Bhim Chand vs Hans Raj (Deceased) Through Lrs

Rakesh Kainthla, J

The present appeal is directed against the judgment and decree dated 20.09.2003 passed by learned Additional District Judge (1), Kangra, at Dharamshala, District Kangra, H.P. (learned Appellate Court) vide which the judgment and decree dated 20.11.2000, passed by learned Sub Judge First Class, Baijnath, District Kangra, H.P. (learned Trial Court) were upheld (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience.

Briefly stated, the facts giving rise to the present appeal are that the plaintiff filed a civil suit for declaration that he is in possession as a non-occupancy tenant of the land comprised in Khata No.66 (min), Khatauni No. 187, Khasra No. 1161, measuring 0-36-05 hectares, as recorded in the Jamabandi for the year 1993-94, situated in Mohal Pantehar, Tehsil Baijnath, District Kangra, H.P. (hereinafter referred to as the suit land) and the order of SDO (Civil), Baijnath, dated 17.03.1997 is wrong, illegal and without jurisdiction. He also sought a consequential relief of permanent prohibitory injunction for restraining the defendant from taking forcible possession of the suit land or raising any structure over the suit land or interfering with the suit land in any manner whatsoever.

It was asserted that the suit land is recorded in the possession of the plaintiff as a non-occupancy tenant under Vinod Kumar and others. The defendant is a stranger, who has no right, title or interest in the suit land. The defendant, in connivance with the Assistant Collector, 2nd Grade-cum- Tehsildar, Baijnath, deleted the plaintiff's name from the column of cultivation by misrepresenting the facts and incorporated his name. The learned Assistant Collector 2nd Grade-cum-Tehsildar decided the application without jurisdiction on 17.11.1986. The defendant threatened to interfere with the possession of the plaintiff on 15.06.1997; hence, the suit was filed to seek the relief mentioned above.

The suit was opposed by the defendant by filing a written statement taking preliminary objections regarding lack of maintainability, cause of action and locus standi, the plaintiff being estopped by his act and conduct to file the present suit, and the suit being bad for non-joinder/mis-joinder of parties. The contents of the plaint were denied on the merits. It was asserted that the defendant is in possession of the suit land as a non-occupancy tenant and he has every right, title, and interest in it. The application of the defendant was correctly decided by the learned Assistant Collector 2nd Grade on 17.11.1986, and this order was upheld by the learned Sub Divisional Officer (Civil), Baijnath. The suit has been filed without any basis; hence, it was prayed that it be dismissed.

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

The following issues were framed by the learned Trial Court on 04.08.1998:

Whether the plaintiff is in possession as non-occupancy tenant of the suit land? OPP.

Whether the order of SDO (Civil), Baijnath, dated 17.3.1997, is illegal, null and void? OPP.

Whether the plaintiff is entitled for the decree of permanent prohibitory injunction as prayed for? OPP.

Whether the suit is not maintainable? OPD.

Whether the plaintiff has no cause of action? OPD.

Whether the plaintiff is estopped by his act and conduct to file the present suit? OPD.

Whether the suit is bad for non-joinder and mis-joinder of necessary parties? OPD.

Whether the plaintiff has no locus standi to sue? OPD.

Relief.

The parties were called upon to produce the evidence, and the plaintiff examined himself (PW1) and Dulo Ram (PW2). The defendant examined himself (DW1) and Mast Ram (DW2).

The learned Trial Court held that the plaintiff claimed that the defendant's name was exclusively entered as a non-occupancy tenant of the suit land vide order dated 17.11.1986. However, the order dated 17.11.1986 did not mention any such fact; rather, it had dismissed the applications filed by the plaintiff and defendant. The copies of the Jamabandi also did not show any entry having been made in the defendant's favour. Therefore, the plaintiff was not entitled to the relief claimed by him. The learned Trial Court answered Issues No. 4 to 6 and 8 in the affirmative, the rest of the issues in the negative and dismissed the plaintiff's suit.

Being aggrieved by the judgment and decree passed by learned Court below, the plaintiff filed an appeal which was decided by learned Additional District Judge (1), Kangra at Dharamshala (learned Appellate Court), who concurred with the findings recorded by learned Trial Court that the order dated 17.11.1986 passed by learned Assistant Collector 2nd Grade, Baijnath did not show that the revenue entry was changed in defendant's favour. Learned Sub Divisional Officer (Civil) Baijnath had upheld the order dated 18.06.1992, but this order was not produced before the Court. The revenue entries did not show the change in the name of the defendant. There was no infirmity in the judgment and decree passed by the learned Trial Court; hence, the learned Appellate Court dismissed the appeal.

Being aggrieved by the judgment and decree passed by the learned Courts below, the appellant/plaintiff has filed the present appeal, which was admitted on the following substantial questions of law on 29.7.2004: -

When the plaintiff-appellant challenged the order of revenue officers to be illegal, erroneous, void and without jurisdiction deleting the long standing entries showing the plaintiff-appellant to be a tenant over the suit land, have not both courts acted in an erroneous and perverse manner to hold that the plaintiff has no locus standi to file the suit and the suit by the plaintiff-appellant to be not maintainable?

Whether both the courts have misunderstood the provisions of Evidence Act and wrongly dismissed the suit of the plaintiff-appellant by misapplying the rule of estoppel without there being proper pleadings and material available on record to invoke such plea?

When apparently the order of correction was not passed by the Land Reforms Officer, and the said order being without jurisdiction and also having been passed without notice to the true owners of land, have not both the courts taken an essentially wrong approach in withholding the relief of declaration on highly erroneous and perverse grounds?

The matter was heard by the Coordinate Bench of this Court on 05.05.2022 and the record of Case No. 68 of 1986 decided on 17.11.1986 by learned Assistant Collector, 2nd Grade, Baijnath, Case No. 44 of 1986, decided on 18.06.1992 by learned Assistant Collector 1st Grade Baijnath and Case No. 80 of 1986 decided on 17.11.1986 by Assistant Collector 2nd Grade, Baijnath was ordered to be requisitioned. This Court noticed vide order dated 16.10.2023 that, as per orders passed in Case No. 80 of 1986, decided on 18.06.1992, Khasra No. 1161 was ordered to be entered in the name of Hans Raj in place of Kharku, and this order was not produced before the learned Courts below.

I have heard Mr Bhupender Gupta, learned Senior counsel, assisted by Mr Pranjal Munjal, learned counsel for the appellant and Mr N.K. Sood, learned Senior Counsel, assisted by Mr Aman Sood, learned Counsel for the respondent.

Mr Bhupender Gupta, learned Senior Counsel for the appellant, submitted that the appellant erred in not producing the relevant order on record. This Court has requisitioned the record, which corroborates the plaintiff's plea that the defendant's name was recorded by deleting the plaintiff's name. This change was unauthorised; hence, he prayed that the present appeal be allowed and the judgments and decrees passed by the learned Courts below be set aside.

Mr N.K. Sood, learned Senior Counsel for the respondents, submitted that the parties had inherited the tenancy and had mutually separated the possession. The revenue authorities had verified the possession on the spot and deleted the plaintiff's name based on the possession on the spot. There is no infirmity in the judgment and decree passed by the learned Courts below, even after considering the order of the revenue authority; hence, he prayed that the present appeal be dismissed.

I have given a considerable thought to the submissions made at the bar and have gone through the records carefully.

Substantial Questions of Law No.1 to 3:

Since all these questions are related to each other, they are being taken up together for disposal.

Both the learned Courts below proceeded on the basis that the order dated 18.06.1992 was not produced before the Court, and the plaintiff's suit was liable to be dismissed. The Coordinate Bench of this Court had requisitioned the record, which order was not challenged by any of the parties. Therefore, the very foundation of the judgments and decrees passed by the learned Courts below that the order was not produced on record is displaced.

A perusal of the files shows that the applications for correction of the revenue records were filed by the parties, which were registered as case File No. 68 of 1986 and 80 of 1986. Both these applications were rejected by the learned Assistant Collector 2nd Grade on 17.11.1986.

These orders were assailed before the learned Collector, who set aside the order passed by the learned Assistant Collector 2nd Grade on the ground that only a Land Reforms Officer in the capacity of Assistant Collector 1st Grade could have adjudicated the application; hence, the applications were remitted to the learned Assistant Collector 1st Grade, who passed an order on 18.06.1992 holding that as per the evidence produced before him, the application filed by Hans Raj was correct, and his name should be recorded as a non-occupancy tenant in Khasra No. 1161 in place of Kharku.

This order was challenged before the Collector, Baijnath, who held that the learned Assistant Collector 1st Grade had recorded the statements of the witnesses, including the owner and rightly decided the application. He upheld the order passed by the learned Assistant Collector 1st Grade vide order dated 17.03.1997 (Ex. P4).

Thus, the record shows that the order was passed by the learned Assistant Collector 1st Grade in the capacity of Land Reforms Officer, who had the jurisdiction to decide the dispute regarding the tenancy. His conclusion was based on the statement made by the owner. No jurisdictional error was shown in the order passed by the learned Assistant Collector 1st Grade, as upheld by the learned Collector, Baijnath.

The plaintiff examined Dulo Ram (PW2) to prove that he was cultivating the land. However, Dulo Ram admitted in his cross-examination that he was not aware of the khata, khatauni or khasra number of the land. He was residing in Village Kohli, and revenue officials had not visited the spot in his presence. He was not aware whether the plaintiff was inducted as a tenant or not. He did not know who had inducted the plaintiff's father as a tenant. He was not aware of the names of the owners.

The statement of this witness was highly unsatisfactory. He was not aware of the location of the land and its khasra number. The land was never demarcated in his presence. He could not tell, who had inducted the plaintiff or his father as a tenant. Hence, his statement was not sufficient to rebut the conclusions drawn by the Land Reforms Officers, duly supported by the evidence recorded before him, including the statements of the owners.

The plaintiff produced the order passed by the learned Assistant Collector 2nd Grade, who was not a Land Reforms Officer, to demonstrate that the order was without jurisdiction. However, the record shows that this order was set aside by the Collector, and the matter was subsequently decided by the learned Assistant Collector 1st Grade, who was conferred with the powers of the Land Reforms Officer. Thus, there is no jurisdictional error in the order passed by the learned Assistant Collector 1st Grade.

Learned Courts below had rightly held that the payment of the land revenue to the owners was not established. This conclusion is also fortified by the order passed by the learned Land Reforms Officer. The plaintiff had assailed the order passed by the learned Assistant Collector 1st Grade/Land Reforms Officer before the Collector, Baijnath, unsuccessfully, and he was rightly held to be estopped by record from instituting the present suit. Hence, all the substantial questions of law are answered accordingly.

Final order:

In view of the above, the present appeal fails, and it is dismissed.

Pending application(s), if any, also stand(s) disposed of.

Records of the learned Courts below be sent down forthwith.