Himachal Pradesh High Court
Pritam Chand vs Mohinder Paul And Ors. on 8 May, 2006
Equivalent citations: 2006(2)SHIMLC216
Author: Surjit Singh
Bench: Surjit Singh
JUDGMENT Surjit Singh, J.
1. The present appeal was admitted on the following substantial questions of law on 27th June, 1995:
1. Whether in the absence of sanctioning of mutation the appellant could have been declared as tenant or as a owner, or not?
2. Whether the confirmation of proprietary rights in favour of the tenants an automatic or not?
3. Whether in the presence of min number and separate Khasra min number, specification of disputed land by way of boundaries was necessary or not?
2. The brief facts of the case are that appellant Pritam Chand (hereinafter referred to as 'plaintiff') filed a suit for permanent injunction restraining the respondents-defendants from interfering in his possession over the land measuring 7 kanals 14 Marias as described in the heading of the plaint. In the alternative, he prayed for decree of possession of the suit land. It was alleged that earlier the plaintiff had been in occupation of the suit land as a tenant under the owner, on payment of rent and after coming into force the H.P. Tenancy and Land Reforms Act, he had become the owner. It was further alleged that the respondents-defendants, without any right, title or interest, were trying to cause interference in the possession of the plaintiff.
3. The defendants-respondents contested the suit. They alleged that the suit was bad for non-joinder of necessary parties, the plaintiff had no cause of action and the suit was not maintainable in the form in which it had been laid. As regards the merits of the case, they pleaded that out of 7 kanals 14 marlas of suit land, they were in possession of 2 kanals 15 marlas of land, bearing Khasra No. 239 min, Khatauni No. 208 min and Khasra No. 1170 min, Khatauni No. 212, as per entry in the Jamabandi for the years 1977-78.
4. Learned trial Court framed various issues and concluded that the plaintiff was earlier a tenant in respect of the entire suit land and that after corning into force the H.P. Tenancy and Land Reforms Act, he had become the owner. It was held that out of the suit land, the defendants ware in possession of land measuring 2 kanals 15 marlas bearing Khasra No. 939 min, Khatauni No. 208 min and Khasra No. 1170 min, Khatauni No. 212 min, but their possession was held to be illegal and consequently decree for possession, in respect of said 2 kanals 15 marlas of land and a decree for permanent injunction restraining the defendants from interfering in the possession of the plaintiff over rest of the suit land, was passed.
5. The defendants-respondents approached the Court of learned District Judge by filing an appeal. In appeal, the learned District Judge has held that the suit was bad for non-joinder of the persons who are recorded as owners in the revenue papers and in their absence, the plaintiff could not have been declared as owner of the suit land, the suit; property was described by min numbers and not by whole numbers and therefore in the absence of Tatima of the min numbers, the decree passed by the trial Court, granting relief of injunction and possession was in-executable and that the plaintiff was not in possession of the suit land and hence not entitled to the relief claimed by him. Consequently, the appeal was accepted, the judgment and decree of the trial Court were set aside and the suit was dismissed.
6. I have heard the learned Counsel for the parties and gone through the record. As a matter of fact, questions No. 1 and 2, as formulated and are included in the questions on which the appeal was admitted, do not arise from the pleadings. The plaintiff has very specifically and categorically stated that earlier he was tenant of the suit land and on coming into force the H.P. Tenancy and Land Reforms Act; he had become the owner of the suit property. This plea of the plaintiff was not specifically denied by the defendants. Further, the defendants themselves examined two of the previous owners, namely DW-4 Kumair Singh and DW-6 Harminder Singh. DW-6 Harminder Singh in his cross-examination categorically admitted that the plaintiff was earlier a tenant arid that during the settlement operation, he has become the owner of the suit land. That means, the previous owners of the land, do not dispute the claim of the plaintiff that he has acquired the ownership rights or he has become the owner of the suit property. If that is so, the defendants, who have no concern with the property, cannot be heard to say that the plaintiff is not the owner or that the suit is bad for non-joinder of the persons, who are recorded as owners of the suit land and under whom the plaintiff is recorded as tenant in the Jamabandi for the year 1977-73 (Ext.P-1). In the face of the aforesaid factual possession, questions No. 1 and 2 do not arise.
7. Coming to question No. 3, the first appellate Court has held that the specification of the property has not been given and in the absence of accurate specification, it would be impossible to execute the decree and hence no decree could have been passed by the trial Court. The view taken by the learned District Judge is not correct. No doubt, the suit property is described by min numbers and the defendants have claimed their possession over two such min numbers but every min number mentioned in the plaint is distinguishable from other similar min numbers by reference to Khatauni numbers which are different. A bare perusal of Ext. P-1, which is a copy of Jamabandi for the year 1977-78, makes the position clear. Thus, the first appellate Court was not justified in reversing the decree of the trial Court on the ground that the suit property is not identifiable, on account of Tatima of the min numbers, by which it is described, having nor been submitted.
8. The learned Counsel for the respondents urged that the respondents were admitted to be in possession of 2-15 biswas of land out of the suit land, by two of the previous owners, namely DW-4 Kumair Singh and DW-6 Harminder Singh, examined by the defendants. No doubt these two witnesses corroborated the plea of the defendants that they were in possession of 2-15 biswas of land as tenants under the previous owners, but the entries in the Jamabandi do not corroborate their claim. It was urged by the learned Counsel that there is an entry in the Jamabandi (Ext.P-1) for the year 1961-62, showing the predecessor of the respondents in possession of Khasra No. 1170 min measuring 1 kanal 1 Maria, as tenant under the previous owners. A reading of the Jamabandi shows that Khushi Ram, the predecessor of the respondents, was in possession of half of the area of khasra No. 1170 min measuring 1 kanal 1 Maria. Though he is recorded as 'Gair Maurishi' in column No. 5, in column No. 10 it is recorded that no rent is payable because of the land being uncultivated. This entry falsifies the plea of the respondents-defendants that their predecessor Khushi Ram was a tenant. This entry also falsifies the testimony of the two previous owners that Khushi Ram used to share the crop on account of rent. The question of sharing the crops, with the owners by way of rent, did not arise when the land was Gair Mazruha.
In view of the above stated position, the appeal is accepted. The judgment and decree of the first appellate Court are set aside and those of the trial Court restored.
CMP No. 227 of 1997The prayer made in the application for amendment of the plaint, so as to describe the suit land by latest khasra numbers, assigned during the course of recent settlement, does not survive, in view of the above stated position that the description given in the plaint is enough to identify the suit property on the spot. Hence the same is dismissed.