IMPORTANT POINT
Tenancy – Mere entry of a non-occupancy tenant is not sufficient to determine tenancy and court has to look to column of rent to determine whether tenancy existed or not.

JUDGMENT

Rakesh Kainthla, J.—The present appeal is directed against the judgment & decree dated 28.10.2006, passed by the learned Additional District Judge, Fast Track Court, Shimla, vide which the appeal filed by the appellant (defendant before the learned Trial Court) was dismissed and the judgment and decree passed by the learned Civil Judge (Junior Division), Theog was upheld. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).

2. Briefly stated, the facts giving rise to the present appeal are that the plaintiff filed a civil suit before the learned Trial Court for seeking a permanent prohibitory injunction for restraining the defendant from interfering with the land bearing Khasra Nos. 86, 88, 110 and 126, measuring 04 bighas 19 biswas situated in Chak Shatenya, Tehsil and District Shimla, H.P. (hereinafter referred to as the suit land). A decree of possession was also sought, in the alternative, in case defendant no. 1 was found in possession of the suit land. It was pleaded that Surju Ram was in possession of the suit land as mortgagee for many years. He died issueless. The plaintiff is the son of Surju Ram’s brother. He inherited the estate of Surju Ram. Mutation of inheritance was also sanctioned in his favour. Defendant No. 1 filed an appeal against the mutation of inheritance before the Collector (Settlement), Shimla, which was accepted. Defendant No. 1 has no right, title or interest in the suit land but he is recorded in possession in the revenue record. Defendant No. 1 never remained in possession of the suit land. He is threatening to interfere with the possession of the plaintiff based on the revenue entries. He was requested not to do so, but in vain; hence the suit was filed to seek the relief mentioned above.

3. The suit was opposed by the defendant by filing a written statement, taking preliminary objections regarding lack of maintainability, jurisdiction & cause of action, the suit being bad for non-joinder of necessary parties and the plaintiff being estopped from challenging the tenancy created by Surju Ram in favour of defendant no. 1. The contents of the plaint were denied on merits. It was admitted that Surju Ram died issueless. It was asserted that Surju Ram was the mortgagee of the suit land for many years. He had adopted Mast Ram during his lifetime. Sons of Mast Ram and heirs of the brother of Shobu are the necessary parties to the suit and the suit is not maintainable in their absence. Defendant No. 1 filed an appeal against the order of learned AC-2nd Grade (Settlement) who had deleted his name from the column of possession. The appeal was allowed and the order was set aside. The revenue entries in favour of defendant no. 1 as a tenant of the suit land are correct. Defendant No. 1 is in possession of the suit land. His possession was also detected during the settlement. It was asserted in the alternative that possession of defendant no. 1 is open, continuous and hostile. The suit was filed without any basis; hence, it was prayed that the same be dismissed.

4. A replication denying the contents of the written statement and affirming those of the plaint was filed.

5. The learned Trial Court framed the following issues on 22.5.2022:—

1. Whether the revenue entries showing defendant No.1 in possession of the suit land are liable to be declared as alleged? OPP.

2. If Issue No.1 is proved in affirmative, whether the plaintiff is entitled to the relief of permanent prohibitory injunction as prayed? OPP.

3. Whether the plaintiff in the alternative is entitled to the relief of possession as alleged? OPP.

4. Whether this Court has got no jurisdiction to try the present suit? OPD-1.

5. Whether the plaintiff is stopped by his act or conduct from filing the instant suit? OPD-1.

6. Whether the suit is bad for non-joinder of necessary parties, if so who are the necessary parties? OPD-1.

7. In case the defendant is not f