IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.237 of 1998. With Cross Objection No.218/99. Reserved on:5.12.2008. Decided on:19.12.2008. Dev Raj & Anr. …Appellants. VERSUS Krishni & Ors. ….Respondents. Coram The Hon’ble Mr.Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the Appellants: Mr Sandip Sharma, Advocate. For the respondents: Mr Shrawan Dogra, Advocate for respondent No.1. Kuldip Singh, Judge. The appellants, who were defendants No.1 and 2, have filed this appeal against the judgment, decree dated 11.2.1998 passed by learned District Judge, Bilaspur in Civil Appeal No.29 of 1987 partly allowing the 1st appeal by holding that respondent No.1 / plaintiff is not entitled to get back possession of the house comprised in Khasra No.663, Whether the reporters of the local papers maybe allowed to see the judgment? Yes …2… measuring 11 biswas, instead she is only entitled to the market rate of the land covered under the construction and thus modifying judgment, decree dated 28.1.1987 passed by learned Sub Judge 1st Class, Ghumarwin in Civil Suit No.67/1 of 1982. The respondent No.1 / plaintiff has filed the cross objections in the appeal. 2. The facts, in brief, are that respondent No.1 / plaintiff had filed a suit for permanent prohibitory injunction and in the alternative for possession on the ground that her father Chaudhari was owner of land comprised in Khasra No.663 measuring 11 biswas as well as land comprised in Khasra Numbers 659, 660 measuring 1-11 bighas village Behran, Pargna Geharwin, Tehsil Ghumarwin, District Bilaspur (for short ‘suit land’). On the death of Chaudhari the respondent No.1, being his daughter, became owner in possession of the suit land. The appellants had threatened to interfere in her ownership and possession, therefore, she filed the suit for permanent prohibitory injunction and in the alternative for possession of the suit land including demolition of structure on Khasra No.663. 3. The suit was contested by appellants by filing written statement, they took several preliminary objections, such as maintainability, cause of action, valuation, non- …3… joinder, limitation etc. It was alleged that appellant No.1 had constructed a residential house, shop and a cow shed 15-16 years ago on Khasra No.663 and on the remaining land he had been coming in possession on the basis of tenancy. It was pleaded that Chaudhari had executed a Will dated 10.2.1973 in favour of appellant No.1. The replication was filed. The learned Sub Judge decreed the suit on 28.1.1987 for possession by demolition of construction raised by appellant No.1 on Khasra No.663 measuring 11 biswas. The appellants filed appeal and vide judgment, decree dated 11.2.1998 the learned District Judge modified judgment, decree dated 28.1.1987, as noticed above. In these circumstances, the appellants have filed the second appeal in which respondent No.1 / plaintiff has filed the cross objections for modification of the judgment , decree dated 11.2.1998 to the extent learned District Judge has modified the judgment, decree dated 28.1.1987 passed by the learned Sub Judge. The appeal has been admitted on the following substantial questions of law:- i) Whether the learned Courts below have failed to appreciate that the provisions of Section 45 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972 will be attracted in the instant case? …4… ii) Whether the learned Courts below have failed to appreciate that as per the provisions of Section 45 of the H.P. Tenancy and Land Reforms Act, 1972 the Rules wherein came into force much later i.e. in the year 1975, the property of the non-occupancy tenant would automatically devolve upon the collateral male descendant in the absence of any male heir in his own line after his death? iii) Whether the learned Courts below have erred in entertaining the issue in question by going beyond the jurisdiction vested with it despite the fact that the jurisdiction of the Civil Courts in such like matters is barred? iv) Whether the Courts below have mis- appreciated, mis-construed and mis- applied the oral as well as documentary evidence led on record? The cross objections have been admitted on the following substantial question of law:- i) Whether the cross objector / plaintiff is not entitled to decree of possession of the houses constructed on Khasra No.663, measuring 11 biswas on the principle of acquiescence? …5… 4. I have heard Mr.Sandip Sharma, learned counsel for the appellants, Mr.Shrawan Dogra, learned counsel for respondent No.1 and gone through the record, none appeared on behalf of the other respondents. It has been submitted on behalf of the appellants that learned first appellate Court has not properly appreciated the material on record. The appellant No.1 has succeeded to the tenancy rights of Chaudhari under Section 45 of the H.P. Tenancy & Land Reforms Act which has not been properly appreciated by the learned District Judge. The Civil Court has no jurisdiction to entertain the issue in question. The learned counsel for respondent No.1 has submitted that respondent No.1 has proved her title on the suit land, therefore, she is entitled to possession of the suit land after demolition of structure constructed on Khasra No.663. The decree passed by learned District Judge is vague inasmuch as the market value of the land under the structure has not been assessed. He has prayed for restoration of the decree passed by the learned Sub Judge. SUBSTANTIAL QUESTIONS OF LAW NO.(i) & (ii) OF THE APPEAL: 5. The substantial questions of law No.(i) and (ii) are inter-connected, therefore, both of them are being disposed of …6… collectively. The Section 45 of the H.P. Tenancy and Land Reforms Act, 1972 (for short ‘the Act’) is as follows:- “Succession to right of tenancy.-When a tenant in any land dies, the right shall devolve- (a) on his male linear descendants, if any, in the male line of descent; and (b) failing such descendant, on his widow, if any, until she dies or remarries or abandons the land or is under the provisions of this Act ejected there from; and (c) Failing such descendants and widow, on his widowed mother, if any, until she dies or remarries or abandons the land or is under the provisions of this Act ejected there from; and (d) Failing such descendant and widow, or widowed mother or, if the deceased tenant left widow or widowed mother, then when her interest terminates under clause (b) or (c) of this section, on his male collateral relatives in the male line of descent from the common ancestor of the deceased tenant and those relatives.” …7… The appellant No.1 has claimed tenancy on the suit land on the ground that he was tenant of Chaudhari. There is no averment in the written statement of the appellants that appellant No.1 succeeded to the tenancy of Chaudhari under Section 45 of the Act. The appellant No.1 has not projected the case of succession to the tenancy of Chaudhari in his defence. In the grounds of appeal in the lower appellate Court also, the appellant No.1 has not claimed succession to the tenancy of Chaudhari under Section 45 of the Act. It appears the appellants in the lower appellate Court during hearing first time claimed tenancy of Chaudhari under Section 45 of the Act. The claim of tenancy of appellant No.1 of Chaudhari under Section 45 of the Act is without foundation and, therefore, appellant No.1 is not entitled to take the plea of succession to the tenancy of Chaudhari under Section 45 of the Act. The plea of appellant No.1 under Section 45 of the Act is in contradiction to his stand in the written statement that he was tenant under Chaudhari and later on become owner of the suit land. Accordingly, the substantial questions of law No.(i) and (ii) are decided against the appellants. SUBSTANTIAL QUESTION OF LAW NO.(iii) OF THE APPEAL: 6. The jurisdiction of the Court to try the suit has been pleaded in Para-9 of the plaint. In Para-8 of the plaint, …8… valuation of the suit has been pleaded. In the written statement appellants in answer to Para-8 of the plaint have pleaded that suit has not been valued properly for Court fee and jurisdiction. The Para-9 of the plaint has been answered as formal which needs no reply. In other words, the appellants in the written statement never disputed the jurisdiction of the civil Court to try the suit. There is no issue regarding the jurisdiction of the civil Court to try the suit. The substantial question of law No.(iii) does not emerge from the defence of appellants pleaded in the written statement. Hence, substantial question of law No.(iii) is decided against the appellants. SUBSTANTIAL QUESTION OF LAW NO.(iv) OF APPEAL AND SUBSTANTIAL QUESTION OF LAW No.(i) OF CROSS OBJECTIONS: 7. The appellant No.1 has taken different stands regarding the suit land. In the written statement dated 21.12.1986, he has pleaded that he was tenant under Chaudhari and was paying Rs.10 of the land on which the houses are situated and 1/4th produce of the cultivated land to Chaudhari. He constructed residential house, shop and cow shed 15 – 16 years ago. He has also pleaded that Chaudhari had executed a Will dated 10.2.1973 of his property in his (appellant No.1) favour. Later on, at the time of hearing in the lower appellate Court, appellant No.1 took the plea that he …9… succeeded to the tenancy of Chaudhari under Section 45 of the Act. The appellant No.1 has miserably failed to prove his tenancy under Chaudhari or by way of succession of the tenancy of Chaudhari under Section 45 of the Act. The two Courts below have recorded a finding of fact on tenancy of appellant No.1 on the suit land under Chaudhari against appellant No.1. It has not been pointed out that while recording such finding the two Courts below have taken into consideration inadmissible evidence or ignored material evidence. In these circumstances, the finding of fact on tenancy cannot be re-opened in the second appeal. Similar is the case with respect to the alleged Will dated 10.2.1973 of Chaudhari in favour of appellant No.1. In the written statement, the appellants have not taken specific plea of acquiescence or that appellant No.1 raised construction on the suit land with the consent, permission of Chaudhari. The appellants have heavily relied on Ext.DW-2/A dated 10.2.1973 in order to show that appellant No.1 had raised construction on the suit land with the permission of Chaudhari and, therefore, respondent No.1 / plaintiff is not entitled to possession of that part of the suit land on which structures were raised by appellant No.1. In Ext.DW-2/A, it has been stated that there are houses on Khasra Nos.663, 660, 659. It …10… has also been mentioned that Chaudhari had kept Dev Raj for his look after for the last about 5/6 years. Dev Raj had constructed house on this land with his permission. The contents of Ext.DW-2/A are in conflict with the pleaded case of appellants in the written statement dated 2.12.1986. In the written statement, it has been pleaded that appellants are owners in possession of the suit land and appellant No.1 has constructed house, shop and cow shed about 16 years ago which comes to around the year 1970. It has also been pleaded in the written statement that appellant No.1 was tenant on the land under house on payment of Rs.10 and on cultivated land on payment of 1/4th produce. How in the year 1970 appellant No.1 became the owner of the suit land that has neither been pleaded nor proved. The construction of house as per Ext.DW-2/A relates back to 1967-68. There are visible contradictions in the pleaded case of the appellants. This is in the background of the fact that appellant No.1 has pleaded the construction of the house in his own right and not with the consent, permission, approval and acquiescence of Chaudhari, therefore, there is no question of acquiescence of Chaudhari and after his death of his daughter respondent No.1 of the alleged construction raised by appellant No.1 on the suit land. Chaudhari admittedly was the owner in possession of the suit …11… land and after his death respondent No.1 being the daughter of Chaudhari has proved her title on the suit land. The learned District Judge has erred in returning the finding that appellant No.1 had raised construction on Khasra No.663 with the consent of Chaudhari, this is not even the pleaded case of appellant No.1. The learned District Judge has committed another error in not assessing the market value of the land under house on Khasra No.663 before ordering appellant No.1 to pay the market rate of the land covered under the construction to respondent No.1. The impugned judgment, decree to this extent, thus, taken from any angle is not sustainable. The respondent No.1 has proved her title on the suit land, therefore, she is entitled to restoration of the possession of the suit land after demolition of structure on Khasra No.663. The substantial question of law No.(iv) of the appeal is decided against the appellants and substantial question of law No.(i) of the cross objections is decided in favour of cross objector / respondent No.1. 8. No other point was urged. 9. The result of the above discussion, the appeal fails and is accordingly dismissed. The cross objections are allowed. Judgment, decree dated 11.2.1998 passed by learned District Judge, Bilaspur in Civil Appeal No.29 of 1987 …12… is set aside. Suit of respondent No.1 / plaintiff is decreed for possession of suit land after demolition of construction raised by appellant No.1 on Khasra No.663 measuring 11 biswas. No costs. December 19, 2008. ( Kuldip Singh ), J. (soni)