1 1IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A.No. 124 of 1999. Date of decision: 29.08.2011. Sarwan. …Appellant. Versus Bhavtu & Ors. ....Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? No For the Appellant : Mr. Subhash Sharma, Advocate. For the Respondents : Mr. Dinesh Thakur, Advocate vice Nos. 1 (a) to 1(d) &2. Mr. N.S.Chandel, Advocate. Kuldip Singh , Judge (Oral). The plaintiff has filed second appeal against the judgment,decree dated 01.12.1998 passed by learned District Judge, Bilaspur, in Civil Appeal No. 34 of 1991 affirming judgment, decree dated 05.03.1991 passed by learned Sub Judge Ist Class, Ghumarwin, in case No. 129/1 of 1987. 2. The facts, in brief, are that appellant had filed a suit for declaration that he is owner in possession of the suit land, more specifically, described in the plaint to the extent of ¼ share and the respondents be restrained from interfering in his peaceful possession. It has been alleged that his father Ghurkan and uncles Lehnu, Dalipu and Kirpa were non-occupancy tenants of the suit land under Ram Singh and , later on, under his sons Onkar Singh and Kartar Singh. The 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes 2 revenue entries and mutation No. 136 dated 25.11.1967 are wrong and not binding on him. The prayer for permanent prohibitory injunction was also made. 3. The suit was contested by Lehnu predecessor-in-interest of respondents 1(a) to 1(d) and respondent No. 2 by filing written statement. They have taken preliminary objections of maintainability, limitation, jurisdiction, estoppel and court fee. On merits, they denied that appellant or his father ever remained in possession of the suit land. They alleged that they were four brothers and were residing in Village Dehlwin. Kirpa their brother left the village 45 years back. They took the suit land on tenancy from Ram Singh. On coming into force of Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953, they acquired proprietary rights over the suit land. They have also constructed their houses on the suit land. Ghurkan, father of the appellant, never remained in possession of the suit land. The other respondents admitted the claim of the appellant. The replication was filed by appellant and reiterated his stand. 4. On the pleadings of the parties, following issues were framed :- 1. Whether the plaintiff is owner in possession to theextent of 1/4th share of the suit land as alleged? OPP. 2. Whether the revenue entries qua suit land are wrong and illegal as alleged? OPP. 3. Whether the defendants are interfering over the suit land as alleged?OPP. 4. Whether the suit is not maintainable as alleged? OPD. 3 5. Whether the suit is time barred as alleged? OPD. 6. Whether this court has no jurisdiction as alleged? OPD. 7. Whether the plaintiff is estopped to file the suit as alleged? OPD. 8. Whether the suit is not properly valued as alleged? OPD. 9. Relief. 5. The issues No. 1 to 8 were decided in negative and the suit was dismissed by learned Sub Judge Ist Class on 05.03.1991. The learned District Judge dismissed the appeal on 01.012.1998, hence second appeal which has been admitted on following substantial question of law:- 1. Whether the admission to the claim of the plaintiff by defendants 3,4, 6 to 9 with respect to the joint tenancy can be legally ignored by the learned courts below? 2. Whether the unimpeachable evidence adduced by PW-2and PW-3 to the effect that the father of the plaintiff was making the payment of the rent with reference to the suit land, was not sufficient to hold the plaintiff as a joint tenant? 3. Whether a wrong mutation attested in favour of defendants 1 and 2 can divest the plaintiff from his vested joint tenancy right? 4. Whether the plaintiff is debarred to avail his claim of joint tenancy in case he is found in possession of some land by virtue of being an oustee under a relevant scheme? 4 5. Whether the order dated 24.8.1967 contained in Ex. D-5 passed by a Compensation Officer at the back of the plaintiff would bind the plaintiff whereby proprietary rights conferred on defendants 1 and 2? 6. I have heard the learned counsel for the parties and have also gone through the record. It has been submitted by learned counsel for the appellant that the Courts below have non-suited the appellant by considering the case of the appellant totally on grounds not available in law. The father of the appellant having land in other village is no ground to record a finding that father of the appellant was not a tenant on the suit land along with his brothers. PW-2 Ram Singh the then owner of the land admitted that father of the appellant was also tenant on the suit land. The respondents other than successors of defendant No.1 or respondent No. 2 have admitted the claim of the appellant and in the teeth of this position, the Courts below have erred in holding that neither appellant was tenant nor in possession of the suit land. 7. The learned counsel appearing on behalf of respondents 1(a) to 1 (d) and 2 has supported the impugned judgment, decree. He has submitted that the Compensation Officer vide order dated 24.08.1967 Ex. D-5 has granted proprietary rights in favour of Lehnu, Dalipu and Kirpa. The order dated 24.08.1967 clinches the whole dispute. The appellant has neither assailed the order dated 24.08.1967 by way of appeal under the H.P. Abolition of Big Landed Estates and Land Reforms Act, 1953, nor he has challenged in the suit order dated 24.08.1967. The revenue entries in view of order dated 24.08.1967 5 cannot be said to be wrong. 8. The substantial question of law No. 1 is taken up first for determination. It has been submitted by learned counsel for the appellant that defendants 3,4, 6 to 9 have admitted tenancy of father of appellant on the suit land. This admission has been ignored by the Courts below. Lehnu and Dalipu contested the suit and they have contested the claim of the appellant. The alleged admission of defendants 3,4, 6 to 9 is not binding on Lehnu and Dalipu, who contested the suit. The alleged admission of defendants 3,4,6 to 9 has otherwise been proved to be wrong in view of order dated 24.08.1967 Ex. D-5 vide which the Compensation Officer has granted proprietary rights of the suit land in favour of Lehnu, Dalipu and Kirpa. It appears defendants 3,4,6 to 9 have admitted the claim of the appellant for reasons best known to them, but their admission is not binding on defendants Lehnu, Dalipu, who have independently proved that neither appellant nor his father Ghurkan was tenant on the suit land. Thus, substantial question of law No.1 is decided against the appellant. 9. The substantial question of law No.2 is with respect to the statements of PW-2 Ram Singh and PW-3 Rama Rao. It has been submitted by learned counsel for the appellant that, admittedly, PW-2 Ram Singh, was the owner of the suit land. PW-2 has stated that he was the owner of the suit land, Ghurkan, Lehnu, Dalipu and Kirpa were his tenants. The proprietary rights were conferred in favour of Lehnu, Dalipu and Kirpa on 24.08.1967. The objections were filed before the Compensation Officer when the proceedings for grant of proprietary 6 rights were pending. In the objections Ex. D-4, it has not been stated that Ghurkan was also a tenant on the suit land. PW-2 Ram Singh made the statement on 16.11.1990 and on that date he had no subsisting interest in the suit land. Therefore, statement of PW-2 that Ghurkan was also a tenant on the suit land cannot be considered to be the statement made by a person having subsisting interest in the suit land and binding on Lehnu and Dalipu, who have independently proved that Ghurkan was not a tenant on the suit land. PW-3 Rama Rao has stated that the suit land used to be cultivated by Dalipa, Kirpa, Lehnu and Ghurkan. He has nowhere stated that Ghurkan was also inducted as a tenant on the suit land by Ram Singh. The tenancy is a creation of contract which is to be pleaded and proved. The vague statement of PW-3 that Ghurkan, Lehnu, Dalipu and Kirpa used to pay ¼ of the produce to Ram Singh does not prove the tenancy in favour of Ghurkan. The two Courts below have rightly appreciated the statements of PW-2 and PW-3 and other evidence on record. It cannot be said that Ghurkan was also a tenant on the suit land. The substantial question of law No. 2 is decided against the appellant. 10. The mutation does not confer any title. The mutation No.136 dated 25.11.1967 Ex. D-1 has been attested on the basis of order dated 24.08.1967 of the Compensation Officer and, therefore, it cannot be said that mutation No. 136 has been wrongly attested. The substantial question of law No.3 is, thus, decided against the appellant. 11. Insofar substantial question of law No.4 is concerned, merely because appellant is found in possession of some other land that 7 cannot be a ground to reject the claim of the appellant provided appellant has proved his claim of tenancy on the suit land. On facts, the appellant has failed to prove that he is a co-tenant on the suit land and, therefore, his claim has been rightly rejected by the Courts below. The substantial question of law No. 4 is accordingly decided against the appellant. 12. It has come on record that the Compensation Officer vide order dated 24.08.1967 Ex. D-5 has conferred proprietary rights in favour of Lehnu, Dalipu and Kirpa. The order dated 24.08.1967 was not assailed by the appellant by filing appeal under the H.P. Abolition of Big Landed Estates and Land Reforms Act, 1953. In the plaint, there is no challenge to the order dated 24.08.1967. The order dated 24.08.1967 has been passed by Compensation Officer by exercising powers under the H.P. Abolition of Big Landed Estates and Land Reforms Act, 1953, conferring proprietary rights in favour of Lehnu, Dalipu and Kirpa. In the absence of challenge to order dated 24.08.1967, no claim of tenancy of appellant over suit land can be allowed to be projected. Once, the order dated 24.08.1967 has not been challenged, the question that the said order has been passed behind the back of the appellant does not arise. In these circumstances, the substantial question of law No. 5 is decided against the appellant. 13. In view of above discussion, there is no merit in the appeal and the same is dismissed with no order as to costs. ( Kuldip Singh ), August 29, 2011.(krt) Judge.