HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 412 of 2000 Reserved on: 13.8.2010 Decided on: 15.9.2010 Chandan Singh and others ………Appellants. Versus Kanshu (deceased) through LRs and others ………Respondents. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the appellants: Mr.Karan Singh Kanwar, Advocate. For respondents No.1(a) to 1(c) and 2 to 6(a): Mr.Neeraj Gupta, Advocate. V.K. Ahuja, J.: This is a regular second appeal filed by the appellant under Section 100 of the CPC against the judgment and decree, dated 5.6.2000, passed by the learned District Judge, Sirmour District at Nahan, vide which the judgment and decree passed by the learned Sub Judge, Court No.II, Paonta Sahib, dated 15.12.1999, decreeing the suit for permanent prohibitory injunction, as filed by the plaintiffs, and dismissing the counter claim filed by the defendants, was affirmed. 2. Briefly stated, the facts of the case are that the respondents, hereinafter referred to as the plaintiffs, filed a suit for permanent injunction in regard to the land detailed in the plaint measuring 62-12 bighas ______________________________ Whether reporters of local papers may be allowed to see the judgment? Yes. - 2 - situated in Village Manal, Tehsil Shillai, on the ground that they are owners in possession of the land in suit. They alleged that the defendants (present appellants) interfered in the suit land on 11.6.1994 and tried to take forcible possession without any right, title or interest, hence the suit for permanent injunction filed by them. 3. Defendants took up the plea that the predecessors-in-interest of the parties were non-occupancy tenants over the land measuring 109-17 bighas and the land measuring 18-2 bighas is entered in jamabandi for the Samwat 2003-2004 to 1962-63 in equal share. It was further pleaded that they are cultivating the land equally to the extent of 1/2 share each and the plaintiffs are in possession only 46 bighas of land out of the suit land. The defendants also claimed to be in possession of 19-3 bighas of land out of the suit land as per the family settlement/private partition and they pleaded that the revenue entries to the contrary are wrong and illegal. Defendants also set up a counter claim that they are owners in possession of the land in suit to the extent of 1/2 share and as such are entitled to a declaratory decree. 4. On the pleadings of the parties, the learned trial Court framed 9 issues. The main issues were in regard to the fact as to whether the plaintiffs are exclusive owners in possession of the suit land, which was decided in favour of the plaintiffs and as against the defendants and it was also held that the predecessors-in-interest of the parties to the suit land were not joint tenants in equal - 3 - share over the land measuring 127-19 bighas including the suit land and the counter claim set up by the defendants was dismissed. The suit for injunction was decreed in favour of the plaintiffs. On appeal by the defendants, the learned District Judge, vide his impugned judgment, dismissed the appeal filed by the defendants, hence the present appeal filed by them. 5. I have heard the learned counsel for the parties and have gone through the record of the case. 6. On appraisal of the record of the case, it is clear that the appeal was admitted on the following substantial questions of law: 1. Whether a person could acquire proprietary rights in respect of the Shamlat land under the provisions of Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953? 2. Whether the tenancy in favour of joint tenants could be bifurcated by the tenants amongst themselves without the consent of the land- lord? 3. Whether there has been mis-reading, mis- interpretation and mis-construction of the documentary evidence by the two courts below? 7. During the course of arguments, the learned counsel for the appellants did not address any arguments in regard to the question of conferment of proprietary rights in respect of Shamlat land or the tenancy could be bifurcated without consent of the landlord. On appraisal of the record of the case including the evidence led by the parties and the arguments advanced, both these questions do - 4 - not arise either from the pleadings or from the arguments raised at the time of hearing of the appeal. The only question, which arises for consideration is as to whether the predecessors-in-interest of the defendants were also the non-occupancy tenants of the suit land and as to whether both the courts below have not interpreted or have misread the evidence, including documentary evidence. Therefore, the submissions made during the course of arguments have to be confined to substantial question No.3 of law which is to the effect whether there has been any misinterpretation or misreading of the documentary evidence led by both the parties before the courts below. 8. A perusal of the judgment passed by the learned trial Court shows that there was rather only one stray entry in favour of the predecessor-in-interest of the defendants in Ext.D-1, copy of the jambaandi for the year 2003-04, which showed that the predecessors of both the parties were recorded to be joint tenants over the land measuring 109-17 bighas. In the next jamabandi for the year 1950-51, the total land is shown to be Shamlat land measuring 48-11 bighqas under the tenancy of predecessors of defendants and 41-6 bighas under the cultivatory possession of predecessors of the plaintiffs, which entries were repeated in the next jamabandi for the year 1954-55. However, in subsequent copies of the jamabandies, for the year 1991-92, and also in the jamabandi again for the year 1991-92 Ext.D-4, plaintiffs are shown to be the owners in possession of the land measuring 62-13 bgihas. Thus, - 5 - except the copy of jamabandi for the year 2003-04 wherein the predecessors-in-interest of both the parties are recorded to be joint non-occupancy tenants over the land measuring 109-17 bighas, there is no other jamabandi which shows the parties to be joint tenants over the land measuring 127-19 bighas. They were recorded as tenants over separate parcels of land, which comprised of Shamlat land as well as private land. Defendants pleaded private partition/settlement in between them but neither they alleged anything as to when it was effect, in whose presence it was effected and as to whether any documents were prepared at that time nor they led any specific evidence to prove these allegations made in the written statement. PW-1 Mehar Singh had further substantiated that the land was in cultivatory possession as shown in jamabandi for the year 1991-92 and he denied that their ancestors had divided their property. PW-3 Kanshu has also stated that the plaintiffs became owners of the suit land to the tune of 62 bighas which is in their possession on the basis of the orders of Compensation Officer. The defendants had failed to lead any cogent and reliable evidence that as to when the partition was effected, who were the witnesses to the same, as to whether any deed was prepared and which particular numbers were allotted to different parties. There are long standing entries in favour of the plaintiffs showing them to be in possession of the suit land. The copies of the mutations Ext.PX and Ext.PX/1 also prove that the proprietary rights were - 6 - conferred upon the plaintiffs. In such circumstances, when the copy of mutation duly proved this fact, there is no substance in the plea raised by the learned counsel for the appellant that the original order of conferment of proprietary rights should have been placed on record. Moreover, the defendants never challenged the change in the entries effected many years ago and they also never challenged the order passed by the Compensation Officer granting proprietary rights in respect of the land in favour of the plaintiffs as proved from the copies of the mutation. The order passed by the Compensation Officer had to be challenged within one year from the date of the order and the defendants never challenged the said order, which had become final. It is also on record that they were also conferred proprietary rights in respect of the same land but they have not placed on record the orders in their favour and rather disputed the entries in favour of the plaintiffs by only taking up a plea and setting up the claim for declaration, which claim was rejected by the learned Sub Judge and against that order, no appeal was preferred before the learned First Appellate court in regard to the dismissal of the counter claim. 9. Both the courts below have clearly discussed the oral as well as documentary evidence and no case is made out for reappraisal of the evidence though a brief reference has been made to the oral and documentary evidence and no infirmity could be pointed out in the said judgments passed by the courts below. It could also not be - 7 - pointed out that any material document was not considered by the courts below calling for an interference by this Court. 10. In view of the above detailed discussion, I hold that there is no merit in the appeal filed by the appellants which is dismissed accordingly. However, the parties are left to bear their own costs. Sept.15, 2010. (V.K. Ahuja), (TILAK) Judge.