IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA R.S.A. No. 59/2002 Date of decision: 24. 5. 2011 Shri Karnail Singh and others …..Appellant Versus Smt. Shankari Devi and others ……Respondents Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 . For the Appellant: Mr. S.D. Vasudeva, Advocate. For the respondents : Mr. K. D. Sood, Advocate. Surinder Singh J. (Oral) Appellants/defendants have failed in both the courts below and have filed the present Regular Second Appeal, which was admitted on the following substantial question of law:- 1. Whether the findings of trial Court as affirmed by first appellate Court are de hors of evidence? 2. Respondents herein are the successors of original plaintiff Jaishi and the appellants 1 (a) to 1 (f) are the legal representatives of Jhandu co- 1 Whether the reporters of Local Papers may be allowed to see the judgment ? - 2 - defendant. The parties shall be hereinafter referred to as they were before the learned trial Court. 3. Heard and gone through the record. 4. The plaintiff Jaishi filed the suit for possession with respect to the suit land on the ground that he was recorded as owner in possession of the suit land prior to the settlement operation which took place in the year 1984-85. When the settlement operation was in progress, the defendants took forcible possession of the suit land and got themselves recorded as ‘Kabaz’ in connivance with the settlement staff, without the consent of the plaintiff, which is wrong and illegal. Since the defendants being the encroachers, thus plaintiff sought the possession of the suit land. 5. The suit was resisted and contested by the defendants. They filed their written statement and raised preliminary objections of maintainability, estoppel, cause of action, limitation, jurisdiction and also questioned the locus-standi of the plaintiffs to file the suit. They asserted themselves to be the non- occupancy tenants of the suit land and contended that by operation of law they have become the owners thereof and admitted that their entry in the revenue record as ‘kabaz’ was without status - 3 - whereas they were tenants. The claim of the plaintiff, as alleged is totally denied. 6. On the pleadings of the parties, the learned trial Court framed following issues:- 1. Whether the plaintiff is owner of the suit land, as alleged? OPP 2. If issue No. 1 is proved in affirmative, whether the defendants in the month of March, 1985 forcibly dispossessed the plaintiff, as alleged? OPP 3. Whether the suit of the plaintiff is not maintainable in the present form, as alleged? OPD. 4. Whether the plaintiff has no locus-standi to file the present suit, as alleged? OPD 5. Whether the plaintiff is estopped to file the present suit by his own act and conduct, as alleged? OPD 6. Whether the plaintiff has no enforceable cause of action, as alleged? OPD 7. Whether the suit of the plaintiff is time barred, as alleged? OPD 8. Whether the civil court has no jurisdiction to try and entertain the present suit, as alleged? OPD. 9. Whether the defendants were in possession of the suit land on the appointed day and have become owners under the HP Tenancy and Land Reforms Act, as alleged. If so its effect? OPD. 10. Relief. - 4 - 7. After the complete trial, the learned trial Court held that the plaintiff was earlier holding the suit land in his capacity as non-occupancy tenant under the mohatmim of temple, he later acquired its proprietary rights and became its owner, during the settlement operation in the year 1985, he was dispossessed forcibly by the defendants. The tenancy, as alleged by the defendants was not approved as such the suit of the plaintiff was decreed, as prayed for. 8. The defendants filed an appeal against the judgment and decree of the learned trial Court, which was also dismissed, on the grounds that the plaintiff stand recorded as owner of the suit land in Missal Haquit Ext. P2 for the year 1984-85. The suit khasra 213 is carved out from khasra No. 156 min, khasra No. 215 from 158 and khasra No. 519 from 155 min and 156 min. The plaintiff has also been reflected as non-occupancy tenant on payment of rent in the jamabandi Ext. P3 for the year 1978-79 under its owner Mandir Dharamshala through its Manager Ishwar Singh. It is this land regarding which they were conferred the proprietary rights under Section 104 of the H.P. Tenancy and Land Reforms - 5 - Act, which was accepted and attested on 24.5.1981, as per entry by the red ink in the remarks column. 9. In the jamabandi Ext. D2 for the year 1971- 72 Jhandu and uttama are recorded as non- occupancy tenant with respect to khasra No. 226 on payment of rent. But subsequently in the missal haquit Ext. D3 for the year 1976-77, this number was allotted khasra No. 156 and 158 over which the plaintiff was shown as non-occupancy tenant on payment of rent whereas the defendants are shown as such on khasra No. 226 but in the subsequent jamabandi for the year 1978-79 the plaintiff has been shown to have acquired proprietary rights in respect of the suit land vide mutation No. 235. Admittedly, the area was under the Settlement in the year 1984- 85. During that time, khasra No. 155 min, 156 min and 158 min were allotted khasra No. 213, 215 and 519 which are the suit khasras of which the plaintiff is the owner. But suddenly, the name of defendants figured as ‘kabaz’ in the column of possession, which is without any status and has no legal sanction. 10. It is settled law that entry without status is of no consequence and it is also not proved on - 6 - record by the defendants as to how and under whose orders they were recorded as ‘kabaz’ in the revenue record. This entry is wrong and illegal to which, even the defendants have admitted in their written statement but asserted themselves to be the no-occupancy tenants to which they miserably failed to prove. Further, the defendants did not assail the conferment of the proprietary rights upon the plaintiff. Therefore, entry in the jamabandi Ext. P2 for the year 1984-85 is a stray entry which is wrong and illegal. 11. Although, defendant Krishan has examined himself as DW-1. According to him, the suit land was having its old khasra number 226 over which his brothers Jhandu and Uttama co- defendants were non-occupancy tenants. But in cross-examination, he expressed his ignorance as to what were khasra numbers of the suit land and who was its owner prior to the settlement and further that what was the nature of the land. He also did not know whether the mutation of ownership with respect to the suit land was accepted and attested in favour of the plaintiff. He clearly admitted that during the settlement, he did not move any application for correction of revenue entries. He - 7 - even did not know as to who had given the land to his brothers for cultivation. 12. Significantly Jhandu and Uttama did not sep into witness-box. It was incumbent upon either of them to have substantiated their case as they have specifically alleged the entries in their favour and claimed themselves to be the non-occupancy tenants of the suit land. DW1 aforesaid clearly admitted Jaishi as tenant of the temple but also expressed his ignorance about the area and khasra number to which he held it as non-occupancy tenant. 13. Shri S.D. Vasudeva, Advocate for the appellants confronted with the aforesaid position submitted that the temple is a minor and tenancy rights could not have been conferred on the plaintiffs. Though this plea was never taken before the learned trial Court or in first appeal before the learned District Judge nor it is a ground made in the present second appeal. But however, in view of the judgment passed by the Division Bench rendered in Negi Ram versus Mandir Shivji Maharaj ILR 1972 1 HP 142 of this Court with reference to Section 11 (2) of H.P. Big land Estate Act which is verbatim to the provisions of Section 104 of the H.P. - 8 - Tenancy and Land Reforms Act, held that a Hindu idol is not a person suffering from physical or mental disability within the meaning of said provision, therefore, there is no bar in conferment of proprietary rights on the non-occupancy tenants. 14. For the aforesaid reasons, I do not find that the findings of the courts below are de hors of the evidence. The substantial question of law is answered accordingly. 15. No other point urged or pressed. 16. The appeal thus, sans merit hence dismissed. The parties shall bear their own costs. May 24, 2011 (Surinder Singh), (cm) Judge