IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 356/2005 Reserved on: 22.12.2008 Decided on: 6.1. 2009 Jaswant Singh. …Appellant. Versus Giano Devi and others. …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. No For the Appellant : Mr. Bhupinder Gupta, Senior Advocate with Ms. Charu Gupta, Advocate. For the Respondents : Mr. Ajay Sharma, Advocate. Rajiv Sharma, J. This Regular Second Appeal has been directed against the judgment and decree dated 5.5.2005 passed by the learned District Judge, Kangra at Dharamshala in Civil Appeal No. 79-N/XIII/02. Brief facts necessary for the adjudication of this Regular Second Appeal are that the predecessor-in-interest of Smt. Giano Devi i.e. Sh. Milkhi Ram (now deceased) filed a suit in the Court of Sub Judge-II, Nurpur, District Kangra to the effect that he was owner in possession of the land comprised in khata No. 178 (198 red), Khatauni No. 323, Khasra 1 Whether the reporters of Local Papers may be allowed to see the judgment? No 2 No. 2667 measuring 0-16-32 HM situated in Mohal and Mauza Palaakh, Tehsil Indora, District Kangra and the appellants-defendants (hereinafter referred to as ‘the defendants’ for convenience sake) had no concern or connection with the suit land and the entries showing them to be the tenants are illegal and against the facts. It was further pleaded by Sh. Milkhi Ram that the defendants are his sons, who had been residing earlier with him and helping him in cultivation for the last about 7-8 years. They have separated. He has planted an orchard over the suit land. The suit was contested only by the present appellant-defendant (hereinafter referred to as ‘the defendant’ for convenience sake). The trial court partly decreed the suit on 21.5.2002. The plaintiff preferred an appeal before the learned District Judge, Kangra. The learned District Judge allowed the appeal and decreed the suit in its entirety. This Regular Second Appeal has been directed against the judgment and decree dated 5.5.2005 passed by the learned District Judge. This Regular Second Appeal was admitted on the following substantial questions of law: 1. “Whether the Lower Appellate Court has misunderstood and misapplied the provisions of H.P. Tenancy and Land Reforms Act and H.P. Land Revenue Act and proceeded to determine that the status of defendant- appellant over the suit land was not that of a tenant by ignoring the long standing revenue entries prior to acquiring the title by Shri Milkhi Ram? 2. Whether Lower Appellate Court has acted with material illegality and irregularity in not relying upon the long standing revenue entries depicting the continuous possession of the defendant-appellant over the suit land to the extent of Shri Chuni Lal, who supported such entries? Has not the Lower Appellate Court recorded erroneous and perverse findings holding the status of defendant-appellant to be trespasser when the previous owner through whom Shri Milkhi Ram the original 3 plaintiff was deriving title admitted the status of defendant-appellant to be that of a tenant?” Mr. Bhupender Gupta, Senior Advocate has strenuously argued that the judgments and decrees passed by the courts below are not sustainable. Mr. Ajay Sharma, Advocate has supported the judgments and decrees passed by both the courts below. I have heard the learned counsel for the parties and perused the record minutely. It would be apt at this stage to note that Sh. Milkhi Ram died during the pendency of the suit before the learned Sub Judge. Smt. Giano Devi the present respondent-plaintiff was substituted in his place. She has appeared as PW-1. She has deposed that the suit land is about 4 kanals 4 marlas. She is the owner in possession of the same. Prior to that, her husband was owner in possession of the suit land. He had executed a will in her favour. Her husband has purchased the suit land about 40-50 years ago. He has planted an orchard on the suit land. Defendant No.2 is her son. Her husband during his life time gave 2-2 kilas of land to each of the sons. The entry of the suit land in favour of the defendants is illegal, null and void. In her cross-examination, she has shown her ignorance that Jaswant is in possession over the suit land for the last 20-22 years as tenant. She has categorically deposed that her husband has purchased the suit land from Chuni Lal, Parso and Durga about 40-50 years ago. He had filed a civil suit against Chuni Lal. She has denied that in the suit land Sh. Chuni Lal was found to be owner of the 1/3rd share. PW-2 Paras Ram has also stated about the possession of Milkhi Ram deceased over the suit land. He has deposed that after the death of Milkhi Ram, Giano Devi was in possession of the suit land. Shri Jaswant Singh has separated 4 from the family about 20 years ago. In his cross-examination, he has denied that Milkhi Ram has not executed any will in favour of Giano Devi. PW-3 Tilak Raj Katoch has scribed the will Ex.PW-3/A. PW-4 Sarav Singh, is one of the marginal witnesses to Ex.PW-3/A. He has identified his signatures on Ex.PW-4/A. He has deposed that Milkhi Ram had appended his thumb impression on the will after the same was written by PW-3. In his cross-examination, he has deposed that Milkhi Ram was resident of Indora. He has denied that on the instructions of Advocate Katoch he put his signatures over the will. Jaswant Singh has appeared as DW-2. He has deposed that he is in possession of the suit land. He has further deposed that prior to the year 1976, they used to cultivate the suit land jointly. He got separated after his marriage in the year 1976. He has further deposed that Sh. Chuni Lal (DW-1) had inducted him as tenant over the suit land. He thereafter started paying rent to Sh. Chuni Lal and he also started issuing receipts of the rent. Sh. Chuni Lal sold the land to Milkhi Ram, but the land remained with him. According to him, plaintiff Giano Devi had no right title or interest in any manner over the suit land. He has admitted that Sh. Milkhi Ram was his father. He has also admitted the factum of the will executed by his father in favour of his mother. The plaintiff has placed on record copy of decree sheet Ex.P-2 rendered in civil suit No. 190/86. The plaintiff has withdrawn the suit having been compromised with the defendant Sh. Chuni Lal. Ex. P-3 is the copy of decree sheet drawn in civil suit No. 25/85 whereby Milkhi Ram had filed a suit against his sons for declaration pertaining to other khasra numbers where the suit had been decreed in his favour. The plaintiff had also placed on record the copy of the judgment in civil suit No. 25/85 Ex.D-5 and in civil suit No. 190/86 Ex.D-6. Sh. Milkhi Ram was shown as Hissadari possession of 5 the suit land measuring 4 kanal 5 marlas for the year 1968-69 Ex.P-8. Ex.P-9 is the copy of mutation No. 31 whereby the mutation has been sanctioned in favour of Milkhi Ram. The copy of Missal Haquiat for the year 1975-76 is Ex. P-11. The same position has been reiterated in the subsequent jambandi for the year 1979-80. The defendant has placed on record copies of receipts Ex.D-1 to Ex.D-8. He has also placed on record copy of Missal Haquiat for the year 1975-76 Ex.DA, copy of jamabandi for the year 1979-80 Ex.DB, copy of Missal Haquiat for the year 1984-85 Ex.DC along with copy of jamabandi for the year 1991-92 Ex.DD, copy of order passed by the Assistant Collector 1st Grade in correction application Ex.DE, copy of order dated 31.3.1986 passed by LRO in demarcation application Ex.DF and copy of order dated 28.6.1983 in demarcation application passed by the Assistant Collector IInd Grade. The land comprised in khasra No. 2667 measuring 0-16-32 hectares was owned by Sh. Milkhi Ram husband of Giano Devi to the extent of 2/3rd share and Chuni Lal to the extent of 1/3rd share. This position can be gathered from the copy of jamabandi for the year 1975-76. He entered into an agreement to sell with Chuni Lal. Chuni Lal sold his 1/3rd share to Milkhi Ram. The factum of execution of the will in favour of Giano Devi is also not disputed by the defendant. The will Ex.DW-3/A has been executed in accordance with law. The same was scribed by PW-3 Tilak Raj Katoch. PW-4 Sarav Singh was the marginal witness of the will. Before the learned District Judge, the dispute was narrowed down to 1/3rd share claimed by Jaswant Singh. Jaswant Singh claimed himself to be inducted as tenant over 1/3rd share of Khasra No.2667 by Chuni Lal. The rent receipts have been issued by Chuni Lal. It is intriguing to note that the rent receipts have been placed on record by Chuni Lal though the 6 same were supposed to be produced and proved by Sh. Jaswant Singh. Chuni Lal has also admitted that only Milkhi Ram had been cultivating the suit land since the year 1964. He had relinquished the possession over the suit land in favour of Milkhi Ram. Accordingly there is no evidence on record that Chuni Lal had ever engaged Sh. Jaswant Singh or other defendants as tenants over the suit land. The civil suit filed by Milkhi Ram against his sons, including defendants was decreed in his favour. In view of this position the revenue entries could not be made in favour of Jaswant Singh. There was no occasion for Jaswant Singh to claim tenancy by treating Chuni Lal as owner since he had already sold the land to his father Sh. Milkhi Ram. Consequently, in view of the observations made hereinabove, there is no merit in this Regular Second Appeal and the same is dismissed. There will, however, be no order as to costs. 6.1. 2008 (Rajiv Sharma ), J. *awasthi*