7-9-7 bighas recorded in the column of 1 Whether the reporters of the local papers may be allowed to see the judgment? No. - 2 - cultivation as individual ownership and possession of the defendants No. 2 to 7 and land comprised in Khasra numbers 120 to 123, measuring 4-17-19 bighas, recorded in the column of cultivation as individual ownership and possession of the defendants No. 2 to 7 and land comprised in Khasra numbers 120 to 123, measuring 4-17-19 bighas recorded in the column of cultivation as individual ownership and possession of late Shri Hem Chand, who was father of defendant No. 1 Ram Prakash on behalf of the plaintiff and other co-owners (hereinafter referred to as suit land), situated in Muhal Baral, Tehsil Karsog, District Mandi, H.P. in the revenue record is wrong and incorrect. Plaintiff has also sought the relief of declaration against the defendants to the effect that decision of the Revenue Court on application No. 98, decided on 18.03.1982 and on its basis mutation No. 2 & 3, dated 14.09.1967 attested in favour of defendants be declared null and void. According to the plaintiff, the land comprised in Khata No. 23, Khatauni No. 42 and 43 plots-5, measuring 7-9-7 bighas situated in Muhal, Baral/418, Tehsil Karsog, District Mandi, H.P. was recorded in the ownership of plaintiff and defendants and in the column of Khana Kashat Khasra numbers 119, measuring 2- 11-8 bighas is recorded in the individual cultivation and possession of defendants No. 2 to 7. The land comprised in Khata No. 23, Khatauni No. 43 is recorded in the cultivation column (possession) of Hem Chand (now deceased), who was father of defendant No. 1, is wrong. The entries were made in favour of defendants No. 1 to 7 without giving any notice to the plaintiff and other co-owners. An application was filed by late Shri Hem Chand, father of defendant No. 1 with the prayer that that he be recorded - 3 - as a tenant by the learned AC-IInd Grade, Karsog. According to the plaintiff, AC-IInd Grade, Karsog had no jurisdiction to entertain the application. Corrections of entries were made by the AC-IInd Grade without ascertaining the view of the plaintiff and other co-owners. The suit land was recorded in joint ownership and possession of the plaintiff, defendants and other co-owners. So, a co-owner cannot be recorded as a tenant of the other co- owners and entries in column No. 9 recorded as BUSHERA PARATA MALKAN were wrong and also contrary to the H.P. Land Reforms Act. Late Shri Hem Chand, father of defendant No. 1 has transferred the land comprised in Khasra No. 119, measuring 2- 11-8 bighas by way of oral gift in favour of Marchu and Hirudu, son of Shri Kalu and mutation to this effect has also been attested in their favour. S/Shri Marchu and Hirdu were predecessors-in- interest of defendants No. 2 to 7. Late Shri Hem Chand, father of defendant No. 1 was only owner of 1/6th share, i.e., 1-4-18 bighas out of the suit land. He has mutated the land by way of oral gift in favour of Shri Marchu and Hirdu, i.e., measuring 2-11-8 bighas, which was in excess to his share as the gift was also result of fraud. The said land was transferred to Shri Hem Chand by way of gift deed, i.e., Vapsi Hibba Nama. Thereafter, the entries were got incorporated in the revenue record in his favour. It is in these circumstances, the present suit was filed. 3. The suit was contested by the defendant No. 1 by filing separate written statement. According to him, the entries in the revenue record qua the suit land were correct. These entries were made after thorough inquiry. Late Shri Hem Chand has moved an application for correction of revenue entries before the - 4 - Revenue Officer, Karsog. According to him, the plaintiff as well as other defendants were summoned and despite their service, they did not attend the proceedings. The possession of Shri Hem Chand was recorded in the revenue record vide order dated 18.03.1982. No appeal was preferred against the order dated 18.03.1982. Shri Hem Chand has legally transferred his share in favour of Marchu and Hirdu by way of gift. Mutation was also attested on the basis of gift deed, dated 04.09.1967. Late Shri Hem Chand had ceased to be owner of the suit land after the execution of the gift in favour of Hirdu and Marchu. Thereafter, defendant No. 1 had purchased the share of Jiuni in the year, 1975-1976. The suit was also contested by the defendants No. 2 to 7. According to them, they were owners in possession of Khasra No. 119, land measuring 2-11-8 bighas. Defendants No. 9 to 13 have supported the version of the plaintiff. 4. Replication was filed to the written statement filed by defendants No. 1 to 7. Issues were framed by the learned Civil Judge (Senior Division), Karsog, District Mandi on 06.01.2007. He decreed the suit on 30.04.2008. Appellant-defendant No. 1 Ram Prakash challenged the judgment and decree before the learned Additional District Judge, Mandi. The same was dismissed on 06.06.2011. Hence, this Regular Second Appeal. 5. Mr. V.S. Chauhan, learned counsel for the appellant has strenuously argued that both the Courts below have not properly appreciated the oral as well as documentary evidence. Since Ex. PW-1/H was passed on 18.03.1982, the present suit was not within limitation. According to him, the Civil Court has no jurisdiction to entertain the suit with respect to tenancy. - 5 - 6. I have heard Mr. V.S. Chauhan, learned counsel for the appellant at length and gone through the judgments carefully. 7. Parties have led oral as well as documentary evidence. According to PW-1/A, dated 20.07.2007, Parcha Jamabandi for the year 2002-2003, plaintiff is recorded as joint owner of the suit land with the other co-owners, however, in the column of possession, defendants No. 2 to 7 and late Shri Hem Chand, predecessor-in-interest of the present appellant were recorded as individual in the column of cultivation possession. Further, late Shri Hem Chand is also recorded as Gair Maurusi tenant of plaintiff, Hikam Chand, Santu, Puran Chand and Smt. Sarla Devi as per Ex. PW-1/B, Jamabandi for the year 1987-1988. In this Jamabandi, plaintiff is recorded as joint owner of the suit land alongwith other co-sharers, but in the column of cultivation, late Marchu, Hirdu and defendant No. 1 were recorded in individual possession of the land comprised in Khasra No. 119. According to Ex. PW-1/C, copy of Bandovast Jadid, plaintiff, Hukam Chand, Santu and late Shri Hem Chand, predecessor-in-interest of defendant No. 1 are recorded as owner in possession of the land comprised in Khasra Nos. 120 to 123. According to Khasra Girdawari for the year 1983-1984, plaintiff and his other co- owners are owners of the land comprised in Khasra No. 120 to 123. Defendant No. 1, late Shri Marchu and Hirdu, predecessors- in-interest of defendants No. 2 to 7 are recorded as individual possession in the column of cultivation. Ex. PW-1/E and Ex. PW- 1/F are the copies of mutations No. 2 & 3 attested by the AC-IInd Grade on 14.09.1967. The land comprised in Khasra No. 119, measuring 2-11-8 bighas was orally gifted by late Shri Marchu - 6 - and Hirdu in favour of each other, i.e., late Shri Hem Chand, predecessor-in-interest of defendant No. 1. PW-1/G has been moved by late Shri Hem Chand, predecessor-in-interest of defendant No. 1 against the plaintiff and other co-owners for carrying out corrections in the revenue record qua the land comprised in Khata No. 8/22 min, Khasra No. 120-123. The Assistant Collector IInd Grade, Karsog has passed order vide Ex. PW-1/H on the application Ex. PW-1/G on 18.03.1982. It is on the basis of order dated 18.03.1982 that late Shri Hem Chand, father of defendant No. 1 was recorded as Gair Maurusi tenant of the suit land under the plaintiff, Hukam Chand, Santu etc.. The father of defendant No. 1 late Shri Hem Chand is not recorded as Gair Maurusi tenant of the suit land in Ex. PW-1/C. 8. Plaintiff has appeared as PW-1. According to him, earlier Hukam Chand, Bhagat Ram, Hem Chand and Surat Ram etc. were joint owners in possession of the suit land, but at the time of Bandovast, Sh. Hem Chand, predecessor-in-interest of defendant No. 1 has transferred more than his share in the name of late Shri Marchu and Hirdu, who were predecessors-in-interest of defendants No. 2 to 7. Shri Marchu and Hirdu had again transferred the aforesaid land, i.e., two bighas in favour of late Shri Hem Chand. Two mutations had been attested on the same day. Late Shri Hem Chand had again orally transferred 1/6th share in favour of late Shri Marchu and Hirdu, predecessors-in- interest of defendants No. 2 to 7. These mutations were attested in their absence. They came to know about these entries only in the year 2005. In sequel to the application filed in the year 1978, neither the plaintiff nor any other co-owner had been summoned - 7 - by the AC-IInd Grade, Karsog. The application has been decided behind the back of the plaintiff and other co-owners. Father of defendant No. 1, Shri Hem Chand was recorded as tenant of the suit land under them without paying any rent to them. They were also not heard at the time of mutation of tenancy attested in favour of late Shri Hem Cand by revenue officials. PW-2 has supported the version of PW-1. According to him, the suit land was earlier jointly owned and possessed by plaintiff and defendants. However, at the time of Bandovast, Shri Hem Chand, father of defendant No. 1, had transferred some land out of the suit land in favour of late Shri Marchu and Hirdu. Late Shri Marchu and Hirdu had again transferred this land by way of gift in favour of late Shri Hem Chand. DW-4, Tek Chand, who was defendant No. 9 in the original suit, has deposed that the land was jointly owned and possessed by the plaintiff, Ram Prakash, Hukam Chand and Puran Chand etc.. The land was never partitioned by them. They were cultivating the same jointly. In the year 1967, father of defendant No. 1 late Shri Hem Chand transferred some portion of the land in favour of late Shri Marchu and Hirdu and the mutations to this effect were attested. However, Marchu and Hirdu again re-transferred the suit land in favour of late Shri Hem Chand. They came to know about these entries subsequently. He has admitted that neither plaintiff nor any other co-owner of the suit land has been summoned by AC-IInd Grade, Karsog while deciding the application moved by the father of defendant No. 1, Shri Hem Chand. Defendant No. 1 Ram Prakash has appeared as DW-1. According to DW-1, plaintiff is his brother and defendant No. 9 Santu is his uncle. The suit land alongwith - 8 - other land had been partitioned in between their predecessors-in- interest by way of family partition. His father has moved an application for correction of revenue entries before the revenue agency. The application was decided in favour of his father. His father has expired in the year 1983-1984. According to him, neither the plaintiff nor defendants No. 8 to 13 have any right in the property. However, in his cross-examination, he has admitted that earlier the suit land was jointly owned and possessed by plaintiff, his father late Sh. Hem Chand and defendants No. 8 to 13. He has shown his ignorance whether on 14.09.1967, the predecessor-in-interest of defendants No. 2 to 7 has gifted the land comprised in Khasra No. 119, measuring 2-11-8 bighas to his father. He has admitted that in this land, the plaintiff and defendants No. 8 to 13 have also their share. He has admitted that he could place any material to support that a family partition has taken place between his father, plaintiff and other-co-owners. DW-2 has only deposed that the plaintiff has sold land to him, which is situated at Muhal Nowa and Kot few years. DW-3 has testified that some land of the father of defendant No. 1, late Shri Hem Chand was also situated near their house, which was earlier cultivated by him and now by the defendant No. 1. DW-3A, Prem Dass testified that part of the suit land, i.e., comprised in Khasra No. 119, measuring 2-11-8 bighas earlier was owned and possessed by his father, Marchu and his uncle Hirdu. The defendants have not placed on record the proceedings, whereby the AC-IInd Grade has passed the orders on application Ex. PW- 1/G. The order was passed by AC-IInd Grade, Karsog on 18.03.1982 vide Ex. PW-1/H. It was necessary for the defendants - 9 - to place on record the proceedings, which has led to the passing of the order, Ex. PW-1/H to establish that the plaintiff and other co- owners were summoned and heard. The AC-IInd Grade has no power or jurisdiction to confer proprietary rights under the Act. It is only the AC-1st Grade who can pass appropriate orders under Section 104 of the H.P. Tenancy and Land Reforms Act. Plaintiff has come to know about the entries in the year 2005 and the suit was filed on 26.07.2005. Thus, the suit filed by the plaintiff was within limitation. In the instant case, the orders have been passed by the authorities without summoning the plaintiff and other co- owners. Late Shri Hem Chand could not be shown as tenant under the co-owners. The Civil Court had the jurisdiction since the orders passed by the authorities under the H.P. Tenancy and Land Reforms Act, 1972 were illegal. In Ex. PW-1/C, copy of Misal Haquiat Bandovast, Shri Hem Cnand has not been recorded as Gair Maurusi tenant of the suit land. Late Shri Hem Chand could not transfer the land to defendants No. 2 to 7 beyond his share. The defendants have not placed any tangible evidence on record to establish that the family partition has taken place. Initially, late Shri Hem Chand, father of defendant No. 1 has transferred the land comprised in Khasra No. 119, measuring 2-11-8 bighas by way of oral gift in favour of Marchu and Hirudu and thereafter, Marchu and Hirdu transferred the land back to the plaintiff by way of gift deed, i.e., Vapsi Hibba Nama. Thereafter, again some portion of the land was transferred in the name of Marchu and Hirdu. Both the Courts below have correctly appreciated the oral as well as documentary evidence. - 10 - 9. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in this Regular Second Appeal and the same is dismissed, so also the pending application(s), if any. No costs. (Rajiv Sharma) Judge September 29, 2011. (bhupender)