IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A. No. 217 of 1997 Judgment reserved on 14.9.2010 Decided on: 7 . 10.2010 Smt. Nankai and others ……..Appellants Versus Rakha and others ……Respondents. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellants : Mr. N.K. Thakur Advocate. For the respondent s : Mr. Himat Negi, vice Mr. Ajay Sharma, Advocate. ____________________________________________________ SURINDER SINGH, J (Oral) This regular second appeal was admitted on the following substantial questions of law:- 1. What is the effect of mis-construction and misinterpretation of the document Ext. D2 whereby the appellant was recorded in possession as tenant way back in the year 1968? 2. Whether the presumption of truth attached to Jamabandi has been rebutted in the instant case? 3. Whether the learned Courts below have the jurisdiction to entertain and decide the present controversy more specifically in view of the Full Bench decision reported in 1991(2) SLC 221. Chhuniya Devi versus Jindu? 4. Whether mutation Ext. P11 conferring the proprietary rights in favour of the appellant could be assailed in the Civil court without resorting to the appropriate remedy under the H.P. Tenancy and Land Reforms Act? Whether reporters of the Local papers are allowed to see the judgment? yes - 2 - 5. Whether the impugned judgments are vitiated by mis- reading and mis-interpreting the oral as well as documentary evidence? 6. Whether the suit for declaration in the present form is competent? 7. What is the effect of revenue entries contained in Ext. P3 i.e. khasra Girdawari preceding the Jamabandi for the year 1979-80, Ext. P6 and the preparation of the Jamabandi on the basis of the khasra Girdwari is perfect and valid showing the appellant as tenant? 2. The facts in brief, giving rise to the present Regular Second Appeal, can be stated thus. Respondents, hereinafter referred to as the plaintiffs, had filed a suit for declaration against the predecessor-in-interest of the appellants named Babu Ram qua the suit land declaring themselves to be the owners in possession thereof, alleging that the defendants have no right, title or interest in the same. It was also pleaded that entries of the defendants showing Babu Ram as absolute owner qua 7/8th share and mortgagor regarding 1/8th share of the suit land, in the Missal Haquiyat Istemaal was wrong and illegal, with a consequential relief of injunction. 3. The case of the plaintiffs has been that the suit land was owned and possessed by the plaintiffs Rakha and Milkhi and one Smt. Indro, the predecessor-in-interest of plaintiffs Chhotu Ram and Harmesh. Said Smt. Indro had mortgaged her 1/4th share of the land with the defendants and remaining 1/4th with Smt. Ram Rakhi. Milkhi Ram plaintiff also mortgaged his share with defendant Babu Ram. The mortgages - 3 - aforesaid created by Indro and Milkhi Ram were lateron redeemed in the year 1969. Thereafter Milkhi Ram and said Smt. Indro entered into possession of the suit land to the extent of 3/4th share whereas Rakha Ram remained in possession of 1/4th share as before. It was also averred that the defendant in collusion with the revenue staff procured the entry in his name as tenant to the extent of 1/4th share of plaintiff Rakha whereas he was never inducted as tenant by any of the owners. Thus, in the year 1982, defendant Babu Ram filed a suit against the plaintiffs on the plea that he was a tenant over the suit land but later he withdrew the suit on 24.4.1987. In the year 1983-1984 the consolidation proceedings were going on. It is alleged that the defendant during that time, in collusion with the Consolidation Staff, on the back of the plaintiffs procured the entries in his name with respect to the whole of the suit land as owner and 1/8th share of the suit land was shown with the plaintiffs as mortgagee. Plaintiffs alleged these entries to be wrong and illegal, thus coming to know about it, filed the suit for declaration and injunction, as aforesaid, since the defendants had threatened their possession on the basis of wrong revenue entries. 4. Defendant Babu Ram offered a strong resistance of the suit and questioned the maintainability suit filed by the plaintiffs and also took up the objection of limitation, estoppel and jurisdiction. On merits, he asserted his possession over the suit land even before the mortgage in his capacity as non- occupancy tenant. Although he admitted about the redemption of the mortgages, as aforesaid but maintained that he continued in - 4 - its possession as a tenant as before and he became owner by way of operation of law by virtue of H.P. Land Reforms and Tenancy Act, 1972. Alternatively also took up the plea of adverse possession. 5. On the pleadings of the parties the learned trial Court framed the following issues:- 1. Whether the plaintiff is owner in possession of the suit land? OPP 2. Whether the defendant is tenant of the suit property as alleged and has thus became owner of the suit land? OPD 3. Whether the suit is not maintainable in the present form? OPD 4. Whether the suit is not within time? OPD 5. Whether the court has o jurisdiction? OPD 6. Relief. 6. The following additional issues have been framed on 11.2.1991 and 8.3.1991 respectively. 1. Whether plaintiffs have become owner of the suit land by way of adverse possession in alternative as alleged? OPP 1-A Whether the defendant has become owner by way of adverse possession? OPD. 7. The learned trial Court, after a complete trial of the case held that out of the total 8 shares, the plaintiffs are the owners in possession of six shares in the suit land as per the mutation dated 4.3.1989 and the defendant was held to be the tenant of the land belonging to the share of Rakha to the extent of two shares. The suit of the plaintiff was held to be maintainable and with in time and the findings of the learned - 5 - trial Court with respect to other issues were returned against the defendants thus the suit was partly decreed. 8. Both the parties felt dissatisfied by the impugned judgment and decree passed by the learned trial Court and filed their separate appeals. The learned first Appellate Court dismissed the appeal of defendant Babu Ram whereas appeal of the plaintiffs was allowed to the extent that Babu Ram defendant was not in possession of the suit land as a tenant over two shares belonging to Rakha and findings of the learned trial Court to that extent were set aside. Thus suit of the plaintiffs was decreed qua remaining two shares, they were declared owners in possession of the entire suit land and defendant Babu Ram was restrained from causing any interference in their possession. Hence the present appeal is by the defendants. 9. Rakha plaintiff had died during thependency in this appeal and his LRs were brought on record. Shri N.K. Thakur, learned counsel for the appellants vehemently argued that the learned trial Court had mis-construed the document Ext. D2 Rapat Rojnamcha whereby the defendant/appellant was got recorded as tenant and further contended that the redemption of the mortgages by Indro and Milkhi did not effect tenancy of the defendant in any manner. He also ventilated that the presumption of truth is attached to the Jamabandies wherein defendant was reflected as the tenant and the jurisdiction of the Civil Court is barred as the conferment of the proprietary rights is automatic and it could not have been interfered with by the learned trial Court. - 6 - 10. Contra to the above arguments, learned counsel for the plaintiffs have supported the judgment and decree passed by the Courts below and contended that there are concurrent findings of facts qua six shares of the plaintiffs which cannot be interfered with in second appeal and with respect to two shares the first appellate Court had meticulously scanned the evidence and came to the correct findings. It is also argued that before the mortgage, the plaintiffs were in possession and after its redemption, they came in possession of the suit land the entry in Rojnamcha was collusive and without any basis, therefore, it was rightly ignored. Hence the civil Court’s jurisdiction is not barred. 11. I have given my thoughtful consideration to the rival contentions of the parties and have carefully gone through the record of the courts below. 12. A perusal of the Jamabandi Ext.P1 for the year 1986-1987 shows that Babu Ram was reflected as owner of the entire land and Rakha plaintiff as the mortgagee under him to the extent of 1/8th share and the column of possession shows Babu Ram in its possession. But these entries were ordered to be corrected vide order Ext. P8 passed in appeal by the Settlement Officer Consolidation. Thus mutation No. 12 Ext. P11 dated 4.3.1989 was sanctioned and the correction was accordingly made. Thus muttion does not show that Babu Ram defendant was ever conferred proprietary rights qua two shares of Rakha. - 7 - 13. It is absolutely clear from the record and also an admitted position that the plaintiffs have been owners of the suit land. They had mortgaged the land, as aforesaid later it was redeemed in the year 1969 which is not in dispute at all. After its redemption, plaintiffs came in its possession. The case of defendant Babu Ram has been that even before its mortgage, he was inducted as tenant over the entire suit land which is devoid of any merit. The tenancy is not unilaterally created but it is bilateral inter se the tenant and the land lord by an agreement. There is no evidence on record to show as to who had inducted defendant Babu Ram as tenant over the suit land. His claim is on the entry in the Jamabandi Ext. P6 for the year 1979-80 wherein his possession found mentioned as a non- occupancy tenant qua share of Rakha besides mortgagee. But the Jamabandi for the year 1986-87 (Ext. PA) reflects khasra No. 306 and 253 as banjar kadeem. Earliler this entry was the same as in the jamabandi for the year 1976-77 which was found to have been made on the basis of previous jamabandi. The foundation of the claim of the defendant with respect to the tenancy qua the share of Rakha is the copy of Rojnamcha dated 9.4.1968 Ext. D2 which was carried in khasra Girdwari on 9.6.1968 (Ext. P2) wherein Babu Ram defendant has been shown to be a mortgagee and non-occupancy tenant qua the share of Rakha in the suit land and this entry was repeated in the subsequent Jamabandies. But the defendant has not been shown as non-occupancy tenant qua other six shares of the suit land of other plaintiffs. The jamabandi Ext. P1 aforesaid - 8 - reflects Babu Ram mortgagee qua 1/8th share and remaining 7/8th share of Rakha Bila Rahin but did not show him as non- occupancy tenant qua the suit land which was joint inter se the owners. This jamabandi prepared during the settlement is factually incorrect. 14. Thus, against this background learned first appellate court rightly concluded that defendant Babu Ram did not possess and cultivate a particular portion of the suit land as tenant which was jointly owned and possessed by the plaintiffs. Be it stated that entry of Babu Ram defendant was shown as a tenant under Rakha in the year 1979-80 (Ext. P6), but the entry of Rapat Roj Namcha Ext. D2 although shows a change in the Girdwari of the suit khasra but it has not been authenticated/verified by the Field Kanungo even while making its entry in the khasra girdwari and it also does not show that it was plaintiff Rakha at whose instance it was so agreed to be changed in favour of the defendant. This paper entry qua tenancy appearing in the Girdwari Register is not free from suspicion and has also not been incorporated in accordance with the revenue procedure. Thus plea of the defendant that he had been in possession of the land even prior to the mortgage, on the strength of the said un-authenticated record prepared, bye- passing the established revenue procedure, is not correct. The oral statements in support of the tenancy are self-contradictory thus, cannot be believed. The adverse possession in alternative claimed by the defendant aforesaid also stands not proved. - 9 - 15. On scrutiny of the judgment by the learned Court qua six shares and reversal of its findings qua two shares by the appellate Court while upholding the judgment and decree qua 6 shares and holding the plaintiffs as joint owners in possession of the suit land and restraining the defendants from causing any interference in the suit land is legally and factually sustainable. Since I did not find any illegality therein, therefore, the appeal filed by the defendant has no merit. Further, I do not find that in the circumstances above the jurisdiction of the civil Court is debarred on the strength of Chhuniya Devi versus Jindu 1991 (2) SLC 221 because while incorporating the entry of the defendant as tenant, no fundamental procedure was adopted. Further, a cloud is cast by such an entry on the rights of the plaintiffs. Thus the assumption of the jurisdiction of the Civil Court was apt and correct. 16. For the reasons above, no error was committed by the learned first appellate court in disbelieving the Roj namcha Rapat Ext. D2 and further the tenancy reflected qua the share of plaintiff Rakha in the subsequent Jamabandies, as it was not incorporated in accordance with law. Therefore, the presumption of truth attached to such an entry stands rebutted. Further the Full Bench decision rendered in Chhuniya Devi’s case (supra) is not a bar to the jurisdiction of the Civil Court to try and determine the matter in hand on the perusal of the record. I also do not find any mis-reading and misinterpretation in the impugned judgment of the learned first - 10 - appellate Court and further the mutation Ext. P11 is not with respect to the conferring of proprietary rights on the defendant but it was accepted and attested pursuant to the orders of the Settlement Officer for correcting the wrong entries which were incorporated in favour of Babu Ram in the Missal Haquiat for the year 1987-88. 17. The substantial questions of law are accordingly answered. The appeal merits dismissed hence is accordingly dismissed. Parties to bear their own costs. October 7, 2010. (Surinder Singh),J. (cm)