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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
JYOTSNA REWAL DUA, J.
Girdhari Lal - Appellant
Versus
Sukhdev and others - Respondents
R.S.A. No. 68 of 2009
Decided on : 30-04-2021
H.P. Tenancy and Land Reforms Act – Code of Civil Procedure, 1908 - Section 100 - Second appeal - Dismissed the suit for Possession of land - Tenant - Land on payment of ‘Chakota’ - Revenue entries were challenged – Whether Lower Appellate Court has committed grave illegality in putting undue reliance on Ex. D-4 which was illegal, null and void as same was in violation of principle of natural justice as well as fundamental rules of procedure - Whether Lower Appellate Court has committed grave error of jurisdiction in relying upon Ex. DW-2/A which had no presumption of truth being Khasra girdawari, especially when entries in revenue record were not proved to be lawfully substituted ? 3. Whether the Lower Appellate Court has acted in erroneous and perverse manner in putting wrong interpretation to entries in revenue record pertaining to “Gurdas and Society” which had no legal existence - In absence of any contract of tenancy proved between individuals, has not Lower Appellate Court recorded erroneous and perverse findings that defendants were tenants over suit land - Are not such findings recorded based on no evidence hence erroneous, illegal and perverse - When defendants took mutually contradictory pleas of tenancy as well as adverse possession and failed to prove same, has not Lower Appellate Court acted in excess of jurisdiction in not at all considering findings of Trial Court whereby plea of adverse possession of defendants were negated
Finding of the court: An order passed by Tehsildar on direction of Sub Division Officer (C). Order was in respect of applications moved by Gurdas and various others i.e. harijans/allottees/tenants for correction of revenue entries with a prayer to incorporate their names in revenue record on ground that they had broken and reclaimed land and were in cultivating possession of same, but their names were not being reflected in revenue documents. Order itself records that on directions of higher authorities, these applications were inquired into - Ex. DW-2/A is Khasra Girdawari (harvest inspection register) for year 1967-68 reflecting that Gurdas and various others, including Amru Ram (predecessor of defendant No.2) were in cultivating possession over land as non occupancy tenants under land owners on payment of rent. It also records that there was a dispute regarding payable rent between the non-occupancy tenants and land owners. Document assumes significance in view of stand of defendants that they formed part of a group of harijans/tenants/allottees under East Punjab Utilization of Lands Act 1949 and that they had broken and reclaimed the banjar/khadkana land - Defendant No. 2 is reflected as non-occupancy tenant ‘Gurdas and Society’, however, she is actually a non-occupancy tenant under land owners and not under defendant No.1 - Defendants have been able to prove their cultivating possession over suit land in capacity of non-occupancy tenants w.e.f. 1968 under plaintiff. Plea of adverse possession was not pressed into service by respondents either before first appellate Court or before this court
JUDGMENT :
Jyotsna Rewal Dua, J.
Name of defendant No. 2 was recorded as non-occupancy tenant over the suit land on payment of ‘Chakota’ of Rs. 0.47 per kanal per year in revenue records w.e.f. 1968. In a suit filed by the plaintiff/land owner on 08.12.1995, inter alia, these revenue entries were challenged. Defendant No. 2 pleaded that the entries were incorporated in the revenue record on the basis of spot position, after the orders were passed in this regard by the competent authorities in accordance with law and that after coming into force of the H.P. Tenancy and Land Reforms Act, she had become owner of the land in question. Learned trial Court decreed the suit on 27.04.2006. The decree was reversed by the learned first appellate Court on 15.10.2008 and suit was dismissed. Aggrieved, plaintiff has filed this second appeal.
2. Facts
(i) He is owner in possession of the land measuring 22-75 hectares, comprised in Khasra Nos. 1055 and 1056, as entered in missal hakiyat bandobast jadid sani for the year 1992-93, situated in mauza Khad, Tehsil and District Una, H.P.
(ii) Revenue entries appearing in the name of defendants No. 1 and 2 are wrong, hence have no binding effect on the right, title and interest of the plaintiff over the suit land.
(iii) Consequential relief of permanent injunction for restraining the defendants from causing interference and dispossession with respect to the suit land.
(iv) In alternative, decree for possession was claimed in case of plaintiff’s dispossession by the defendants during the pendency of the suit.
2(i) (b) The basis of the suit was that :-
i) Plaintiff’s predecessor was owner in possession of the suit land as entered in the jamabandi for the year 1966-67.
ii) Jamabandi for the year 1966-67 was made the basis for partition proceedings during consolidation, which took place in 1969-70. In these proceedings, joint holding of co-owners was partitioned and the suit land came to the share of the plaintiff.
iii) Defendant No. 1 i.e. Gurdas and Society never existed. It had no legal entity. Defendant No. 1 was never inducted as a tenant over the suit land either by the plaintiff or by his predecessor. Its name was wrongly reflected as such in the possessory column. The revenue record reflecting defendant No. 2 as tenant under defendant No. 1 is also incorrect as defendant No. 2 could not be inducted as tenant by defendant No. 1.
(iv) Taking advantage of the revenue entries, defendants are interfering over the suit land.
2(ii) In their written statement, the defendants’ stand was :-
a) The defendants were in cultivating possession over the suit land for the last 26 years, firstly as tenants and thereafter in the capacity as owners after coming into force of the H.P. Tenancy and Land Reforms Act, 1972.
b) The plaintiff, alongwith various others, owned 415 kanals 14 marlas of land. Nature of the land was banjar/ khadkana. Under the provisions of the East Punjab Utilization of Lands Act 1949, this land was allotted to harijans of village Khad by the State Government in 1965. The defendants being the harijans, were also amongst the allottees/tenants of the land and in possession thereof as such. The harijans/allottees/tenants had jointly re-claimed 415 kanals 14 marlas of land. However, the landowners, in connivance with the revenue staff, did not let the entries of cultivating possession of these persons recorded in the revenue record. It was only pursuant to the repeated applications moved by these persons that finally an order was passed by the Tehsildar Una on 24.09.1968 pursuant to which names of these persons were appropriately entered in the revenue record as non-occupancy tenants. Accordingly, the entries also came in missal hakiat consolidation for 1973-74. The entries continued in misal hakiyat bandobast (Settlement) in 1992-93.
c) The land owners got their khewats partitioned during consolidation. Names of harijans
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