IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 435 of 1999 Date of Decision: 2nd November, 2010 Karju and others Appellants Versus Ram Chand and others Respondents Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? Yes. For the appellants: Mr. Shrawan Dogra, Advocate. For the respondents: Mr. B.K.Malhotra, Advocate. Sanjay Karol, J. (Oral) Appellants, who are successors-in-interest of plaintiff (hereinafter referred to as the plaintiff) filed this Regular Second Appeal filed under Section 100 of the Code of Civil Procedure, 1908. Suit filed by plaintiff stands dismissed by the trial Court and findings affirmed by the lower Appellate Court. 2. It is the plaintiff’s case that the suit land is recorded in the ownership of plaintiff and defendants. Plaintiff’s father Munshi Ram alongwith defendants were joint owners in possession of 68-3-19 Bighas of land. Munshi Ram was in possession of land to the extent of his half share and the possession of the remaining half share Whether the reporters of Local Papers are allowed to see the Judgment? 2 was with the defendants. Possession of land with the defendants was handed over by them to one Mohan as a tenant at will. The tenancy was created exclusively by Dhameshwar and others /predecessors (defendants) out of their own share. That the defendants’ father Shri Devi Singh had bought the land to the extent of half share from Munshi Ram is not in dispute. By virtue of provision of H.P. Abolition of Big Landed Estates and Land Reforms Act, 1963 (hereinafter referred to Abolition Act), Mohan acquired proprietorship rights with respect to the land under his tenancy. Compensation Officer under the Abolition Act passed an order dated 3.4.1965 to this effect. Plaintiff continued to occupy and use the land to the extent of his share and in his possession to the exclusion of the defendants. Since defendants started interfering with the plaintiff’s possession, consequently he filed the suit for declaration and injunction with the following prayers:- “The plaintiff, therefore, claims that:- a) the plaintiff be declared to be the exclusive owner in possession of the suit land and entries showing the defendants as joint co- owners with the plaintiff to the extent of half share, be declared as wrong, illegal, null and void, contrary to the factual position and having no effect qua the rights of the plaintiff over the suit land, be declared as such; 3 b) As a consequential relief, the defendants be restrained through a permanent injunction from causing any sort of interference into the peaceful possession as an exclusive owner over the suit land of the plaintiff and from resorting to any proceedings under the teeth of such colourable entries.” 3. Defendants resisted the suit inter alia on the ground that parties being co-sharers were entitled to ownership and possession of the remaining land in equal share. It was disputed that tenancy in favour of Mohan was created only by Devi Ram or Dhameshwar etc. (defendants). 4. Based on the pleadings of the parties, trial Court framed the following issues:- 1. Whether the plaintiff is exclusive owner in possession of the suit land and the entry contrary to it are null and void? OPP 2. Whether deceased Mohan only acquired the proprietary rights only to the share of the defendants in Khewat No. 2 min/2? OPD 3. Whether the suit is bad for non-joinder of necessary parties and property? OPD. 4. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD. 5. Whether the suit is time barred? OPD. 6. Whether the suit is not maintainable? OPD 4 5. Replying upon the statement of defendant Shri Ram Chand (DW-1) and revenue record pertaining to the year 1956-57, trial Court held that there is nothing on record to prove that defendants alone created tenancy in favour of Mohan. Revenue entries reflected Mohan to be the tenant of both the co-sharers. Consequently plaintiff’s suit was dismissed in terms of judgment and decree dated 18.6.1989 passed by the Sub Judge, Court No.-III, Mandi, in Civil Suit No.45/87. 6. The judgment and decree rendered by the trial Court were upheld by the lower appellate Court and plaintiffs’ appeal dismissed in terms of judgment and decree dated 16.3.1999 passed by District Judge, Mandi, H.P. in Civil Appeal No.90 of 1998/59 of 1989. 7. The instant appeal was admitted on the following substantial questions of law:- “1. Whether a tenant inducted by a co- sharer of the joint land can be said to be a tenant under all the co-sharers? 2. Whether the land of the co-sharer in the joint khata would reduce to the extent to which the tenant under said co-sharer has become owner.” 8. From the revenue record i.e. jamabandi for the year 1956-57 (Ext.P-1), Misal Haqiyat Bandobast for the year 1965 (Ext.P-6), jamabandi for the year 1982-83 (Ext.P-2), khasra girdwari for the year 1987 (Ext.P-3), it is evident that in the column of ownership plaintiff and 5 defendants are reflected as co-sharers but however, in the column of possession, it is clearly mentioned that Mohan is the tenant of Dhameshwar etc. (defendants). Further Khasra numbers stand divided into Khatas and a different number assigned with respect to definite area in possession of either of the parties i.e. plaintiff, the defendants either directly or through Mohan. Consequently, findings returned by the Courts below that revenue record indicated the parties to be in joint ownership and possession of entire suit land are totally contrary to the revenue record. It is an erroneous finding of fact contrary to the record resulting in travesty of justice. Revenue record specifically records Mohan to be tenant of Dhamehswar (defendants). Plaintiff to the extent of his share in the land is shown to be in exclusive possession. 9. Except for bald statement of defendant No.1 (DW-1) there is nothing on record to corroborate the fact that Mohan was a joint tenant. Mohan has not been examined in Court nor any document of tenancy produced. Thus findings returned by the Courts below even on this point cannot be said to be borne out from the record. 10. Ext.P-5 is the order passed by the Compensation Officer, which shows that plaintiff was arrayed as a party to the proceedings initiated by Mohan. Even this fact would not change the position. Admittedly 6 plaintiff was a co-sharer. He did not contest the proceedings for the simple reason that Mohan was not his tenant. Order of the Compensation Officer cannot be said to be determinative of the relationship of tenancy between Mohan and the plaintiff as it was not an issue in those proceedings. It was only when the defendants, by virtue of the Abolition Act, lost their proprietary rights with an intention of grabbing the plaintiff’s share they started interfering with his settled possession. 11. It has been urged on behalf of the defendants that order passed by the Compensation Officer in the year 1964 was never assailed by the plaintiff. The instant suit was filed only in the year 1987, hence by conduct and acquiescence plaintiff has lost his right in the land. The contention needs to be rejected for the reason that such plea was never raised before the Courts below. That part, plaintiff filed the suit only when defendants started interfering with its settled possession. Plaintiff was not aggrieved by the order passed by the Compensation Officer as Mohan was not his tenant. Plaintiff’s statement in Court cannot be read in isolation. Complete and careful reading of his statement would only show that he has not admitted Mohan to be his tenant. 12. It has next been urged that it is open for the plaintiff to seek partition in accordance with law. This 7 remedy, however, cannot defeat the plaintiff’s right to institute the present proceedings. 13. My attention has also been invited by the learned counsel for the defendants to the following passage of the decision rendered by the Apex Court in Karbalai Begum v. Mohd. Sayeed and another, AIR 1981 SC 77:- “7. Another obvious fact which emerges from the admitted position is that if Mohd. Bashir and Mohd. Rasheed were co-bhumidars with the plaintiff in the khewat and had also sirdari tenants under them, how could the sirdari tenants occupy the land of one of the co- sharers leaving the defendants alone so that the blots were re-allotted to them. It is well settled that mere non-participation in the rent and profits of the land of a cosharer does not amount to an ouster so as to give title by adverse possession to the other co-sharer in possession. Indeed even if this fact be admitted, then the legal position would be that Mohd. Bashir and Mohd. Rashid, being co- sharers of the plaintiff, would become constructive trustees on behalf of the plaintiff and the right of the plaintiff would be deemed to be protected by the trustees. The learned counsel appearing for the respondent was unable to contest this position of law. In the present case, it is therefore manifest that the possession of the defendants, apart from being in the nature of constructive trustees, would be in law the possession of the plaintiff.” 8 14. The ratio is not applicable. Facts are clearly distinguishable. The Apex Court was dealing with a case where it was admitted position that co-bhumidars had also sirdari tenants under them which is not the case in hand. In the instant case Mohan was tenant of the defendants only. 15. Reference to the decision in Sant Ram Nagina Ram vs. Daya Ram Nagina Ram, AIR 1961 Punjab 528, is also of no help to the defendants. The decision is not applicable as it does not deal with the controversy in issue. 16. The substantial questions of law raised in the present appeal in fact are no longer res integra as they stand settled by the High Court of Delhi in Kahnu vs. Hirda Ram etc. , Vol. V-1969-DLT-183. There the Court was also ceased with an identical issue and same provisions of the Abolition Act. The Court held that:- “The question for determination therefore is as to whether the lower Appellate Court was right in holding that the appellant Kahnu, was not the tenant of the first respondent, Hirda and Hari Singh could not admit Kahnu as a tenant and bind his co-sharer Hirda with that tenancy. It was stated in the judgment of the learned Compensation Officer that Kahnu was in possession of the entire land i.e. 108 Bighas and 10 Biswas, while in the judgment of the learned District Judge it was started in one place that Khatauni No.55, which measures 38 9 Bighas, 16 Biswas and 11 Biswansis, No.58, which measures 69 Bighas, 13 Biswas and 9 Biswansis, was also under the cultivation of Kahnu. Shri Hem Chand, however, conceded before me that Kahnu was in possession of only Khatauni No.58, which measures 69 Bighas 13 Biswas and 9 Biswansis. Even so, both Hirda and Hari Singh have each half share in Khatauni No.58. Kahnu was let in as tenant by Hari Singh in respect of the said Khatauni. He could do so only in respect of his share in the Khatauni, but not in respect of the half share of Hirda, unless, of course, Hirda had consented to the same. The learned Compensation Officer observed in his judgment that neither Mst. Maghi during her life-time nor Hirda after inherited the share of Mst. Maghi had objected to the tenancy of Kahnu, and that, therefore, the tenancy was binding upon Hirda. Shri Hem Chand also urged before me that since Mst. Maghi and Hirda raised no objection to and acquiesced in the possession of Kahnu as a tenant, the tenancy should be regarded as binding on Hirda. I do not think so. Where a land is owned by two co-sharers, one co-sharer cannot induct a tenant into his share as well as the share of the other co- sharer in the land so as to make the tenancy binding up on the other co-sharer, except with the consent of the other co-sharer. The consent may, of course, be either express or implied. Acquiescence by the other co-sharer would no doubt amount to implied. A consent, but the acquiescence has to established, like 10 any other fact, by clear, definite, and cogent evidence or circumstances. Omission to object on the part of the other co-sharer for a long time and with full knowledge of the occupation of the land including his share by the tenant may be a circumstance from which an inference of acquiescence might be drawn. But, in the present case, the copy of Jamabandi produced in the case was only of the year 1960-61, the khasra girdawari which shows Kahnu as being Patwari was made only on 8th April, 1963. The application under section 11 of the Act was filed on 18th August, 1964. The date on which Mst. Maghi died is not known. In these circumstances, it cannot be said that the omission to object to Kahnu’s possession as tenant either on the part of Mst. Maghi or on the part of Hirda, assuming that they knew about the possession of land by Kahnu, was for such a long time as to constitute an acquiescence on their part so as to make the induction of Kahnu as a tenant by Hari Singh binding upon them.” (Emphasis supplied) 16. In the instant case apart from the order passed by the Compensation Officer there is nothing to even prima facie show acquiescence. In fact Revenue Entries prove to the contrary. 17. Hence the findings returned by the Courts below are reversed. Judgments and decrees dated 16.3.199 passed by District Judge, Mandi and 18.6.1989 11 passed by Sub Judge, Court No.III, Mandi, are set aside and the suit of the plaintiff is decreed in toto. However, there shall be no order as to costs. 2nd November, 2010 (Sanjay Karol) (C) Judge.