Himachal Pradesh High Court
Aruna Nand (Deceased vs Sat Pal And Another on 22 May, 2019
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.307 of 2006 Reserved on : May 7, 2019 .
Date of Decision : May 22, 2019 Aruna Nand (Deceased, represented through LRs) and another ....Appellants.
versus Sat Pal and another ...Respondents.
Coram:
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting? No. For the Appellants : Mr. K.D. Sood, Senior Advocate, with Mr. Rajneesh K. Lal, Advocate.
For the respondents : Mr. Bhupender Gupta, Senior
Advocate, with Ms Rinki
Kashmiri, Advocate.
Tarlok Singh Chauhan, Judge.
The defendants are the appellants and
having failed before both the learned Courts below have filed the present appeal.
2. The parties shall be referred to as the plaintiff and defendants, as were referred to before the learned Courts below.
3. The original plaintiff deceased Kesso Ram filed a suit for declaration to the effect that he is a tenant over ::: Downloaded on - 24/05/2019 21:58:29 :::HCHP ...2...
land comprised in Khata No.69, Khatauni No.190, Khasra No.1028/2, area measuring 0-30-84 hectares, situate in Mohal Kaleshwar, Mauza Garli, Sub Tehsil Rakkar, District .
Kangra, Himachal Pradesh, and also for injunction, restraining the defendants from dispossessing the plaintiff from the suit land. It was averred that the land is owned by Defendant No.3 Murti Kali Nath, however, the plaintiff was inducted by the defendants, as a tenant, over about two Ghumaon of land about 40 years ago, which remained in his physical possession throughout, but his name could not appear in the revenue record.
During settlement, plaintiff moved an application for correction of Khasra Girdawari qua Khasra No.1028, but even then only 0-12-65 hectares of land denoted by Khasra No.1028/1 was recorded in his tenancy.
Dissatisfied with the part correction and the mistake, which was noticed in 1983, the plaintiff again moved an application for correction before the Revenue agency.
The Field Kanoongo visited the spot and reported that the entire land in Khasra No.1028 was in the actual and physical possession of the plaintiff and had been fenced by him on all sides. However, despite this report, the ::: Downloaded on - 24/05/2019 21:58:29 :::HCHP ...3...
revenue entries were not corrected, constraining the plaintiff to file the instant suit.
4. The defendants contested the suit, wherein .
objections regarding locus standi, cause of action, non-
joinder of necessary parties and estoppel were raised. On merits, defendants claimed ownership of the suit land and denied that the plaintiff was a tenant over two Ghumaon of land since the year 1948. They also denied that the plaintiff was found to be a tenant over Khasra No.1028/1 during settlement, though they admitted that plaintiff had moved an application for correction, which was dismissed by the Assistant Collector 1st Grade, Dehra and such orders have attained finality.
5. The learned trial Court on 7.12.1989 framed the following issues:
"1. Whether the plaintiff is a tenant over the suit land as alleged? OPP
2. Whether the suit is bad for non-joinder of necessary parties as alleged? OPD
3. Whether the plaintiff is stopped by his act and conduct from filing the suit? OPD
4. Whether the suit is not maintainable in the present form? OPD
5. Whether the suit is false and frivolous?
OPD ::: Downloaded on - 24/05/2019 21:58:29 :::HCHP ...4...
6. Whether this Court has jurisdiction to try the present suit? OPP
7. Relief."
.
6. After recording evidence and evaluating the same, learned trial Court decreed the suit and the judgment and decree so passed was affirmed by the learned first Appellate court, constraining the defendants to file the instant appeal.
7. On 10.11.2006, the appeal was admitted on the following Substantial Question of Law:
r "Whether the findings of the two courts below that the suit land is in occupation of the respondents as tenants is not warranted by the evidence on record and is perverse?
8. I have heard the learned counsel for the parties and gone through the record of the case.
9. What is 'perverse' was considered by the Hon'ble Supreme Court in a detailed judgment in Arulvelu and another vs. State Represented by the Public Prosecutor and another (2009) 10 SCC 206 wherein it was held as under:-
"26. In M. S. Narayanagouda v. Girijamma & Another AIR 1977 Kar. 58, the Court observed that any order made in conscious violation of pleading and law is a perverse order. In Moffett v. Gough, (1878) 1 LR 1r 331 the Court observed that a perverse verdict may probably be defined as one that is not only against the ::: Downloaded on - 24/05/2019 21:58:29 :::HCHP ...5...
weight of evidence but is altogether against the evidence. In Godfrey v. Godfrey 106 NW 814, the Court defined `perverse' as turned the wrong way, not right; distorted from the right; turned away or deviating from what is right, proper, correct etc. .
27. The expression "perverse" has been defined by various dictionaries in the following manner:
1. Oxford Advanced Learner's Dictionary of Current English Sixth Edition PERVERSE:- Showing deliberate determination to behave in a way that most people think is wrong, unacceptable or unreasonable.
2. Longman Dictionary of Contemporary English -
International Edition PERVERSE: Deliberately departing from what is normal and reasonable.
3. The New Oxford Dictionary of English - 1998 Edition PERVERSE: Law (of a verdict) against the weight of evidence or the direction of the judge on a point of law.
4. New Webster's Dictionary of the English Language (Deluxe Encyclopedic Edition) PERVERSE: Purposely deviating from accepted or expected behavior or opinion; wicked or wayward;
stubborn; cross or petulant.
5. Stroud's Judicial Dictionary of Words & Phrases, Fourth Edition PERVERSE: A perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence.
28. In Shailendra Pratap & Another v. State of U.P. (2003) 1 SCC 761, the Court observed thus: (SCC p.766, para 8 ::: Downloaded on - 24/05/2019 21:58:29 :::HCHP ...6...
"8...We are of the opinion that the trial court was quite justified in acquitting the appellants of the charges as the view taken by it was reasonable one and the order of acquittal cannot be said to be perverse. It is well settled that appellate court would not be justified in interfering with the order .
of acquittal unless the same is found to be perverse. In the present case, the High Court has committed an error in interfering with the order of acquittal of the appellants recorded by the trial court as the same did not suffer from the vice of perversity."
29. In Kuldeep Singh v. The Commissioner of Police & Others (1999) 2 SCC 10, the Court while dealing with the scope of Articles 32 and 226 of the Constitution observed as under: (SCC p.14, paras 9-10) "9. Normally the High Court and this Court would not interfere with the findings of fact recorded at the domestic enquiry but if the finding of "guilt" is based on no evidence, it would be a perverse finding and would be amenable to judicial scrutiny.
10. A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse.
But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with."
30. The meaning of `perverse' has been examined in H. B. Gandhi, Excise and Taxation Officer-cum- Assessing Authority, Karnal & Others v. Gopi Nath & Sons & Others 1992 Supp (2) SCC 312, this Court observed as under: (SCC pp. 316-17, para 7) "7. In the present case, the stage at and the points on which the challenge to the assessment in judicial review was raised and entertained was not appropriate. In our opinion, the High Court was in error in constituting itself into a court of appeal ::: Downloaded on - 24/05/2019 21:58:29 :::HCHP ...7...
against the assessment. While it was open to the respondent to have raised and for the High Court to have considered whether the denial of relief under the proviso to Section 39(5) was proper or not, it was not open to the High Court re- appreciate the primary or perceptive facts which .
were otherwise within the domain of the fact-
finding authority under the statute. The question whether the transactions were or were not sales exigible to sales tax constituted an exercise in recording secondary or inferential facts based on primary facts found by the statutory authorities. But what was assailed in review was, in substance, the correctness - as distinguished from the legal permissibility - of the primary or perceptive facts themselves. It is, no doubt, true that if a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then, the finding is rendered infirm in law."
10. What is 'perverse' has further been considered by this Court in RSA No.436 of 2000, titled 'Rubi Sood and another vs. Major (Retd.) Vijay Kumar Sud and others, decided on 28.05.2015 in the following manner:-
"25..... A finding of fact recorded by the learned Courts below can only be said to be perverse, which has been arrived at without consideration of material evidence or such finding is based on no evidence or misreading of evidence or is grossly erroneous that, if allowed to stand, it would result in miscarriage of justice, is open to correction, because it is not treated as a finding according to law.
26. If a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or even the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then the finding is rendered infirm in the eye of the law.::: Downloaded on - 24/05/2019 21:58:29 :::HCHP
...8...
27. If the findings of the Court are based on no evidence or evidence, which is thoroughly unreliable or evidence that suffers from vice of procedural irregularity or the findings are such that no reasonable persons would have arrived at those findings, then the findings may be said to be .
perverse.
28. Further if the findings are either ipse dixit of the Court or based on conjectures and surmises, the judgment suffers from the additional infirmity of non application of mind and thus, stands vitiated."
11. What is 'perversity' recently came up for consideration before the Hon'ble Supreme Court in Damodar Lal vs.Sohan Devi and others (2016) 3 SCC 78 wherein it was held as under:-
"8. "Perversity" has been the subject matter of umpteen number of decisions of this Court. It has also been settled by several decisions of this Court that the first appellate court, under Section 96 of The Civil Procedure Code, 1908, is the last court of facts unless the findings are based on evidence or are perverse.
9. In Krishnan v. Backiam (2007) 12 SCC 190, it has been held at paragraph-11 that: (SCC pp. 192-
93) "11. It may be mentioned that the first appellate court under Section 96 CPC is the last court of facts. The High Court in second appeal under Section 100 CPC cannot interfere with the findings of fact recorded by the first appellate court under Section 96 CPC. No doubt the findings of fact of the first appellate court can be challenged in second appeal on the ground that the said findings are based on no evidence or are perverse, but even in that case a question of law has to be formulated and framed by the High Court to that effect."::: Downloaded on - 24/05/2019 21:58:29 :::HCHP
...9...
10. In Gurvachan Kaur v. Salikram (2010) 15 SCC 530, at para 10, this principle has been reiterated: (SCC p. 532) "10. It is settled law that in exercise of power under Section 100 of the Code of Civil .
Procedure, the High Court cannot interfere with the finding of fact recorded by the first appellate court which is the final court of fact, unless the same is found to be perverse. This being the position, it must be held that the High Court was not justified in reversing the finding of fact recorded by the first appellate court on the issues of existence of landlord-tenant relationship between the plaintiff and the defendant and default committed by the latter in payment of rent."
11. In the case before us, there is clear and cogent evidence on the side of the plaintiff/appellant that there has been structural alteration in the premises rented out to the respondents without his consent. Attempt by the respondent- defendants to establish otherwise has been found to be totally non-acceptable to the trial court as well as the first appellate court. Material alteration of a property is not a fact confined to the exclusive/and personal knowledge of the owner. It is a matter of evidence, be it from the owner himself or any other witness speaking on behalf of the plaintiff who is conversant with the facts and the situation. PW-1 is the vendor of the plaintiff, who is also his power of attorney. He has stated in unmistakable terms that there was structural alteration in violation of the rent agreement. PW-2 has also supported the case of the plaintiff. Even the witnesses on behalf of the defendant, partially admitted that the defendants had effected some structural changes.
12. Be that as it may, the question whether there is a structural alteration in a tenanted premises is not a fact limited to the personal knowledge of the owner. It can be proved by any admissible and reliable evidence. That burden has been successfully discharged by the plaintiff by examining PWs-1 and 2. The defendants could not ::: Downloaded on - 24/05/2019 21:58:29 :::HCHP ...10...
shake that evidence. In fact, that fact is proved partially from the evidence of the defendants themselves, as an admitted fact. Hence, only the trial court came to the definite finding on structural alteration. That finding has been endorsed by the first appellate court on re-
.
appreciation of the evidence, and therefore, the High Court in second appeal was not justified in upsetting the finding which is a pure question of fact. We have no hesitation to note that both the questions of law framed by the High Court are not substantial questions of law. Even if the finding of fact is wrong, that by itself will not constitute a question of law. The wrong finding should stem out on a complete misreading of evidence or it should be based only on conjectures and surmises. Safest approach on perversity is the classic approach on the reasonable man's inference on the facts. To him, if the conclusion on the facts in evidence made by the court below is possible, there is no perversity. If not, the finding is perverse. Inadequacy of evidence or a different reading of evidence is not perversity.
13. In Kulwant Kaur v. Gurdial Singh Mann (2001) 4 SCC 262, this Court has dealt with the limited leeway available to the High Court in second appeal. To quote para 34: (SCC pp.278-79) "34. Admittedly, Section 100 has introduced a definite restriction on to the exercise of jurisdiction in a second appeal so far as the High Court is concerned. Needless to record that the Code of Civil Procedure (Amendment) Act, 1976 introduced such an embargo for such definite objectives and since we are not required to further probe on that score, we are not detailing out, but the fact remains that while it is true that in a second appeal a finding of fact, even if erroneous, will generally not be disturbed but where it is found that the findings stand vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the High Court in our view will be within its jurisdiction to deal with the issue. This is, however, only in the event such a ::: Downloaded on - 24/05/2019 21:58:29 :::HCHP ...11...
fact is brought to light by the High Court explicitly and the judgment should also be categorical as to the issue of perversity vis- à-vis the concept of justice. Needless to say however, that perversity itself is a substantial question worth adjudication --
.
what is required is a categorical finding on the part of the High Court as to perversity. In this context reference be had to Section 103 of the Code which reads as below:
'103. Power of High Court to determine issues of fact.- In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal,--
(a) which has not been determined by the lower appellate court or by both the court of first instance and the lower appellate court, or
(b) which has been wrongly determined by such court or courts by reason of a decision on such question of law as is referred to in Section 100."
The requirements stand specified in Section 103 and nothing short of it will bring it within the ambit of Section 100 since the issue of perversity will also come within the ambit of substantial question of law as noticed above. The legality of finding of fact cannot but be termed to be a question of law. We reiterate however, that there must be a definite finding to that effect in the judgment of the High Court so as to make it evident that Section 100 of the Code stands complied with."
14. In S.R. Tiwari v. Union of India (2013) 6 SCC 602, after referring to the decisions of this Court, starting with Rajinder Kumar Kindra v. Delhi Administration, (1984) 4 SCC 635, it was held at para 30: (S.R.Tewari case6, SCC p. 615) "30. The findings of fact recorded by a court can be held to be perverse if the findings ::: Downloaded on - 24/05/2019 21:58:29 :::HCHP ...12...
have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is "against the weight of evidence", or if the finding so outrageously .
defies logic as to suffer from the vice of irrationality. If a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with. (Vide Rajinder Kumar Kindra v. Delhi Admn. [(1984) 4 SCC 635:
1985 SCC (L&S) 131:AIR 1984 SC 1805], Kuldeep Singh v. Commr. of Police [(1999) 2 SCC 10 : 1999 SCC (L&S) 429 : AIR 1999 SC 677] , Gamini Bala Koteswara Rao v. State of A.P. [(2009) 10 SCC 636 : (2010) 1 SCC (Cri) 372 : AIR 2010 SC 589] and Babu v. State of Kerala[(2010) 9 SCC 189 : (2010) 3 SCC (Cri) 1179] .)"
This Court has also dealt with other aspects of perversity.
15. We do not propose to discuss other judgments, though there is plethora of settled case law on this issue. Suffice to say that the approach made by the High Court has been wholly wrong, if not, perverse. It should not have interfered with concurrent findings of the trial court and first appellate court on a pure question of fact. Their inference on facts is certainly reasonable. The strained effort made by the High Court in second appeal to arrive at a different finding is wholly unwarranted apart from being impermissible under law. Therefore, we have no hesitation to allow the appeal and set aside the impugned judgment of the High Court and restore that of the trial court as confirmed by the appellate court."::: Downloaded on - 24/05/2019 21:58:29 :::HCHP
...13...
12. Bearing in mind the aforesaid exposition of law, it would be necessary to refer to the oral and documentary evidence that has come on record.
.
13. PW-1 Kesso Ram, i.e. the plaintiff, had stated that the suit land was about two Ghumaon (about 12 Kanals) and was owned by defendant No.3 Murti Kali Nath Temple and he had been cultivating the same and paying Galla Batai, as he had been inducted as a tenant over the suit land by Bodha Nand about 50-60 years back.
stopped paying Galla Batai for the last 6-7 years to Aruna Nand, as the latter refused to issue receipts thereof.
He During settlement his name was found not recorded in the Revenue Record, so he filed an application for correction of revenue entries, which was decided in his favour but the correction was not made. He further deposed that after 5-6 years of the settlement operation, he came to know about the fact that the correction of whole of the land had not been made in his favour and, therefore, he again moved an application for correction of the revenue entries. Accordingly, the Tehsildar deputed the Kanoongo and the Patwari to the spot, who reported that the entire Khasra No.1028 was in possession of the plaintiff and the same had been fenced on all sides.
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Despite, this the Tehsildar decided the case against him, constraining him to file the present suit.
14. In cross-examination, the plaintiff stated that .
he also possesses 10-12 Kanals of land of the Temple, besides the suit land, wherein his house and abadi is situated. He was not in a position to depose in which year, month or date the suit land was tenanted to him by Bodha Nand. He admitted that no writing was prepared.
Now, the witness visited the Patwari for recording the factum of cultivation. He admitted that the Patwari used to visit the suit land but did not tell the Patwari that the suit land had been taken back for cultivation. The witness does not know how much Galla Batai was being paid by him to Bodha Nand and as to when Bodha Nand died. He admitted that Aruna Nand is disciple (Chela) of Bodha Nand. He further admitted that he never demanded receipt qua payment of Galla Batai from Bodha Nand. He could not recall as to how many times he had paid Galla Batai to Aruna Nand, but claimed that it was paid in the presence of Mansa Ram. He claimed before the Settlement Officer his possession over the suit land but showed his inability to produce any document showing such possession. He feigned ignorance ::: Downloaded on - 24/05/2019 21:58:29 :::HCHP ...15...
regarding constitution of a Committee by the Deputy Commissioner to look after the affairs of the Temple. He denied the suggestion that he wanted to grab the suit .
land.
15. PW-2 Sohnu Ram has stated that the suit land was given for cultivation to the plaintiff by Bodha Nand about 50 years back. After Bodha Nand, land came in possession of Aruna Nand. He had been grazing the cows of Bodha Nand, Pujari at the Temple. The plaintiff had been paying 1/3rd Galla to Bodha Nand and had fenced all the corners of the land for the last 40-45 years. In cross-
examination, the witness stated that Bodha Nand did not give the land for cultivation to the plaintiff in his presence, but stated that the plaintiff had been paying Galla Batai and one such Galla was paid by the plaintiff four years ago in the Dera of Baba. The plaintiff asked for receipt but Aruna Nand did not issue the same and the present suit was filed, when the Patwari and the Tehsildar did not hear the objections qua wrong entries. He admitted that the Deputy Commissioner has constituted a Committee, which included the Naib Tehsildar as a Member, but denied the suggestion that the plaintiff was not cultivating the suit land.
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16. PW-3 Dina Nath also deposed on the same lines, as like PW-2 Sohnu Ram, and stated about giving of the land by Bodha Nand for cultivation to the plaintiff and .
paying of Galla Batai by the plaintiff to Bodha Nand. In cross-examination, he admitted that the land was not given for cultivation in his presence, as he had only seen the plaintiff cultivating the suit land. According to him, Bodha Nand died about 30 years back. He admitted that he had never seen the plaintiff paying Galla to Anuna Nand, but stated that the suit land had been surrounded with fence, whereas rest of the land of the Temple was open.
17. The plaintiff had placed on record documents Ex. P-1 to Ex.P-7, which are copies of Revenue Record, Latha Shajra, copy of report of Kanoongo and copy of order dated March 7, 1979 in correction application.
18. On the other hand, defendant Aruna Nand himself appeared as DW-1 and stated that the suit land was owned and possessed by the Temple through its Mohatmim and Pujari. In cross-examination, he stated that the Temple owned about 150-200 Kanals of land and there were about 6-7 tenants. The defendants themselves also cultivated the land and had kept tractors.
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He denied that Bodha Nand had given the suit land to the plaintiff for cultivation and claimed that the plaintiff was a tenant of some other land of the plaintiff and no rent was .
paid by him to the defendants. He denied that he is making a false statement. He admitted that the suit land is fenced. He further denied that the receipts of the Galla Batai were not being issued by him. He feigned ignorance regarding the suit land having been given by Bodha Nand to the deceased plaintiff for cultivation.
19. DW-2 Partap Singh stated that the suit land belonged to the Temple and was in possession of the Temple itself and he had never seen the possession of plaintiff Kesso over the same. In cross-examination, he stated that Kesso might have been cultivating 5-6 Kanals of land, whereas dispute is of 12 Kanals of land, which is fenced. He denied that Bodha Nand had given the land for cultivation to the plaintiff. However, this witness admitted that he is a Member of the Temple Committee.
20. The defendants have placed on record copies of Jamabandi for the year 1965-66 (Ex.D-1), for the year 1975-76 (Ex.D-2), Misal Hakiat for the year 1978-79 (Ex.D-3), Jamabandi for the year 1991-92 (Ex.D-4), copy of order dated January 5, 1988 (Ex.D-5), passed by A.C. ::: Downloaded on - 24/05/2019 21:58:29 :::HCHP ...18...
1st Grade, Dehra, copy of order dated January 16, 1989 (Ex.D-6), passed by Collector, and copy of Misal Hakiat for the year 1989-90 (Ex.D-7).
.
21. This is the entire oral and documentary evidence led by the parties.
22. It would be noticed that when the appeal was pending consideration before the first Appellate Court, the defendants had moved an application for recording additional evidence by producing on record the file pertaining to the constitution of the Managing Committee, Mandir Kali Nath and also to place on record the records pertaining to the handing over of the suit land and other land to the Education Department, Government of Himachal Pradesh. However, the said application was rejected by the first Appellate Court, and rightly so, after concluding that the application did not meet any of the requirements contemplated by the Rule. That apart, I noticed that in the application, so filed, the defendants had not sought permission to lead evidence but had only sought to produce on record certain documents.
Evidently, none of the documents, so appended with the application, can qualify to be considered as primary evidence and for the purpose of proving the alleged ::: Downloaded on - 24/05/2019 21:58:29 :::HCHP ...19...
transfer of land by the Temple in favour of the Education Department, reliance is sought to be placed on the remarks column of the Jamabandi, without even .
producing on record the original of the deed whereby the land is alleged to have been transferred. Even the mutation entry has not been produced. Therefore, no exception can be taken to the findings recorded for rejection of the application of additional evidence preferred by the defendants. That apart, it also needs to be noticed that no similar application has been filed before this Court.
23. Proceeding further, it would be noticed that the dispute pertains to old Khasra Nos.1282 and 1284.
These Khasra Numbers have been assigned new Khasra No.1028. The deceased plaintiff Kesso Ram had claimed tenancy and possession over the suit land, with respect to entire Khasra No.1028, but was declared tenant only of Khasra No.1028/1 and not the other part comprised in Khasra No.1028/2. The entire suit land, including the aforesaid Khasra Numbers, is about 12 Kanals. According to deceased Kesso (PW-1), he was inducted as a tenant towards the same by Bodha Nand, who was the earlier Pujari of the Temple and succeeded to by Aruna Nand.
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According to him, he had been paying Galla Batai and had fenced the land from all sides. The version put forth by PW-1 Kesso has been fully corroborated and supported by .
PW-2 Sohnu Ram and PW-3 Dina Nath. Both the learned Courts below have held the statement of both these witnesses to be credible, more particularly after looking to their age, as both were of about 80 years and 70 years, respectively.
24. Further, DW-1 Aruna Nand has admitted that the Temple owned about 150-200 Kanals of land and there are 6-7 tenants over the same. He has specifically admitted that Kesso Ram is a tenant of the land of the temple but disputed that he is a tenant over the disputed land. He admitted that the suit land had been fenced from all sides. He feigned ignorance regarding Kesso Ram having been inducted as a tenant by Bodha Nand.
DW-2 Partap Singh admitted in cross-examination that the disputed land was about 12 Kanals, which had been entirely fenced on all sides and had been cultivated.
25. In this background, the report (Ex.P-4) submitted by the Illaqa Kanoongo assumes significance, as in this report it has been categorically found that Kesso Ram was in possession of Khasra No.1028, measuring 0- ::: Downloaded on - 24/05/2019 21:58:29 :::HCHP ...21...
43-29 hectares of land. Not only this, he further reported that the land had been fenced from all sides by Kesso Ram. Therefore, in the given facts and circumstances, .
and more particularly, the evidence, which has come on record, it is clear that the Courts below have not committed any error in decreeing the suit of the plaintiff.
26. However, Mr. Rajneesh Lall vehemently argued that both the Courts below have erred in holding deceased Kesso Ram to be a tenant, whereas it is well settled that tenancy is a bilateral agreement and its essential ingredient is the payment of rent, which in the instant case is totally missing. He has placed strong reliance on a Judgment rendered by this Court in State of Himachal Pradesh & others v. Ajay Vij & others, 2011(1) Shim.LC 452, more particularly the observations contained in Para-17, which reads thus:
"17. The tenancy is the creation of contract between the parties which is required to be pleaded and proved. In Smt. Surjit Kaur alias Santo and another v. Jarnail Singh and others, 1965 P.L.J. 137, after noticing definition of tenant in the Punjab Tenancy Act it has been held 'tenant' means a person who holds land under another person who is or, but for a special contract, would be liable to pay rent for that land to that other person. In Ram Karan v. The Financial Commissioner and others., 1980 P.L.J. 295, it has been held that tenancy, it cannot be disputed, comes into existence as a result of bilateral agreement which may be oral or documentary. In ::: Downloaded on - 24/05/2019 21:58:29 :::HCHP ...22...
Mukat Singh v. Smt. Jawala Devi and others, 1983 P.L.J. 183, it has been held that a tenancy would come into existence only when there is a bilateral agreement between the parties about it. In Vinay Kumar and others v. Parshotam Dass and others, 1992 P.L.J. 77, it has been held that in order to .
prove the relationship of landlord and tenant, consent of both the parties was necessary. Such consent could be proved either from the documentary evidence or from oral evidence. The documentary evidence could be in the form of rent note, lease deed or payment of rent or batai. In Khazana Ram v. Ghungar, 1996 (1) Current Law Journal (H.P.) 424, it has been held that it is an admitted proposition of law that tenancy is the creation of an agreement and in order to prove the factum of tenancy, the party claiming such a status, has not only to prove such an agreement but also to plead the same. In Prem Dass and others v. Jagdish, 1997 (2) S.L.J. 984, it has been held that no doubt, the tenancy comes on the surface on account of a bilateral contract between the parties, but the entries forming record of rights cannot be ignored in the absence of any agreement or a contract. In Lal Chand and others v. Pala, 1998 (2) S.L.J. 1526, it has been held that party claiming the status of a tenant has not only to prove the alleged agreement of tenancy but also to plead the name."
27. Obviously, there can be no quarrel with the proposition of law expounded in the aforesaid case, but at the same time this Court cannot ignore the overwhelming evidence that has come on record, which categorically proves plaintiff Kesso to be the tenant over the suit land.
At this stage, provisions of Section 100(4) of the H.P. Tenancy and Land Reforms Act, 1972 need to be noticed, that cast a negative onus on the landlord.
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28. Lastly, an attempt has been made by Mr. Rajneesh Lall to urge that since the orders passed by the Revenue Court were not assailed and had attained .
finality, therefore, the suit filed by the plaintiff was not maintainable. Even though, no Substantial Question of Law has been framed qua this question, however, this court will proceed to answer this question also.
29. A perusal of the orders that were passed by the so called revenue authorities were under the H.P. Land Revenue Act and in terms of Section 37, the same are subject to the decision of the Civil Court.
30. Mr. Rajneesh Lall has referred to and relied upon various decisions of this Court in Ram Piari & others v. Devi Ram, 2012(1) Him L.r. 52; Khushi Ram v. Roshni Devi and others, 2010(2) Shim.LC 421; Smt. Mukhtiar Devi and others v. Smt. Gauran and others, 2000(3) Shim.LC 154; and Leetho v. Chamelo and others, 2001(2) Shim.LC 238, which are of no avail.
31. In view of the aforesaid discussion, I do not find any perversity in the judgment and decree passed by both the learned Courts below. The Substantial Question of Law is answered accordingly. Consequently, there ::: Downloaded on - 24/05/2019 21:58:30 :::HCHP ...24...
being no merit in the appeal, the same is dismissed, leaving the parties to bear their own costs.
The appeal stands disposed of, so also pending .
application(s), if any.
( Tarlok Singh Chauhan ),
May 22, 2018 Judge.
(sd)
r to
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