Himachal Pradesh High Court
Sh.Prem Dutt Son Of Basti Ram & Others vs Respondents/Plaintiffs on 29 July, 2015
Author: P.S. Rana
Bench: P.S. Rana
.
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
RSA No. 102 of 2003
Order reserved on 8th July 2015
Date of Judgment 29 July 2015
________________________________________________________
of
Sh.Prem Dutt son of Basti Ram & others
....Appellants/Defendants
rt
Smt.Mangla wife of Shri Ram Rattan & others
Versus
......Respondents/Plaintiffs.
________________________________________________________
Coram
The Hon'ble Mr. Justice P.S. Rana, J.
Whether approved for reporting?1 Yes.
__________________________________________________________ For the Appellants: Mr. G.D.Verma Sr. Advocate with Mr.B.C. Verma, Advocate.
For the Respondents: Ex-parte.
_____________________________________________________________ P.S. Rana, Judge.
Judgment Present regular second appeal is filed under Section 100 of Code of Civil Procedure against the judgment and decree 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 18:39:09 :::HCHP 2passed by learned District Judge Solan in Civil Appeal No. 37- .
S/13 of 1999 titled Prem Dutt and another vs. Mangla Devi and others dated 2.3.2002 and against judgment and decree passed by learned Civil Judge (Senior Division) Solan in civil Suit No. 67/1 of 1980 decided on dated 26.4.1999.
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2. Brief facts of the case as pleaded are that Smt. Mangla Devi and other plaintiffs filed suit for declaration to the effect that revenue entries recorded in the names of defendants rt regarding suit land comprised in Khewat-Khatauni No. 3 min/6 and 7 Khasra Nos. 30, 43 52 min, 82, 85, 3, 24 and 52 min measuring 13 bighas 17 biswas as non-occupancy tenants are wrong, illegal, null and void. Consequential relief of possession also sought by way of redemption of land. It is pleaded that suit land was mortgaged with defendants by predecessors-in-interest of plaintiffs in consideration amount of Rs. 1900/- (Rupees one thousand nine hundred only) vide rapat Roznamcha 163 dated 3.2.1959. It is pleaded that defendants were not recorded as mortgagees in the revenue record but defendants were recorded as non-occupancy tenants illegally. It is pleaded that defendants were not inducted as tenants at any point of time and revenue entries are wrong and contrary to factual position. It is pleaded ::: Downloaded on - 15/04/2017 18:39:09 :::HCHP 3 that on the basis of revenue entries proprietary rights were .
conferred upon the defendants in the year 1976 and appeals were preferred before collector and additional commissioner Shimla and learned both Appellate Courts set aside the order of A.C. II Grade and remanded back the case. It is pleaded that of remand order was not complied by revenue officials and plaintiffs who were successors-in-interest of original mortgagor offered the mortgage amount to defendants with the request to rt redeem the suit land in favour of plaintiffs but defendants refused to accept the request of plaintiffs. Prayer for decree the suit as mentioned in relief clause of plaint sought.
3. Per contra written statement filed on behalf of defendants pleaded therein that suit land was mortgaged in consideration amount of Rs. 1900/- (Rupees one thousand nine hundred only) by Smt. Kubja. It is pleaded that mortgaged land was redeemed after few months and thereafter defendants were recorded as tenants. It is pleaded that Kubja used to receive the rent from defendants and after enforcement of H.P. Land Reforms Act defendants have acquired the proprietary rights over the suit land. It is pleaded that plaintiffs have no locus standi and suit of the plaintiffs is not maintainable and suit is ::: Downloaded on - 15/04/2017 18:39:09 :::HCHP 4 bad for non-joinder and mis-joinder of necessary parties and .
Civil Court has no jurisdiction to try and decide the suit. Prayer for dismissal of suit sought.
4. As per the pleadings of parties learned trial Court framed following issues on dated 9.5.1991 and 9.1.1993:-
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1. Whether predecessor in interest of plaintiff redeemed the mortgage and inducted defendants as tenants who acquired proprietary rights of the suit land under law?
rt .....OPD
1B. Whether plaintiffs have no locus standi to file
the present suit as alleged? OPD
1C Whether suit is not maintainable as alleged?
OPD 1D Whether suit is bad for non-joinder and mis joinder of parties as alleged? OPD 1E Whether civil court has no jurisdiction to try the suit as alleged? OPD
2. Relief.
5. Learned trial Court decided all issues against the defendants and learned trial Court passed preliminary decree of possession by way of redemption of suit land subject to payment of Rs. 1900/- (Rupees one thousand nine hundred only) to the defendants. Learned trial Court further directed that plaintiff would deposit Rs. 1900/- (Rupees one thousand nine ::: Downloaded on - 15/04/2017 18:39:09 :::HCHP 5 hundred only) within six months from the date of passing of .
judgment.
6. Feeling aggrieved against the judgment and preliminary decree passed by learned trial Court appellants namely Prem Dutt and others filed appeal before learned of District Judge Solan and District Judge Solan vide Civil Appeal No. 37-S/13 of 1999 decided on dated 2.3.2002 titled Prem Dutt and others vs. Mangla Devi and others dismissed the appeal rt with costs to the tune of Rs.1000/- (Rupees one thousand only).
7. Feeling aggrieved against the judgments and decrees passed by learned trial Court and learned first Appellate Court appellants filed present regular second appeal.
8. Following oral witnesses examined:-
Sr.No. Name of witness
PW1 Ravinder Kumar
DW1 Sarwan Kumar
DW2 Man Singh
DW3 Seesh Ram
DW4 Rachha Pal Singh
DW5 Dharam Singh
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6
DW6 Satinder Kumar
.
DW7 Sudama Ram
DW8 Prem Dutt
PW2 Ram Rattan in rebuttal
9. Following documentary evidence produced:-
of Exhibit Description Ext.PX Statement of Seesh Ram rt Ext.P1 Ext.P2 & Copy of jamabandis Ext.P3 Roznamcha Vakayati Ext.P6 and Copies of orders Ext.P7 Ext.P10 to Copies of jamabandis. Ext.P17 Ext.DW6/A Copy of mutation.
Ext.DW7/A Copy of order
Ext.P4 and General power of attorneys.
Ext.P5
Ext.P9 Copy of order
Ext.DW7/B Copy of challan
Ext.PW9/A Copy of mutation
Ext.DW9/B Roznamcha vakayati
10. Hon'ble High Court of H.P. admitted the regular second appeal on following substantial question of law:-::: Downloaded on - 15/04/2017 18:39:09 :::HCHP 7
Whether both the Courts below have misread and .
misinterpreted the oral and documentary evidence on record to reject the defence of the appellants- defendants that the predecessor-in-interest of the respondents-plaintiffs redeemed the mortgage and inducted them as tenants and they have become owners by acquiring proprietary rights?
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11. Court heard learned Advocate appearing on behalf of appellants and also perused the entire record carefully.
12. Oral evidence adduced by the parties:-
rt 12.1 PW1 Ravinder Kumar Patwari has stated that he has brought the summoned record. He has stated that he has brought the roznamcha No. 96 for the year 1956-57. He has stated that report of rapat roznamcha No. 96 dated 5.11.1956 and report No. 423 dated 30.4.1957 are Ext.P1 and Ext.P2. He has stated that report No. 163 dated 3.2.1959 Ext.P3 is correct as per original record. In cross examination he has stated that all rapat roznamchas were not recorded during his tenure as Patwari. He has stated that jamabandis are prepared after five years and mutations are prepared as per jambandis.
12.2 PW2 Ram Rattan has stated that he is general attorney of Devi Ram. He has stated that photo state copies are Ext.P4 and Ext.P5. He has stated that Kubja and Ratia were ::: Downloaded on - 15/04/2017 18:39:10 :::HCHP 8 owners of suit land. He has stated that Kubja obtained Rs.
.
1300/- (Rupees one thousand three hundred only) from defendants Nos. 1 and 2 and suit land was mortgaged by Kubja to Biptu and Prem Dutt with possession. He has stated that thereafter in the year 1959 Kubja again took Rs. 600/- (Rupees of six hundred only) from Biptu and Prem Dutt and suit land was mortgaged in consideration amount of Rs. 1900/- (Rupees one thousand nine hundred only). He has stated that rapat rt roznamcha Ext.P3 was recorded. He has stated that thereafter Kubja died and thereafter entry of non-occupancy was recorded illegally. He has stated that defendants were not inducted as tenants at any point of time. He has stated that defendant Nos.
1 and 2 were in possession of suit land as mortgagees. He has stated that thereafter proprietary rights were illegally conferred upon defendant Nos. 1 and 2. He has stated that thereafter appeal was filed before the Collector and mutation Nos. 520 and 521 of proprietary rights were set aside by the Collector. He has stated that learned Collector directed to decide the case as per rapat Roznamcha No. 163 Ext.P3. He has stated that no appeal was filed by Prem Dutt against the order of the Collector. He has stated that Biptu filed appeal before Divisional Commissioner ::: Downloaded on - 15/04/2017 18:39:10 :::HCHP 9 and learned Divisional Commissioner dismissed the appeal on .
dated 25.2.1984. He has stated that defendant Nos. 1 and 2 were not inducted as tenants at any point of time. He has stated that status of defendant Nos. 1 and 2 is of mortgagees. He has stated that mortgaged land be redeemed. He has stated that he of has tendered in evidence copies of jambandis Ext.P10 for the year 1954-55, Ext.P11 for the year 1958-59, Ext.P12 for the year 1962-63, Ext.P13 and Ext.P14 for the year 1974-75, rt Ext.P15 for the year 1984-85, and Ext.P16 for the year 1988-89 and Ext P-17 for the year 1993-94. He has stated that Kubja died in July 1959. He has denied suggestion that defendant Nos. 1 and 2 were inducted as tenants by Kubja. He has denied suggestion that Kubja had also received rent from defendant Nos. 1 and 2 during her life time. He has denied suggestion that defendant Nos. 1 and 2 have acquired status of proprietary rights under Tenancy and Land Reforms Act.
12.3 DW1 Sarban Kumar Clerk GRR Solan has stated that summoned record was sent to Hon'ble High Court.
12.4 DW2 Maan Singh Patwari has stated that register LR 4 vide seizure memo dated 15.2.1984 was took into possession in case State vs. Bhagat Ram.
::: Downloaded on - 15/04/2017 18:39:10 :::HCHP 1012.5 DW3 Sees Ram has stated that Kubja was maternal .
aunt of his wife. He has stated that Kubja had died and after death of Kubja her property devolved upon her legal representatives. He has stated that Kubja used to reside in village Kharota. He has stated that defendant Nos. 1 and 2 are of also known to him. He has stated that suit land was mortgaged with defendant Nos. 1 and 2. He has stated that after redemption of land defendant Nos. 1 and 2 remained as tenants.
rt He has stated that defendant Nos. 1 and 2 used to pay rent to Kubja. He has stated that land was redeemed in the year 1959-
60. He has stated that in his presence Kubja had paid redemption money of Rs. 1900/- (Rupees one thousand nine hundred only).
12.6 DW4 Rachh Pal Singh Senior Clerk D.C. Office has stated that he has brought the register of CD-II w.e.f. 1.1.1994 to 31.5.1994. He has stated that application No. 2384 dated 21.4.1994 and application No. 2707 dated 6.5.1994 were returned back to petitioner. He has stated that only Halqua Patwari could state that which mutation was annexed with jamabandis. He has stated that he could not state whether ::: Downloaded on - 15/04/2017 18:39:10 :::HCHP 11 revenue field staff used to consign the mutation in record room .
along with jamabandis.
12.7 DW5 Dhani Singh Patwari has stated that he has brought the summoned record. He has stated that file was consigned to record room on dated 12.10.1993.
of 12.8 DW6 Satinder Kumar has stated that he has brought the mutation register Ext.DW6/A. He has stated that same is correct as per original record. He has stated that rt jamabandis are prepared after five years on the basis of Khasra Girdawari. He has stated that mutation No. 520 was sanctioned as per jamabandi for the year 1974-75. He has stated that mutation Nos. 520 and 521 were not incorporated in jamabandi for the year 1993-94.
12.9 DW7 Sudama Ram Record Keeper in office of DC Office Solan has stated that he is posted as record keeper Solan since 1997. He has stated that he has brought the record of file No. 558 titled Prem Dutt vs. Devi Ram. He has stated that file was relating to compensation and order was passed on dated 12.1.1984. He has stated that as per record Prem Dutt son of Bansi Ram had deposited Rs. 222.72 Ps. vide challan No. 63 on dated 28.7.1979 as compensation amount in favour of Devi ::: Downloaded on - 15/04/2017 18:39:10 :::HCHP 12 Ram. He has stated that challan is correct as per original record .
Ext.DW7/A and Ext.DW7/B. 12.10 DW8 Prem Dutt has stated that owner of suit land was Kubja. He has stated that in the year 1956-57 suit land was given on tenancy basis in equal shares to him and Biptu.
of He has stated that he and Biptu cultivated the suit land and also paid the rent. He has stated that in the year 1958 Kubja was to pay some loan amount to Ganga Ram and thereafter rt Kubja took Rs. 1300/- (Rupees one thousand three hundred only) from Prem Dutt and Biptu and suit land was mortgaged.
He has stated that thereafter in the year 1959 Kubja again took Rs. 600/- (Rupees six hundred only) from him relating to pilgrimage travel expenses and thereafter total mortgage amount was Rs. 1900/- (Rupees one thousand nine hundred only). He has stated that after two months Kubja returned Rs. 1900/-
(Rupees one thousand nine hundred only) and told that she could not go to pilgrimage because she became sick. He has stated that thereafter mortgage was redeemed and thereafter suit land was in possession of Prem Dutt and Biptu in the capacity of tenancy. He has stated that after death of Kubja rent was received by her LRs. He has stated that land was redeemed ::: Downloaded on - 15/04/2017 18:39:10 :::HCHP 13 and because of tenancy defendants became owners of suit land .
in the year 1975. He has stated that copy of mutation is Ext.DW8/A and copy of girdawari is Ext.DW8/B. He has stated that suit land is about 14-15 bighas. He has stated that he did not pay any rent to Kubja. He has stated that Biptu had paid of rent on his behalf. He has stated that in the year 1959-60 he had paid rent to Devi Ram, Malti, Mathu etc. He has stated that no rent receipt was obtained. He has denied suggestion that suit rt land was mortgaged in the year 1959 vide rapat No. 163. He has denied suggestion that contesting defendants were in possession of suit land as mortgagees. He has denied suggestion that wrong entry of tenancy was recorded in revenue record.
Findings upon Substantial question of law framed by Hon'ble High Court:-
13. Submission of learned Advocate appearing on behalf of the appellants that suit land was redeemed by mortgagor namely Kubja is rejected being devoid of any force for the reasons hereinafter mentioned. It is the case of appellants that in the year 1958 Kubja mortgaged the suit land in consideration amount of Rs. 1300/- (Rupees one thousand three hundred only). It is further case of appellants that thereafter in the month of February 1959 Kubja mortgagor was ::: Downloaded on - 15/04/2017 18:39:10 :::HCHP 14 in need of money because mortgagor intended to go for .
pilgrimage and Kubja in the month of February 1959 mortgaged the suit land in consideration amount of Rs. 1900/- (Rupees one thousand nine hundred only). It is further case of appellants that thereafter after two months mortgagor Kubja of returned the mortgaged money to the tune of Rs.1900/- (Rupees one thousand nine hundred only) and suit land was redeemed.
As per Section 58 of Transfer of Property Act 1882 there are six rt types of mortgages. (1) Simple mortgage. (2) Mortgage by conditional sale. (3) Usufructuary mortgage. (4) English mortgage. (5) Mortgage by deposit of title deeds. (6) Anomalous mortgage. It is proved on record that in present case mortgage was usufructuary. Redemption of Mortgage H.P. Act 1971 came into operation in the year 1971 and prior to 1971 Redemption of Mortgage Punjab Act 1913 was applicable to Himachal Pradesh because Himachal Pradesh was part of Punjab area.
Redemption of Mortgage Punjab Act 1913 was also applicable to area added to Himachal Pradesh by Punjab Reorganization Act.
Hence it is held that Redemption of Mortgage Punjab Act 1913 was in operation in the year 1959 upon the suit property. As per Redemption of Mortgage Punjab Act 1913 the mortgaged land ::: Downloaded on - 15/04/2017 18:39:10 :::HCHP 15 could be redeemed after filing application before the Collector.
.
In present case there is no evidence on record that Kubja filed any application before the Collector for redemption of land. In present case there is no evidence on record that Kubja mortgagor recorded any rapat before Patwari relating to of redemption of mortgaged land. Hence it is held that redemption of mortgaged land in the year 1959 is not proved on record as per Redemption of Mortgaged Punjab Act 1913. On contrary rt there is rapat No. 163 dated 3.2.1959 that mortgagees namely Prem Dutt and Biptu came in Patwarkhana and recorded rapat dated 3.2.1959 that Kubja had mortgaged the suit land in consideration amount of Rs.1900/- (Rupees one thousand nine hundred only). Prem Dutt and Biptu have voluntarily appeared before Patwari themselves and recorded rapat Ext.P3 dated 3.2.1959 that suit land was mortgaged by Kubja mortgagor to mortgagees Prem Dutt and Biptu in consideration amount of Rs.1900/- (Rupees one thousand nine hundred only). It is proved on record that on dated 3.2.1959 Prem Dutt and Biptu themselves admitted the mortgage of suit land in consideration of Rs. 1900/- (Rupees one thousand nine hundred only). Rapat Roznamcha No.l63 dated 3.2.1959 is recorded by public servant ::: Downloaded on - 15/04/2017 18:39:10 :::HCHP 16 in discharge of his official duty and is relevant fact under .
Section 35 of Indian Evidence Act 1872. Even PW1 Ravinder Kumar Patwari has also appeared in witness box along with original record and had proved rapat No. 163 dated 3.2.1959 Ext.P3.
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14. Submission of learned Advocate appearing on behalf of the appellants that as per testimony of DW3 Sees Ram suit land was redeemed by Kubja and on this ground appeal rt filed by appellants be allowed is rejected being devoid of any force for the reasons hereinafter mentioned. There is no statement of Kubja on record in order to prove that Kubja had admitted the redemption of suit land in the year 1959. It is held that oral redemption of land contrary to Redemption of Mortgage Punjab Act 1913 cannot be accepted in the Court of law. No rapat roznamcha of redemption of land was recorded in revenue record on behalf of Kubja or on behalf of mortgagees Prem Dutt and Biptu in revenue record.
15. Another submission of learned Advocate appearing on behalf of the appellants that tenancy was created by Kubja and thereafter proprietary rights were conferred upon Prem Dutt and Biptu and on this ground appeal filed by appellants be ::: Downloaded on - 15/04/2017 18:39:10 :::HCHP 17 accepted is rejected being devoid of any force for the reasons .
hereinafter mentioned. It is well settled law that tenancy is bilateral agreement between landlord and tenancy. There is no documentary evidence on record in order to prove that Kubja had inducted Prem Dutt and Biptu as tenants in suit property.
of There is no rapat roznamcha in order to prove that Kubja had inducted Prem Dutt and Biptu as tenants in the suit land. It is proved on record that Kubja died in the month of July 1959 as rt per testimony of PW2. Testimony of PW2 that Kubja died in July 1959 remained unrebutted on record. There is no evidence on record that w.e.f. 3.2.1959 after recording rapat No. 163 dated 3.2.1959 Kubja had admitted tenancy of Prem Dutt and Biptu before any revenue authority. There is no rent receipt placed on record by Prem Dutt and Biptu issued by Kubja relating to tenancy. Tenancy has been defined under Section 2 sub-clause 17 of H.P. Tenancy and Land Reforms Act. According to Section 2(17) of H.P. Tenancy and Land Reforms Act the tenant means a person who holds land under land owner and is or but for a contract to the contrary would liable to pay rent for that land to that land owner and includes (1) Sub tenant (2) The predecessors or successors in interest of a tenant or a sub-
::: Downloaded on - 15/04/2017 18:39:10 :::HCHP 18tenant as the case may be but it does not include (a) Mortgagee .
(b) A person to whom a holding has been transferred or an estate or holding has been let in farm under the Himachal Pradesh Land Revenue Act 1954 or the Punjab Land Revenue Act 1887 as the case may be for the recovery of an arrear of of land revenue or of a sum recoverable as such an arrear. Hence it is held that it is not proved on record that Kubja had inducted Prem Dutt and Biptu as tenants in suit property at any point of rt time. There is no order of any revenue officer inducting appellants as tenants over suit land.
16. Another submission of learned Advocate appearing on behalf of appellants that mutation of proprietary rights were conferred upon Prem Dutt and Biptu under H.P. Tenancy and Land Reforms Act and on this ground appeal be accepted is rejected being devoid of any force for the reasons hereinafter mentioned. It is proved on record that appeal No. 37 of 2008 was filed before the Collector by Ram Dayal and others relating to mutation No. 520 dated 21.3.1976 whereby proprietary rights were conferred. It is proved on record that on dated 18.3.1980 learned Collector Sub Division Solan accepted the appeal and set aside the mutation No. 520 dated 21.3.1976 ::: Downloaded on - 15/04/2017 18:39:10 :::HCHP 19 whereby proprietary rights were conferred and case was .
remanded back to subordinate revenue officers with direction that parties should be called and heard in person and factum of report of roznamcha No. 163 dated 3.2.1959 should also be taken into consideration. There is no evidence on record that of thereafter revenue officer had complied order of Collector passed in appeal No. 37 of 2008 titled Ram Dayal and others vs. Biptu and others. Hence mutation No. 520 has no force in the eyes of rt law because mutation No. 520 was set aside by competent Court of law. It is proved on record that thereafter Biptu filed tenancy appeal No. 24 of 1980 before learned Additional Commissioner titled Biptu vs. Kanu and same was dismissed by learned Additional Commissioner on dated 25.2.1984. It is well settled law that proprietary rights are granted under Section 104 of H.P. Tenancy and Land Revenue Act 1872 by land reform officer only. There is no order of land reform officer placed on record in present case.
17. Another submission of learned Advocate appearing on behalf of appellants that as per entries of jamabandi for the year 1958-59, 1962-63, 1974-75, 1979-1980, 1984-85 1988- 89 and 1994-95 appeal filed by appellants be accepted is ::: Downloaded on - 15/04/2017 18:39:10 :::HCHP 20 rejected being devoid of any force for the reasons hereinafter .
mentioned. Court has carefully perused above said jamabandis.
In jamabandi for the year 1958-59 Ext.P11 there is entry in rent column i.e. Bina lagan kabja rajamandi. (Without rent as possession is with consent). It is held that word Bina lagan of kabja rajamandi. (Without rent as possession is with consent) means no rent in the eyes of law. Hence it is held that payment of rent is not proved as per jamabandi for the year 1958-59.
rt Court has also perused jamabandi for the year 1962-63 Ext.P12. In rent column there is entry "Mal 1.66 Sawai 0.41 Kul 2.07." (Land revenue charges 1.66, local rate surcharge 0.41, total revenue 2.07). As per revenue dictionary word 'Mal' means land revenue and word 'Sawai' means local rate/surcharge. It is well settled law that land revenue and local rate surcharge are always paid to State Government. Hence it is held that word Mall (Land revenue) and word Swai (Local rate/surcharge did not falls within definition of rent. Hence it is held that even as per jamabandi for the year 1962-63 payment of rent is not proved on record. Court has also perused jamabandi for the year 1974-75 Ext.P13 relating to Khatauni No. 4. Even as per jamabandi for the year 1974-75 placed on record in rent column ::: Downloaded on - 15/04/2017 18:39:10 :::HCHP 21 the word mal (Land revenue) has been recorded as 1.66 and .
swai (Local rate/surcharge) has been recorded as 0.41. Hence keeping in view the meaning of mal (Land revenue) and swai (Local rate/surcharge) as per revenue dictionary cited supra it is held that payment of rent is also not proved as per jamabandi of for the year 1974-75.
18. Court has also perused jamabandi for the year 1974-75 Ext.P14 relating to Khatauni No.5. In rent column rt there is entry of mal 2.50 swai 0.62 (Land revenue 2.50 and local rate/surcharge 0.62). Hence it is held that as per jamabandi for the year 1974-75 Ext.P14 the payment of rent is not proved on record. Court has perused jamabandi for the year 1984-85 Ext.P15. In rent column land revenue has been shown as 1.66 relating to Prem Dutt and land revenue has been shown as 2.50 relating to Biptu. Hence it is held that even as per jamabandi for the year 1984-85 there is no entry of payment of rent. Even in jamabandi for the year 1988-89 Ext P-16 land revenue has been shown as 1.66 in rent column relating to Prem Dutt and relating to Biptu land revenue has been shown as 2.50. Hence it is held that as per jamabandi for the year 1988-89 payment of rent is not proved on record. Even as per ::: Downloaded on - 15/04/2017 18:39:10 :::HCHP 22 jamabandi for the year 1993-94 Ext.P17 land revenue relating .
to Prem Dutt has been shown as 1.66 and land revenue relating to Biptu has been shown as 2.50. Hence it is held that even as per jamabandi for the year 1993-94 payment of rent is not proved on record. Word mal and word swai did not fall within of definition of rent as per revenue dictionary because as per revenue dictionary word mal means land revenue paid to State Government and swai means local rate surcharge paid to the rt State Government. It is well settled law that payment of rent is essential ingredient for tenancy. As per Section 2(15) of H.P. Tenancy and Land Reforms Act 1972 rent means whatever is payable to land owner in money or kind by a tenant on account of use or occupation of land held by him but shall not include the rendering any personal service or labour. It is well settled law that payment of rent by tenant to the landlord can be made in kind or cash in the following manner. (1) Cash rent which could be irrespective of nature of land and kind of crop grown upon it. (2) Batai rent means division of produce between cultivator and landlord. (3) Zabati rent means fixed money payable per bigha or canal for certain crops. (4) Chakota rent means fixed amount of produce in particular season and fixed ::: Downloaded on - 15/04/2017 18:39:10 :::HCHP 23 amount of cash in another season. In present case appellants .
did not prove on record any rent in nature of (1) Cash rent. (2) Batai rent. (3) Zabati rent (4) Chakota rent.
19. Another submission of learned Advocate appearing on behalf of appellants that in jamabandis for the year 1958-59, of 1962-63, 1974-75, 1984-85, 1988-89 and 1993-94 in possession column names of Prem Dutt and Biptu have been recorded as Gair Marusi in cultivation column and on this rt ground appellants be treated as non-occupancy tenants over suit land is rejected being devoid of any force for the reasons hereinafter mentioned. It is well settled law that there are twelve columns in jamabandis i.e. (1) Column of Khata. (2) Column of Khatauni. (3) Column of name of lamberdar who collect land revenue. (4) Column of ownership. (5) Column of cultivation. (6) Column of irrigated land. (7) Khasra Numbers. (8) Area. (9) Rent which the tenant used to pay. (10) Type of measurement. (11) Demand of land revenue. (12) Remarks. It is held that simply entry of possession in column No. 5 is not sufficient to hold the status of tenant to Prem Dutt and Biptu. It is well settled law that status of tenant is determined with payment of rent only.
DW8 Prem Dutt when appeared in witness box has specifically ::: Downloaded on - 15/04/2017 18:39:10 :::HCHP 24 stated that tenant used to pay batai rent (Division of produce .
between cultivator and landlord). But there is no entry of batai rent (Division of produce between cultivator and landlord) in jamabandis placed on record. No document of batai rent proved on record. Hence it is held that no payment of rent is proved on of record and it is further held that status of appellants as tenants is not proved on record relating to suit land. It is held that word mal and word swai do not mean batai rent (Division of produce rt between cultivator and landlord). It is held that word mal means land revenue paid to State Government and word swai means local rate/surcharge paid to the State Government. There is no oral or written acknowledgment of receipt of rent on the part of land owner at any point of time by way of cash or kind in the present case.
20. Another submission of learned Advocate appearing on behalf of appellants that tenancy of appellants was prior to mortgage and even after redemption of land tenancy of appellants survives is rejected being devoid of any force for the reasons hereinafter mentioned. It is held that no tenancy prior to mortgage of land is proved on record in favour of appellants and it is held that a person cannot acquire two status at the ::: Downloaded on - 15/04/2017 18:39:10 :::HCHP 25 same time i.e. status of tenant and status of mortgagee. Court .
has perused jamabandi for the year 1954-55 Ext.P10 placed on record and in ownership column names of Kubja widow of Dakhu and name of Ratia son of Kishnu has been recorded as owners in equal shares and in cultivation column possession of of Kubja and Ratia has been recorded. Names of appellants did not figure in ownership column and in cultivation column of jamabandi for the year 1954-55 Ext.P10 placed on record.
rt Hence there is no question of tenancy prior to 1959 in favour of appellants.
21. It is well settled law that there is no limit for redemption of usufructuary mortgage. (See 2006(1) Supreme Bound Reports 144 titled Harbans vs. Om Parkash. See 2010(3) Himachal Law Reporter 1298 (H.P.) titled Parkash Chand and others vs. Amar Singh and another. See 2009 (1) SLJ page 45 titled Harbhajan Singh Vs. Neranjan Singh (P&H).It is well settled law that entry of non-occupancy tenant in revenue record can be recorded only by order of competent authority of law. In present case there is no evidence on record in order to prove that any revenue officer had ordered the entry of non-occupancy tenant in favour of Prem Dutt and Biptu at any point of time in revenue record. In ::: Downloaded on - 15/04/2017 18:39:10 :::HCHP 26 view of the fact that there is no order of competent authority to .
change the revenue entries relating to non-occupancy tenants in favour of Prem Dutt and Biptu and in view of the fact that no rent receipt produced issued by Kubja in favour of Prem Dutt and Biptu and in view of the fact that no induction of tenancy is of proved on record by Kubja in favour of Prem Dutt and Biptu it is held that Prem Dutt and Biptu did not acquire status of tenancy over suit land at any point of time in present case. See 2011 (12) rt Himachal Law reporter page 711 (HP) titled Chain Singh & others Vs. Kood Singh & others. In present case it is proved on record that appellants are in settled possession of suit property.
Hence it is held that learned trial Court had rightly granted decree of possession in favour of land owners on the basis of title against the appellants. It is well settled law that status should be proved by way of positive, cogent and reliable independent evidence and it is well settled law that title cannot be claimed on the basis of jamabandis entries only. It was held in case reported in 1994(1) SLJ 68 (SC) titled Jattu Ram vs. Hakam Singh and others that jamabandi entries did not create any title and it was held that jamabandi entries are only for fiscal purpose. Also see AIR 1994 SC 227 titled Guru Amarjeet Singh ::: Downloaded on - 15/04/2017 18:39:10 :::HCHP 27 Vs. Rattan Chand and others. In view of above stated facts .
substantial question of law framed by Hon'ble High Court is decided against the appellants.
22. In view of above stated facts appeal filed by appellant is dismissed. Judgment and decree passed by learned of trial Court and learned first Appellate Court are affirmed.
Parties are left to bear their own costs. Files of learned trial Court and learned first Appellate Court along with certified copy rt of this judgment and decree sheet be sent back forthwith. The Registrar (Judicial) will prepare the decree sheet as required under Section 100 of Code of Civil Procedure 1908. Appeal stands disposed of. All pending miscellaneous application(s) if any also stands disposed of.
July 29, 2015 (P.S. Rana)
(ms). Judge
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