Himachal Pradesh High Court
Kanshi Ram vs Nika Ram on 21 August, 1987
Equivalent citations: AIR1989HP1
JUDGMENT R.S. Thakur, J.
1. This judgment will dispose of two appeals, namely, RSA No. 42 of 1977 and MSA No. 4 of 1977. The former is against the judgment of the learned District Judge, Shimla, Kinnaur and Bilaspur Districts, dt. Feb. 26, 1977 whereby he set aside the judgment and decree of the learned Senior Sub-Judge, Bilaspur, dt. Dec. 11, 1972 and dismissed the suit of Kanshi Ram, appellant before this Court, (hereinafter referred to as 'the plaintiff') against the respondent Nika Ram, respondent (hereinafter referred to as 'the defendant'). The latter is against the order of the same District Judge, of the same date whereby the order of the Compensation Officer, Bilaspur, dt. April 10, 1973. dismissing the application of the defendant Nika Ram for acquisition of proprietary rights as tenant against the plaintiff as landlord under Section 11 of the H.P. Abolition of Big Landed Estates and Land Reforms Act, 1953, (hereinafter referred to as 'the Land Reforms Act'), was set aside and the Compensation Officer was directed to grant proprietary rights in respect of the land which was common in both the proceedings, that is, the civil suit before the Senior Sub-Judge, Bilaspur and the proceedings for acquisition of proprietary rights before the Compensation Officer, Bilaspur.
2. The facts are that the plaintiff and the defendant are real brothers. The plaintiff instituted a Civil Suit No. 178/1 on Feb. 25, 1971, in the Court of the Senior Sub-Judge, Bilaspur, wherein he averred that he was the owner in possession of Khewat No. 4 min, Khatoni No, 7/1 and Khasra Nos. 111 and 133 measuring 2-16 bighas, situate in village Tihra in Bilaspur District; that previously he was in possession of this land along with other land as non-occupancy tenant and subsequently acquired proprietary rights in respect of the entire tenancy holdings in his possession inclusive of the land in dispute by making an application in this behalf to the Compensation Officer under the Land Reforms Act but that during the consolidation of holding operations in the area, the defendant got his name entered as tenant under him in respect of the suit land in collusion with the consolidation staff at the back of the plaintiff and when he learnt about it he got the said entries in favour of the defendant qua the suit land set aside vide the order of the Settlement Officer dt. Oct. 23, 1964. The defendant, however, even thereafter in collusion with the consolidation officials got the entries incorporated in his favour as tenant under the plaintiff which was totally false and inaccurate and the plaintiff came to know about these wrong entries in favour of the defendant in the year 1971 and hence the suit for declaration that the plaintiff was owner in possession of this land and the defendant had nothing to do with it and the entries qua this land in his favour as non-occupancy tenant on the payment of 1/4th of 'Galla Batai' were wholly wrong and deserved to be cancelled.
3. The defendant contested this suit and in his written statement while admitting that the plaintiff was owner of the land in suit, stoutly denied that he was also in possession and asserted that as a matter of fact it was the defendant who was in possession of the suit land as non-occupancy tenant under the plaintiff on payment of l/4th of 'Galla Batai'. He asserted that formerly the plaintiff was non-occupancy tenant 'aval' (of first degree) in respect of the suit land while he himself was non-occupancy tenant 'deom (of second degree) (Sub-tenant) under the plaintiff and that after the plaintiff acquired proprietary rights in respect thereof he became non-occupancy tenant under the plaintiff. He denied that he got these entries in his favour made in collusion with the consolidation revenue officials.
4. The learned trial Court on these pleadings framed the following issues : --
1. Whether the plaintiff is the owner in possession of the land in dispute? O.P.P.
2. Whether the defendant is not a tenant of the land in dispute as alleged and that the entries showing the defendant to be a tenant are wrong? O.P.P.
3. Whether the suit in the present form is not maintainable ? OPD.
4. Whether this Court has no jurisdiction to try the present suit? OPD.
5. Relief.
5. After recording the evidence of the parties, the trial court while discussing issues Nos. 1 and 2 together held that the plaintiff was the owner in possession of the suit land and the defendant has not been proved to be tenant under him in respect thereof and the entries to that effect in his favour in the revenue record were erroneous and of no consequence and thus both the issues were found in favour of the plaintiff. In view of these findings, the findings on the remaining two issues were given against the defendant and the suit of the plaintiff was thus decreed leaving the parties to bear their own costs.
6. The other proceedings for acquisition of proprietary rights were initiated by the defendant against the plaintiff before the Compensation Officer under Section 11 of the Land Reforms Act for acquisition of proprietary rights on May 18, 1971, wherein he claimed that he was the non-occupancy tenant under the plaintiff on payment of 1/4th of 'Galla Batai' and was entitled to acquire proprietary rights thereof.
7. The plaintiff contested this application and denied that the defendant was tenant under him in respect of this land and asserted that in fact he was the owner in possession thereof and had filed a civil suit against the defendant for declarations to that effect. During the pendency of these proceedings the Senior Sub-Judge passed the decree as stated above on Dec. 11, 1972 which was then produced by the plaintiff in those proceedings and while placing reliance upon these findings the learned Compensation Officer vide his order dt. April 10, 1973 dismissed the application of the defendant for acquisition of proprietary rights.
8. Two separate appeals against these orders were then filed before the learned District Judge who accepted both the appeals and passed the impugned orders as set out above.
9. I have heard the learned counsel for the parties and also gone through the record of the case. For reasons to be recorded presently, I am of opinion that the impugned orders of the learned District Judge in the two appeals are not sustainable and must be set aside. In fact it is clear that in case this Court allows the appeal in RSA No. 42 of 1977 and set aside the order of the learned District Judge the natural consequence thereof would be that his order in MSA No. 4 of 1977 has also to be set aside.
10. It is an admitted fact that the plaintiff and the defendant are real brothers and the defendant has been living away from his village at Ludhiana in the State of Punjab whereas the plaintiff has been living at his own house and cultivates his own fields. It is an established law that tenancy is a matter of contract and when, as a result of the contract he is put in possession of the tenancy holding he must pay rent to the landlord unless there is any stipulation in the contract to the contrary. Thus it is for the person who claims tenancy rights qua a particular holding to prove that he was inducted tenant on that holding by the landlord and he on his part has been paying rent to him. In the instant case, I do not think the defendant has been able to prove these material facts with regard to the land in suit. In fact it appears to be highly improbable that a person who himself is agriculturist and cultivates his own land would induct on his land a tenant who is living far away from his village in connection with his service, like the defendant and especially when they are both real brothers. Although the defendant claims in his statement that he has been paying rent at the rate of 1/4th of 'Galla-Batai' qua the suit land to the plaintiff regularly but apart from this bare statement of his, he has not substantiated or corroborated this by any other evidence oral or documentary.
11. The according to the defendant he was inducted as a tenant by the plaintiff on this land sometime during the period when consolidation of holding proceedings were going on in his village. These proceedings were admittedly going on in that village sometime in the year 1963-64. He has also stated that at the time when he was inducted as a tenant of this land the plaintiff had voluntarily made a statement to that effect before the patwari concerned. If this was so, it was naturally a matter of record and it was the duty of the defendant to have brought that statement of the plaintiff on record but it has not been done and the trial Court was, in my opinion, right in raising adverse inference against the defendant. It appears that this change in the record whereby the defendant was recorded as tenant under the plaintiff was brought about as a result of the order of Consolidation Officer dt. Sept. 4, 1983 (Ex. PF), This order was, however, challenged by the plaintiff before the Settlement Officer and the Settlement Officer vide his order dt. Oct. 23, 1964 set aside the order of the Consolidation Officer in the following terms : --
"xxx xxx xxx The record disclosed that this Khata related to Khasras Nos. 316 and 386 measuring 2.14. In the jamabandi as well as the Khasra girdawri, Kanshi Ram has been recorded as a tenant of these fields since very long. It was on the basis of Fard-Partal of the Inspector dt, 22-23 July, 1962 that Nikka respondent was found to be in possession of Khasras Nos. 316, 386 and several other fields and in the Khatauni Ishtemal a sub-tenant of the appellant for Khs. Nos. 316 and 386. The primary record was published in the village on 12-11-1962 and no objections appear to have been preferred against the entries of that record under Section 10. Therefore for all intents and purposes that record became final. It follows that in proceedings under Section 17, the Consolidation Officer was not competent to make any change or correction in the entries of the primary record. Therefore, his order in favour of Nikka and against Kanshi Ram during hearing of objections under Section 17(2) cannot be held to be legal. Hence his order to that extent is set aside and the entries of Khatauni Ishtemal are directed to be kept intact as before his order....."
12. Thus it is clear that even those entries which were recorded in favour of defendant during the consolidation of holding operations were set aside by the Settlement Officer and in the face of this the entries in favour of defendant qua the suit land as tenant under the plaintiff could not subsist. It, however, appears that despite this order the entries in favour of the defendant remained unchanged which gave rise to the present litigation. It is, however, clear that . on the facts and in the circumstances of the case, qua the subsequent entries the defendant cannot be allowed to take any advantage.
13. It is an admitted fact that the plaintiff was earlier tenant in respect of this land including some other lands, as has been observed in the order of the Settlement Officer as well, under Ram Devi and others and admittedly he became owner thereof by an order of the Compensation Officer under the Land Reforms Act. Now if he was a tenant even during the initial stage of consolidation of holding operations in respect of this land, even then to enter the name of the defendant as sub-tenant when the plaintiff was still tenant on this land or subsequently to enter him as tenant when the plaintiff became owner thereof should have been in accordance with law as envisaged by the provisions of the Himachal Pradesh Holdings (Consolidation and Prevention of Fragmentation) Act, 1971, (for short called as 'Consolidation Act') and the Himachal Pradesh Land Revenue Act.
14. Sub-section (2) of Section 17 of the Consolidation Act clearly lays down that when the Assistant Consolidation Officer carries out field to field 'partal' with the help of the village map and field-book and feels to bring about any change in the entries, he has to correct those entries in the revenue record in accordance with the provisions of the H. P. Land Revenue Act, 1954 or the Punjab Land Revenue Act, 1887 as the case may be and the rules framed thereunder. Chapter IV of the H.P. Land Revenue Act contains the provisions with regard to the mode and manner in which the record of rights for each estate shall be prepared. Then Section 38 thereof envisages that there should be no variation of the entries in the record of rights unless after a proper enquiry is held in that behalf and facts are proved or admitted indicating such a step or the interested parties agreed thereto or there is a binding decree in this behalf inter se the parties. In the instant case no such enquiry appears to have been undertaken while effecting entries in favour of the defendant as tenant either by the Consolidation Officer or the Revenue Officials and this is not only in violation of law but also the rules of natural justice. In fact the case of the defendant that the plaintiff voluntarily inducted him as tenant under him during the consolidation of holding proceedings, is squarely belied by the facts on record, namely, that the plaintiff filed an appeal before the Settlement Officer against him with regard to these very entries which appeal was allowed by the Settlement Officer and in these circumstances the claim of the plaintiff is sustainable that the defendant got these entries inserted by colluding with the consolidation officials. The learned appellate Court has been swayed by the fact that since the latest jamabandi entries, namely, in Ex. PA for the year 1969-70 and Ex. DA for the same year, were in favour of the defendant, they would prevail over the old entries to the contrary and the presumption of truth would arise in favour of the defendant on the basis of those entries. No doubt this was so held by the Supreme Court in Durga Singh v. Tholu, 1962 Pun LJ 88 : (AIR 1963 SC 361) but as the same Court has held in a subsequent judgment, Durga (deceased) v. Milkhi Ram, 1969 PLJ 105, this presumption is rebuttable on and in case the facts and circumstances on record proved the subsequent entries as inaccurate and erroneous, the Court is justified in disregarding those entries and relying upon the previous entries. In the latter case reliance was placed upon the jamabandi of 1929-30 which were at variance with the jamabandi entries of 1925-26. The Court found that the jamabandi entries of the year 1925-26 were in accordance with the actual facts as regards the share of different co-sharers and the subsequent jamabandi of 1929-30 were made erroneously without any mutation whereby the shares of the plaintiff were deleted and it was held that the jamabandi entries of 1929-30 were of no consequence and it was the jamabandi entry of 1925-26 which held the field.
15. It may also be stated that the learned counsel for the defendant has fairly conceded this position while submitting that it was difficult to support the judgment of the lower appellate Court.
16. In view of the above discussion, I accept the appeal, R.S.A. No. 42 of 1977, set aside the judgment of the appellate Court dt. Feb. 26, 1977 and restore that of the Senior Sub Judge, Bilaspur dt. Dec. 11, 1972. As a natural corollary to this finding the judgment of the learned District Judge in M.S.A.No. 4 of 1977 dt. Feb. 26, 1977 is also set aside and the order of the Compensation Officer dt. April 10, 1973 dismissing the application of the defendant under Section 11 of the Land Reforms Act is restored. In these circumstances of the case, however, the parties are left to bear their own costs.