IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA. No.444 of 1999. Date of Decision: 10.3.2011. _______________________________________________ Pritam Chand and others. ….Appellants-Defendants. Versus Paras Ram and others. .Respondents-plaintiffs. Coram: Hon’ble Mr. Justice Dev Darshan Sud, Judge. Whether approved for reporting1? No. For the appellants :Mr. T.S.Chauhan, Advocate. For Respondents 2 to 8. : Mr.Bhuvnesh Sharma, Advocate. Dev Darshan Sud, J.(Oral). This is the defendants’ appeal against the concurrent findings of the two courts below decreeing the suit of the plaintiffs-respondents for declaration and prohibitory injunction. The plaintiffs-respondents instituted the suit out of which the present appeal arises pleading that they are tenants over the land comprised in Khata No.73, khatanui No. 137, khasra No.1107 and 1108, measuring 0-66-31 hects. situated at Mohal Shahpur, Tehsil and District Kangra, on the allegation that the defendants were never in possession of the land and the entries Whether reporters of the Local papers are allowed to see the judgment?yes . 2 changed during settlement with respect to possession are contrary to the factual position. The suit was contested by the defendants and twelve issues were settled. The important issues were: (a) Whether the plaintiffs were the tenant of the suit land? (b) Whether the revenue entry in favour of the defendants was wrong ? (c) Whether the plaintiffs was entitled to the relief of permanent injunction ? 2. These three issues were found in favour of the plaintiffs. One of the other issues pleaded was with respect to the non-maintainability of the suit etc, the finding was against the defendants. One other issue raised was as to whether the plaintiffs have voluntarily relinquished the tenancy in favour of the defendants, the court found in favour of the plaintiff. Adverting to this important issue, the courts hold on the evidence that except for the oral evidence of the defendants, there was no documentary evidence to establish that tenancy had, in fact, been relinquished by the plaintiffs. The court also noticed that prior to the settlement when the entries were changed, it was the admitted case of the defendants that the plaintiffs were the tenants of the suit land. Proceeding further, the Court holds that since relinquishment was not established and the basis on which the entries were changed has also not been proved, the plaintiff was entitled to the decree, as prayed for. On the question of 3 jurisdiction, the learned court held that the jurisdiction of the Court was not barred. 3. The defendants appealed. The learned appellate Court, on re-appreciation of the evidence holds that the findings of the trial court are neither perverse nor such as would require any interference. The learned appellate Court holds: “It is the admitted case of the parties, much less defendants, that Beli Ram, the predecessor-in- interest of the plaintiff was a tenant on the suit land and he has been cultivating the suit land till 1970, when before settlement, he is said to have relinquished the tenancy in favour of owners.” 4. The learned court then proceeds on this admission and examines the evidence as to whether the plaintiffs had relinquished tenancy and holds that there is nothing on the record to prove this fact. In fact, one of the defendants Pritam Chand has stated that Beli Ram had relinquished the tenancy before Patwari and Kanungo who recorded their statements and thereafter necessary entries were made in the daily diary etc. This witness states that the proceedings were conducted in the Patwar-Khana (Tehsil Revenue office). The court holds and rightly so that no statement of any party much less that of Beli Ram has been proved nor has any Patwari or Kanungo have been examined in whose presence Beli Ram has stated to have relinquished his tenancy by admission. An adverse inference was drawn against the defendants and the suit decreed. The 4 defendants have now appealed. This appeal was admitted by the Court on the following substantial questions of law: 1.Whether the plaintiff is tenant of the suit land, as alleged? ..OPP. 2. Whether the revenue entry in favour of defendant is wrong and illegal as alleged? …OPP. 3.Whether the plaintiff is entitled to the relief of permanent injunction as prayed for ? ..OPP. 4. Whether the plaintiffs have got no cause of action of locus standi to file the present suit?. ..OPD. 5. Whether the suit of the plaintiffs is not legally maintainable in the present form?. …OPD. 6. Whether the act, conduct and acquiescence of the plaintiff is a bar to the present suit?. ..OPD. 7. Whether the civil court has no jurisdiction to try the present suit?. …OPD. 8. Whether the plaintiffs are not entitled to prayer A and or prayer B as alleged? …OPD. 9.Whether the plaintiffs have waived the right to file the present suit? ….OPD. 10. Whether the suit is not within time? …OPD. 11. Whether the plaintiffs have voluntarily abandoned and relinquished the tenancy in favour of defendants as alleged? …OPD. 5. Adverting to the fourth question, which is to the effect that the learned appellate Court had not decided/disposed of the application under Order 41 Rule 27 of the Code of Civil Procedure, What I find from the record is that this application was, in fact, considered and held to be redundant more especially in view of the finding that no evidence has been produced by the 5 defendants on the question of relinquishment. Even assuming in favour of the defendants that this application can be allowed, all that I find from the record is that the evidence as noticed by the learned District Judge that no positive evidence has been produced. What had to be established on the record was that relinquishment was a voluntary act on the part of the predecessor-in-interest of the plaintiff. Even the materials sought to be adduced on the record in additional evidence which consists of copy of the report of Kanungo and tatima, report of the Land Reforms Office, Kangra and copy of the jamabandi for the year 1959-60 do not establish this fact. This question is, therefore, decided against the appellants. Question No.7. 6. Learned counsel urges that the suit of the plaintiffs is barred by limitation. This was decided by the learned trial Court under issue No. 10. The plea taken before the learned trial Court was that since the entries in the revenue record have been changed in 1971-72, the suit instituted in 1977 was beyond the period of limitation. 7. On the pleadings of the parties and on the evidence, the court holds that the plaintiffs were not aware about the change on the entries in the revenue record and they were in actual possession of the suit land. The suit was first filed in the year 1989 and thereafter the order of the learned Sub Judge Ext.PW1/B was withdrawn on 15.6.1993 with permission to file a fresh suit on the same cause of action which was granted. The 6 suit was, thus, within the limitation. I may add that it has now been settled by the Supreme Court that revenue entries are nothing but paradise of the Patwaris who make changes in the revenue record on their own to the disadvantage of a particular party. (See: Baleshwar Tewari (dead) by LRs. and others Vs. Sheo Jatan Tiwary and others (1997) 5 S.C.C. 112 ). I do not find that the suit of the plaintiffs is barred by limitation. 8. Questions No.1 to 3 can be taken up and disposed of together as the case set out by the defendants was that the jurisdiction of the Court is barred and civil Court has no jurisdiction to decide controversy involving relinquishment/abandonment of tenancy. 9. Learned counsel relies upon the decision of this Court in RSA. No. 376 of 1998 decided on 18.12.2001 titled Roshan Lal Vs. Krishan Dev to urge that a declaration sought on the status of the party, is not within the jurisdiction of civil Courts. The judgment rendered in that appeal is confined to its own facts. It is now well settled that if there is any illegality committed by a revenue officer that is to say that due process has not been followed in making any addition or alteration in the revenue record, the jurisdiction of the civil court is not barred. This is the established law. Reliance is placed on the decision of Full Bench of this Court in Chuhniya Devi Vs. Jindu Ram, 1991 (1) Sim.L.C.223, cannot be applied in this case as this judgment has been later on explained that where there is a patent illegality in effecting changing the revenue record etc. the jurisdiction of the 7 civil court cannot be said to be barred. (See: Ramesh Kumar and others Vs. Mandir Thor RSA. No. 221 of 1999 decided on 1.6.2007). These questions are, therefore, decided against the appellants. This appeal is accordingly dismissed. All miscellaneous applications are also disposed of. (Dev Darshan Sud), Judge. March 10,2011(R)