Dharam Singh and Others vs Prem Singh and Others

Kuldip Chand Sood, J.—This second appeal arises out of the judgment and decree of the learned District Judge Hamirpur, dated 15th September, 1993.

The facts necessary for the disposal of this appeal may be noticed thus. The Plaintiff-Respondents filed a suit for declaration that they are the owners in possession of the land comprising Khasra No. 1427, measuring 16 kanals 1 marla situate in Tikka Sohari Tehsil Barsar, District Hamirpur, as per Jamabandi for the year 1977-78. A restraint was also sought on the Defendants from interfering with the possession of the Plaintiffs over this land.

The case of the Plaintiff was that the Plaintiffs are owners in possession of this land and Defendants were unnecessarily threatening to take for cible possession of the land. They also threatened that they will get the entry in the revenue record corrected in connivance with the revenue staff. It was further stated that the nature of the land is "Banjar Quadim" and therefore e, there is no question of any possession or tenancy of the Defendants over this land.

The Defendants resisted the suit on the ground that the suit land was in possession of the for efathers of the Defendants as tenants and therefore e, the Civil Courts have no jurisdiction to try this suit. The suit was decreed by the learned trial Court. It was found that the Plaintiffs are owners in possession of the suit land. The Defendants did not press the plea befor e the trial Court that Civil Court has no jurisdiction. Dissatisfied, Defendants filed an appeal befor e the learned District Judge. The appeal was dismissed by the impugned judgment and decree.

Still aggrieved, the Defendants through their legal representatives are in second appeal.

I have heard Mr. G.D. Verma, learned Sr. Counsel assisted by Mr. Ramesh Verma, Advocate and Mr. Balder Singh, learned Counsel for the Respondents and perused the record with their help.

The second appeal was admitted on the following substantial question of law:

Whether the Civil Court has no jurisdiction to entertain the suit and controversy as raised?

It was the case of the Defendants that as the Defendants were non occupancy tenants, therefore e, they became the owners of the suit land after coming into for ce of the H.P. Tenancy and Land Refor ms Act, 1972. It was also the case of the Defendants that they were not shown as tenants of the suit land and therefore e an application was moved befor e the Tahsildar, Barsar, who recorded the Defendants as tenants. The learned District Judge found that Jam bandies for the year 1913-14 to 1977-78 records the suit land in possession of the Plaintiff-owners. It was only on 1st December, 1981, that the Tahsildar, Barsar, made an order directing the correction in the entries in the revenue records (Ex. D-l) and the Appellants, pursuant to this order, were recorded in possession of this land as tenants.

Learned District Judge after referring to the evidence of Shri C.R. Katwal, Tahsildar Barsar, who corrected the revenue entries, found that the revenue entries were corrected behind the back of the Plaintiff-Respondents on the basis of a spot inspection carried out by him on 15th October, 1981. Relying upon Smt. Rattani Devi and Anr. v. Rajinder Pal and Ors. 1984 ShimLJ 63, learned District Judge held that Tehsildar has no jurisdiction to declare the status of the Defendant-Appellants as tenants under the H.P. Tenancy and Land Refor ms Act, 1973.

Shri Verma vehemently urges that it was not for the Civil Court to decide whether the revenue entries have legally been corrected or not. The matter was decided by a competent authority and no appeal or revision was carried against it which has become final.

Mr. Verma refers to Azhar Hasan and Others Vs. Distt. Judge, Saharanpur and Others, and submits that it is for the revenue authorities to consider who should be recorded in possession of the land and Civil Courts will have no jurisdiction to enter into this question. In Azhar Hasan Plaintiff-Appellants were owners of the land which admittedly was in tenancy of some persons, those persons inducted two other persons as tenants and themselves abandoned the land. Those two transferees were shown to be in possession of that land in the revenue records. When the provisions of the U.P. Zamindari Abolition and Land Refor ms Act, 1950 came into for ce which divested the landlord with the title over that land. Those two persons sold that land to some strangers on the surmise that they had acquired Bhumidhar rights. The Plaintiffs filed a suit claiming that revenue records were wrong and that on the abandonment of tenancy by the tenants, possession ought not to have been recorded in favour of those two persons, and therefore e, the sale deed executed in favour of some other persons was illegal and based on fraud. The trial Court and first appellate Court took a view that it was for the revenue authorities to consider who should be recorded in possession and thus the Civil Court had no jurisdiction in the matter. When the matter was carried to the Apex Court, Their Lordships observed that such a question was determinable by the revenue authorities. It was also found that the sale deed which was questioned on the basis of fraud, was not in-fact executed by the Plaintiffs but by Ors. , and it is in this context the Apex Court refused to interfere and held that in these circumstances, the plaint was rightly returned to the Plaintiffs for presentation befor e the revenue authorities. The ratio of this case is not applicable, to the facts and circumstances of this case.

Next contention of Shri Verma is that material evidence in terms of Jamabandi for the year 1910-11 (Ex. D-4) was ignored from consideration by both'' the trial Court and District Judge and therefore e, this Court will interfere in exercise of the jurisdiction u/s 100 of the Code of Civil Procedure. It is true that this Court can interfere in second appeal in case vital evidence was ignored by the first appellate court which if considered could have led to a different conclusion. As pointed out by the Apex Court in Ishwar Dass Jain (Dead) Thr. Lrs. Vs. Sohan Lal (Dead) By Lrs., there are only two situations in which interference with the findings of fact is permissible:

(a) when material or relevant evidence is not considered which if considered would have led to opposite conclusion;

(b) where the findings of fact are recorded on inadmissible evidence which if excluded would lead to different conclusion.

In the present case perusal of Ex. D4, copy of the Jamabandi for the year 1910-11 shows that Khasra No. 1427 was in possession of the owners and recorded as such and, therefore e, even if this document is considered, it would lead to the conclusion that the land subject matter of dispute was in possession of the Defendants or their predecess Ors.

The entries rather strengthen the case of the Respondent. Learned Counsel also refers to State of Rajasthan Vs. Harphool Singh (Dead) Through His L.Rs., and stresses that concurrent findings of fact can be interfered if there are glaring inconsistencies and contradictions in the evidence. True it is, but, there are no inconsistencies or contradictions in the evidence on record and therefore e, ratio of the case is of no assistance to the learned Counsel. Learned Counsel then refers to Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar and Others, and submits that first appellate court assumed jurisdiction not vested in it, to declare that Defendants were not tenants and therefore e, a substantial question of law arises and this Court should interfere. The submission is without substance. It was the case of the Defendants that they are the tenants of the suit land and therefore e it is in this context that the trial Court and first appellate Court held that there is no evidence to show that the Defendants were tenants of this land. It cannot be said that the first appellate court exercised, the jurisdiction which did not vest in it.

In the end Mr. Verma, refers to State of Punjab and Ors. v. Gurdev Singh and Ashok Kumar AIR 199 SC 111, and submits that such an order could only be assailed, under Article 113 of the Limitation Act, within one year.

The contention is mis-placed and cannot be accepted. Firstly, Article 113 provides limitation for all kind of suits where no period of limitation is prescribed in the schedule. The limitation set out under Article 113 is three years from the date when right to sue accrues and not one year as contended by the Sr. Counsel. Secondly, the ratio of Gurdev Singh does not apply to the facts and circumstances of this case. In Gurdev Singh a suit for declaration was filed by a dismissed employee that he continues to be in service as his dismissal was void and in-operative. The High Court took a view that if the dismissal of an employee is illegal and void being violative of the mandatory provisions of Rules or conditions of service then there is no limitation for filing a suit for declaration as the employee continues to be in service inspite of the orders of dismissal. In that case Plaintiff''s services were terminated for unauthorised absence without an inquiry and without giving an opportunity of being heard. The State raised a plea befor e the trial Court that the suit was barred by period of limitation. In first appeal the Additional District Judge took a view that no limitation is prescribed for challenging an illegal order. In second appeal the High Court accepted the view taken by learned Additional District Judge. It is in this context Their Lordships observed that if a suit is not covered by any specific Article of the Limitation Act, then such a suit must fall within the residuary Articlein this case Article 113 which prescribes a limitation of three years when the right to sue accrues. The time begins to run from the accrual of such right.

Article 58 of the Limitation Act specifically provides limitation of three years to obtain a declaration which is not provided under any other Article. Under this Article, limitation period of three years commences from the date when the right to sue first accrues. However the question would be when a right to sue accrues. In my view, the right to sue accrues when right in respect of which declaration is sought is denied or challenged. A mere entry in the revenue papersin the name of Appellantsin the column of possession, without any act of denial of the possession of the Respondent on the part of Appellants will not provide a cause of action.

The Supreme Court in Mst. Rukhmabai Vs. Lala Laxminarayan and Others, interpreting the provision of Article 120 of the Limitation Act of 1908 and relying upon AIR 1930 270 (Privy Council) held:

There can be no "right to sue" until there is an accrual of the right asserted in the suit and its infringement or at least clear and unequivocal threat to infringe that right by the Defendant against whom the suit is instituted. No doubt Mt. Koklan''s right to the property arose on the death of Tara Chand, but in the circumstances of this case their Lordships are of the opinion that there was no infringement of, or any clear and unequivocal threat to her rights till the year 1922, when the suit, as stated above, was instituted.

(Emphasis supplied)

In Fateh Ali Shah and Ors. v. Muhammad Bakhsh and Ors., AIR 1928 Lah 516, a Division Bench of the Lahore High Court held that Plaintiff in possession need not bring a suit on first denial of his title and he need to take proceedings within six years (under the old Act) from the time when his rights are actually jeopardized. The Division Bench observed:

If a Plaintiff is in possession or enjoyment of the property in suit he is not obliged to sue for a declaration of title on the first or each succeeding denial of his title by the Defendant. He may look upon each denial with complacency or at his option may institute a suit to falsify the assertions of the other side. But, when he finds that his rights are being actually jeopardized by the action or assertion of the Defendant, then he must take proceedings within six years from the date of such actions or assertions: AIR 1922 Lah 94; AIR 1925 Lah. 391 and 140 P.R. 1907: Dist.

It is no longer res-integra that persons continuing in possession inspite of adverse entry in the revenue papers need not seek any declaration until their possession is threatened. Reference may be made to Ghulam Mohammad Khan and Ors. v. Sammundar Khan and Ors. AIR 1936 Lah 37. In that case, the adverse entry was made in the year 1905-06. The suit was filed much after the period of limitation under Article 120 of 1908 Act. In the plaint, it was urged that the entry was made in the Jamabandi behind the back of the Plaintiffs and they learnt about these entries for the first time in the year 1929-30. The Defendants traversed the allegations. In this background, the Division Bench held that cause of action in all such cases "would accrue when the Plaintiff feel aggrieved, and in these circumstances, on the Plaintiff''s allegations, these suits will be within time."

Otherwise also, entries in the revenue record for which there is no foundation, do not create any title (See: Jattu Ram Vs. Hakam Singh and others, ; Guru Amarjit Singh Vs. Rattan Chand and others, ; Guru Amarjit Singh Vs. Rattan Chand and others,

Under the H.P. Tenancy and Land Refor ms Act, 1973in case of dispute about the status of a person as tenant the jurisdiction to resolve such dispute vests only with the Land Refor ms Officer. Tehsildar of the Revenue Department has no jurisdiction to determine such question under the H.P. Land Revenue Act. The order of the Tehsildar directing correction of the revenue entries being without jurisdiction could be ignored by the Plaintiff-owners, There is also a finding of fact that the order was passed by the Tehsildar behind the back of the Plaintiffs and they were not aware of such order.

There is no scope of dispute that if there was a dispute about the status of the Defendants as tenants, the jurisdiction only vested with the Land Refor ms Officer under the H.P. Tenancy and Land Refor ms Act, 1973. Tehsildar indeed had no jurisdiction to determine such question under the H.P. Land Revenue Act. The order being without jurisdiction could be ignored by the Plaintiff-owners. This apart, there is a finding of fact that the order was passed by the Tehsildar behind the back of the Plaintiff and they were not aware of such an order.

No other point is urged befor e me. It cannot be said that the Civil Court had no jurisdiction to entertain the suit.

There is no merit in this appeal which is dismissed with costs.