HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No.: 99 of 2001. Reserved on: 16.12.2008 Decided on: 9.1.2009 Hans Ran and others ………Appellant/plaintiffs. Versus Paras Ram and other ………Respondent/defendants. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the appellants: Mr.K.D. Sood, Advocate. For the respondents No.1 to 5: Mr.R.K. Gautam, Senior Advocate, with Ms.Radhika Gautam, Advocate. V.K. Ahuja, J.: This is a regular second appeal filed by the appellant/plaintiffs under Section 100 of the Code of Civil Procedure, against the judgment and decree passed by the learned District Judge, Chamba, dated 22.9.2000, vide which he affirmed the judgment and decree passed by the learned Sub Judge Ist Class, Dalhousie, dated 22.7.1999, vide which the learned trial Court had dismissed the suit of the appellant/plaintiffs for declaration and permanent injunction. Briefly stated the facts of the case are that the appellants as plaintiffs filed a suit for declaration and permanent injunction as against the respondents, ___________ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. - 2 - who were impleaded as defendants. It was alleged by the plaintiffs that the land measuring 1 bigha and 12 biswa was entered in the name and possession of late Govind in the Jamabandi for the year 1952-53. It was alleged that the said Govind died in the year 1956-57 and the mutation of his estate was attested on 31.5.1960 in favour of the plaintiffs and proforma defendant Chanchlo, as his legal heirs. It was alleged that the plaintiffs were owners-in-possession of the total land measuring 8 bigha and 3 biswa, which remained in possession of the plaintiffs till today. It was also alleged that plaintiff Hans Raj was deaf and dumb, plaintiff No.3 Chaman Lal was four years of age, whereas Karmo was about 2 years of age at the time of death of their father Govind. It was further alleged that the plaintiffs or their father never inducted Jeeto as his tenant over the suit land, but in connivance with the revenue officials, he got the wrong entry made in his favour as tenant of land comprising in Khasra No.52, measuring 1 bigha and 12 biswa, though he never cultivated the land of Govind or was inducted as tenant by him. It was also alleged that in the year 1959-60, the land measuring 0-11 bigha, out of Khasra No.52, was taken into possession by the Public Works Department after the award and the amount was paid to the plaintiffs and the proforma defendant. It was alleged that the revenue officials, without giving an opportunity to the plaintiffs of being heard, attested the mutation in favour of late Jeeto in regard to 3/5th share ignoring the fact that that part of the land had already been acquired by the State Government. It was further alleged that since Jeeto and defendants No.1 and 2 were never inducted as tenant by plaintiffs or Govind, the entries showing Jeeto as tenant and thereafter as owner to the extent of 3/5th share and in possession of 2/5th share as tenant are wrong. The plaintiffs also challenged the sale deed - 3 - effected by defendant No.1 in favour of defendant No.3 on 18.6.1992 for land measuring 0-5 bigha. The plaintiffs also challenged the sale deed executed by defendant No.1 in favour of defendant No.3, which was attested on 19.6.1992, being wrong and not binding upon the rights of the plaintiffs, hence the suit filed by the plaintiffs. In the written statement filed by defendants No.1 and 2, they pleaded that the suit land was being cultivated by Khemti, who was the grand father of defendants No.1 and 2 and after the death of said Khemti, the father of defendants No.1 and 2 started cultivating the suit land on payment of 1/4th share of the produce and after the death of their father Jeeto, defendants No.1 and 2 are cultivating the land. They also pleaded that mutations were attested in favour of defendants No.1 and 2 in accordance with law and since defendants No.1 and 2 were absolute owners, they were competent to execute the sale deeds in favour of defendant No.3 and the same cannot be challenged by the plaintiffs. On the pleadings of the parties, the issues were settled by the learned trial Court. Issues No.1 and 2 were mainly in regard to the question as to whether the revenue entries showing Jeeto as tenant were incorrect and the proprietary rights were wrongly conferred upon Jeeto under Section 104(3) of the H.P. Tenancy and Land Reforms Act. Issues No.3, 5 and 6 were framed in regard sale deeds effected by defendant No.1 in favour of defendants No.3, 4 and 5. On conclusion of the trial, the learned trial Court decided all the issues as against the plaintiffs and in favour of the defendants and consequently - 4 - dismissed the suit of the plaintiffs in full. On appeal, these findings were affirmed by the learned Appellate Court. I have heard the learned counsel for the parties and have gone through the record of the case. The submissions made by the learned counsel for the appellants were that the entries in favour of defendants No.1 and 2 as tenants were wrong since there was nothing on record to show that any Galla Batai was being paid by the defendants to the plaintiffs or their predecessor, at any time. It was submitted that the entries were changed in favour of the defendants No.1 and 2 on the basis of a rapat but there was no order passed by any Revenue Officer attesting the change in favour of defendants No.1 and 2. It was also submitted that since defendants No.1 and 2 have failed to prove as to when they were inducted as tenants and by whom and there is no proof of payment of rent, they were not the tenants of the suit land and they were not entitled to get the proprietary rights. The copy of the order conferring proprietary rights was also not placed on record by the plaintiffs. On the other hand, the learned counsel for the respondents had supported the impugned judgments for the reasons given therein supplementing it by submissions that no cross objections were filed by the respondents to the findings in regard to the jurisdiction of the court and it was admitted case of the respondents also that proprietary rights were conferred upon the defendants No.1 and 2 and, therefore, in view of the decision in Chunia Devi versus Jindu Ram, 1991 (1) Shim.L.C. 223, the said order cannot be challenged before the Civil Court. - 5 - A perusal of the record of the case shows that the appeal was admitted by this Court on substantial questions of law formulated at Sl.No.2 and 4 of the paper book. A perusal of substantial question of law No.2 shows that it was whether the inference drawn by the court below that Jeeto was tenant and acquired ownership right is sustainable in law in the absence of evidence of creation of the tenancy and payment of rent and more so when the entries in his favour had been surreptitiously made without following the procedure. Substantial question No.4 was whether the inference drawn by the learned District Judge that in the absence of Giano filing the appeal, ownership conferred on Jeeto could not be challenged by the appellant though the appellants were substituted as heirs of Giano in the trial Court. A perusal of the judgment passed by the learned trial Court shows that in the earliest copy of Missal Haquiat Bandobast Jadeed, Ext.P-1, placed on record, the land was shown in the ownership and possession of Govind, the predecessor-in-interest of the plaintiffs and proforma defendant No.4. The next copy of jamabandi on record is for the year 1957-58, Ext.PG and Ext.D-1 is for the year 1956-57, which shows that the name of Govind is mentioned in the ownership column, while that of Jeeto is entered in the column of possession as Gair Maroosi on payment of Galla Batai to the extent of 1/4th share. A perusal of the copy of rapat rojnamcha Ext.D-1 for the year 1956-57 shows that there was a change in possession in regard to some Khasra numbers including the suit land. The subsequent copies of jamabandi on record Ext.PF for the year 1965- 66, Ext.P-H for the year 1960-61 and Ext.D-2 for the year 1970-71 show that the name of Jeeto is shown in the column of possession as tenant and entry was also there in the remark column in the Jamabandi for the year 1970-71. In the - 6 - copy of Jamabandi for the year 1990-91 Ext.PA, the defendants No.1 and 2 have been shown in the column of possession as tenants. I have made a brief reference to these documents to show that prior to 1956-57, the possession though was shown to be that of the owner, but thereafter it has been shown to be that of Jeeto, the predecessor-in-interest of defendants No.1 and 2 and thereafter in the name of defendants No.1 and 2. The plaintiffs never challenged those entries existing in favour of defendants No.1 and 2 or their predecessor and after the lapse of so many years, when the change was effected in the year 1956-57 duly carried out in the subsequent copies of the Jamabandi, it cannot be said that the defendants No.1 and 2 were required to prove the rent receipts that it was being paid to the plaintiffs or their predecessor-in-interest. The payment of rent is one of the conditions of tenancy but the parties may agree to the contrary and after the lapse of so much time, it cannot be insisted upon that the defendants must prove that they were possessing rent receipts for the rent paid to the previous owners or the present owners, namely, the plaintiffs. A perusal of the copy of jamabandi Ext.D-2 also shows that ownerships rights were conferred upon Jeeto, the predecessor-in- interest of defendants No.1 and 2, in regard to 3/5th share, while the remaining 2/5th share continued as earlier since the owners were widow and handicapped person. Therefore, this fact stands established that the predecessor-in-interest of defendants No.1 and 2 was conferred proprietary rights and once the proprietary rights have also been conferred upon the tenants who were duly recorded as owners-in-possession, the jurisdiction of the Civil Court was barred in view of Chunia Devi’s case (supra) and the Civil Court was barred from looking - 7 - into this question of conferment of proprietary rights upon defendants No.1 and 2. There is no question of this Court discussing the oral as well as documentary evidence and considering whether the change made some time in the year 1956-57 in favour of the predecessor-in-interest of defendants No.1 and 2 was legal or not since the basis of the change was entery in the rapat rojnamcha which entry was carried out in subsequent copies of jamabandies. Both the courts below had referred to the oral as well as documentary evidence in detail and that could not be looked into by this Court and there could be no reappraisal of evidence by this Court sitting in second appeal. In so far as the findings of the learned trial Court and the learned First Appellate Court are concerned, they are liable to be affirmed in regard to the entries existing in favour of defendants No.1 and 2. There are findings of fact recorded by the learned trial Court and affirmed by the learned Appellate Court that the plaintiffs have failed to prove that the alienations made by defendants No.1 and 2 in favour of other defendants were not valid and for that reason these findings were given as against the plaintiffs since they have failed to substantiate that these sales could not be legally made by defendants No.1 and 2 since they had become owners on the basis of conferment of proprietary rights only. From the above discussion, it follows that there is no merit in the appeal filed by the appellants and the same is dismissed accordingly. The parties are left to bear their own costs. January 9, 2009. (V.K. Ahuja), (TILAK) Judge.