HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No.: 246 of 1997. Decided on: 23.6.2008. Santosh Devi and others ………Appellants. Versus Chain Singh and others ………Respondents. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the appellants: Mr.G.D. Verma, Senior Advocate, with Mr.B.C. Verma, Advocate. For respondent No.2: Mr.K.D. Sood and Mr.Haresh Sood, Advocates. V.K. Ahuja, J. (Oral): This is a regular second appeal filed by the appellants against the judgment and decree passed by the learned Additional District Judge, Una, dated 21.6.1997, vide which he allowed the appeal of the respondents and the judgment and decree passed by the learned Sub Judge, Court No.1, Amb, dated 18.2.1992, was reversed and the suit for possession filed by the plaintiff/respondent No.1 was decreed. Being aggrieved, the defendant/appellants filed the present appeal. Briefly stated the facts of the case are that a suit for possession was filed by the plaintiffs and predecessor-in-interest of respondents No.1 to 10 alleging that the suit land measuring 2 kanals, as detailed in the plaint, was owned and possessed by the plaintiffs and defendant No.3 jointly. It was alleged ___________ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. - 2 - that the father of defendants No.1 and 2 was General Attorney of defendant No.3 and he got the entry of tenancy of suit land made in favour of defendants No.1 and 2 in connivance with defendant No.3 in Kharif 1977. It was further alleged that subsequently, the mutation of proprietary rights vide mutation No.3587 was sanctioned in favour of defendants No.1 and 2 and on the basis of these wrong entries, they dispossessed the plaintiffs from the suit land in Kharif 1977 and since they refused to hand over the possession, hence the suit filed by the plaintiffs. Defendants No.1 and 2 contested the suit pleading that the suit was not maintainable in the present form, that the suit was beyond limitation and Civil Court had no jurisdiction to entertain the suit. On merits, defendants No.1 and 2 pleaded that the suit land was in their possession previously as non-occupancy tenants on payment of rent to the owners and now after coming into force of the H.P. Tenancy and Land Reforms Act, they have become owners of the suit land and they had been paying rent to the owners and they have become owners by operation of law and as such the plaintiffs were not entitled to the relief claimed by them. The suit was tried by the learned trial Court, which held that defendants No.1 and 2 were proved to be the tenants of the suit land and they have become owners under the H.P. Tenancy and Land Reforms Act and since the jurisdiction of the Civil Court was barred in view of the decision of this Court in Chuhniya Devi vs. Jindu Ram, the learned trial Court dismissed the suit of the plaintiffs. On appeal, these findings were reversed by the learned First Appellate Court. - 3 - This appeal has been admitted on the substantial question of law formulated at page 11 of the paper book, which are mainly in regard to the fact as to whether the Civil Court had jurisdiction to entertain the suit and whether the presumption of truth attached to the revenue entries in favour of the appellants was not rebutted. On appraisal of the record of the case, it is clear that the plaintiffs had based their claim mainly on the fact that the entries were got incorporated by defendants No.1 and 2 in connivance with defendant No.3 in collusion with the revenue staff. Thus, they had challenged the revenue entries appearing in the revenue record in favour of defendants No.1 and 2 being not binding upon them having been effected in collusion with the revenue staff. They also alleged that on the basis of these entries, which subsequently appeared in the jamabandi for the year 1980-81, mutation No.3587, regarding conferment of proprietary rights, was wrongly made and these are inoperative as against the plaintiffs. They also took up the plea that defendants No.1 and 2 were never inducted as tenants by the plaintiffs. On the other hand, defendants No.1 and 2 have specifically taken the plea that they were previously in possession as non-occupancy tenants under the owners and by operation of law, they have become owners and as such the Civil Court had no jurisdiction to try the suit. On the basis of the pleadings of the plaintiffs specifically made, it was for the plaintiffs to show that the entries were wrongly incorporated in the revenue record, therefore, he was required to prove that these were wrongly incorporated without there being any order in favour of defendants No.1 and 2 - 4 - or without the procedure having been followed at the time of correction of the entries in favour of defendants No.1 and 2. The plaintiffs have admitted their knowledge in regard to the attestation of mutation under H.P. Tenancy and Land Reforms Act in favour of defendants No.1 and 2 and have also challenged that this order was wrong, illegal and void. These facts were required to be proved by the plaintiffs and to prove these facts they had examined only PW-1 Kashmir Singh, a General Attorney of some of the plaintiffs. The said PW-1 Kashmir Singh has stated that defendants No.1 and 2 were never inducted as tenants nor they were in possession and they have forcibly taken possession for the last 5-6 years. He denied his knowledge about the surrounding land. He also denied his knowledge in case defendants No.1 and 2 were cultivating the adjoining land. He also denied his knowledge that there was a kuhal in the land, which apparently is wrong as per the revenue entries, which shall be discussed below. He denied his knowledge in case mutation has been attested in favour of defendants No.1 and 2 vide mutation No.3587, which fact the plaintiffs had themselves alleged in the plaint. He also stated that they did not receive any notice at the time of mutation and did not file any appeal. This clearly shows that the Attorney, who has appeared on behalf of the plaintiffs, has no knowledge about the land, its exact location and conferment of proprietary rights upon the defendants. To prove their case, the plaintiffs had also produced in evidence two copies of jamabandi Ext.P-1 pertaining to the suit land same as Ext.D-1, which shows the plaintiffs and defendant No.3 as owner and the land is entered, in the possession column, in possession of defendants No.1 & 2 under defendant No.3 - 5 - Chain Singh as co-sharer. The said defendant No.3 never challenged these entries and filed any written statement that these entries are incorrect. A perusal of this jamabandi Ext.P-1 also shows that there is a Kuhal entered in Khasra No.3077 and a Gharat shown in Khasra Nos.3078 and 3079. According to the remarks column, mutation No.3587 has been attested in favour of these defendants. Ext.P-2 is the copy of Khasra Girdavari from Kharif 1972 onwards till Rabi 1977, which shows the name of Chain Singh as co-sharer in the possession column and there is also reference to a Rapat No.411 regarding the entry in favour of defendants No.1 and 2 having been recorded on payment of rent of Rs.240/-. It appears that subsequently, defendants No.1 and 2 were recorded in the possessory column as reflected in Ext.P-1. Ext.D-2 pertains to some other Khasra Number and as such is not relevant. The defendants have not examined any witness in support of their case. It is clear that the plaintiffs have not filed the earlier copies of jamabandi on record to prove that they were entered in possession since long and the only copy of jamabandi placed on record is of the year of 1980-81, which shows the possession of defendants No.1 and 2 as co-sharer and basis of that entry appears to be the copy of Rapat Ext.P-2 referred to above. It was required of the plaintiffs to have placed on record the earlier copies of jamabandi to show that they were entered in possession since long. Moreover, the entry was made in Ext.P-2 on the basis of entry in Rapat Rojnamcha which has been carried forward in copy of jamabandi for the year 1980-81. There were no allegations made by the plaintiffs that this order was passed in favour of the defendants No.1 and 2 without following the proper procedure, without issuance of any - 6 - notice to them or without there being any order passed by Revenue Officer in favour of defendants No.1 and 2. The plaintiffs were required to allege and prove that entry was wrongly made in favour of defendants No.1 and 2 and only then an inference could have been drawn that the entries of the jamabandi for the later period are not correct and they were not substituted in accordance with law. Moreover, once the mutation of ownership has been entered in favour of defendants No.1 and 2, the plaintiffs were required to place on record the copy of the mutation order to show that the said order was passed without notice to them or was illegal and void and not binding upon the rights of the plaintiffs. They simply alleged that the said order was void, but did not place on record the said copy of the order of mutation since they had challenged the mutation and it was for them to place on record and prove that it was not binding upon them. The decision of this Court in Chuhniya Devi vs. Jindu Ram, 1991(1) Sim.L.C. 223, clearly shows that the Civil Court has no jurisdiction to enter into the question once the proprietary rights have been conferred upon the tenant and accordingly such findings of the trial Court are correct that the Civil Court had no jurisdiction to question the conferment of proprietary rights upon the plaintiffs. They had also laid down the condition under which the said order could be challenged by the plaintiffs, which is not so in the present case. The plaintiffs had the knowledge about the said order but they did not file any appeal as per the statement of PW-1, the Attorney of the plaintiffs, nor challenged the order within one year from the date of the order and it was rightly held by the - 7 - learned trial Court that the suit of the plaintiffs was not within time and the Civil Court had no jurisdiction to try the suit. During the course of arguments, the learned counsel for the appellants had also referred to the latest decision of this Court in Tajdin & Ors. vs. Milkho Devi and Ors., 2006(1) Cur.L.J.(H.P.) 305, in which the decision in Chuhniya Devi’s case (supra) and one another case titled Shankar v. Rukmani and others, 2003(1) Shim.L.C. 300, was also referred to and the facts of that case show that the case was remanded back to the learned trial Court since the defendant had failed to prove that the suit arises out of any proceedings or order under the H.P. Tenancy and Land Reforms Act. The decision in Chuhniya Devi’s case (supra) is a Full Bench decision and is biding upon this Court, which clearly shows that the jurisdiction of the Civil Court has been ousted once proprietary rights have been conferred upon defendants No.1 and 2. The defendants were not required to place on record or challenge the said order of Land Reforms Officer, as argued by the learned counsel for the respondent, since the plaintiffs had challenged the said order and not defendants No.1 and 2 and there is a reference in the copy of jamabandi that such an order has been passed in favour of defendants No.1 and 2. Moreover, the presumption of correctness was attached to the copies of jamabandi entry showing the possession of the defendants as well as in regard to mutation conferring proprietary rights upon them. Out of the number of plaintiffs, none appeared in the witness box and their one Attorney appeared in the witness box whose statement, as mentioned above, does not show that he has any knowledge about the adjoining land owners and the kind of the land that - 8 - it was a kuhali land and there was a Gharat in the land also. The solitary statement of the Attorney, in such circumstances, cannot be said to be sufficient to rebut the presumption of correctness attached to the copy of jamabandi entry which was rebuttable only in case cogent and reliable evidence was led by the plaintiffs in which they have failed. The non-examination of the defendants in the witness box, in such circumstances, cannot be said to be fatal for the defendants since the plaintiffs were required to prove their case and prove that the entries in the jamabandi were incorrect, in which they have failed. It follows from the above discussion that the findings of the learned trial Court on all the issues were based upon correct appreciation of evidence and law and they called for no interference by the learned First Appellate Court, who had wrongly reversed the findings by referring to the judgments of this Court in some cases which were not attracted to the present facts in view of the Full Bench decision in Chuhniya Devi’s case (supra). During the course of arguments, a plea was also raised by the learned counsel for the appellants that the appeal was filed only by one of the appellants before the learned First Appellate Court and not by the other persons aggrieved and, therefore, the appeal was not competent. The other persons had been impleaded as proforma respondents before the learned First Appellate Court and the appeal by one of them was competent and as such there is no merit in the contention putforth by the learned counsel for the appellants and the same is repelled being devoid of any force. - 9 - In view of the above, the appeal is allowed and the findings recorded by the learned First Appellate Court are reversed and the findings of the learned trial Court dismissing the suit of the plaintiffs are restored. However, the parties are left to bear their own costs. June 23, 2008. (V.K. Ahuja), (TILAK) Judge.