IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A. No. 372 of 1998 Judgment reserved on : 11.12.2009 Date of decision: 22.2.2010 Chetan Dev …Appellant. Versus Hansu and another ..Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 No For the Appellant : Mr. Virender Rathore, Advocate. For the respondents : None. Kuldip Singh , Judge This appeal has been directed against the judgment, decree dated 7.7.1997 passed by the learned District Judge, Kangra at Dharamshala in Civil Appeal No. 127-N/XIII-1995 reversing the judgment, decree dated 10.5.1995 passed by the learned Sub Judge 1st Class, Court No.II, Nurpur, in Civil Suit No. 255 of 1992. 2. The brief facts of the case are that Chetan Dev appellant and Krishan Dev proforma respondent No.2 had filed a suit for possession against respondent No.1 regarding land comprised in Khata No. 64 min, Khatauni No. 197, Khasra No. 1136 measuring 0- 06-02 HM situated in Tika and Mauza Thakardwara, Tehsil Indora, 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 District Kangra vide jamabandi 1989-90. It was their case that they were owners in possession of the suit land but in the settlement 1981-82 in connivance with the settlement staff, respondent No.1 got himself recorded as Kabiz. In December 1987 respondent No.1 took illegal possession of the suit land and the status of respondent No.1 on the suit land is of trespasser. The respondent No.1 refused to admit the claim of the appellant and proforma respondent No.2, therefore, the suit was filed. 3. The suit was contested by respondent No.1 by filing written statement and he took preliminary objections of maintainability and locus-standi. On merits, respondent No.1 pleaded his tenancy on the suit land. It was denied that the appellant and proforma respondent No.2 were dispossessed in the year 1987. It was pleaded that possession of respondent No.1 on the suit land is continuing from 1970. It was pleaded that respondent No.1 has become owner after coming into force of H.P.Tenancy and Land Reforms Act. In replication, the stand taken in plaint was re-asserted. 4. The learned trial Court had framed the following issues:- 1. Whether the plaintiffs are the owners of the suit land as alleged? OPP. 2. If issue No.1, is proved in affirmative, whether the defendant dispossessed the plaintiffs in the year 1981-82, as alleged? OPP. 3. Whether the suit is not maintainable in the present form? OPD. 4. Whether the plaintiff has no locus-standi to file the present suit? OPD. 5. Whether the defendant was tenant prior to the enforcement of H.P.Tenancy and Land Reforms Act and 3 has become the owner after the enforcement of the said act as alleged? OPD. 6. Relief. The issues No. 1 and 2 were answered in affirmative and issues No. 3 to 5 in negative and the suit was decreed by the learned trial Court on 10.5.1995. In appeal, the learned District Judge allowed the appeal on 7.7.1997 and reversed the judgment, decree dated 10.5.1995. The appellant has come in second appeal against judgment, decree dated 7.7.1997. The appeal has been admitted on following substantial questions of law: 1. Whether the learned District Judge is justified in setting aside the findings of the learned trial Court that the plaintiff was owner of the suit land and was dis-possessed in the month of December, 1987 after getting himself recorded as Kabiz upon the suit land during the settlement of 1981-82. 2. Whether the learned District Judge has erred in holding the defendant to be tenant on the basis of mere stray entry in the Jamabandi that too in the absence of any evidence on record to prove that any rent/Galavatai was ever paid to the plaintiff. 3. Whether the judgment passed by the learned District Judge is vitiated on account of the fact that learned District Judge has mis-read and mis-entered the pleadings and evidence on record to come to the conclusion that the defendant was tenant (Gair Mouroosi) by believing only part of the revenue record which is in favour of the defendant and has conventionally over looked the pleadings and evidence in favour of the plaintiff. 5. I have heard Mr. Virender Rathore, Advocate, learned counsel for the appellant and have also gone through the record, but 4 none appeared on behalf of the respondents. It has been submitted on behalf of the appellant that the learned District Judge has erred in setting-aside well reasoned judgment of the trial Court. The learned District Judge has mis-construed and mis-interpreted the evidence in returning the finding that respondent No.1 is tenant on the suit land. The tenancy of respondent No.1 on the suit land has not been proved nor it has been pleaded in accordance with law. The consistent revenue record is in favour of the appellant and does not support the stand of respondent No.1. The respondent No.1 in connivance with the settlement staff got recorded entry in his favour in the year 1981- 82 during the process of settlement and on that basis in the year 1987 he illegally dispossessed the appellant and proforma respondent No.2 from the suit land. The respondent No.1 is a trespasser on the suit land. The learned counsel for the appellant has prayed for setting- aside of the impugned judgment, decree. 6. The substantial questions of law No. 1 to 3 are inter- connected, the same set of evidence is to be considered for their disposal, therefore, substantial questions of law No. 1 to 3 are taken up collectively for disposal. The appellant and proforma respondent No.2 have pleaded that they are owners of the suit land and they were also in possession thereof till 1987 when they were illegally dispossessed by respondent No.1, who has no title on the suit land. The defence of respondent No.1 is that he was tenant on the suit land since the year 1970 and has become owner of the suit land after coming into force of H.P.Tenancy and Land Reforms Act. He has 5 denied that he dis-possessed appellant and proforma respondent No.2 in the year 1987. 7. The respondent No.1 in his written statement has not pleaded contract of tenancy nor any indication has been given in the written statement who inducted him as tenant on the suit land. The tenancy is a creation of contract and, therefore, the contract of tenancy was required to be pleaded by respondent No.1 in the written statement but the same is missing. This apart in Ex.P6 copy of Khasra Girdwari from Ravi 1973 to Kharif 1974 Chetan Dev etc. are shown owners of khasra No.56/13 min. Out of this on land measuring 3 Kanal 7 Marlas Jagtu has been shown non-occupancy tenant on payment of 1/3 Batai and on 2 Kanal Hansu has been shown as non- occupancy tenant being mortgagee. In Ex. P-5 copy of Khasra Girdwari Kharif 1977 to Ravi 1981 Chetan Dev etc. are shown owners in possession of khasra No. 56/13 min measuring 5 Kanal 7 Marlas. Thus, in Ex.P-5 the name of Hansu has not been reflected on any part of Khasra No. 56/13 min. In jamabandi 1976-77 Ex.P-4, Chetan Dev etc. are shown in possession of land comprised in khasra No. 56/13. In Missal Haquiat 1981-82 Ex.P-3 new khasra No. 1136 which is equivalent to khasra No. 56/13 min (old), Hansu has been shown in possession without any reference to his status as tenant or mortgagee. Similar is the position in jamabandi 1989-90 Ex.P-2. 8. Ex.D-1 is the copy of Missal Haquiat 1981-82 which is equivalent to Ex.P-3. Ex.D-2 is the copy of jamabandi 1971-72 showing Hansu in possession of land measuring 2 Kanal comprised in Khasra No. 56/13 min as tenant. In the column of rent in Ex.D-2, it 6 has been shown that possession is as mortgagee and no rent is payable. Ex.D-3 is the copy of Khasra Girdwari from Ravi 1973 to Ravi 1977 in which on khasra No. 56/13 min measuring 2 Kanal, Hansu has been shown non-occupancy tenant without payment of any rent. 9. In none of the jamabandi or khasra girdwari noticed above, rent payable by respondent No.1 has been shown. It is not the case of the respondent No.1 that by way of special contract between the landlord and respondent No.1 the payment of rent was exempted when the tenancy was allegedly created. There are some stray entries of mortgagee in the revenue record in favour of respondent No.1 but it is not the case of respondent No.1 that he is a mortgagee on the suit land. Thus, respondent No.1 cannot take any benefit of any entry showing him mortgagee on the suit land. It is the case of respondent No.1 that he was tenant under the appellant and proforma respondent No.2 but he has failed to prove his tenancy on the suit land. In other words, respondent No.1 has not denied the ownership of the appellant and proforma respondent No.2 on the suit land. Thus, appellant and proforma respondent No.2 have proved their title on the suit land. The respondent No.1 has miserably failed to prove his tenancy or any other title on the suit land. The possession of respondent No.1 on the suit land is not better than a trespasser. 10. The trial Court had rightly appreciated the material on record and decreed the suit. The learned District Judge by mis- construing and interpreting oral and documentary evidence has 7 returned the findings that respondent No.1 is a tenant on the suit land, such findings of learned District Judge are not sustainable and are liable to be set-aside. The substantial questions of law No. 1 to 3 are decided in favour of the appellant. 11. No other point was urged. 12. The result of the above discussion, the appeal is allowed. The judgment, decree dated 7.7.1997 passed by the learned District Judge, Kangra at Dharamshala in Civil Appeal No. 127-N/XIII-1995 are set-aside and the judgment, decree dated 10.5.1995 passed by the learned trial Court in Civil Suit No. 255 of 1992 are restored with no order as to costs. February 22, 2010. ( Kuldip Singh ), (GR) Judge.