IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 351 and 352 of 1999 Date of Decision: 15th November, 2010 __________________________________________________________ RSA No. 351 of 1999 Barkha Devi ….Appellant. Versus Kuldep Singh & others ….Respondents. RSA No. 352 of 1999 Bidhi Chand & another …..Appellant Versus Kuldip Singh and others …..Respondents ___________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 No ___________________________________________________________ For the Appellants: Mr. K.D. Sood, Advocate For Respondents: Mr. Ajay Sharma, Advocate __________________________________________________________________ Dev Darshan Sud, J (oral). Both these appeal are being disposed of by this judgment as they arise out of the same facts. Suit for possession of land comrpised in Khata Khatauni No. 35, 129, Khasra Nos. 558 and 559 measuring 0-04-35 Hects situated in Mohal Jakhuni, 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes 2 mauja Dehra was instituted by S/Shri Kuldip Singh and Kuljit Singh. 2. On the pleadings of parties, the learned trial Court settled six issues with two additional issues claimed by the defendants. The crucial issue was whether the plaintiff was entitled to the possession of suit land and inter-linked with this was another issue whether Premu and thereafter his successors- in-interest had become owners of the suit land by way of adverse possession. In the additional issues claimed, the jurisdiction of the Civil Court to try the suit was also pleaded and defendant Nos. 3 and 4 set up the defence of bonafide purchaser for valuable consideration. These issues were taken up together for determination by the learned trial Court. 3 On the issue of adverse possession, there was no difficulty in deciding as the learned Courts below have not found any pleading or evidence on record to establish this plea. On the question of ownership, the learned trial Court considered the evidence of parties in detail and held that it was undisputed that Shri Jai Singh predecessor in interest of the plaintiffs was the owner in possession of the suit land. The defence set up by Premu (defendant since deceased) that he was tenant on the suit land and thereafter acquired properitory rights under the Himachal Pradesh Tenancy and Land Reforms Act was rejected on the ground that there was no proof of tenancy or agreement by Jai Singh with Premu and that the mutation conferring title under the Act was not sufficient to establish ownership as it was attested by the Assistant Collector IInd Grade who was not competent to do so in law. The Court held that an inquiry has to 3 be made by the revenue officer, who is of the rank of Tehsildar and only he is competent to pass orders granting proprietory rights. Moreover, no inquiry etc. as required was proved/established on record. The suit was accordingly decreed. On the question of bonafide purchase, the Court again held that Premu having no title could not sell the land to Bahadur Singh and thereafter to Bidhi Chand and Kuldeep. 3. Two appeals were preferred from this judgment and decree. One by the successors-in-interest of Premu and second by defendants No. 3 and 4 challenging the judgment on various grounds. 4. The learned District Judge, tried the appeals together, dismissed both the appeals and re-affirmed the findings of the learned trial Court by reappreciating the entire evidence. The learned Court did not find any substance in the plea set up by the defendants with respect to adverse possession as also creation of tenancy in favour of Premu. The Court held that the so called tenancy came to be recorded for the first time when Ext.P2, which is a Rapat Roznamcha Vakyati, was recorded on 26.3 .1987 as signed by the Patwari of Circle Dehra. The document recites that a report was made by Premu son of Sidhu Ram to the Patwari that he is the tenant on the suit land since Kharif 1974. There is an entry in red ink on the side noting entry No. 193 dated 13.10.1976 but this does not explain how it was noticed by the Patwari in 1987. With respect to the mutation, conferring title, the Court again affirmed the findings of the learned trial Court by holding that there was no regular inquiry made by the revenue authorities, there was no material to show 4 the basis on which this mutaiton was attested. In the totality of the circumstances, the Court holds that Ext.P2 had no foundation or basis was unilateral in nature and Ext.D1 was itself illegal being without any foundation in law as it was attested by an Officer who is not competent in law to do so. 5. Another aspect urged in support of the creation of tenancy was that late Shri Jai Singh had entered into some kind of compromise with Premu and at that time it was found that he was tenant of the entire suit land. This plea was held by the Court to be without any foundation. No compromise was proved on record. The plea of the other defendants on the ground of bonafide purchasers was also negative after detailed consideration of the evidence on record. The Court holds that on the statement of DW1 Barkha the only conclusion was that defendant Nos. 3 and 4 Bidhi Chand and Kuldip had purchased the suit land on 21.3.1990 when there was no house in existence and it was purchased during the pendency of the suit. In these circumstances, they were not entitled for the benefit of bonafide purchasers as they were aware that the suit was in fact pending with respect to this property. The sale made to Bahadur Singh had not been proved on record of the case. 6. Both these appeals were admitted on two substantial questions of law: 1. Whether the Court below has misread and misconstrued the basic documents of title Ext.DW1/A the sale deed and the original documentary evidence especially the statement of PW1 Kuldip Singh, DW1 Barkha, DW4 Bidhi Chand 5 and the documents Ext.P-2 Rapat Roznamcha, Ext.P3 and Ext.P4 jamabandis, and mutation DW-1? 2. Whether the jurisidction of Civil Court is barred in HP Tenancy and Land Reforms Act and the suit as framed was not maintainable in view of the judgment of the Full Bench in 1991 (1) Sim. Law Cases 223? 7. Adverting to the first question, what I find is that the appellants reteriate and urge all questions on concluded facts which had been considered in extenso by both the Courts below. Adverting to the document of title Ext.DW1/A all that I need say is that this document has to be read in the context of Mark X coupled with the title of Premu. Once it is established on record that Premu had no title to the land, he could not sell the land. Without having any title Ext.DW1/A even though a registered sale deed does not prove the case of the defendants. The statement of DW1 Barkha does not establish creation or continuation of tenancy. She had deposed with respect to the compromise having been entered into between Jai Singh and Premu, which has not been proved on record. The statement of DW4 Bidhi Chand also does not establish the title of defendant Nos. 3 and 4 or tenancy of Premu. Rapat Roznamcha Ext.P2, Ext.P3 and Ext.P4 the jamabandies are nothing but revenue records and mutation Ext.D1 also does not advance the case of the appellants. The foundation of incorporating these entries has not been proved. Mutation has also not been proved to have been passed by following the due process of law and cannot be treated perse as a document of title which would be true of all revenue records. This question is therefore decided against the appellants. 6 8. On the second question as to whether the jurisdiction of the Civil Court is excluded, both the Courts below have rightly considered that the order of grant of proprietory rights has been made by an officer, who is not competent in law to do so and an inquiry in accordance with law as envisaged by the Himachal Pradesh Tenancy and Land Reforms Act has not been established on record. In other words, a mere revenue document, produced, would not culminate the grant of proprietory rights. The learned Appellate Court has noticed in detail the notification issued by the State conferring such powers to the Teshildar only. This question is thereafter answered against the appellants. Resultantly both the appeals are dismissed. All interim orders shall stand vacated. Parties to bear their own costs. (Dev Darshan Sud) Judge November 15th, 2010(ms)