IN THE HON’BLE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA 85 of 1998. Judgment Reserved on 8.9.2008. Date of decision 16th September, 2008. Shri Karam Chand ….Appellant. Versus Sh. Onkar Singh and others ….Respondents. Coram: The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 No. For the appellant Mr. H.K.Bhardwaj, Advocate. For the respondent: Mr. R.K.Gautam, Sr. Advocate, with Mr. Naveen Bhardwaj, Advocate. Dev Darshan Sud, J. (Oral). This is the defendant’s second appeal against the concurrent findings of two Courts below decreeing the suit of the plaintiffs-respondents, granting them a decree for declaration that they are the owners in possession of the suit land as described in the plaint and the revenue record which 1 Whether Reporters of Local Papers are allowed to see the judgment? Yes. - 2 - incorporates the name of the defendant as tenant over the suit land is illegal. Relief of permanent prohibitory injunction restraining the defendant- appellant from interfering in the suit land was granted in favour of the plaintiffs. The plaintiffs instituted the suit out of which these proceedings arise, for declaration and permanent prohibitory injunction against the appellant – defendant on the ground that plaintiffs- respondents had been coming in possession of the suit land since the time of their predecessor in interest as co sharer hissedars. They pleaded that the defendant has no right, title or interest in the land and no possessory right as claimed by him on the basis of some stray revenue entry exists in his favour. The plaintiffs pleaded that the entries made in the possessory column of the revenue record are against law having been made behind their back and without notice to them. The mainstay of the defence of the defendant was that the suit is not maintainable as the plaintiffs are out of possession; the State of Himachal Pradesh is a necessary party and claimed tenancy as the right to possess and for being in possession of the suit - 3 - land. They contended that the revenue record had been rightly changed in the year 1977. On the pleadings of the parties, on two important issues, namely (a) as to whether plaintiffs are owners in possession of the suit land and (b) the entitlement of the plaintiffs for decree of declaration and injunction, the Court found these two issues in favour of the plaintiffs negating the claim of the defendant on issue No. 3 regarding tenancy over the suit land as claimed. For this purpose, the learned trial Court went into the entire evidence including two purported receipts showing payment of rent Exts.DW-2/A and DW-2/B. These findings have been affirmed by the learned appellate Court holding that the learned trial Court rightly decides that the change in the revenue record cannot be relied upon as the evidence does not support the case of the defendants. This appeal was admitted on substantial question of law No. 1 which reads: 1. Whether the Civil Court has got the jurisdiction to try the suit, if the land in dispute is recorded as “Shamlat Tikka Hasab Hissas Mundarja Shajra Nasab”? - 4 - On the evidence of three witnesses PW-1 Onkar Singh, PW-2 Kishan Chand and PW-3 Jaswant Singh, the trial Court held that the possession of the plaintiffs was established on the record. DW-7 Smt. Kashmiri Devi has stated that she was receiving rent from the defendants/ appellants as she was the owner of this land and had inducted the predecessor in interest of the defendant as tenant. DW-2 Jagdish Singh, the scribe of the receipts Exts. DW- 2/A and DW-2/B admitted that they contained no date. While looking into this evidence, the Court specifically held that DW-7 had admitted that she had put her thumb impression on blank papers. The Court, therefore, rightly concludes that these could hardly be treated as receipts of rent. DW-6 Shri Sat Pal, Patwari has admitted in his evidence that the report which formed the basis of the purported change does not show the presence of the plaintiffs, it is not even signed or initialed by an officer of the revenue department. He also could not state as to who prepared this report nor state the complete facts as to who was actually cultivating the land. This clearly establishes that the report which has been prepared and forms the basis of the entire case - 5 - of the defendant is in grave violation of law. In appeal, the learned District Judge holds that the documentary evidence, in the nature of revenue records Exts.P-2, P-3, PX to PZ the plaintiffs have been recorded in possession, but the defendant – appellant herein has been recorded as a non occupancy tenant in the possessory column in Ex.P-1, Jamabandi for the year 1983-84. The purported change has been made on the basis of khasra girdawari Ex.DW-6/A which DW-6 Sat Pal could not state as to how and in what manner it was prepared. The change which has been made is because of Ex. DW- 6/A and its very basis having been doubted by the learned Courts as there was no proof on record, the learned appellate Court affirms the judgment of the learned trial Court. Learned counsel for the appellant urges that once the question of tenancy was raised, the trial Court had no jurisdiction to try the matter. He places reliance in the case of Chuhniya Devi v. Jindu Ram, 1991 (1) Sim. L.C. 223 in support of his contention. This submission cannot be accepted as it is now well settled that where the very basis of the purported relationship is challenged as having - 6 - been made without following the procedure in law, the civil Court has jurisdiction to adjudicate the matter. (See Tajdin v. Milkho, FAO 152 of 1999 and other connected appeals, decided on 29.4.2005). The cumulative effect of the fact that Ex.DW-6/A, the purported change in the khasra girdawari having not been proved in evidence to have been effected in accordance with the prescribed procedure under the Himachal Pradesh Land Revenue Act, the evidence of DW-7 who admitted handing over blank thumb marked papers, I hold that the civil Court has jurisdiction to decide the matter. This question is accordingly decided against the appellant. This appeal is dismissed. There shall be no order as to costs. September 16, 2008 (PC). (Dev Darshan Sud), J.