1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 204 of 2002. Judgment reserved on 28.10.2011. Date of decision: 24.11.2011. Ram Piari & ors. …Appellants. Versus Devi Ram. ....Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 Yes For the Appellants : Mr. Ramakant Sharma, Advocate. For the Respondent : Mr. Balwant Singh, Advocate vice Mr. K.D.Sood, Advocate. Kuldip Singh ,Judge . The appellants are the successors of defendant, who has suffered a decree of permanent prohibitory injunction in Civil Appeal No. 94 of 1995 dated 23.04.2002 passed by District Judge, Bilaspur, reversing judgment, decree dated 29.04.1995 passed by Sub Judge Ist Class, Bilaspur, in Case No. 8/1 of 1992. 2. The facts, in brief, are that respondent had filed a suit for permanent prohibitory injunction against Roshan Lal on the allegations that he is owner in possession of land comprised in Khasra No. 157, measuring 9 biswas, situated at village Dagrahan. Roshan Lal had moved an application for correction of revenue entry before Assistant Collector 2nd Grade which was decided by Assistant Collector Ist Grade 1 Whether reporters of Local Papers may be allowed to see the Judgment ?Yes 2 on 19.11.1991. It was held that Roshan lal was tenant under Sukhia, the previous owner. The order dated 19.11.1991 is wrong, illegal. No tenancy was created in favour of Roshan Lal. The respondent had been cultivating the suit land, on 07.02.1992 Roshan Lal threatened to dispossess the respondent. Therefore, the suit was filed. 3. The suit was contested by Roshan Lal by filing written statement, who took preliminary objections of maintainability, jurisdiction, deficiency of court fee, locus-standi, limitation and necessary parties. On merits, it was pleaded that he filed an application for correction of revenue entry as he was inducted as tenant by previous owner Sukhia in the year 1977. The sale deed dated 04.09.1986 in favour of respondent was the result of fraud, undue influence and misrepresentation as Sukhia never executed said sale deed in favour of respondent. The Assistant Collector Ist Grade announced the order dated 19.11.1991 in presence of respondent holding Roshan Lal as tenant on the suit land. Roshan Lal pleaded for dismissal of the suit. 4. The replication was filed and the contents of plaint were reiterated. On the pleadings of the parties, the following issues were framed :- 1. Whether the plaintiff is owner in possession of the suit land alleged? OPP. 2. Whether the plaintiff is entitled for the relief of permanent injunction as prayed? OPP. 3. Whether the suit is not maintainable in the present form? OPD. 4. Whether this court has no jurisdiction to hear the suit? OPD. 3 5. Whether correct court fee has not been affixed?OPD. 6. Whether the plaintiff has no cause of action? OPD. 7. Whether the suit is barred by limitation? OPD. 8. Whether the suit is bad for non-joinder of necessary parties? OPD. 9. Whether defendant was inducted as tenant by Sukhia on payment of rent `10/- as alleged in para No.2 of the written statement? OPD. 10. Whether sale deed dated 4.9.1986 executed in favour of the plaintiff is result of undue influence and mis-representation as alleged? OPD. 11. Relief. The issues No. 3, 5 to 8 were not pressed. Issues No. 2,10 were answered in negative, issue No.1 partly in affirmative and issues No.4 and 9 in affirmative and the suit was dismissed by Sub Judge on 29.04.1995. The District Judge accepted the appeal on 23.04.2002 and decreed the suit of respondent for permanent prohibitory injunction, hence second appeal which has been admitted on following substantial questions of law:- 1. Whether the learned lower appellate court is right in not taking into consideration the law laid down by this Hon'ble Court wherein it has been held that the order passed by the revenue authorities under the H.P. Land Revenue Act is not assailable in Civil Court in view of the provisions of Section 171 of the H.P. Land Revenue Act? 2. Whether the impugned judgment and decree is the result of complete misreading, misappreciation of documents Exts. D2 to D14 as well as statement of DW4 who had inducted the appellant as tenant over the land in dispute? 4 5. I have heard learned counsel for the parties and have also gone through the record. It has been submitted on behalf of the appellants that the order passed by Assistant Collector Ist Grade on 19.11.1991 is not assailable before the Civil Court in view of Section 171 of the H.P.Land Revenue Act, 1954. The District Judge has mis- read, mis-appreciated the documents Ex. D-2 to D-14 and statement of DW-4, who inducted Roshan Lal as tenant over the suit land. The learned counsel for the respondent has submitted that the District Judge has rightly appreciated the evidence on record. The Civil Court has jurisdiction to determine the dispute between the parties and the defence projected by appellants is not beyond the purview of Civil Court under Section 171 of the H.P. Land Revenue Act. The learned counsel for the respondent has prayed for dismissal of the appeal. 6. Roshan Lal had filed correction of revenue entry application against Devi Ram and Sukhia regarding the land comprised in Khasra No.157 claiming him to be the tenant. This application was allowed vide order dated 19.11.1991 Ex.C-1(Ex.D-1) by Assistant Collector Ist Grade. It has been contended that the order passed by revenue Authority under the Himachal Pradesh Land Revenue Act is not assailable in Civil Court. In Chuhniya Devi versus Jindu Ram 1991(1) SLC 223, one of the questions which was referred to the Full Bench was whether the Civil Court has jurisdiction in respect of the order made by the competent Authority under the Himachal Pradesh Land Revenue Act, 1954. The Full Bench answered the reference and held that an order by competent Authority under the Himachal Pradesh 5 Revenue Act, 1954 is open to challenge before a Civil Court to the extent that it relates to matters falling within the ambit of Section 37 (3) and Section 46 of the Act. Section 46 provides that if any person considers himself aggrieved as to any right of which he is in possession by an entry in a record of rights or in periodical record, he may institute a suit for declaration of his right under Chapter-VI of the Specific Relief Act, 1963. 7. The Sub-section (1) of Section 37 provides that if during the making, revision or preparation of any record or in the course of any inquiry under Chapter IV a dispute arises as to any matter of which an entry is to be made in a record or in a register of mutations, a Revenue Officer may of his own motion or on the application of any party interested and after such inquiry as he thinks fit, determine the entry to be made as to that matter. The sub-section (2) further provides that Revenue Officer shall by order direct that, that person be put in possession thereof, and that any entry in accordance with that order be made in that register, under sub-section(3) direction given by Revenue Officer under sub-section (2) is subject to any decree or order which may be subsequently passed by any Court of competent jurisdiction. 8. Thus, it cannot be said that the order passed by the Revenue Officer for correction of entry is beyond the purview of Civil Court. On the contrary, such order is subject to decree of the Civil Court. The Civil Court has the jurisdiction to determine the dispute raised by respondent by filing the suit. The decree passed by the District Judge is not without jurisdiction and not hit by Section 171 of 6 the H.P. Land Revenue Act. The substantial question of law No.1 is decided against the appellants. 9. On behalf of the appellants under substantial question of law No.2, it has been submitted that documents Ex.D-2 to D-14 and statement of DW-4 have been mis-read and mis-appreciated by the District Judge in decreeing the suit. Ex. D-1 is the copy of khasra- girdawari of Khasra No. 157 from November, 1978, to the year 1985. In that till March, 1981, Sukhia has been shown owner in possession over the land comprised in Khasra No. 157. In Rabi 1982, there is pencil entry showing cultivation by Roshan in the capacity as non- occupancy tenant. Ex. D-2 to Ex. D-14 are the receipts showing payment of `10/- to Sukhia by Roshan Lal regarding land measuring 9 biswas, situate at village Dagrahan. The receipt Ex. D-2 is dated 10.10.1977 and receipt Ex. D-14 is dated 16.08.1987. Ex. P-1 is the jamabandi 1989-90 showing Devi Ram owner in possession of land comprised in Khasra No. 157. 10. Ex. P-2 is the jamabandi 1984-85 showing Sukhia owner in possession of land in dispute. In remarks column in Ex. P-2, it has been stated that vide mutation No. 536 of sale , Devi Ram has become owner. Ex. P-4 is the copy of khasra-girdawari from 1985 to 1990 showing Sukhia owner in possession of the suit land. There is red ink entry also on this document referring to the order dated 14.10.1986 of Assistant Collector 2nd Grade ordering correction in favour of Roshan Lal and order dated 22.10.1986 of the Collector that the order of the Assistant Collector 2nd Grade dated 14.10.1986 has been stayed. Ex. P-5 7 is the copy of mutation No. 536 of sale dated 16.12.1986 by Sukhia in favour of Devi Ram of the suit land. Ex. PB is the copy of writing dated 07.10.1986 indicating delivery of possession of the suit land in favour of Devi Ram. This document bears signatures of Roshan Lal. Ex. PA is the sale deed of the suit land by Sukhia in favour of Devi Ram. 11. DW-4 Sukhia has stated that Roshan Lal was inducted tenant 15 years ago on the suit land on payment of `10/- per annum, his statement was recorded on 08.04.1993. DW-4 Sukhia has brought on record receipts Ex. D-2 to D-14. He has stated that he has not sold the suit land to Devi Ram. Roshan Lal is his tenant. In cross-examination, he has stated that he cannot identify his signatures on Ex. D-2 to Ex.D-14 properly. He does not know by whom Ex. D-2 to Ex. D-14 were written and at which place. DW-1 Roshan Lal has stated that he has been coming as tenant on the suit land for the last 15 years on payment of `10/- per annum. He was inducted tenant by Sukhia. The statement of DW-1 was recorded on 08.04.1993. He has stated that in the year 1977 he entered into an agreement to sell of the suit land with Sukhia during consolidation,but since during that period sale deed could not have been executed, therefore, Sukhia agreed to take `10/- per annum from him. A writing was executed at Bilaspur from petition writer for inducting him as tenant. The writing was witnessed by attesting witnesses. He did not inform the Patwari of his induction as tenant. 12. DW-4 Sukhia in whose statement Ex. D-2 to Ex. D-14 have been brought on record has stated that he does not know, who had 8 written these receipts and at which place, he could not identify his signatures on these receipts. DW-1 Roshan Lal has not referred to these receipts. Thus, receipts Ex. D-2 to Ex. D-14 have not been proved and, therefore, appellants cannot take any benefit of these receipts. DW-1 Roshan Lal has stated that he was inducted as tenant on suit land by Sukhia on payment of `10/- rent per annum. He has stated that a writing was executed when he was inducted as tenant on the suit land, but no such writing has been placed on record. He has stated that he never informed the Patwari halqua of his induction as tenant on the suit land. It is surprising that when Roshan Lal was allegedly inducted as tenant in the year 1977 on the suit land why he did not inform the authorities regarding factum of his induction as tenant on the suit land. The stray entries in revenue record in favour of Roshan Lal in absence of proof of tenancy of Roshan Lal are of no help to appellants. The Assistant Collector Ist Grade vide Ex. C-1(Ex. D-1) wrongly held Roshan Lal as tenant under Sukhia of the suit land. 13. DW-4 Sukhia has denied even the sale deed Ex. PA in favour of Devi Ram. DW-4 had already washed-off his hands and had no interest in the suit land when his statement was recorded on 08.04.1993. He had already sold the suit land to Devi Ram vide Ex. PA on 04.09.1986. He had no interest in the suit land on the date he made the statement in the Court. The appellants have miserably failed to prove tenancy of Roshan Lal on the suit land. There is enough evidence on record that earlier Sukhia was owner in possession of the suit land, he sold the suit land to Devi Ram vide Ex. PA and handed over the 9 possession of the suit land in favour of Devi Ram. The handing over of possession of suit land is further recorded in writing Ex. PB dated 07.10.1986. The District Judge has rightly appreciated the material on record including Ex. D-2 to Ex. D-14 and statement of DW-4. There is no misreading and mis-appreciation of the evidence on record. There is no merit in the appeal. The substantial question of law No.2 is decided against the appellants. 14. In view of above discussion, the appeal fails and is accordingly dismissed with no order as to costs. ( Kuldip Singh ), November 24, 2011. Judge. (krt)