IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 336 of 1999 alongwith RSA No. 337 of 1999 Date of Decision: 22nd September, 2010 Smt. Kaushalya Devi & others Appellants Versus Shri Malkiat Singh and others Respondents Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? No. For the appellants: Mr.H.K.Bhardwaj, Advocate. For respondent No.1: Mr. Ajay Sharma, Advocate. For respondents 4(a)(i) to 4(a)(iii), 4(b) to 4(e) and 5: Mr. Sanjeev Sharma, Advocate. Sanjay Karol, J. (Oral) These are Regular Second Appeals filed under Section 100 of the Code of Civil Procedure, 1908. 2. In terms of judgment and decree dated 30.4.1998 passed by Sub Judge, Court No.II, Una, H.P., in Civil Suit No.96/1991, suit filed by plaintiffs Baldev Chand and Kishan Chand against defendants Malkiat Singh and Piare Lal stands partly decreed. Both plaintiffs and Malkiat Singh (referred to as the contesting defendant) preferred first appeals and in terms of common judgment and decree passed by District Judge, Una, H.P., in Civil Appeals No. 83 of 1998 and 107 of 1998, contesting Whether the reporters of Local Papers are allowed to see the Judgment? 2 defendant’s appeal stands allowed and that filed by the plaintiffs dismissed. Plaintiff’s suit stands dismissed in toto. Findings returned by the trial Court holding the plaintiffs predecessor-in-interest to be non- occupanacy tenants and thus acquired proprietary rights in land comprising Khasra No. 2692 stands reversed. Thus plaintiffs have filed these appeals, which stand admitted on the following substantial question of law:- “1. Whether the lower Appellate Court has misread and misinterpreted the oral as well as documentary evidence, particularly the statements Exts. PW-1/B, PW-1/C and the order Ex. PW-1/A?” 3. During the course of hearing, the following substantial question of law was framed and the learned counsel for the parties also addressed on the same:- Whether the orders passed by the Assistant Collector Grade- II and Grade-I are null and void keeping in view the provisions of Section 104 of the H.P. Tenancy and Land Reforms Act, 1972? 4. Plaintiffs filed suit with the following prayer:- “a decree for declaration to the effect that the plaintiffs alongwith defts. No. 2 to 4 has been non-occupancy tenant over area measuring 0-04-07 alongwith other area comprised of pre-settlement jaded Sani Khasra No. 3307 as entered in Missal Hakiat Bandobast Jadid Sani for the year 1988-89 and has become owner by the conferment of proprietary rights under the land laws and the alleged entry in the name of deft. No. 1 regarding Khasra No. 2668 and 2692 new corresponding to old khasra no. 3307 in the revenue record comprised of khewat No.76 min, Khatauni No. 114 min, as entered in Missal Hakiat Jadid Sani for the year 1988-89, situate in Up-Mahal Behdala, Tehsil and District Una is wrong, incorrect, illegal, void ab initio, without any basis, 3 ineffective, inoperative and the same is having no binding effect upon the rights of the plaintiffs and proforma defts. No. 2 to 4 and a decree for permanent injunction restraining the defendant no. 1 from interfering in any manner in the possession of the plaintiffs over and measuring 0-03-25 comprised in new Khasra no. 2692 and for recovery of possession of area measuring 0-00-02 of Khasra No.2688 by way of demolishing super-structure as well as recovery of possession of khasra no. 2692 in case the defendant no. 1 succeed in taking forcible possession thereof during the pendency of the case, be passed with costs in favour of the plaintiffs and against the deft. No.1.” 5. Suit was filed on the premise that Shri Jagan Nath, plaintiffs’ predecessor-in-interest occupied 3 Kanals 8 Marlas of land comprising Khasra No.2407, situated in Village Behdala, Tehsil and District Una as a tenant on payment of Chakota (rent). During consolidation proceedings Khasra No.2407 was carved into three new Khasra Nos. (i) 3306 (area: 0- 9), (ii) 3307 min (Area: 1-3), (iii) 3308 (Area 1-6). Khasra No. 3308 stood acquired for construction of National Highway. Thus out of original Khasra No. 2407 (Khasra No. 3306 and 3307) only 1 Kanal 12 Marlas of land remained with the tenant. During consolidation proceedings, which took place in the year 1979, out of Khasra No. 3306 original owners and Jagan Nath agreed to surrender 0-9 Marlas of land (Khasra No.3306) in favour of the contesting defendant. Consequently Jagan Nath continued to be in possession as owner of Khasra No.3307 (1-3 Marlas). Sometime in the year 1987, contesting defendant obtained an order from the Court of A.C. Ist Grade cum Tehsildar (Settlement) in his favour. Based thereupon he got entries reflected in the revenue record showing himself to be owner in possession of the suit land. 4 6. Contesting defendant resisted the suit inter alia on the ground that in the year 1984 itself, he had constructed five shops over Khasra Nos. 3306 and 3307. Jagan Nath had also constructed three shops on land which was in his exclusive possession. This was not the suit land. 7. Based on the pleadings of the parties, trial Court framed the following issues:- “1. Whether the plaintiff alongwith defendant No.2 to 4 has been coming in possession of suit land as non-occupancy tenants and has become the owner by enforcement under the law? OPP 2. Whether the defendant No.1 forcibly raised construction over Khasra No.2688, as alleged? OPP 3. If issue No.2 is proved in affirmative, whether the plaintiff is entitled to recover possession of Khasra No.2688? OPP 4. Whether this Court has no jurisdiction to try the suit? OPD-1 5. Whether the suit is not maintainable in the present form? OPD-1 6. Whether the plaintiffs are estopped by their acts and conduct to file the suit? OPD-1 7. Whether the suit is not within time? OPD-1 8. Whether the suit has not been properly valued for the purpose of jurisdiction and Court fees, if so, what is the correct valuation of the suit property? OPD-1 9. Relief 8. Trial Court found that before the appointed day plaintiffs as tenants were occupying land comprising Khasra No.2692. Consequently, by virtue of the provisions of H.P. Tenancy and Land Reforms Act, 1972 (for short, the Act) they were the owners thereof. Contesting defendant Malkiat Singh was held to be owner in possession of land comprising Khasra No. 2688. 5 9. It cannot be disputed that original Khasra No.2407 admeasuring 3 Kanal 8 Marlas was divided and assigned three new numbers being (i) Khasra No.3306 (further renumbered as Khasra No. 2687) admeasuring 9 Marlas (ii) 3308 admeasuring 1 Kanal 16 Marlas. There is no dispute that this land stood acquired and is also not subject matter of the lis. (iii) Khasra No.3307/min was further divided into 4 Khasra number being (a) 2689 (b) 2691 on which plaintiffs constructed three shops; (c) Khasra No.2688 on which the contesting defendant constructed five shops (d) Khasra No.2692, which is a compound held to be in possession of the contesting defendant by the trial Court. 10. This Court in Daulat Ram and others vs. State of Himachal Pradesh and others, 1979 Sim.L.C. 215 has held that there is automatic vestment and conferment of rights in the tenant by operation of law from the date of publication of the Rules, which came into operation w.e.f. 3.10.1975. 11. Section 104 of the Act provides that all rights, title and interest of land owner, other than the land owner entitled to resume land under sub-section (1), shall stand extinguished and all such rights, title and interest with effect from appointed day vest in the tenant free from all encumbrances. However, in terms of sub-section (4) of Section 104, disputes between the land owner and tenant are to be determined by the Assistant Collector First Grade. This is so provided under Rule 29 of H.P. Tenancy and Land Reforms Rules, 1975 (hereinafter referred to as Rules). 12. Contesting defendant disputes the status of Jagan Nath to be a non-occupancy tenant on the suit land. But plaintiffs rely upon jamabandi Ext.D-6 (for the year 1962-63) and other revenue record Ext.P-2 to Ext.P-7 and Ext.D-3 to Ext.D-10 to establish this fact. 6 13. It is a matter of record that plaintiffs were never reflected as owners in the revenue record. Revenue Record as mentioned above shows the plaintiffs to be only tenants and not owners. Further nothing has been brought to my notice to show that rent was actually paid to the contesting defendant. 14. It is a matter of record that in the year 1979, contesting defendant moved an application (Ext.PW-1/A) before the ACO, Una for getting the entries in the revenue record in relation to 1 Kanal 3 Biswas of land corrected. It was alleged that land remained uncultivated by the tenant, hence, he was entitled to be declared as owners thereof. On 21.4.1979 parties entered into a compromise and made statements, (Ext.PW-1/B and Ext.PW-1/C), according to which Jagan Nath agreed to give 0-9 Marlas of land to the contesting defendant provided the remaining land was recorded in his name as owner. Orders dated 21.4.1979 were also passed to this effect. But, however, there is nothing on record to prove that this compromise was ever acted upon or given effect to. This perhaps was for the reason that Assistant Collector, Una had no jurisdiction to entertain the application and pass any such order. 15. In the year 1987 the contesting defendant moved an application before the authority designated under Rule 27 i.e. A.C. Ist Grade, for correction of revenue entries on the ground that Jagan Nath was not a tenant on Khasra No.2692. In these proceedings Roshan Lal s/o Shri Jagan Nath appeared. Competent authority directed Jagan Nath to remain present in person, but, however, in spite of substituted service (publication) he chose not to appear. Consequently, competent authority twice called for the reports from the field. Inspection was carried out at the spot and it was so observed that both the plaintiffs and contesting defendant had 7 constructed shops. However, error in recording the plaintiffs to be tenants of the land in question occurred for the reason that shops constructed by the parties were adjoining to each other. Consequently, vide order dated 9.12.1987 (Ext.P-8) A.C. Ist Grade, directed “to enter Khasra Nos. 2689 and 2691, kitas -2 measuring 0-00-49 hectare in the name of Shri Jagan Nath, “Gair Marusi” as before in old entries and Khasra Nos. 2688 and 2692, kitas 2 measuring 0-04-33 hectare in the name of the owner as self cultivation instead of Shri Jagan Nath, Gair Marusi, from 1988 (Rabi)”. 16. Based on this order entries in the revenue record were carried out and as per jamabandi for the year 1988-89 (Ext.P-5) contesting defendant was shown to be owner of the land. Ext.P-5 thus cannot be a stray entry. It is based on an order passed by the competent authority. Now no statutory remedy was exhausted by the plaintiffs. The order passed on the basis of compromise was not given effect to. Further as has been rightly held by the lower appellate Court that Assistant Collector, Una had no jurisdiction to take cognizance of the earlier application and pass orders thereupon. 17. While passing the impugned order the competent authority did not carry out any procedural irregularity or illegality and at all times Jagan Nath was afforded sufficient opportunity of defending himself. Order passed by the A.C. Ist Grade cannot be held to be a nullity. Under Rule 29 he had sufficient powers to determine the dispute pertaining to the status of the tenant on the suit land. He alone had jurisdiction to decide the same. 18. In this background the ratio of law laid down by the coordinate Bench of the Punjab and Haryana High Court in Resham Singh 8 and others vs. Paul Singh and others, 1969 PLJ 207 and Onkar and others vs. Birbal and others, 1987 PLJ 155 does not apply 19. Apex Court in Durga (deceased) and others vs. Milkhi Ram and others, 1969 PLJ 105, has held as under:- “Whether the earlier revenue entries were changed in the later revenue entries and the change was effected without any mutation and there was no order of the revenue authorities showing how the change was made, held, although the presumption (under Section 44 of the Punjab land Revenue Act) would be in favour of the later entries but that presumption was a rebutable one and it would stand rebutted by the fact that the alteration in the later entries was made unauthorisedly or mistakenly, there being no material to justify the change of entries.” 20. The aforesaid proposition of law cannot be disputed, but, however, in the instant case such presumption stands rebutted. 21. The aforesaid view has been reiterated by the Apex Court in State of Punjab vs. Vishkarma and Company, (1993) Suppl. 3 SCC 62, Harish Chander and others vs. Ghisa Ram and another, (1981) 1 SCC 431, and Sir Bhimeshwara Swami Varu Temple vs. Pedapudi Krishna Murthi and others, AIR 1973 SC 1299. 22. Substantial questions of law are answered accordingly. The first Appellate Court has correctly appreciated the material on record. No illegality, infirmity or perversity can be said to have been committed by the Court below. Consequently, appeals filed by the plaintiffs stand dismissed. 22nd September, 2010 (Sanjay Karol) (C) Judge.