Himachal Pradesh High Court
Vijay Kumar vs Vijay Singh on 5 July, 2019
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A. No. 602 of 2005 Reserved on: 2.7.2019 .
Decided on: 5.7.2019
Vijay Kumar .....Appellant
Versus
Vijay Singh .....Respondents
Coram r to
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting ?1 No For the appellant: Mr. Neeraj Gupta, Senior Advocate with Mr. Ajit Pal Singh Jaswal, Advocate.
For the respondent: Mr. N. K. Thakur, Senior Advocate with Mr. Divya Raj Singh Thakur, Advocate.
Tarlok Singh Chauhan, Judge "The revenue entries are the paradise of the Patwari" is fully applicable to the instant case.
2 The defendant is the appellant, who aggrieved by the judgment and decree passed by the learned first appellate court, 1 Whether reporters of Local Papers may be allowed to see the Judgment ?Yes ::: Downloaded on - 29/09/2019 00:25:03 :::HCHP 2 whereby it reversed the judgment and decree passed by the learned trial court, has filed the instant appeal.
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The parties shall be referred to as the "plaintiff" and "defendant".
3 The plaintiff, Smt. Satya Devi (since deceased) filed a suit seeking declaration to the effect that she was owner in possession of the land measuring 01416 hectares bearing Khewat No.3, Khatauni No. 3, Khasra Nos. 362 and 363, situated in Village Tatehra, Tehsil Amb, District Una and entry in the name of defendant, Vijay Kumar, as 'gair marausi' was wrong and incorrect and against the right,title and interest of the plaintiff with consequential relief of permanent inunction for restraining the defendant from digging foundations, changing the nature and cutting and removing standing trees from the suit land and in the alternative for possession. It was averred that the suit land was owned and possessed by Vishnu Narayan, husband of the plaintiff and after his death, the same was succeeded to by the plaintiff.
The defendant in connivance with revenue staff got himself recorded as 'gair marausi' since the plaintiff was a widow lady, and, therefore, no entry regarding 'gair marausi' could be recorded under the law. The defendant never came in possession ::: Downloaded on - 29/09/2019 00:25:03 :::HCHP 3 of the suit land in any capacity and defendant was threatening to take forcible possession and dig the suit land. Hence, the suit.
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4 The defendant contested the suit by filing written statement, wherein preliminary objections regarding maintainability, nonjoinder of necessary parties, estoppel, jurisdiction, suppression of material facts etc. were raised. It was asserted that the plaintiff never came in possession of the suit land and in fact, the plaintiff and her husband mother of the defendant as tenant over the suit land about 40 r had inducted years ago and she had been paying the rent to the plaintiff before commencement of H.P. Tenancy and Land Reforms Act (in short, "the Act") and thus, became owner on the commencement of the Act. The consolidation had taken place in the village in the year 197576 and entry regarding possession of his mother was admitted by the husband of the plaintiff and, therefore, the plaintiff was estopped by her act and conduct to file the suit. It was further averred that the tenancy was never relinquished and it was the defendant himself, who was helping her mother in cultivating the suit land. It was further averred that name of the defendant was wrongly recorded during settlement and in fact, his mother was in possession of the suit land. The plaintiff had filed ::: Downloaded on - 29/09/2019 00:25:03 :::HCHP 4 the suit by concealing these facts. The plaintiff in fact had demanded a sum of Rs.1500/ from the defendant on 26.2.1999 .
and had handed over receipt to this effect and agreed to file application for correction of Khasra girdwari. The application was in fact filed, but the same was dismissed for nonprosecution.
5 The counter claim was also filed by the defendant demanding therein a sum of Rs.1500/, which was given to the plaintiff.
6 to On the pleadings of the parties, the learned trial court on 15.12.2003 framed the following issues:
1. Whether plaintiff is owner in possession of the suit land? OPP
2. Whether revenue entries of Gair Marausi in favour of defendant are wrong and illegal? OPP
3. Whether plaintiff is entitled to the relief of permanent injunction? OPP
4. Whether the suit is not maintainable? OPD
5. Whether suit is barred by limitation? OPD
6. Whether this Court has no jurisdiction to try the suit? OPD
7. Whether suit is bad for nonjoinder and misjoinder of parties? OPD
8. Whether defendant is entitled to recover Rs.1500/ from the plaintiff as alleged? OPD.
9. Relief.
::: Downloaded on - 29/09/2019 00:25:03 :::HCHP 57 After recording the evidence and evaluating the same, the learned trial court dismissed the suit filed by the plaintiff vide .
judgment and decree dated 30.9.2004.
8 Aggrieved by the judgment and decree passed by the learned trial court, the plaintiff filed an appeal before the learned first appellate court, who reversed the findings of the learned trial court constraining the defendant to file the instant appeal, which 19.4.2006:
r to was admitted on the following substantial questions of law on
1. Whether the first appellate court has fallen in error in holding the view that the appellantdefendant is not a lawful tenant, especially when even if the plea of the appellantdefendant with respect to the creation of tenancy his favour fails, he being the son of the earlier tenant Smt. Lajwanti has been continuing in possession after the death of said Smt. Lajwanti?
2. If question No.1 is answered in favour of the appellant defendant, does the civil court have the jurisdiction to pass decree for possession?
9 I have heard the learned counsel for the parties and have also gone through the records of the case carefully.
SUBSTANTIAL QUESTION OF LAW NO.1 10 At the outset, it needs to be observed that the party approaching the court must come with clean hands so as to ::: Downloaded on - 29/09/2019 00:25:03 :::HCHP 6 entitle it to claim any relief. In case the suit filed by the plaintiff is seen, it would be noticed that she unnecessarily and knowingly .
that it was mother of the defendant,who was the tenant over the suit land and on her death the suit land would be succeeded by the defendant being her son in terms of Section 45 of the Act, has filed the instant suit.
11 Section 45 of the Act reads as under:
45. Succession to right of tenancy.When a tenant in any land dies, the right shall devolve.
(a) on his male linear descendants, if any, in the male line of descent; and
(b) failing such descendants, on his widow, if any, until she dies or remarries or abandons the land or is under the provisions of this Act ejected therefrom ; and
(c) failing such descendants and widow, on his widowed mother, if any, until she dies or remarries or abandons the land or is under the provisions of this Act ejected therefrom ;
and
(d) failing such descendants and widow, or widowed mother or, if the deceased tenant left a widow or widowed mother, then when her interest terminates under clause (b) or (c) of this section on his male collateral relatives in the male line of descent from the common ancestor of the deceased tenant and those relatives.
::: Downloaded on - 29/09/2019 00:25:03 :::HCHP 712 The suit was filed solely on the basis of the revenue entries, which were not even supported and rather termed to be .
erroneous by the defendant. What is more surprising is that the plaintiff did not even choose to make a whisper of the fact that the mother of the defendant was already tenant over the suit land having been lawfully inducted by the plaintiff and her husband.
13 What thereafter appears to be more intriguing is the manner in which the learned first appellate court has decided the case and reversed the findings rendered by the learned trial court.
The learned first appellate court has proceeded with the matter as the defendant had claimed tenancy for himself while contesting the tenancy of his mother Lajwanti, whereas it was not so. In case the written statement is perused, it would be noticed that the specific case set up by the defendant was to the effect that his mother was inducted as tenant by the plaintiff and her husband about 40 years ago and she after the death of her husband had been paying rent to the plaintiff. Nowhere, had the defendant set up a title in himself claiming to be an owner or tenant or in other capacity, yet the learned first appellate court merely on the basis of revenue record,which as observed above, was even not ::: Downloaded on - 29/09/2019 00:25:03 :::HCHP 8 supported by the defendant, reversed the wellreasoned findings of the learned trial court.
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14 Apart from above, it is nowhere pleaded or proved by the plaintiff that the entries in the revenue record were changed at the behest of the defendant, who as observed above, would otherwise succeed to the tenancy on the death of his mother. To say the least, the findings recorded by the learned first appellate 15 to court are totally perverse and liable to be set aside.
The learned first appellate court went completely astray when it proceeded to pass a decree for possession in favour of the plaintiff, especially when it was the admitted case of the parties and otherwise duly proved on record that it was the mother of the defendant, Lajwanti, who was the tenant and in possession of the suit land and had died in the year 2003. In such eventuality, in absence of relinquishment of tenancy, the suit land would not in any case revert back to the landlord, but would devolve upon defendant and other legal representatives of Lajwanti by succession as provided under Section 45 of the Act.
16 Accordingly, the substantial question of law No.1 is answered in favour of the defendant and against the plaintiff.
::: Downloaded on - 29/09/2019 00:25:03 :::HCHP 9Substantial question of law No.2 17 As regards substantial question of law No.2, the same .
has become academic in view of the answer to substantial question of law No.1.
18 In view of aforesaid discussion, I find merit in this appeal and the same is accordingly allowed. Consequently,the judgment and decree passed by the learned first appellate court is set aside and that of the learned trial court is restored. The parties are left to bear their own costs.
r Pending application, if
any, also stands disposed of.
5.7.2019 (Tarlok Singh Chauhan)
(pankaj) Judge
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