IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 494/2010 Reserved on: 28.4.2011 Decided on: 05.05.2011. _____________________________________________ Sukh Ram. …Appellant. Versus Khushi Ram and others. …Respondents. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No For the appellants : Mr. R.P. Singh, Advocate. For the Respondents: Mr. Ajay Sharma, Advocate. _____________________________________________________ Justice Rajiv Sharma, Judge. This Regular Second Appeal is directed against the judgment and decree dated 26.6.2010 passed by the learned Additional District Judge, Una in Civil Appeal No.93/2008. 2. Material facts necessary for the adjudication of this Regular Second Appeal are that the appellant-plaintiff (herein referred to as “plaintiff” for convenience sake) instituted a suit for declaration with consequential relief of permanent injunction against the respondents-defendants (hereinafter referred to as “defendants” for convenience sake). The dispute between the 1 Whether reporters of the local papers may be allowed to see the judgment? No 2 parties is qua the land comprised in Khewat No. 447, khatauni No. 783, Khasra No. 281 as entered in jamabandi for the year 1995-96, situated in village Arniala, Tehsil & District Una,. Case put up by the plaintiff in the plaint is that he is in occupation of the suit land as tenant since 1960-61. He was inducted as a tenant by Shri Santu, the predecessor-in-interest of the defendants. A sum of ` 1000-/ was paid in lump sum to Shri Santu. He installed a sugarcane crusher at the spot and also raised a temporary super-structure after taking the land on lease permanently. The consolidation proceedings were commenced in the village in the year 1960-61. The spot was inspected by the revenue authorities. His possession was recorded over the suit land by the consolidation authorities. The predecessor-in-interest of the defendants never raised any dispute over the said entry before the revenue authorities. However, the rent and lease money, which were paid by him in lump sum to Shri Santu were not recorded in the revenue record. He was shown as kabij over the suit property in the revenue record. The settlement took place in the area and his possession was duly recorded over the land in question. According to him, he is in occupation of the suit land. According to him, he being a tenant or lessee has become the owner of the suit land after coming info force Himachal Pradesh Tenancy and Land Reforms Act, 1972. The defendants 3 moved an application for correction of the revenue entries in the year 1990. The same was allowed by the Land Reforms Officer on 27.3.1999. The appeal instituted by him before the Deputy Commissioner-cum-Collector, Una was dismissed on 17.1.2002. The defendants taking advantage of the illegal orders passed by the revenue officers are threatening to get his name deleted from the revenue record without any right, title and authority. It is in these circumstances, the suit was instituted. 3. The defendants have denied that the plaintiff was in occupation of the suit land as tenant and has become owner after coming into force Himachal Pradesh Tenancy and Land Reforms Act, 1972. He was never inducted as tenant, as averred. He has taken a contrary stand. He has neither raised any temporary structure nor installed any sugarcane crusher. He in connivance with the revenue staff got fictitious stray entry recorded with regard to the suit land against the actual and factual position. Shri Santu was the owner in possession of the suit land. The plaintiff never came in possession of the suit land at any time. The entries were corrected after due enquiry at the spot by the competent authority. The order passed by the L.R.O. was legal and valid and was affirmed by the Collector, Una on 17.1.2002. The entry of kabij made in favour of the plaintiff was without any basis. No lease was ever created in the name of the 4 plaintiff. Suit land was cultivated by them. The replication was filed by the plaintiff. He reiterated the contents of the plaint and refuted the objections put forth by the defendants. The trial court framed issues on 10.2.2003. The suit was dismissed by the trial Court on 27.9.2008. The plaintiff preferred an appeal before the Additional District Judge, Una. He dismissed the same on 26.6.2010. Hence, the present Regular Second Appeal. 4. Notices were issued to the defendants on 24.11.2010. Mr. Ajay Sharma has put in appearance on behalf of the defendants. 5. Mr. R.P. Singh has strenuously argued that his client has duly established that he was inducted as tenant by Shri Santu. He then argued that the revenue entries were recorded in accordance with law. He also pleaded that his client had paid a sum of ` 1,000/- to the predecessor-in-interest of the defendants, Santu, on the basis of which permanent lease was made in his favour. According to him, both the Courts have misread and mis-appreciated the oral as well as documentary evidence. 6. Mr. Ajay Sharma has supported the judgments and decrees passed by both the courts below. He has also argued that the stand of the plaintiff was contradictory. He has further argued that neither the plaintiff was inducted as tenant nor any 5 permanent lease was executed in his favour. He finally contended that the plaintiff has failed to prove that he was ever inducted as tenant. Moreover, there was no entry made in the revenue record about the payment of rent. 7. I have heard the learned counsel for the parties and have perused the pleadings carefully. 8. PW-1 Ujagar Singh has led evidence by way of affidavit in support of his examination-in-chief. He testified that he knew the parties and he had seen the disputed land. He had been watching the possession of the plaintiff over the suit land. He has shown his ignorance as to who were the up-Pradhan and Ward-Panch and Numberdar of village Arniala. He has stated that the suit land was never demarcated in his presence. He has further deposed that the suit land was purchased by the plaintiff prior to his childhood. But he could not say as to from whom the plaintiff had purchased the suit land. 9. PW-2 Hans Raj has also filed his affidavit in support of his examination-in-chief. He has also deposed that he knew the parties and he has seen the disputed land. He had been watching the possession of the plaintiff over the suit land since his childhood. He has never seen the possession of the defendants over the suit land. Plaintiff has planted fruit bearing trees over the suit land. He has stated that earlier defendants 6 were owner in possession of the suit land and he did not know as to who was the owner in possession of the suit land at present. He has deposed that he visited village Arniala about 10- 12 years back. According to him, the father of the defendants used to cultivate the suit land. He has further deposed that he has not having any landed property in village Arniala. 10. Plaintiff has appeared as PW-3. He has led his evidence by way of affidavit. According to him, the suit land was 2 kanals 2 marlas, which had been coming in his possession for the last 43-44 years. He was inducted tenant by the predecessor-in-interest of the defendants, namely, Santu. He had paid a sum of ` 1,000/-, in lump sum. He installed one sugarcane crusher and one hutment. His possession was duly recorded during the consolidation operation and the same was never objected to by the defendants. According to him, he was still in the possession of the suit land and has become owner of the same. He has admitted that the defendants had moved an application for correction in the year 1999. However, according to him, the order passed by the competent authority was illegal. In his cross-examination, he has stated that he joined the service in the year 1956 and retired in the year 1990. He has stated that he paid a sum of ` 1,000/- to Santu in the year 1960 qua which no writing was executed. He has also admitted that 7 the appeal preferred by him against order dated 27.3.1999 was dismissed on 17.1.2002. He has shown his ignorance when the Tehsildar visited the spot. 11. DW-1 Roshan Lal has produced the record of missal No. 4/T/1999, titled “khushi Ram Vs. Sukh Ram”, decided on 27.3.1999. He has also produced certified copy of application for correction and order dated 27.3.1999 as Ex. DW-1/A and DW- 1/B. He has also produced copy of grounds of appeal Ex. DW- 1/C and EX DW-1/D. 12. Defendant Tirath Ram has appeared as DW-2. He has led his evidence by way of affidavit. He has deposed that his predecessor-in-interest has never inducted the plaintiffs as tenant. According to him, the property was not leased out. He has denied the setting up of sugarcane crusher and hutment over the suit land. According to him, the plaintiff had managed to get the entries recorded in his favour with the connivance of the revenue officials. He has further deposed that initially the ancestors of the defendants and thereafter, the defendants were coming in possession of the suit land. The plaintiff never remained in possession of the suit land. When they came to know about the wrong entries, incorporated in favour of the plaintiff, they got the same corrected from the competent authority. According to him, the Tehsildar had seen the spot and 8 plaintiff had filed an appeal before the Collector, Una which stood dismissed on 17.1.2002. 13. DW-3 Baldev Raj and DW-4 Diwan Singh have supported the version of defendants. According to them, the defendants were owner in possession over the suit land and the plaintiff has no concern with the suit land. DW-4 has deposed that the plaintiff has got his name entered, as in possession, in connivance with the revenue staff. The defendants got the entry corrected when they came to know about the same. 14. DW-5 Sohan Lal has also filed his affidavit in support of his examination-in-chief. He has also supported the version of DW-2. He has denied the suggestion that the suit land was in possession of the plaintiff. He has also denied the suggestion that the plaintiff has installed sugarcane over the suit land. This is the oral evidence led by the parties. 15. Now, the court will advert to the documentary evidence led by the parties. Ex. P-1 is the copy of Jamabandi for the year 1995-96. The defendants have been shown to be the owner over the suit land. In the column of possession, the plaintiff has been recorded as kabij. Ex. P-2 is the copy of jamabandi for the year 1977-78. In this jamabandi, the predecessor-in-interest of the defendants, Santu had been recorded owner. In the column of possession, the plaintiff had 9 been recorded as non-occupancy tenant. However, surprisingly, the column of rent is blank. It is settled law by now that tenancy is a bilateral act. The tenant has to prove that he had been paying rent to the land owner. In missal Hakiyat for the year 1968-69, the predecessor-in-interest of the defendants has been recorded as owner. Again in the column of possession, plaintiff has been recorded as non-occupancy tenant and in the column of rent; the entries of mortgage have been made. The plaintiff has taken a contradictory stand. At times, he has pleaded that he was inducted as tenant by the predecessor-in-interest of the defendants and he also pleaded that the lease was made in his favour permanently. He has further pleaded that the predecessor-in-interest of the defendants had mortgaged the land with him. In Khasra Girdawari, Ex. P-4 for the year 1968, the possession of the suit land has been recorded in favour of the defendants during Rabi crop on 19.4.1968. The plaintiff has been recorded as non-occupancy tenant as mortgagee. In Ex. P- 5 and P-6 the defendants have been shown as owner of the suit land and the plaintiff has been shown as kabij. The defendants have placed on record an application Ex. DW1/A, whereby they had moved an application for correction before the L.R.O. The L.R.O. made orders in favour of the defendants on 27.3.1999. He has observed that the entry in favour of the plaintiff was 10 wrong and against factual position. The plaintiff had preferred an appeal before the Collector, Una. The same was dismissed vide Ext. DW1/D. In Ext. D-3, copy of jamabandi for the year 1958-59, the predecessor-in-interest of the defendants, namely Shri Santu has been shown as absolute owner in possession of the suit land. The entry of the suit land was made in favour of the defendants in the year 1968-69 vide Ext. P-3 and D-2. In these documents, it has been mentioned that the suit land was owned by Shri Santu. Plaintiff has been recorded as Gair Maurasi without payment of rent. The entries placed on record by the plaintiff do not show that he was inducted as tenant on payment of rent. The plaintiff has not placed any tangible evidence on record to establish the basis on which his name was incorporated in the revenue record. It is in these circumstances that the L.R.O. passed the orders in favour of the defendants on 27.3.1999 which order was upheld by the Collector, Una on 17.1.2002. The plaintiff has also projected that he has purchased the land, however, he has not placed any material on record to establish the alleged sale. There is nothing in black and white as far as the claim of the plaintiff with regard to creation of lease is concerned. He has not substantiated his plea that he had paid a sum of ` 1000/-, in lump sum, to the predecessor-in-interest of the defendants, Shri Santu. PW-1 to 11 PW-3 have supported the claim of the defendants in their cross- examination by deposing that earlier predecessor-in-interest of the defendants was owner in possession of the suit land and now the defendants are in possession of the suit land being owners. The L.R.O. has changed the entry after visiting the spot. DW-3 to DW-5 have duly supported the version of defendants. According to them, they have seen the possession of the defendants over the suit land. 16. Accordingly, in view of the observations made hereinabove, there is no merit in the Regular Second Appeal and the same is dismissed. There shall, however, be no order as to costs. (Justice Rajiv Sharma), Judge. May 05, 2011. *awasthi*