IN THE HON’BLE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A.No. 71 of 1998. Reserved on : 9.3.2009 Decided on: 13.3.2009. Chuni Lal & Others. …Appellants. Versus Makholi Ram alias Sohan Singh & Others ..Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 No. For the Appellants : Mr. K.D.Sood, Advocate. For the respondents : Mr. Anuj Nag, Advocate. Kuldip Singh , Judge The defendants have come in appeal against judgment, decree dated 23.12.1997 passed by the learned District Judge, Kangra at Dharamshala in Civil Appeal No. 11-K/XIII-1996 confirming judgment, decree dated 30.12.1995 passed by the learned Sub Judge 1st Class, Kangra in Civil Suit No.178 of 1991. 2. The facts, in brief, are that respondents had filed a suit for declaration with consequential relief of permanent prohibitory injunction that they are owners in possession of land comprised in Khata No. 17 min, Khatauni No.40/1 min, Khasra No. 292 measuring 0-03-36 Hects. Mohal Kanjrehar, Mauza Ghurkari, Tehsil and District Kangra as per jamabandi 1986-87. The entry in the revenue records in favour of predecessors-in interest of appellants is merely a paper entry. The appellants on the basis 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes. 2 of paper entry have no right to interfere and raise construction on the suit land. In alternative, respondents had prayed for possession. It has been pleaded that predecessor-in-interest of the appellants and after them the appellants never occupied the suit land but appellants are threatening to interfere on the suit land. 3. The suit was contested by filing written statement in which preliminary objections of maintainability, jurisdiction of the Court to try the suit, adverse possession, estoppel, lack of cause of action and limitation have been taken. On merits, it has been pleaded that the appellants have acquired proprietary rights under the existing law, the respondents have no concern with the suit land. The predecessors-in-interest of the appellants were tenants and after them the tenancy was inherited by appellants and they are in cultivating possession of the suit land as tenants. In case the appellants failed to prove their tenancy, in that event the appellants have acquired proprietary rights by way of adverse possession. The possession of the appellants and their forefathers is more than 50 years. The respondents filed replication in which they re-asserted their case. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiffs are owners in possession of the suit land as alleged ? OPP. 2. Whether the entry in the name of defendants are wrong and illegal, as alleged? OPP. 3. If issue No.1 is not proved, whether the plaintiffs are entitled to possession of suit land as alleged ? OPP. 4. Whether the suit is not maintainable in prayer ‘A’ as well as prayer ‘B’, as alleged ? OPD. 5. Whether the defendants are tenants of the suit land and this court has no jurisdiction ? OPD. 6. Whether if tenancy is not proved, the defendants have acquired proprietary rights by way of adverse possession ? OPD. 7. Whether the act, conduct and acquiescence of the plaintiffs is bar to sue ? OPD. 3 8. Whether the plaintiffs have no cause of action and locus standi to sue ? OPD. 9. Whether the suit is not within time ? OPD. 10. Relief. The trial Court answered issue No.1 partly and issues No. 2 & 3 wholly in affirmative, issues No.4 to 9 in negative and decreed the suit. In appeal, an application for amendment of written statement was filed which was allowed and on 13.6.1997, the following additional issues were framed by the learned lower Appellate Court: 9-A. Whether the defendants-appellants were the tenants of the suit land and were evicted by virtue of the order passed by the Assistant Collector, it so, its effect ? OPD. 9-B. Whether the defendants-appellants have become owners of the suit land by way of adverse possession? OPD. It was also ordered that in view of the additional issues 9-A and 9-B, the issues No.5 & 6 framed by the learned trial Court were ordered to be deleted. Lateron the parties were given opportunity to lead additional evidence. The learned lower Appellate Court answered issues No. 9-A and 9-B in negative and dismissed the appeal on 23.12.1997, hence second appeal which has been admitted on following substantial questions of law: 1. Whether the Courts below have misconstrued and mis-read the oral and documentary evidence, particularly the judgment of Collector, Kangra and the order of the Asstt. Collector, Kangra dated 28.3.68 passed under Section 9 of the Punjab Security of Land Tenure Act whereby neither compensation was paid to the appellate, nor they were resettled on surplus land as required under the Act and from the land in dispute they were never dispossessed and therefore the tenancy continued ? 2. Whether the Courts below have not raised proper conclusions and inferences from the facts proved on record, particularly the revenue records Ex.D1 to D9 and DX to which the presumption of truth was attached? 4 3. Whether in view of the provisions of the H.P.Transferred Territories Protection Act the relationship of landlord and tenant between Nantu and Mansukh, Ram Saran and Milkhi Ram did not cease and appellant continued to be the tenant on the land? 4. Whether in the facts and circumstances of the case, it could be assumed that the possession of the appellant was permissive and not adverse as the appellants were in open, exclusive and as of right possession for more than 12 years before filing of the suit and as such the suit as framed was not maintainable and the decree for possession could not be passed? 5. Whether the Court below failed to frame proper issues arising out of the pleadings of the parties which has vitiated the findings? 4. I have heard Mr. K.D.Sood, learned counsel for the appellants and Mr. Anuj Nag, learned counsel for the respondents and have gone through the records. Mr. Sood has submitted that the appellants continued to be tenant despite the ejectment order dated 28.3.1968 in as much as the appellants were not settled under Section 9-A of the Punjab Security of Land Tenure Act. In alternative, he has submitted that after 28.3.1968, the appellants remained in possession of the suit land by way of adverse possession and they acquired title of the suit land on the basis of adverse possession. The learned counsel for the respondents has submitted that tenancy of the appellants came to an end on the date of ejectment order passed against them. The appellants have neither pleaded nor proved adverse possession on the suit land in accordance with law. The finding on adverse possession has been returned by the court below against the appellants which is a finding of fact and in second appeal the evidence cannot be appreciated so as to reverse the finding of fact. Substantial questions of law No.1 to 5: 5. The substantial questions of law No.1 to 5 are inter- connected, therefore, all of them are being taken up together for disposal. 5 The appellants have filed suit for declaration, injunction and in alternative for possession on the basis of title. The case of the respondents is that appellants have no right title in the suit land. On the contrary, the defence of the appellants is that they were tenants on the suit land, they were not ejected physically from the suit land despite the order dated 28.3.1968. They were also not settled under Section 9-A of the Punjab Security of Land Tenure Act and, therefore, they continued to be tenants on the suit land. In alternative the case of the appellants is that they have become owners on the suit land by way of adverse possession. Ex.DA is the order dated 28.3.1968 passed by the Assistant Collector 1st Grade, Kangra vide which Mansukh, Ram Saran and Milkhi were ordered to be ejected from the land comprised in Khasra No. 210 as per jamabandi for the year 1960- 61 of Tika Kanjhrer, Mauza Ghurkari, Tehsil Kangra on payment of compensation Rs.55/- only. It was also ordered that aforesaid persons shall not be dispossessed of their tenancy so long as they are not re- settled on some surplus areas as required under Section 9-A of the Act about which the case was sent to SNT Dharamshala for further necessary action. The order dated 28.3.1968 was upheld by the Collector, Kangra at Dharamshala in appeal vide Ex. DX dated 19.11.1968. The Collector dismissed the appeal. 6. After passing of the ejectment order, the predecessors of the appellants and thereafter appellants ceased to be tenants. Their settlement on some other land under Section 9-A of the Punjab Security of Land Tenure Act would not protect their tenancy which cease to exist after the passing of the ejectment order. The intention of Section 9-A of the aforesaid Act appears to give helping hand to the person whose tenancy has ceased to exist by ejectment order and to settle him on some other land. But that would not revive the tenancy which came to an end on passing of the ejectment order. In Umrao v. Nemi and others (PLR Vol. 6 LXIX 1967), the following decision in Hans Raj v. Shrimati Brahmi Devi ( 1960 PLJ 71) has been approved:- “The moment the court on the landlord’s petition passes a decree or order for ejectment, it clearly does no more than to declare that henceforth the parties ceases to be landlord and tenant. The fact that the decree or order has to be executed in order to dispossess the tenant and put the landlord in physical possession does not and cannot mean that till the decree or ordered is not executed the status of the parties qua one another has not been determined. The decree or order determines the rights of the parties inter se and the execution of that decree or order merely gives effect to that determination. Thus on first principle it cannot but be held that the final order of ejectment puts an end to the relationship of landlord and tenant and the tenant cannot after the date of the order be held to be occupancy tenant on the ground that the tenant remained in possession or that the tenant was illegally dispossessed in execution of the order.” In these circumstances, on 28.3.1968, the predecessors-in-interest of appellant and after them appellants ceased to be the tenants on the suit land. 7. The learned counsel for the appellants has submitted that from 28.3.1968 the appellants are coming in peaceful hostile possession of the suit land and they have acquired title on the suit land on the basis of adverse possession. At this stage, it is necessary to refer to amended written statement filed by the appellants in the lower Appellate Court wherein appellants have pleaded that their possession is open, hostile to the general public as well as respondents. The possession of the appellants and their forefathers is more than 50 years but their adverse possession commences from 19.11.1968 onwards without interruption and they have acquired proprietary rights by way of adverse possession. 7 8. In the earlier written statement, the appellants have pleaded that respondents and their predecessors were consenting party to the possession of appellants. The written statement has been amended but the admission of the appellants in the unamended written statement is very much on record. In the amendment application the appellants have pleaded that though the pleadings are there in the written statement but the same are not complete and properly expressed. In order to elucidate the pleadings, deletion/ additions and alterations are required to be made in the written statement. In the amendment application the appellants have come forward for the deletion of the pleadings that respondents and their predecessors were consenting party to the possession of appellants. This means that the appellants were aware of the fact that in the earlier written statement they had taken the plea that respondents and their predecessors were consenting party to the possession of appellants. The deletion of this part of the pleading by way of amendment would not amount to wiping out of admission made by the appellants in the earlier written statement. The plea of appellants that their possession on the suit land was with the consent of respondents and their predecessors cuts the very basis of adverse possession of appellants on the suit land. In addition to this, statement of DW-1 Chuni Lal in the trial Court as well as his statement as AW-2 in the lower Appellate Court nowhere establishes adverse possession of appellants on the suit land. The statement of DW-1 indicates that appellants cultivated the land because they used to help respondents in their house hold work and for that reason they were not paying any rent. This means the appellants were cultivating the land with the consent of respondents which does not amount to adverse possession. It has been pleaded by appellants that they are in adverse possession on the suit land since 19.11.1968 whereas AW-2 Chuni Lal himself has stated that his father died in the year 1978. During the life time of father of Chuni Lal, 8 there was no question of his (Chuni Lal) in adverse possession against respondents since 1968. The appellants have miserably failed to prove their adverse possession on the suit land. 9. The effect of H.P. Transferred Territories Protection Act as referred in substantial question of law No.3 has not been elaborated. No submissions on substantial question of law No. 5 were made, Ex.D-1 to Ex.D-9 do not advance the case of appellants in light of above discussion. The appellants have failed to show that inadmissible evidence has been considered by two courts below in returning finding of adverse possession against appellants nor he has pointed out that some material evidence which goes to the root of the case has been ignored which if considered would change the ultimate result. The two Courts below have rightly appreciated the material on record. The learned counsel for the appellants has failed to establish any illegality in the impugned judgment and decree. The substantial questions of law No.1 to 5 are accordingly decided against the appellants. 10. No other point was urged. 11. The result of the above discussion, the appeal fails and is accordingly dismissed with no order as to costs. ( Kuldip Singh ) Judge. March 13, 2009. (GR)