IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.187 of 2000 Date of decision : 27.5.2010 ____________________________________________________ Hem Singh and another Appellants. Versus Chuhra …Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? No For the appellants : Mr. Naresh Kumar Sood, Advocate. For the Respondent : Mr. B.K. Malhotra,Advocate. Kuldip Singh, J ( Oral) This appeal has been directed against judgment, decree dated 4.12.1999 passed by learned Addl. District Judge, Mandi in Civil Appeal No.18 of 1994, affirming judgment, decree dated 31.3.1994 passed by learned Sub Judge Ist Class(1), Mandi in Civil Suit No.42 of 1989(88). 2. The brief facts of the case are that Ghurti had filed a suit for declaration and injunction against respondent that the land more specifically described in the plaint has been recorded in the ownership of respondent and in possession of Dahlu husband of the Ghurti as non-occupancy tenant vide jamabandi for the year 1983-84. Dahlu had died about five years ago. The land remained in possession of _____________________________ whether reporters of Local Papers may be allowed to see the Judgment? yes 2 Dahlu for about 45 years as non-occupancy tenant. Ghurti had become owner by operation of law as she had inherited the estate of her husband Dahlu. The respondent is claiming right over the property on the basis of some decision of Compensation Officer rendered in his favour in the year 1966. In fact, land remained in possession of Dahlu since 1966 till his death and thereafter it is in possession of Ghurti. In the plaint, plea of adverse possession has also been taken. It was alleged that respondent had interfered in the possession of the Ghurti and therefore, the suit was filed for declaration of ownership and possession and consequential relief of injunction. 3. The suit was contested by respondent, in which he claimed his possession on the suit land. It was denied that Dahlu was non-occupancy tenant on the suit land. It was pleaded that respondent was cultivating the suit land which was in the ownership of one Surat Singh. The ownership rights of the land vested in State of Himachal Pradesh and thereafter proprietary rights were conferred upon the respondent. The ownership and possession of Ghurti or her husband Dahlu was denied. On the basis of wrong revenue entries Ghurti has created the dispute. The respondent had applied for correction of the revenue entry. The Field Kanungo as per the procedure prescribed under law had reported that after due enquiry the entry of possession was found to be made in the name of respondent. In the written statement after denying the claim of Ghurti prayer was made for dismissal of the suit. 3 4. On the pleadings of the parties the following issues were framed:- 1. Whether the plaintiff was a non-occupancy tenant and in possession of the suit land for the last 45 years? If so its effect? …OPP 2. Whether the plaintiff has become owner of the suit land by way of adverse possession? …OPP 3. Whether the defendant is interfering in the possession of the plaintiff over the suit land? …OPP 4. Whether the defendant was a cultivating tenant over the suit land? If so, its effect .. ?OPD 5. Whether the order of Compensation Officer in the year 1966 has become final qua the suit land? If so, its effect? ….OPD 6. Whether the suit is within limitation …OPP 7. Relief. The issues No.1 to 3 and 6 were answered in negative and issues No. 4 and 5 were answered in affirmative and learned Sub Judge dismissed the suit on 31.3.1994. In appeal learned Addl. District Judge on 4.12.1999 has upheld the judgment, decree dated 31.3.1994. It is pertinent to mention here that Ghurti had died when the matter was pending before the learned lower Appellate Court. The present appellants were substituted as legal representatives of Ghurti in the learned lower Appellate Court on the basis of some alleged Will of Ghurti in their favour. The second appeal has been admitted on following substantial questions of law:- 1. Whether in the peculiar facts and circumstances of the case, the proceedings of conferment of ownership rights on the defendant under Section 27(4) of the H.P. Abolition of Big Landed Estates and Land Reforms Act, 1953 can have any precedence over the conferment of proprietary rights on the plaintiff under the H.P. Tenancy and Land Reforms Act, 1972, particularly when the proprietary rights stood conferred on the plaintiff later in time to the conferment of ownership rights on the defendant? 2. Whether on proper construction and consideration of the pleadings and documents Ex.P-4 to P-8 and Ex.P-1 stood substantially, legally and validly proved that the status of the plaintiff qua the suit land was that of a non-occupancy tenant resulting 4 into conferment of proprietary rights under H.P. Tenancy and Land Reforms Act, 1972? 3. Whether the findings of the learned appellate court below are vitiated for non-consideration of document Ex.DC regarding the status of the predecessor of the plaintiff as non-occupancy tenant, thus, vitiating the proceedings and the findings? 6. I have heard learned counsel for the parties and have also gone through the record. Mr. N.K. Sood, learned counsel for the appellants has submitted that the two Courts below have not properly appreciated the legal proposition, the documents Ex.P-1, Ex.P-4 to Ex.P-8, Ex.DC have been misconstrued, misinterpreted. The two Courts below have erred in dismissing the suit. The learned counsel for the respondent has supported the impugned judgment, decree. He has submitted that the appellants have miserably failed to prove their rights over the suit land. In the plaint no foundation has been laid regarding the creation of the tenancy by respondent in favour of Ghurti or Dahlu her husband. He has submitted that no fault can be found with the findings of two Courts below. Substantial questions of law No.1 to 3 7. The substantial questions of law No.1 to 3 are interconnected and therefore, all of them are being taken up collectively for disposal. Ex.P-1 is the order dated 21.2.1992 passed by Assistant Collector Ist Grade, Tehsil Sadar Mandi on the application of respondent vide which it has been held that Ghurti came in possession of land comprised in khasra Nos. 25,53,448,520,634 after 29.1.1990 but he has also recorded that as per report of Field Kanungo, respondent owner is in possession. He has also observed that Ghurti had stated that she was not paying any rent. The Assistant 5 Collector Ist Grade has ultimately ordered that the correction be made regarding respondent owner in possession of the land. Ex.P-4 to Ex.P-8 are the jamabandies from the years 1967-68, 1972 to 1989-90. In these jamabandies no doubt Ghurti has been recorded as tenant under respondent, however, in Ex.DG jamabandi for the year 1956-57 respondent is recorded as tenant on this land under landlord Surat Singh. The change in the revenue entries showing possession of Ghurti or her husband Dahlu instead of respondent has not been explained. The proprietary rights were conferred on respondent vide Ex.D-1. 8. The Supreme Court in Durga and others vs. Milkhi Ram and others 1969 PLJ 105 has held that unless change is based upon some order then the presumption of truth is attached to earlier jamabandi but not the later jamabandi. The appellants have not proved any order to show how the change was effected in favour of Dahlu in Ex.P-4 jamabandi for the year 1967-68 without any order of the competent revenue authority. Therefore, the appellants cannot take benefit of revenue entries recorded in jamabandies Ex.P-4 to Ex.P-8. In jamabandi Ex.DG the respondent has been recorded as tenant on the suit land. Ex.DC is the report of the Field Staff that on the suit land entry is in favour of Dahlu but in the certificate Ex.DB name of Chuhra owner has been recorded on the suit land. So far reference of Dahlu has been made in the report that is based upon the then existing revenue record which has already been found to be incorrect. Therefore, appellants cannot take benefit of the endorsement/report Ex.DC. 6 9. The two Courts below have recorded a finding of fact in favour of the respondent. The appellant has miserably failed to point out any perversity in the impugned judgment, decree. There is no misconstruction and misinterpretation of oral and documentary evidence on record. There is no merit in the appeal. The substantial questions of law No.1 to 3 are decided against the appellants. 10. No other point was urged. 11. The result of the above discussion, appeal fails and is accordingly dismissed. May 27, 2010 (Kuldip Singh), (sks) Judge.