IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.: 103 of 1998. Reserved on: 07.01.2009. Decided on: 24.02.2009. Shri Nika Singh and others. … Appellants. Versus Shri Girdhari Lal and others. …Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. Yes. For the Appellants : Mr. Ajay Sharma, Advocate. For the Respondents : Mr. N.K. Thakur, Advocate. Rajiv Sharma, J. This regular second appeal has been directed against the judgment and decree passed by the learned Additional District Judge, Una dated 9.1.1998 in Civil Appeal No.90/91, 202/94. Brief facts necessary for the adjudication of this regular second appeal are that the predecessor-in-interest of the respondents/plaintiffs, Shri Tarlok Chand (hereinafter referred to as “the plaintiff” for convenience sake) filed a suit for permanent injunction restraining the predecessor-in-interest of the present 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. - 2 - appellants/defendants (hereinafter referred to as the defendant for convenience sake) from making any type of interference in any manner with his possession over the suit land comprised in Khewat No.69 min, Khatauni No.324, Khasra No.2454 measuring 2 Kanals 14 Marlas, situated in village Thathal, Tehsil Amb, District Una, Hadbast No.157 as per jamabandi for the year 1977-78. It was alleged that the suit land was previously possessed by the plaintiff as tenant and thereafter passing of H.P. Tenancy and Land Reforms Act, 1972, he became owner of it. Mutation of ownership was also sanctioned in his favour. It was further alleged that the defendant being stranger to the suit land had no right, title or interest in the suit land. The defendant filed written statement. It was contended by the defendant that the plaintiff had never been in possession of the suit land in any capacity. Previously, father of defendant and his uncle were in possession of the suit land as tenants on payment of rent to the land owners. After the death of his father and uncle, the defendant is coming in possession of the suit land. The trial Court dismissed the suit of plaintiff on 6.9.1991. The plaintiff preferred an appeal against the judgment and decree passed by the trial Court, dated 6.9.1991. The plaintiff died during the pendency of the appeal before the first appellate Court and his legal representatives were substituted on 22.12.1993. The plaintiff filed application under Order 6 Rule 17 of the Code of Civil Procedure for amendment of the plaint praying therein that he be allowed to add the relief of possession in alternative in the plaint. The application was allowed on 20.10.1992. The amended plaint was taken on record. The defendant filed written statement to - 3 - the amended plaint. The learned District Judge, Una had framed the following issues on 4.12.1992:- 5-A. In case issue No.5 is not proved whether the defendant has acquired the ownership rights in the suit land by virtue of adverse possession as alleged? …. OPD. 5-B. Whether the plaintiff has suppressed the true facts, therefore, the suit is liable to be dismissed, as alleged? ….. OPD. 5-C. In case the plaintiff is found out of possession whether he is entitled for a decree of possession of the suit land? …. OPP. 5-D. Whether the defendant is entitled for declaration and injunction as prayed for? …. OPD. After framing the issues, the learned District Judge remitted the case file to the learned lower Court along with the amended pleadings to return its findings. The learned trial Court afforded the parties to lead evidence in affirmative. The trial Court after recording the evidence on additional issues decided issues No.5-A and 5-B, and 5-D in negative and issue No.5-C in affirmative. The plaintiff was held entitled for possession of the suit land. The learned District Judge provided the parties to put forth their objections. The defendant put forth his objections to the findings returned by the trial Court alleging that it has wrongly returned the findings and has failed to appreciate the evidence on record and the provisions of law. The plaintiff replied the objections and he maintained that the findings returned by the trial Court were legal and valid. The learned District Judge framed additional Issue No.5-E on the point of jurisdiction as under:- - 4 - 5-E. Whether the Civil Court has no jurisdiction to decide the tenancy matter as alleged? …. OPD. The case file was remitted to the trial Court after framing the additional issue, i.e. issue No.5-E. The trial Court gave its findings on 18.6.1997. The trial Court has held that the Civil Court has jurisdiction to decide the lis between the parties. The learned District Judge allowed the appeal on 9.1.1998. This regular second appeal is directed against the judgment and decree dated 9.1.1998. The regular second appeal was admitted on the following substantial questions of law:- 1. Whether Ld. First appellate Court below erred in appreciating the provisions of law applicable, pleadings of the parties and evidence adduced by them, thereby vitiating the impugned judgment and decree? 2. Whether grant of application under order-6 rule 17 preferred by the plaintiff before the first appellate court below has prejudiced the interests of the defendant? 3. Whether civil court has jurisdiction to try the suit in view of conferment of proprietary rights as mentioned in the plaint itself? 4. Whether non-consideration of the counter claim raised by the defendant in the written statement by first appellate court below has vitiated the findings returned by first appellate court below? 5. Whether long standing entries since 1940-41 of tenancy in favour of defendant has got presumption of truth attached to the same? - 5 - 6. Whether ld. First appellate court below erred in appreciating the facts and law applicable in the case in hand, thereby vitiating the impugned judgment and decree? Mr. Ajay Sharma has strenuously argued that the judgment and decree passed by the learned Additional District Judge, Una, dated 9.1.1998 is not sustainable in the eyes of law. He has vehemently argued that the learned courts below have failed to adjudicate upon the counter-claim put forth by the defendants. He also argued that the plaintiff had failed to prove the tenancy over the suit land. According to him, the defendants were tenants of the suit land on payment of rent and the revenue entries made contrary to this position were illegal. Mr. Naresh Thakur has supported the judgment and decree passed by the learned first appellate Court. It will be apt at this stage to take note that appellant Shri Partap Chand died during the pendency of this appeal and his legal heirs were brought on record vide order dated 3.9.2008. I have heard the learned counsel for the parties and perused the record carefully. Since all the substantial questions of law are interconnected, they are taken up together for adjudication to avoid repetition of discussion of evidence. PW-1 Shri Jaswsant Rai has deposed that the plaintiff was in possession of the suit land and he became its owner. According to him, the suit land was being cultivated by the plaintiff on payment of rent to the land owners. The plaintiff has produced on record copy of jamabandi for the year 1977-78, Ex.P-1. A bare perusal of Ex.P-1 - 6 - shows that the land had been recorded in possession of Tulsi, father of plaintiff Tarlok Chand in the capacity of non-occupancy tenant on payment of 1/4th share of the produce to the land-owners, Shri Amar Singh and others. The ownership of the land as per remarks column of Ex.P-1 was conferred in favour of plaintiff and he became owner of the land. The mutation was attested bearing No.6061. Ex.P-2 is the copy of khasra girdawari from 1973 to 1978. In the copy of jamabandi for the year 1971-72, the plaintiff has been shown as non- occupancy tenant on payment of half share of the produce in favour of the land owners. The plaintiff has been shown as non-occupancy tenant as per Ex.P-4. PW-2 Shri Sukhdev Singh has testified that the suit land was earlier given for cultivation on payment of rent to one Shri Thunia Ram and thereafter the suit land was given for cultivation to Shri Tarlok Chand on payment of rent. The defendant has produced copy of jamabandi for the year 1943-44 Ex.D-1. In Ex.D-1 Nanak Chand and others have been shown as land owners, whereas, Thunia Ram and Bulandu both sons of Gori have been shown as non-occupancy tenants qua suit land on payment of half share of the produce as rent. In Ex. D-2, the position as per Ex.D-1 has been reiterated. In Ex.D-3, i.e. copy of khasra girdawari with effect from 25.10.1963 to 11.10.1967 Thunia Ram and Bulandu have been shown as non-occupancy tenants under the land owners. Ex.DW-4/A, i.e. report of Settlement Patwari shows that though as per mutation No.6061 ownership of the land has been vested in the name of plaintiff Tarlok Chand, but on the spot he found the possession of defendant Partap Chand. However, the final result of report Ex.DW-4/A has not been placed on record. - 7 - The defendant has deposed that the suit land was coming in his possession since 1940. According to him, his grand-father was a non-occupancy tenant qua the suit land and he was paying rent to land owners and thereafter his uncle Thunia Ram remained in possession of the suit land on payment of rent. His uncle and father were real brothers. He has admitted in his cross-examination that Gori had two sons. Thunia Ram has died. Bulandu has also died, who is survived by his legal representatives. He has admitted that private partition was not reduced into writing. He has refuted that Thunia Ram and Bulandu had relinquished their tenancy in favour of the land owners and thereafter the land owners inducted the plaintiff as their tenant. He has maintained that he was in possession of the suit land. DW-2 Shri Bhagat Ram has testified that the suit land was in possession of the defendant. After Thunia, defendant came in possession of the suit land and he was paying rent to the land owners. In his cross-examination he has deposed that Thunia and Bulandu were sons of Gori. Thunia has died issueless. He has admitted that Bulandu is survived by his son, who is alive. He has further deposed that after the death of Thunia, the land was partitioned and the same was allotted to defendant Partap Chand. DW-3, Sita Ram had deposed that the defendant is in possession of the suit land. He has denied that the tenancy was relinquished by Thunia and Bulandu. It is apparent that Shri Thunia and Bulandu sons of Gori were non-occupancy tenants on payment of half of the produce in favour of Nanak Chand and others. They remained as non-occupancy tenants from 1943-44 up to 1971. The nature of land till 1956-57 - 8 - was cultivable and its nature was Barani till the year 1962. Thereafter the suit land remained ‘banjar’ till 1971. Thunia had died issueless. Bulandu was survived by his sons. Shri Gori has not been shown in the revenue record as non-occupancy tenant. The name of the father of defendant is Govinda. He has failed to prove that Govinda was son of Gori or brother of Thunia and Bulandu. He has failed to prove that his father or grand-father were non- occupancy tenants over the suit land. A bare perusal of Ex.P-1 to Ex.P-4 proves that the plaintiff had been shown as non-occupancy tenant over the suit land on payment of rent to the land owners. The land has been shown as Banjar Kadim till 1974 and thereafter the nature of land has been shown as cultivable. The plaintiff was tenant over the suit land and proprietary rights have been conferred on him as per H.P. Tenancy and Land Reforms Act, 1972. The mutation was also attested in favour of the plaintiff. The revenue entries were also altered in his favour. The conferment of proprietary rights on the plaintiff was never assailed by the defendant as per law. Mr. Ajay Sharma has strenuously argued that the counter- claim of the defendant has not been adjudicated upon by the courts below. This submission of Mr. Sharma merits rejection. A specific issue 5-D was framed by the learned District Judge, Una on 4.12.1992. The findings were recorded by the trial Court. The trial Court has answered issue No.5-D in negative. This issue has been discussed in detail in para 27 of the judgment of the learned Additional District Judge. The defendant has failed to prove his tenancy over the suit land. He has also failed to prove his ownership of the land by way of adverse possession. The defendant may be - 9 - coming in possession of the suit land, but it will not become adverse qua true owners till the basic ingredients of adverse possession are proved. The defendant has not led any evidence to prove his adverse possession. The revenue entries never existed in his favour. The defendant has also failed to prove any entries existing in his favour or in favour of his father or grand-father. Accordingly, the judgment relied upon, i.e. 1969 PLJ 105 is not applicable to the present case. The earlier revenue entries were in the names of Thunia and Bulandu. Thunia has died issueless. As noticed above, Bulandu was survived by his sons. His sons have never challenged the revenue entries incorporated in the name of plaintiff. The learned first appellate Court has rightly held the suit to be within limitation. The Civil Court had the jurisdiction to adjudicate upon the lis between the parties after the proprietary rights were conferred upon the plaintiff and the mutation was also attested in his favour. The first appellate court has rightly granted the decree for possession also in favour of the plaintiff by moulding the relief. Consequently, there is no merit in this regular second appeal and the same is dismissed. There shall, however, be no order as to costs. February 24, 2009. (Rajiv Sharma), J. (sck).