IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. : 159/1999 Reserved on:2.3.2010 Decided on: 5.5.2010 ________________________________________________ Madan Lal and others. …Appellants. Versus Rup Lal and others. … Respondents. __________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the appellants : Mr. Dushyant Dadwal, Advocate. For the Respondents :Mr. Rajnish K. Lal, Advocate vice Mr. K.D. Sood, Advocate. ________________________________________________________ Rajiv Sharma, Judge. This Regular Second Appeal has been directed against the judgment and decree dated 31.3.1999 passed by the learned Additional District Judge (1), Kangra at Dharamshala in Civil Appeal No. 1-D/1997. 2. Material facts necessary for the adjudication of this Regular Second Appeal are that plaintiffs No.1 and 2, and predecessor-in-interest of plaintiffs No. 3 (a) to 3(c), Sh. Ghunghar (hereinafter referred to as ‘the plaintiffs’ for convenience sake) filed a 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 suit for declaration to the effect that the plaintiffs and predecessor in interest of appellants-defendants are in joint possession as tenants and have acquired proprietary rights in respect of the land detailed in civil suit measuring 1-37-42 hectares situated in Mohal Patni, Mauza Pasu, Tehsil Dharamshala, District Kangra, Himachal Pradesh as per jamabandi for the year 1970-71 on the averments that the land in suit is recorded in the ownership of proforma respondents-defendants No. 4 to 8 and is in possession of defendant No.1 Phangan (defendant Phangan died during the pendency of the suit and his legal heirs were brought on record, i.e. Madan Lal, Ranjit Singh and Subhash Chand vide order dated 1.3.1994 passed by the learned trial court) as tenant at will. It is also averred that the Missal Haquiat and jamabandi for the year 1968-69 further reveals that prior to the recent settlement, it was denoted with khasra Nos. 309, 324, 308 and small insignificant parts of khasra Nos.307, 314 min, 311 min and 324 min and the land of Khasra No. 309 min, 324 and 308 min, plots 3, measuring 35 kanals 2 marlas were in possession of the tenant at will of the predecessor-in- interest of respondents No.3-(a) and 3-(b), namely, Sh. Ghunghar - plaintiff and defendant No.1 Sh. Phangan. However, even the name of Ghunghar was left out during the settlement and as per jamabandi for the year 1931-32, the land comprised Khasra No. 213 min and 224 min area measuring 22 kanals 2 marlas was owned by Sh. Sansaru, the predecessor-in-interest of proforma defendants No. 4 to 8 and in possession of the predecessor-in-interest of the plaintiffs and defendant No.1 Phangan as tenant-at-will on payment of Galla Batai as rent and when Sh. Parma, the predecessor-in-interest of the 3 plaintiffs expired, the plaintiffs and Phangan were minors and after the demise of Sh. Parma, the land in suit was cultivated by Kalu for sometime and when he left the cultivation, the same came in possession of the plaintiffs and defendant Phangan as tenants, but Sh. Phangan being the eldest brother of the plaintiffs, the suit land was recorded in possession of Ghunghar and Phangan as Gair Maurusi tenants under the owners on payment of Galla Batai alongwith some other land. They used to live in a joint family till 1983 and the land was also jointly cultivated after paying the rent to the land owners. It is further stated that the land comprising 214 min, 224 and 213 min was denoted by new khasra Nos. 309 min, 324 and 308 min, measuring 35 kanals 2 marlas and the possession of the suit land was again shown in the name of Ghunghar and Phangan. It is further stated that notwithstanding that the possessory column showed Ghunghar and Phangan as tenants, yet the land in suit was cultivated and is being cultivated jointly by the plaintiffs and Phangan. The parties started leaving separately from 1983. However, during the settlement operation, Phangan in collusion with other defendants and the settlement staff showed himself as sole tenant of the land in suit, which is contrary to the facts and thereafter Phangan started proclaiming himself that he is the sole tenant of the suit land. It is in these circumstances that the proprietary rights were conferred upon him under the Himachal Pradesh Tenancy and Land Reforms Act. The suit was contested by defendant No.1-Phangan by filing written statement. He raised various preliminary objections. On merits, he has contended that the settlement took place in Tikka and during the 4 settlement all the entries of the revenue record were recorded according to the factual position on the spot and the suit land was never cultivated by Ghunghar and he was not in possession of the suit land. It was further averred that Ghunghar was in police service and there was no occasion for him being in possession of the suit land and he has no knowledge about the revenue entries in the copy of jamabandi for the year 1968-69. He further contended that he was in possession of the suit land as tenant and remained in possession of the same throughout after paying Galla Batai and according to him other plaintiffs, including Ghunghar never cultivated the land and there was no question of joint cultivation by them with him. He lastly contended that he is leaving separately from the plaintiffs for many years. Proforma respondents No. 7 and 8 filed separate written statement and have stated that Phangan was in cultivating possession of the suit land as tenant and he was in possession of the suit land as a tenant and he had been paying rent to them as their tenants. The learned Senior Sub Judge, Kangra at Dharamshala dismissed the suit on 30.10.1996. The plaintiffs preferred an appeal before the learned Additional District Judge (1), Kangra at Dharamshala vide Civil Appeal No. 1-D/97. The learned Additional District Judge allowed the appeal on 31.3.1999 and the judgment and decree passed by the trial court was set aside. The suit of the plaintiffs was decreed as per operative portion of the judgment. 3. The appellants have filed the present Regular Second Appeal against the judgment and decree dated 31.3.1999. The 5 Regular Second Appeal was admitted on the following substantial questions of law: 1. “Whether the judgments of the learned Courts below and especially of learned Appellate Court is in accordance with law when the suit was clearly barred by limitation, Article 113 of the Limitations Act and the Question of Limitation should have been determined first by the learned Appellate Court? 2. Whether the learned Appellate Court was right in ignoring issue No.10-A relating to the jurisdiction of the Civil Courts and the provisions of H.P. Tenancy and Land Reforms Act wherein the jurisdiction of the Civil Courts is barred except in case as specified in Full Bench Decision of this Hon Court in Chuniya’s case? 3. Whether the judgment and decree of the learned Appellate Court is tenable in law in ignoring the provisions of Section 114 of the Evidence Act where the presumption of truth attaches to official acts, performed under Statute in the present case, preparation of the revenue record under the provisions of H.P. Land Revenue Act and Conferment of Proprietary rights under the provisions of section 104 of the Tenancy and Land Reforms Act?” 4. Mr. Dushyant Dadwal has vehemently argued that the judgment and decree passed by the first appellate court is not sustainable. He has further argued that the suit was barred by limitation and the civil court had no jurisdiction to try, entertain and decide the case. 5. Mr. Rajnish K. Lal has supported the judgment and decree passed by the first appellate court. 6 6. I have heard the learned counsel for the parties and perused the record carefully. 7. Since all the substantial questions of law are interconnected and interlinked, therefore, the same are taken up together for determination to avoid repetition of discussion of evidence. 8. It will be apt at this stage to mention that the trial court has not framed any issue on the question of limitation. The contesting defendants have also not raised the issue of ouster of jurisdiction of civil court as per the provisions of the Himachal Pradesh Tenancy and Land Reforms Act specifically. No specific issue to this effect was framed by the trial court. Similarly, neither there were pleadings nor any issue was raised as per substantial question No.3 framed by this Court. It is settled law by now that only those questions can be treated as substantial questions of law, which have been raised before the trial court by way of pleadings and leading evidence. The substantial question of law cannot be raised in abstract form without there being any factual foundation. A bare perusal of the judgment of the learned trial court reveals that there is no discussion on the question of limitation. The primary reason for the same is that no issue was framed to this effect. Similarly, the contesting defendants have not raised the plea of limitation before the learned first appellate court. The question of limitation in these circumstances cannot be permitted to be taken in the Regular Second Appeal. However, Mr. Dushyant Dadwal has been heard on other legal issues involved in this petition to do complete justice. 7 9. The plaintiffs have produced in evidence copy of jamabandi for the year 1931-32 Ex.P-5. The land in suit was recorded in the ownership of Sansaru, predecessor-in-interest of the proforma respondents and in possession of Parma, father of plaintiffs and defendant Phangan as non-occupancy tenant on payment of rent. Proforma respondents came to be recorded as owners in place of Sansaru as per Jamabandi for the year 1951-52 Ex.P-4. Ghunghar and Phangan came to be recorded as non-occupancy tenants on payment of rent. The suit land came to be recorded in the ownership of proforma respondents and in possession of Sh. Ghunghar and Phangan as non-occupancy tenants as per copy of Missal Haquiat Istemal (consolidation). As per Ex.P-2, P-4 and DX, copies of jamabandi for the year 1968-69, the suit land has been recorded in the ownership of proforma respondents and in possession of plaintiffs, i.e. Ghunghar and Phangan as non-occupancy tenants on payment of rent. The settlement operation took place in the year 1970-71. The suit land was recorded in the ownership of proforma respondents and the same was recorded in exclusive possession of Phangan as non- occupancy tenant as per copy of Missal Haquiat Bandobast Jadid for the year 1970-71 (Ex.P-1). These entries were recorded in the jamabandi for the years1980-81 Ex.D-1, 1984-85 Ex.D-2 and 1989-90 Ex.D-3. In copy of Khasra Girdawari Ex.D-4, Phangan was shown in possession of the suit land as non-occupancy tenant. The proprietary rights were mutated in favour of Phangan as per provision of section 104 (3) of the Himachal Pradesh Tenancy and Land Reforms Act as per Ex.DY and D-2. 8 10. What emerges from these revenue entries is that Parma, predecessor-in-interest of the plaintiffs and Phangan, was recorded as non-occupancy tenants under Sansaru, predecessor-in-interest of proforma respondents. Proforma respondents came to be recorded as owners of the suit land after the death of Sh. Sansaru. Plaintiff Ghunghar and defendant Phangan came to be recorded as non- occupancy tenants qua the suit land as per Ex.P-4 i.e. copy of jamabandi for the year 1951-52. The same position continued till 1970-71. It is only in the year 1970-71 when the settlement took place in the Tikka that Phangan was shown in exclusive possession of the suit land as non-occupancy tenant and proprietary rights were conferred upon him. 11. Plaintiffs have also produced oral evidence. Statement of PW-1 Mast Ram is material. He has testified that the suit land was initially owned by Sansaru and the same was in possession of Sh. Parma, father of the plaintiffs and Phangan as non-occupancy tenants. The rent was being paid by the plaintiffs through their brother Phangan. Plaintiffs and defendant Phangan separated on 13.2.1983 and the suit land was cultivated jointly by all the brothers since 1983. PW-2 Thakur Dass and PW-3 Parkash Chand have supported the version of PW-1. 12. Defendant Phangan has examined his son Madan Lal as DW-1. He has deposed that the suit land was in possession of his father and he used to help his father in cultivation of the suit land. According to him, the plaintiffs never remained in possession of the suit land and during the settlement operation, the possession of his 9 father was recorded in his presence. DW-2 Kuldip and DW-3 Jagdish Chand have supported the case of the defendants. 13. Defendant Phangan has failed to prove that he was inducted as tenant qua the suit land by proforma respondents. It is settled law that tenancy is a creature of agreement and the same is required to be proved as per law. Proforma respondents though admitted in their written statement that Phangan was their tenant, however, they have not stepped into the witness box. Phangan has not examined any owner to prove that he was inducted as sole tenant by them or by their predecessor-in-interest, Sh. Sansaru. He has failed to prove that his father Parma was not non-occupancy tenant qua the suit land. The plea raised by the defendant Phangan that the plaintiffs have relinquished their tenancy could not be proved by him. The owner, who has allegedly issued the rent receipts, has not been examined by Phangan. There is another circumstance, which will go against defendant Phangan. The Himachal Pradesh Tenancy and Land Reforms Act has come into force in February, 1974 and the Himachal Pradesh Tenancy and Land Reforms Rules came into force on October 3, 1975. In view of the provision of section 104 of the Himachal Pradesh Tenancy and Land Reforms Act, the tenants automatically became the owners of the land in the year 1975 as per force of law. In case defendant Phangan had become owner, there was no occasion for him to pay rent to the owners in the years 1986, 1992 and even on 15.5.1993. The conferment of the proprietary rights, as discussed hereinabove, upon the contesting defendant, is contrary to settled procedure. The plaintiffs, who were in possession 10 of the suit land have not been heard. The proprietary rights could not be conferred solely upon Phangan when the plaintiffs were also in possession of the suit land. In view of this, Chuniya’s case will not apply in the instant case. There is a detailed discussion by the learned Additional District Judge the manner in which the revenue entries were altered in favour of the contesting defendant, on the basis of which the proprietary rights were conferred upon them. Since the entries recorded in favour of the contesting defendants have been declared illegal by the Additional District Judge, no proprietary rights could be conferred upon them without hearing the plaintiffs, who were also in possession of the suit land. 14. The plaintiffs have proved/established that earlier their father Parma was in possession of the suit land as non-occupancy tenant and after his death, the plaintiffs including Phangan came to be recorded as non-occupancy tenants. The plaintiffs have led sufficient evidence to prove that they and defendant Phangan remained in possession of the suit land till 1983 and thereafter they came in possession of the different parts of the suit land. Defendant Phangan has failed to show how he came to be recorded in exclusive possession of the suit land as non-occupancy tenant and how the name of Ghunghar was deleted from the column of possession. Defendant Phangan has not placed on record copy of rapat rojnamcha. Neither any order of the competent revenue officer has been produced nor any oral evidence has been led to show that defendant Phangan came to be recorded in exclusive possession of the suit land as non-occupancy tenant. There is a detailed procedure 11 the manner in which the revenue entries are to be incorporated in the Himachal Pradesh Land Records. It is true that the presumption of truth is attached to the latest revenue record, however, the same is rebuttal. In the present case the entries in the name of Sh. Ghunghar had been deleted without following the procedure prescribed. The plaintiffs have led sufficient evidence to rebut the latest revenue entries made in favour of Phangan. In these circumstances, the proprietary rights could not be conferred upon Phangan as per Ex.DY and D-2. The suit was filed by the plaintiffs on 18.7.1991. It is evident that the filing of the suit has not been brought to the notice of the revenue officer. 15. Cumulatively, it is held that the plaintiffs were in joint possession of the suit land alongwith Phangan as tenants and have acquired proprietary rights qua the suit land and the findings recorded by the learned Additional District Judge to the effect that conferment of proprietary rights in favour of Phangan alone are not legal and valid, are upheld. 16. Accordingly, in view of the discussion made hereinabove, there is no merit in this Regular Second Appeal and the same is dismissed. There shall, however, be no order as to costs. (Rajiv Sharma), J. 5.5.2010. *awasthi*