Himachal Pradesh High Court
Kunj Lal & Others vs Ram Swaroop on 26 April, 2018
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No. 262 of 2005.
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Reserved on : 17th April, 2018.
Decided on : 26th April, 2018.
Kunj Lal & others .....Appellants/Plaintiffs.
Versus Ram Swaroop Coram:
r to ..Respondent/defendant.
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting?1 Yes.
For the Appellants: Mr. Ramakant Sharma, Sr. Advocate with Dinesh Kumar, Advocate.
For Respondent: Mr. G.D. Verma, Senior Advocate with Mr. B.C. Verma, Advocate.
Sureshwar Thakur, Judge.
The instant appeal is directed, against, the concurrently recorded verdicts by both the learned Courts below, whereby, the plaintiff's suit for rendition, of, a decree for declaration, as well as for, rendition of a 1 Whether reporters of the local papers may be allowed to see the judgment?
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decree for permanent prohibitory injunction qua the suit khasra number(s), was, hence dismissed.
2. Briefly stated the facts of the case are that the plaintiffs have filed a suit for declaration against the defendant to the effect that the plaintiffs are the owners in possession of land comprised in Khata No.47 min, Khatauni No.71, Khasra No.232, measuring 0-04-27 HM, as per jamabandi for the year 1995-96, situated in Mohal Lodwan, Mauza Bassa, Gudialan, Tehsil Nurpur, District Kangra, H.P., and that the defendant has no right, title or interest over the suit land and the revenue entries showing the defendant as Kabaz are illegal, null and void.
The plaintiffs further prayed for consequential relief for permanent injunction and in the alternative, they have prayed for the vacant possession. It is alleged that the plaintiffs purchased the suit land from Sh. Dina Nath as per registered sale deed and they are at present owners in possession of the same. It is pleaded that the ::: Downloaded on - 02/05/2018 23:17:09 :::HCHP ...3...
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defendant is a clever person and in the absence and at the back and without the knowledge of the plaintiffs, illegally got the entry in Khata Kasht recorded his name inspite of the fact that he was never in possession of the suit land. It is alleged that revenue entries were changed without following any procedure. It is further pleaded that the defendant is a forceful person and on the basis of wrong revenue entries, threatening to interfere in the ownership and possession of the plaintiffs. It is alleged that the impugned revenue entries were not in their knowledge earlier, which came in their notice in the month of April, 1998, when the defendant started threatening the plaintiffs to dispossess them and the cause of action arose to them against the respondent.
Hence the suit.
3. The defendant contested the suit and filed written statement, wherein, he has taken preliminary objections inter alia maintainability, locus standi, cause ::: Downloaded on - 02/05/2018 23:17:09 :::HCHP ...4...
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of action etc. On merits, the case of the plaintiffs has been denied. It is pleaded that the defendant was a tenant of original owner Dina Nath. It is pleaded that defendant is coming in possession of the suit land and on coming into force the H.P. Tenancy and Land Reforms Act, he became owner of the suit land on the prescribed day.
It is pleaded that the sale deed is null and void as the possession of the defendant is continuous and was never transferred to the plaintiffs. It is pleaded that the entry of the defendant as Kabaz by the settlement officials, is not correct as the entry of the defendant as Gair Maurusi has wrongly been converted into Kabaz. The other allegations of the plaintiffs have been denied.
4. On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at contest:-
1. Whether the plaintiffs are the owners in possession of the suit land, as alleged?OPP.
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2. Whether the revenue entries depicting the defendant to be the Kabaz over the suit land, is wrong, null and void?OPP.
3. Whether the suit is not maintainable?
OPD.
4. Whether the defendant has become the owner of the suit land, under the H.P. Tenancy and Land Reforms Act?
OPD.
5. Relief.
5. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court dismissed the suit of the plaintiffs/appellants herein. In an appeal, preferred therefrom, by the plaintiffs/appellant herein, before the learned First Appellate Court, the latter Court dismissed the appeal, and, affirmed the findings recorded by the learned trial Court.
6. Now the plaintiffs/appellants herein, have instituted the instant Regular Second Appeal, before, this Court, wherein they assail the findings, recorded in its ::: Downloaded on - 02/05/2018 23:17:09 :::HCHP ...6...
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impugned judgment and decree, by the learned first Appellate Court. When the appeal came up for admission, this Court, on 19.12.2005 admitted the appeal instituted by the plaintiffs/appellants, against, the judgment and decree, rendered by the learned first questions of law:-
r to Appellate Court, on the hereinafter extracted substantial
1. Whether the impugned judgment and decree is the result of complete misreading, misinterpretation as well as misappreciation of mutation dated 21.8.1980 Ex. P4?
2. Whether the courts below are right in granting a relief to the defendant-
respondent, who neither filed any counter claim nor had challenged the entry showing him to be kabiz with respect to the suit land?
3. Whether the impugned judgment and decree is the result of non-consideration of the provisions of Section 104 of H.P. Tenancy and Land Reforms Act, 1972?
4. Whether the impugned judgment and decree is the result of complete misreading, mis-appreciation of Ext. P-1 to P-5 and Ex. PW3/A the sale dated 19.10.1981?
5. Whether the learned Courts below are right in not taking into consideration the law laid down by the Hon'ble Apex Court reported in 1969 PLJ, page 105?
6. Whether the learned courts below are right in holding the respondent-defendant to be tenant with respect to the suit land and ::: Downloaded on - 02/05/2018 23:17:09 :::HCHP ...7...
having become owner after coming into force of H.P. Tenancy and Land Reforms Act, .
1972, more particularly when the entries showing him only kabiz having not been assailed by the respondent-defendant nor any counter claim was filed by the respondent?
7. Whether the impugned judgment and decree is the result of complete misreading, misinterpretation as wel as mis-appreciation of Ex.P-4 mutation No.259 and Ext. P-5, jamabandi for the year 1966-67?
Substantial questions of Law No.1 to7:
7. The plaintiffs, are, under a registered deed of conveyance, hence vendees, of the suit khasra numbers.
The declaratory relief claimed by the plaintiffs, the vendees, under a registered deed of conveyance, executed with them by one Dina Nath, registered deed of conveyance whereof, is borne in Ex.PW3/A, is, for deletion of any entry of "Kabaz" made vis-a-vis the defendants, in the jambandi, apposite vis-a-vis some of the suit khasra numbers. The sale deed executed with respect to khasra numbers, 238, 241, 243 and 247, on anvil whereof, the plaintiffs asserted acquisition of title thereon, would acquire, an aura of validity, only upon, the ::: Downloaded on - 02/05/2018 23:17:09 :::HCHP ...8...
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contention of the defendant/respondent, one Ram Swaroop, (i) that one Dina Nath, who had executed, it, as vendor, and, whereunder whom, he was a tenant, being defacilitated to execute it, (ii) given existence of an order of mutation borne in Ex.P-4, whereby, proprietary rights were conferred upon him, rather being declared to be null and void, and, besides being invalidated by this Court. The plaintiffs, however, did not contest the legality of the recording, of the order of mutation, borne in Ex.P-4, whereby proprietary rights qua khasra Nos.
235, 236, 388 and 390, were, thereunder bestowed, upon, one Ram Swaroop. Consequently, also when a perusal of Ex.P-4, discloses that the suit khasra numbers are not borne therein, thereupon, prima facie hence the plaintiffs, may succeed in de-establishing the contention of the defendant, of his, on anvil of Ex.P-4, rather scuttling the concert of the plaintiffs, of theirs, thereupon, ::: Downloaded on - 02/05/2018 23:17:09 :::HCHP ...9...
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acquiring a valid title vis-a-vis the khasra numbers, depicted in Ex.PW3/A.
8. Be that as it may, the revenue entries borne in the relevant records, especially, in the ones, immediately prior to the execution of Ex.PW3/A, on 19.10.1981, also enjoin an allusion thereto. Allusion thereto, is imperative, for making apt discernment(s) qua whether therein, the defendant/respondent, is reflected to be a tenant vis-a-
vis those khasra numbers, in respect whereof Ex.PW3/A, hence stood executed, by his landlord with the plaintiffs.
Ex.D-5, is the copy of jamabandi appertaining to the year 1973-74, the inference of its appertaining vis-a-vis the aforesaid years, is apparent, from, the apposite figure(s) being scribed in red ink, and, scribings thereof, being initialed by the official concerned. Since, the scribings, in red ink, of figures 1973/74 is visibly initialed, and, also when initialing thereof, is not concerted to be belied, by any efficacious evidence being concerted to be adduced, ::: Downloaded on - 02/05/2018 23:17:09 :::HCHP ...10...
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by the plaintiffs/appellants, (i) thereupon, it is to be firmly concluded that, Ex.D-5 appertains to the year 1973-74.
Nowat with the H.P. Tenancy Land Reforms Act, coming into force w.e.f. 21st February, 1974, and, with the apt statutory provisions borne therein, prescribing automatic bestowments, in contemporaneity(ies) of its coming into force, of proprietary rights, vis-a-vis any recorded tenant, under the latters' landowner, (ii) and, also with paragraph No.13 of a judgment rendered by the Hon'ble Apex Court in a case titled as Tarsem Lal and others vs. Ram Sarop and others reported in AIR 2014, S.C., 2087, making candid and loud echoings in consonance with the aforesaid factum, paragraph No.13 whereof stands extracted hereinafter:-
"13. as per the aforesaid provision, all right, title and interest including a contingent interest of a land owner other than the land owner entitled to resume land under sub- section (1) shall be extinguished and all such ::: Downloaded on - 02/05/2018 23:17:09 :::HCHP ...11...
rights, title and interest in respect of the land .
in question vest in the tenant, i.e. original plaintiff, free from all encumbrances from the date the Act came into force. The Act was published in the Office Gazettee on 21 st February, 1974 vide Act NO.8 of 1974. What is not in dispute is that the original plaintiff became owner of the suit land by operation of law ans continued to enjoy all the rights including the right of irrigation from the common source which was in possession of the original landlord".
(p.2089)
(i) thereupon, when a perusal of Ex. D-5, makes a clear, candid reflection, of one Ram Swaroop, being recorded as a tenant under Dina Nath, the vendor of Ex.PW3/A, (ii) thereupon with attraction hereat of the mandate, of the aforesaid judgement rendered by the Hon'ble Apex Court in Tarsem Lal's case (supra), (iii) mandate whereof, is, qua in contemporaneity vis-a-vis 1974, and, upon evident ::: Downloaded on - 02/05/2018 23:17:09 :::HCHP ...12...
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unfoldments occurring in the apt thereat revenue records
(iv) of one Ram Swaroop, rather being prior thereto, hence evidently being validly recorded as tenant under one Dina Nath, thereupon, the sale deed borne in Ex.PW3/A, and, executed on 19.10.1981, would be vitiated.
(v) For fathoming, any, piercing applicability hereat, of, the aforesaid verdict, a close studied perusal of Ex.D-5, rather makes clear revelations qua vis-a-vis khasra numbers, borne in Ex.PW3/A, one Ram Swaroop, defendant/respondent being depicted as a tenant, under Dina Nath, the vendor of Ex.PW3/A. Since, Ex. D-5, appertains to the year(s), immediately prior to the coming into force, of the H.P. Tenancy and Land Reforms Act, hence with the mandate supra, expostulated, in a judgment pronounced by the Hon'ble Apex Court in Tarsem Lal's case (supra), (vi) qua in the year 1974, dehors, any order of mutation being recorded vis-a-vis conferment of proprietary rights, upon one Ram Swaroop, ::: Downloaded on - 02/05/2018 23:17:09 :::HCHP ...13...
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his rather being entitled, to automatic conferment, of proprietary rights vis-a-vis the suit khasra number(s),
(viii) hence, even if, Ex. P-4 omits to detail the suit khasra number(s), yet apt omissions of delineation(s) thereof, hence neither eroding or affecting the applicability hereat, of the mandate pronounced, by the Hon'ble Apex Court, in Tarsem Lal's case (supra). In sequel, when all the depictions occurring in Ex. D-5, rather enjoy a presumption of truth, and, with no efforts being made by the plaintiffs/appellants herein, for, eroding the presumption of truth, enjoyed by reflections occurring therein, signficantly, of Ram Swaroop, being a tenant, under one Dina Nath, (ix) hence, with conclusivity standing acquired by the entries borne in Ex.D-5, reiteratedly, thereupon, the defendant/respondent, one Ram Swaroop, did, immediately on coming into force of the H.P. Tenancy and Land Reforms Act, in the year 1974, hence became clothed, with automatic vestment of ::: Downloaded on - 02/05/2018 23:17:09 :::HCHP ...14...
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statutory proprietary rights, vis-a-vis all khasra numbers borne in Ex.PW3/A. Concomitant sequel thereof, being of the landowner, whereunderwhom, he was reflected to be a tenant, being subsequent to 1974, standing debarred, to execute the registered deed of conveyance, vis-a-vis khasra number(s), borne in Ex.PW3/A, and, conspicuously with Ex.PW3/A, being executed belatedly from 1974, inasmuch as, on 19.10.1981, (x) hence, with one Dina Nath, for reasons aforestated, being divested of title vis-
a-vis khasra numbers, in respect whereof, he executed a registered deed of conveyance, qua the plaintiffs, (xi) thereupon, the concurrently recorded pronouncements, by both the learned Courts below of Ex.PW3/A, hence, suffering from a pervasive, vice(s) of vitiation, and, its also standing pronounced to be invalid, is not, anvilled upon any mis-appreciation or non appreciation of the relevant material on record, and, also are within the ::: Downloaded on - 02/05/2018 23:17:09 :::HCHP ...15...
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ambit of the verdict of the Hon'ble Apex Court, recorded, in Tarsem Lal's case (supra).
9. Further more, the reflections, if any, in the jamabandis, of any suit khasra number(s), being reflected to be possessed by defendant/respondent, and, the said entry being amenable to be scored off, (i) on anvil of its being purportedly not preceded by any valid order, rendered by the revenue officers, (ii) also does not hold any tenacity, as any simplictor entry of one Ram Swaroop, being depicted, as, Kabaj, and, made subsequent to the making(s) of Exts.D-4, D-5, and, of D-
6, is per invalid (iii) and conspicuously, evidently given his therein, being, reflected in the apposite column of rent, of, all jamabandis preceding therewith, to be defraying rent to the owner, rather being unamenable to effacement, unless the making vis-a-vis him, an entry of Kabaz, is, evidently preceded by a valid apposite order,
(iv) whereupon, alone the entries borne in Exts.D-4, D-5, ::: Downloaded on - 02/05/2018 23:17:09 :::HCHP ...16...
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and D-6 rather would be annulled, whereas, evidence of apposite making(s) thereof, rather is grossly amiss hereat, (v) thereupon the entries borne in Exts. D-4, D-5, and, in Ext. D-6 hence enjoy conclusivity, given no potent evidence, being adduced for hence, , eroding their probative worth. In aftermath, when all the entries borne in Exts. D-4 to D-6 also appertain, to the khasra numbers reflected in Ex. PW3/A, thereupon, all the entries borne in Exts. D4 to D-6, and, as borne in preceding therewith jamabandis, rather are to be construable to enjoy an aura of conclusivity, (vi) contrarily, any subsequent thereto entry(ies), if any, made in respect of any suit khasra numbers, wherein, the respondent/defendant, is contrarily depicted to be kabaj, hence, cannot be conferred with any aura of legality.
10. The above discussion, unfolds, that the conclusions as arrived by the learned first Appellate Court as also by the learned trial Court, being based, upon a ::: Downloaded on - 02/05/2018 23:17:09 :::HCHP ...17...
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proper and mature appreciation of evidence on record.
While rendering the findings, the learned first Appellate Court as well as the learned trial Court, have not excluded germane and apposite material from consideration. Accordingly, the substantial questions of law are answered in favour of the respondent/defendant and against the appellants/plaintiffs.
11. In view of the above discussion, there is no merit in the instant Regular Second Appeal and it is dismissed accordingly. In sequel, the judgements and decrees rendered by both the learned Courts below are affirmed and maintained. Decree sheet be prepared accordingly. All pending applications also stand disposed of. No order as to costs.
(Sureshwar Thakur) 26 th April, 2018. Judge.
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