Prithvi Chand vs State Of HP & Others

Vivek Singh Thakur, J

Plaintiff (appellant herein) has approached this Court against concurrent findings of Courts below whereby suit as well as appeal filed by him have

been dismissed by trial Court and first Appellate Court.

The plaintiff has filed a suit for declaration that he along with proforma-defendants (respondents No. 2 and 3 herein) is owner of land comprised in

Khasra No. 1403/323/419 min (old) and Khasra No. 1403/323/419 min (old) denoted by new khasra Nos. 1779 and 1780 situated in village and mauja

Nirath, Tehsil Rampur Bushehr, District Shimla with consequential relief of permanent injunction restraining the defendant State of HP from

interfering in possession of plaintiff and proforma-defendants in any manner. Plaintiff has set up a claim that predecessors-in-interest of plaintiff and

proforma-defendants were in possession of suit land, which is now in possession of plaintiff and proforma-defendants, as non-occupancy tenants

under the owner Devta Surya Narayan, Temple Surya Narayan Nirath and on enactment of H.P. Ceiling on Land Holdings Act, 1972 (hereinafter

referred as Ceiling Act) ownership of land was vested from Devta Surya Narayan to State of HP vide mutation No. 1746 dated 8.6.1975. It is the

case of plaintiff that possession of suit land remained with plaintiff and proforma-defendants continuously, physically, actually and without any

interruption and further that like predecessors-in-interest, plaintiff and proforma-defendants are still paying money and rendering the services to the

Temple Surya Narayan whenever so required by Kardars of temple, however, actually and in law they have become owners automatically by

operation of H.P. Tenancy and Land Reforms Act (hereinafter to be referred as Tenancy Act) which came into force from November 1975 and thus,

they are not liable, now, to pay any money to Temple Surya Narayan or render service in lieu of rent of tenancy and thus, they are also not liable to be

ejected from suit land by defendant/State. However, despite that, defendant/State has initiated ejectment proceedings against plaintiff and proforma-

defendants which are pending before Authorized Officer-cum-Divisional Forest Officer, Rampur Bushehr with respect to Khasra No. 1779 whereas

plaintiff and proforma-defendants are neither encroachers nor in unauthorized possession, but, are in authorized possession as tenants of Surya

Narayan Temple Nirath and continue as such also. Claim of plaintiff is that he and proforma-defendants have become owners automatically by

application of Tenancy Act of 1972.

Defendant/State has refuted the claim of plaintiff on the ground that suit land has vested in the State free, from all encumbrances, on application of

Ceiling Act and the said process was completed by attestation of mutation No. 1746 on 8.6.1975 and it is contended that as a matter of fact, plaintiff

and Prem Chand, predecessor-in-interest of proforma-defendants was found as encroacher over the part of suit land comprised in Khasra No. 1779

whereas remaining part of suit land comprised in Khasra No 1780 was found in illegal possession of one Sohan Lal son of Phundu Ram and separate

encroachment proceedings vide Missal No. 83 dated 6.1.1990 have been initiated by competent authority against him. It is further contended that

Prem Chand, predecessor-in-interest of proforma - defendants, had filed affidavit in the year 2002 admitting therein that he was an encroacher over

the part of suit land comprised in Khasra No. 1779 belonging to State Government with respect to which proceedings under the Himachal Pradesh

Public Premises and Land (Eviction and Rent Recovery) Act, 1971 (PP Act) have been initiated. Claim of induction of plaintiff and proforma-

defendants or their predecessor-in-interest as tenant over the suit land and automatic acquisition of ownership by them by operation of Tenancy Act,

either from Devta or from State, has been denied. It is further contended that there is no entry in column of cultivation, at the relevant point of time, in

favour of plaintiff and proforma-defendants or their predecessors-in-interest, much less with respect to payment/receipt of rent or Lagan, as tenant.

Rather, it is claimed that plaintiff and proforma-defendants have been found in illegal possession by Revenue Authorities during settlement, and,

therefore, they are liable to be ejected from part of suit land in due process of law and jurisdiction of Civil Court, for initiation of proceedings under PP

Act, has also been disputed by defendant/State. Claim of plaintiff regarding service of notice under Section 80 CPC has also been disputed in the

written statement.

After appreciation of material placed on record, the trial Court had dismissed the suit filed by plaintiff. First appeal preferred by plaintiff also stands

dismissed by first Appellate Court affirming the judgment and decree passed by trial Court. An application under Order 41 Rule 27 CPC seeking

permission to lead additional evidence, filed during the pendency of first appeal, also stands dismissed by first Appellate Court.

Present appeal has been admitted on following substantial question of law:-

Whether on account of mis-appreciation of the pleadings and misreading of the oral as well as documentary evidence available on record the

findings recorded by both Courts below are erroneous and as such the judgment and decree impugned in this appeal being perverse and vitiated is not

legally sustainable?

When the defendant-respondent did not take objection of jurisdiction of the Civil Court in the written statement and did not claim issue thereupon,

has not the Lower Appellate Court committed grave error of law and jurisdiction in wrongly applying the provisions of H.P. Public Premises and Land

(Eviction and Rent Recovery) Act, 1971 to hold that the jurisdiction of the Civil Court qua the part of the suit land is barred?

I have heard learned counsel for parties at length and have also gone through record.

It is apt to record here that during pendency of this appeal an application bearing CMP No. 6273 of 2020 under Order 1 Rule 10(2) CPC, has been

preferred by Satluj Jal Vidyut Nigam Limited (SJVNL) for impleadment of SJVNL as respondent No.4 on the ground that applicant/proposed

respondent No. 4 has signed Memorandum of Understanding on 29.5.2019 with Government of HP for execution of Luhri Stage-1 210 MW Hydro

Electric Project in Satluj River Basin in Himachal Pradesh and for execution of project work, lease agreement with Deputy Commissioner, Shimla is

required to be signed, but SDM Rampur Bushehr, at the time of forwarding the case, had declined No Objection Certificate (NOC) in respect of land

comprised in Khasra Nos. 1779 ad 1780 for pendency of RSA No. 202 of 2014 (present case), titled Prithvi Chand vs. State of HP i.e. present appeal

as this Court has passed an interim order in this appeal directing the parties to maintain status quo and, thus, cause of action has arisen to applicant

Company for its impleadment as party for getting the interim order suitably modified as Company, in case of allowing the RSA, is ready to deposit due

compensation in favour of plaintiff and proforma-defendants as per law as suit land, for falling in the reservoir area of project, is essentially/urgently

required for execution of work and complete the project as per DPR approved by Central Electricity Authority, and further that though suit land

comprised in Khasra Nos. 1779 and 1780 is essentially required by Company for timely execution of project, but, applicant-company is not in a position

to proceed to acquire the suit land for interim orders passed in present RSA and in these circumstances, it is canvassed that Company is interested

and a proper party to be impleaded as respondent No.4 in main appeal for seeking permission of Court to take possession of suit land subject to final

outcome of appeal.

A separate application CMP No. 6275 of 2020 has also been filed by SJVNL for modification of interim order passed by this Court in this appeal.

Both applications filed by SJVNL have been opposed by non-applicant/appellant on the ground that SJVNL has no right, title or interest vested in its

favour and, thus, has no locus standi to file such applications. It is further contended that such applications are not maintainable on behalf of SJVNL

who was neither a party in the civil suit nor in first appeal and further, in case, if SJVNL has signed the Memorandum of Understanding with

Government of Himachal Pradesh, then application for modification of stay should have been filed by defendant/State, not by third party having no role

in lis.

Taking the entire facts and circumstances into consideration, I am of the considered view that in case there was an urgency or necessity for

vacation of stay or modification of interim stay granted by this Court, the defendant/State should have come forward for modification/vacation of

interim order as State of HP is party to the Memorandum of Understanding filed with SJVNL for execution of Hydro Electric Project and, thus,

stakes of State, which is already party to appeal, are also involved and, thus, when State is there to represent the interest of public for early execution

of Hydro Electric Project by applicant Company and to take care of public interest with right to file proper application for vacation or modification of

interim stay, then, I do not find any reason for allowing the applications filed by SJVNL and thus the same are dismissed.

One of contentions raised by learned arguing counsel for the appellant, is that at the time of rejection of application filed on behalf of plaintiff under

Order 41 Rule 27 CPC, the observations of first Appellate Court are perverse for the reason that documents proposed to be placed on record in

evidence would definitely establish that plaintiff and proforma-defendants and their other family members were in possession of Khasra Nos. 1779

and 1780 and, therefore, rejection of application is based on erroneous and a stray finding, returned by first Appellate Court, is contrary to material on

record.

It is contended on behalf of plaintiff that defendant/State had failed to file any document in rebuttal to documents filed by plaintiff in appeal, sought

to be produced by way of additional evidence, for establishing his claim of possession upon the suit land, issuance of notice under Section 80. CPC and

also to corroborate the evidence already placed on record by way of revenue documents. Learned arguing counsel has submitted that the documents

sought to be produced in additional evidence were and are relevant and necessary for complete, proper and final adjudication of issue involved and for

deciding the rights of parties to do complete justice and the nature of documents is such that these documents could not have been created,

manufactured and fabricated by plaintiff and pleadings regarding the facts sought to be proved through these documents are already on record and

these documents have come in possession of plaintiff after decision of suit by the trial Court despite exercise of due diligence by plaintiff and there

was justifiable reason for not filing the documents at the trial stage and, therefore, irrespective of the fact that these documents were in the knowledge

of plaintiff, to do substantial justice to parties, the application ought to have been allowed by first Appellate Court. It is further submitted that allowing

the application would not have caused any injustice to defendant/State as Court is under obligation to give opportunity to other side to file additional

evidence by way of rebuttal and evidentiary value of these documents is to be considered by the Court in the light of other material on record.

It is lastly submitted that authenticity of documents sought to be produced by way of additional evidence has never been disputed by

defendant/State and for all the aforesaid reasons, dismissal of application is definitely contrary to law of land and appreciation of material on record in

this regard is perverse.

Learned arguing counsel for the plaintiff, to substantiate his submissions on the aforesaid points, has relied upon pronouncements of the Supreme

Court in Jiten K. Ajmera vs. M/s Tejas Cooperative Housing Society, reported in 2019(6) SCC 128; Union of India vs. K.V. Lakshman and others

reported in 2016(13) SCC 124; Lachhman Singh (Deceased) through Legal Representatives and others Vs. Hazara Singh (Deceased) through Legal

Representatives and others, reported in (2008) 5 SCC 444; and also decision of Punjab and Haryana High Court in case Ram Niwas vs. Kalu Ram

and another, reported in 2012(3) Civil Court Cases 458, and has submitted that in the light of ratio of law laid down by the Courts, rejection of

application under Order 41 Rule 27 CPC is not sustainable and warrants interference and impugned judgment and decree passed by first Appellate

Court deserve to be set aside on this count only.

For reasons assigned thereto by first Appellate Court, rejection of application under Order 41 Rule 27 CPC, has also been supported by learned

Additional Advocate General.

Alongwith aforesaid application filed for leading additional evidence, plaintiff has placed on record some receipts issued by Assistant Engineer,

Irrigation and Public Health Department, Sub Division No.1, Rampur Bushehr, wherein plaintiff alongwith Prem Chand (predecessor-in-interest of

proforma defendants) has been reflected as a payer of water charges with respect to Khasra Nos. 1650, 1656 and 1779, whereas, with respect to

Khasra No. 1780, one Sohan Lal son of Phundu Ram has been reflected as payer of water charges. Another document, sought to be placed on

record, is a letter dated 9th January, 2007 addressed to Sub Divisional Officer (Civil) Rampur Bushehr, Shimla from Additional District Magistrate,

Shimla which contains an endorsement regarding receipt of notice dated 1.1.2007 sent by Mr.R.M. Gupta, Advocate, on behalf of Prithvi Chand and

Prem Chand sons of Jia Lal son of Phundu Ram, residents of Nirath, Tehsil Rampur Bushehr, District Shimla with further endorsement directing the

SDO (Civil) to take necessary steps to address the grievances of notice servers. A copy of notice with seal of Diary clerk of office of Collector,

Shimla, copies of jamabandis for the years 1969-70 and 1974-75; Missal Hakiyat alongwith report of Field Kanungo and Patwari Halqua received

through RTI have also been sought to be placed on record.

So far as notice under Section 80 CPC is concerned, first Appellate Court has not endorsed the findings of the trial Court in its judgment in this

regard and has dismissed the claim of plaintiff independent thereof. Therefore, letter dated 9th January, 2007 has lost its relevancy.

In other documents, Missal Hakiyat for the year 1969-70 reflects that Devta Surya Narayan through Bhagat Ram son of Tirath Ram Kardar of

Temple, is owner of unmeasured (0-0), Khasra No. 1323/419 with entry in the column of cultivation as self- cultivation by owner but with note

appended thereon that ownership of this land was transferred to Government of HP on 8.6.1975, and Missal Hakiyat Settlement Second Amended

Settlement Jadid reflects the State of HP as an owner of Khasra No. 1779 (new) (old Khasra Nos.1403/1323/419 min) and Khasra No. 1780 (new)

(old Khasra Nos. 1403/1323/419 min) with entry of unauthorized possession in the column of cultivation, whereas Nakal Jamabandi for the year 1974-

75 reflects Government of HP as owner of unmeasured (0-0), Khasra No. 1402/1323/419 with entry of possession of residents of area in the column

of cultivation.

The same thing, as reflected in aforesaid revenue papers, has been reported by Field Kanungo to Tehsildar and by Tehsildar to SDO(Civil) with

addition that file No. 82 about unauthorized possession of Prithvi Chand (plaintiff) and Prem Chand (predecessor of proforma-defendants No. 2 and 3)

upon Khasra No. 1779 and file No. 83 about unauthorized possession of Sohan Lal son of Phundu Ram upon Khasra No. 1780 has been initiated.

From the reports of Field Kanungo, Tehsildar and Nakal Jamabandis, it is evident that in the year 1969-70 Devta Surya Narayan was owner, but,

plaintiff and proforma defendants or their predecessors-in-interest were not shown as tenant of Devta and in jamabandi for the year 1969-70 also,

when ownership of suit land alongwith other land was transferred from Devta to Government of HP, no person including the plaintiff and proforma

defendants or their predecessors-in-interest have been recorded as tenants. Rather, it has come in report and also in revenue papers that Prem Singh

and Prithvi Chand were found in illegal possession of Khasra No. 1779 during fresh (amended) settlement whereas one Sohan Lal was found in illegal

possession of land comprised in Khasra No. 1780 and accordingly proceedings against encroachment vide file bearing Nos. 82 and 83 were initiated

against Prithvi Chand, Prem Chand sons of Jia Lal, and Sohan Lal son of Phundu Ram respectively. Possession of Prithvi Chand and Prem Chand on

the land comprised in Khasra No. 1779 is an admitted fact and dispute in this regard is to the extent that plaintiff is claiming that he and proforma-

defendants are in possession of it as owners for application of Tenancy Act as the said land was in possession of their predecessors-in-interest as

tenants of Devta of Temple followed by their possession, whereas, claim of State is that plaintiff and predecessors-in-interest of proforma-defendants

have been found in illegal possession during second amended settlement. Further claim of plaintiff is that they are also in possession of Khasra

No.1780, whereas, stand of Government is that one Sohan Lal has been found in illegal possession of Khasra No. 1780.

Plaintiff has also placed on record copy of mutation No. 1746 dated 8.6.1975 Ext.PA whereby ownership of the land of Devta Surya Narayan

including the suit land was transferred toownership of Government of HP vide order dated 19.03.1975. At that time, there was no entry with respect

to possession of plaintiff, proforma defendants, or their predecessors-in-interest. Rather, before mutation, owner of land in question has been shown as

cultivator and after mutation right thereon has been indicated of residents of Mohal.

Further plaintiff has also placed on record in evidence application Ext.PA (sic) filed by Sohan Lal with respect to Khasra No. 1323/419/2 for

correction of revenue record by entering his name in the columns of possession and cultivation on the basis of his claim that he was in possession and

cultivation of the said land since last 20 years. This application was filed on 23.6.1972, but was dismissed on 16.11.1972 as evident from copy of order

placed on record by plaintiff as Ext.PC, wherein, it is recorded that applicant did not want to pursue the application, therefore, it was dismissed and

consigned to the Record Room. This document reflects that Sohan Lal alone was claiming his possession on land comprised in Khasra No. 1323/419/2

without any reference of plaintiff and proforma defendants.

Possession of plaintiff and proforma defendants on Khasra No. 1779 stands admitted by defendant/State for issuance of notice Ext.PD under PP

Act and reply thereto Ext.PE has been proved on record by plaintiff.

First Appellate Court has considered the documents filed with application and returned reasonable findings with respect to relevancy and necessity

of those documents for adjudicating and deciding the lis between the parties. Non-filing of documents, in rebuttal to documents filed with application

for additional evidence, cannot be a ground for allowing the said application. Relevancy, necessity and requirement of such documents is to be

determined independent thereof as discussed supra and as has also been discussed by the first Appellate Court. Permitting the documents to be

produced by way of additional evidence would not have improved the case of plaintiff at all. The plaintiff was having the knowledge of existence of

these documents, but, he has failed to assign any reason for not applying to the concerned authorities to obtain these documents. It is not a case,

where plaintiff had made an effort to obtain the documents well in time, but, documents were not supplied by concerned authorities to him within a

reasonable period. In present case, as evident from material on record, plaintiff had applied for these documents when case was already at the final

stage in the trial Court.

No doubt, independent of conduct of plaintiff, the Court has jurisdiction to allow the application for additional evidence, if such documents are

required to decide the suit andappeal by Court, but, in present case, these documents, as discussed in detail supra, are not necessary to be brought on

record as production thereof would not have any effect on the merits of case. The case law cited on behalf of plaintiff thus is of no help to the

plaintiff.

It is also relevant to notice that these documents were never produced before trial Court, despite the fact that these were existing at that time and

no effort was made by plaintiff to obtain these documents during pendency of suit. Even otherwise it would not have proved the case of plaintiff in any

manner.

Documents sought to be produced were not proposed to be led in evidence before the trial Court and thus these are not the documents which

were refused to be admitted in evidence by the trial Court, which ought to have been admitted.

Neither first Appellate Court has considered nor this Court considers that these documents are necessary to be examined to enable the Court to

pronounce the judgment or for any other substantial cause, as the facts, sought to be proved by placing these documents on record, stand already

proved in the evidence led and even if these documents are taken into consideration, the same shall not be of any help either to the plaintiff or to the

Court. Had these document been establishing certain other facts which are not already on record, so as to enable the Court to pronounce the judgment

by adjudicating all issues or for any substantial cause, these documents may have been permitted to be placed on record in evidence, irrespective of

the fact that plaintiff had failed to exercise due diligence to obtain these documents, which were in his knowledge.

Therefore, I find that findings of first Appellate Court that documents sought to be produced in evidence, filed with application under Order 41

Rule 27 CPC, by adducing additional evidence, were not necessary to be examined to enable the Court to pronounce the judgment or for any

substantial cause as these documents were not going to improve the evidence or facts on record in any manner as nothing new would have been

established on record on allowing the production of these documents on record. Therefore, I do not find any perversity in this regard in the impugned

judgment passed by first Appellate Court.

The application for leading additional evidence has rightly been dismissed by the first Appellate Court.

Learned arguing counsel for plaintiff has further submitted that first Appellate court has committed a mistake of law by framing an issue with

respect to maintainability of suit with reference to provisions of PP Act, as no such issue was framed or proposed to be framed on behalf of

defendants during the trial and first Appellate Court has thus committed an error of law and jurisdiction by holding that jurisdiction of the Civil Court

qua Khasra No. 1779, a part of suit land, is barred for application of provisions of PP Act.

It is contended on behalf of plaintiff that ratio of law laid down in judgment passed by the Supreme Court in Sarwan Kumar and another Vs.

Madan Lal Aggarwal, reported in (2003) 4 SCC 147; and judgments passed by this High Court in Chuhniya Devi Vs. Jindu Ram, reported in 1991 (1)

Sim.L. C. 223; and Notified Area Committee Vs. Bhagat Ram, reported in Latest HLJ 2009 (HP) 816, has been applied wrongly and erroneously. He

has further submitted that in Bhagat Ram’s case, suit was filed for restraining the authority from evicting the plaintiff therein by taking recourse of

PP Act, whereas present suit has been filed for declaration qua acquisition of ownership by plaintiff, for application of Tenancy Act, and further that

in Chuhniya Devi’s case also in (para 64) in Answer (b), it has been held that where it is found that statutory authorities envisaged by the Act had

not acted in conformity with fundamental principles of judicial procedure or where provisions of the Act had not been complied with, the Civil Court

would have jurisdiction to entertain the civil suit and, therefore, it is contended that the impugned judgments and decrees deserve to be set aside and

the suit filed by plaintiff deserves to be decreed.

32 On merit, on this issue, referring the pronouncements of the Apex Court in Ravinder Kaur Grewal and others vs. Manjit Kaur and others, reported

in (2019)8 SCC 729; and Narendra Kumar Tripathi vs. Karuna Auddy and others, reported in (2020)3 SCC 22, learned arguing counsel for the

plaintiff has submitted that a person in possession cannot be ousted by anyone except by due process of law and a person who has acquired

ownership rights even by way of adverse possession can not be ejected and acquisition of rights of ownership can be used by him as a sword being

plaintiff as well as a shield being defendant. He further submits that in present case plaintiff is on better footings as there is sufficient material on

record to establish the possession of plaintiff and proforma defendants upon the suit land as it is an admitted case of defendant/State that on finding

them in possession of suit land, files for removal of encroachment have been prepared and proceedings for their ejectment have been initiated and

further that there is sufficient evidence to establish possession of plaintiff and proforma-defendants as tenants upon the suit land,and, thus, plaintiff has

every right to file the suit against defendant-State to protect his rights as he alongwith others has perfected the title against State for operation of

Tenancy Act.

It is contended on behalf of plaintiff that Ex. PA, an application filed by Sohan Lal for correction of revenue entries contains the fact that tenancy

in the suit land was created by Bhagat Ram Mohatmeen of the Temple, but the proceedings in that application were closed for death of Bhagat Ram

and non-appointment of any Mohatmeen after his death as evident from copy of order dated 16.11.1972 (Ext.PC) passed by Assistant Collector, and

further that possession of plaintiff and performa defendants is also established from entries and remarks of column of Nakal Intkhab Jamabandi for

the year 1999-2000 Ex. PG, wherein, in column of possession and cultivation, suit land has been shown in illegal possession and reference of

preparation of files of encroachment bearing Nos. 23 and 24 has been given, and further that the possession of plaintiff and proforma-defendants on

the suit land is also fortified from notice Ex. PD issued under PP Act and, therefore, it is submitted on behalf of the plaintiff that findings, that plaintiff

has not been found in possession of suit land, are perverse and warrants interference for setting aside the impugned judgments and decrees.

Learned arguing counsel for plaintiff has contended that trial Court, in para 15 of the judgment, has recorded the findings that no evidence has

been placed on record or proved by plaintiff to show that predecessors-in-interest of plaintiff and proforma defendants remained in possession of suit

land and they were paying any rent to Devta Surya Narayan Ji, whereas, PW4 Pushpa Dutt, in his examination- in-chief, has deposed that suit land

was in possession of ancestors of plaintiff and proforma defendants and after that suit land comprised in Khasra Nos. 1779 and 1780 is in possession

of plaintiff and proforma defendants and in lieu of cultivation of land, they continued to pay 50% galla batai and rendered services to Devta from time

to time and, thus, they are non-occupancy tenants of Devta and have become owners since November, 1975 for application of Ceiling Act. Further

that the possession of plaintiff and proforma defendants upon the suit land has also been admitted by witness of defendant/State, DW1 Dalip Singh

Patwari and, therefore, findings returned by trial Court and affirmed by first Appellate Court in this regard are perverse.

Learned Additional Advocate General has contended that oral evidence to prove the tenancy and to rebut the presumption attached to revenue

record is insufficient and is not corroborated by any document or cogent and reliable evidence on record, and, findings of Courts below that tenancy

has not been proved are not perverse as documents placed on record by plaintiff itself falsify the claim of plaintiff that their predecessor-in-interest

was introduced as tenant by the Temple and, as there is no perversity in findings returned by Courts below, thus it is not expected from this Court in

Regular Second Appeal to interfere in concurrent findings on question of fact. To substantiate impermissibility of interference in absence of perversity,

he has relied upon Syeda Rahimunnisa vs. Malan Bi (dead) by LRs and another reported in (2016)10 SCC 315; Damodar Lal vs. Sohan Devi and

others reported in (2016)3 SCC 78; Krishnan vs. Backiam and another reported in (2007)12 SCC 190; and Gurvachan Kaur and others vs. Salikram

(dead) thruogh LRs reported in (2010)15 SCC 530.

It is also contended by learned Additional Advocate General that tenancy is bilateral agreement which is required to be pleaded and proved as

such and there must be consent of landlord to create tenancy which is missing in the present case and, thus, findings on this fact by Courts below, not

accepting the claim of plaintiff, are correct. In this regard reliance has been placed on Narotam Chand vs. Kashmir Singh and others, reported in

2018(2) Shim.LC 1009; State of HP vs. Ajay Vij and others, reported in 2011(2) Shim.LC 43; Khazana Ram vs. Ghungar reported in 1996(1) CLJ

(HP) 424; Narain Dass and others vs. Bhup Singh and others, reported in 1997(3) Sim.LC 380; Prem Dass and others vs. Jagdish, reported in 1997(2)

S.L.J. 984; Surjeet Kaur vs. Jarnail Singh, reported in 1965 PLJ 137; Ram Karan vs. The Financial Commissioner and others, reported in 1980 PLJ

295; Vinay Kumar and others vs. Parshotam Dass and others, reported in 1992 PLJ 77; and State of HP vs. Chander Dev and others, reported in

2007(2) Shim.LC 7.

It is also contended on behalf of defendant/State that Devta is not only a perpetual minor but, at the same time, is a disabled person who cannot

cultivate personally and, therefore, no ownership rights can be acquired against a minor and such disabled person and reliance has been placed, to

substantiate this contention, on judgments in Bishwanath and another vs. Sri Thakur Radha Ballabhji and others, reported in AIR 1967 SC 1044;

Temple of Thakurji Village Kansar vs. State of Rajasthan and others, reported in AIR 1998 Rajasthan 85; Ram Lal vs. Board of Revenue, reported in

1990(1) RLR 161; and Prabhu Das vs. State of Rajasthan and others, reported in 1991(2) RLR 657.

It is further submitted on behalf of the State that even if it is considered that plaintiff and proforma defendants are/or their predecessors-in-interest

were tenants of Devta, even then, in view of provisions of Sub-sections 8 and 9 of Section 104. of Tenancy Act, claim of plaintiff deserves to be

rejected as ownership rights cannot be acquired in a tenancy, if owner is perpetual minor as well as disabled person and incapable of cultivating the

land personally. It is contended that till application of Ceiling Act, tenants of Devta were not entitled to invoke the provisions of Tenancy Act to

acquire ownership and on application of Ceiling Act, the tenants were not entitled to claim tenancy or ownership as under the Ceiling Act, as land has

been vested to ownership of State free from all encumbrances whatsoever.

Framing of issue at the time of deciding the first appeal by first Appellate Court and returning the findings thereto, has also been justified by

learned Additional Advocate General by submitting that Appellate Court has jurisdiction to frame any issue on the basis of material on record and to

decide the same and further that, additional issue framed in appeal by first Appellate Court is well founded in view of material on record and settled

legal position, and in case contention of plaintiff is accepted, then provisions of PP Act would be rendered redundant and the very purpose of

enactment shall be frustrated.

Lastly, it is contended that claim of plaintiff, applying the principle of preponderance of probabilities to the material on record is not sustainable and,

thus, no interference of this Court is warranted in this appeal.

Plaintiff has examined PW-4 Pushpa Dutt claiming him to be Pradhan of Committee of Temple of Devta Surya Narayan, but his statement, as

noticed by Courts below, is vague as he has not stated the specific date since when he is Pradhan, but stated that he is Pradhan since long and further

that there is lot of land in the name of Devta Surya Narayan, out of which some land is vested to the State under Ceiling Act and Devta Surya

Narayan is cultivating its land through tenancy for rent in the shape of crop. He has not mentioned the date, month and year from which he is

President. He is completely silent about the time when tenancy was created. It has also come in evidence of plaintiff that there was Mohatmeen of

temple and there is no reference of any Committee of Temple either in the plaint or in the documents, but PW-4 Pushpa Dutt is not the Mohatmeen,

but he is claiming to be Pradhan of Mandir Committee, existence whereof and source of right thereof to manage the affairs of the Temple has not

been brought on record. In fact, he has nowhere stated that he is the manager of property of the Temple or he is competent to depose with respect to

and/or dispose of property belonging to Devta Surya Narayan.

DW1 in his examination-in-chief has categorically stated that Sohan Lal son of Phundu Ram was found in illegal possession of Khasra No. 1780

whereas Prem Chand was found in illegal possession of Khasra No. 1779, though he has, in cross examination, admitted that on the spot, plaintiff and

proforma defendants are in possession, but he has expressed his ignorance about the time since when they are in possession. But, he has also

reiterated that with respect to illegal possession, encroachment files have been prepared. Thus, witness, nowhere, has admitted tenancy or ownership

of plaintiff and proforma defendants.

Interestingly, tenancy right has been claimed against Devta Surya Narayan, but it has not been impleaded as party. No agreement of tenancy or

evidence of appropriate person competent to depose on behalf of Devta Surya Narayan has been brought on record to prove the factum of tenancy.

No receipt qua alleged payment of rent has been proved by the plaintiff.

Plaintiff has placed reliance upon entries of Nakal Intkhab jamabandi Ex. PG for the year 1999-2000, but the said jamabandi does not reflect the

status of plaintiff and proformadefendants as tenants. It reflects that the suit land is in unauthorized possession of someone. From the statement of

DW-1 Dalip Singh and notice Ex. PD issued under PP Act, read with reply thereto Ex. PE, it can be inferred that plaintiff and proforma defendants

have been found in unauthorized possession of Khasra No. 1779. There is no document on record reflecting the plaintiff and performa defendants or

their predecessors-in-interest as tenants of Devta Surya Narayan. Documents reflecting encroachment upon the suit land pertain to 1999-2000. There

is no document even to reflect unauthorized possession, if any, of plaintiff or performa defendants upon the suit land before 1999, much less

establishing their tenancy upon the suit land. Rather document Ex. PA, copy of mutation dated 8.6.1975, clearly reflects that at the time of vestment of

land to the State of Himachal Pradesh vide order dated 19.3.1975 passed by Collector Rampur, the land comprised in Khasra No. 1323/419/2

alongwith other land, was owned and possessed by Devta Sahib Surya Narayan Ji with clear entry in column of cultivation and possession that it was

owned and possessed by the owner.

Another document relied upon by plaintiff is an application, which has also been exhibited as Ex. PA. It was filed by one Sohan Lal for correction

of revenue entries to record his possession in Khasra No. 1323/419/2, i.e. the suit land which has now been allotted Khasra Nos. 1779 and 1780. In

this application, Sohan Lal has nowhere stated that he is in possession of the suit land along with plaintiff and proforma defendants or their

predecessor-in-interest. No doubt, Sohan Lal is son of Phundu Ram and plaintiff Prithvi and predecessor-in-interest of performa defendants i.e. Prem

Lal are grandsons of Phundu Ram, but their father is Jai Lal, thus Sohan Lal appears to be brother of Jai Lal. Even if contents of Ex.PA, application

filed by Sohan Lal, are taken to be a gospel truth, then also it establishes that Sohan Lal was in possession of suit land, but not the plaintiff or proforma

defendants or their predecessors-in-interest. There is nothing on record, how and on what basis plaintiff is asserting his claim qua possession on the

suit land by referring and relying application filed by Sohan Lal. As argued by learned Additional Advocate General and as also held in numerous

judgments cited by him on this count, it is settled law that tenancy is a bilateral agreement, creation whereof in favour of a person, claiming tenancy, is

to be pleaded specifically and proved in accordance with law and there must be consent, either express or implied, of the landlord for creation thereof

and tenancy can never be created unilaterally or without agreement, oral or written, with the landlord and further rent is an essential ingredient of

tenancy.

The first Appellate Court has rejected the claim of plaintiff and proforma defendants with respect to Khasra No. 1780 for want of evidence, either

placed on record or sought to be placed on record, to establish possession of plaintiff and proforma-defendants upon that Khasra number. From the

material on record, it has been proved otherwise, as the evidence indicates, that one Sohan Lal son of Phundu Ram had been asserting possession on

the part of suit land and encroachment proceedings with respect to Khasra No. 1780 have also been initiated against him.

In plaint, by drafting it cleverly, specific prayer has not been made to restrain the defendant-State from continuing proceedings for eviction under

PP Act, but it has been specifically mentioned in paras 5 to 8 of the plaint that Authorized Officer, under PP Act, has initiated ejectment proceedings

with respect to Khasra No. 1779, wherein reply has been filed by the plaintiff and proforma defendants, stating therein that they are neither

encroachers nor in unauthorized possession of the suit land of the said number, rather in authorized possession as tenants under Temple Surya

Narayan and are continuing as such at present also. It is further pleaded that defendant-State has no right to initiate such proceedings against plaintiff

and prprforma defendants. In prayer, declaration has been sought to the effect that plaintiff and proforma defendants have become owners of the suit

land by virtue of operation of Tenancy Act and a consequential relief of injunction has also been prayed against defendants, which definitely means

that prayer for restraining the defendants from continuing with proceedings under PP Act has been made indirectly. In written statement, a specific

objection has been taken that for initiation, continuation and pendency of proceedings under PP Act, Civil Court has no jurisdiction to hear and decide

the dispute between the parties. In statements of witnesses of both sides, it has come on record that proceedings under PP Act have been initiated

against plaintiff and prpforma defendants before filing of the suit.

Ratio of Bhagat Ram’s case is that once notice under PP Act has been issued to a person in occupation terming him in unauthorized

occupation under the PP Act, for provisions of Sections 10 and 15 of the said Act, issues with respect to title of occupant and his right to continue with

the possession, are to be raised before the Authorized Officer and to be determined in the proceedings initiated under the PP Act, but not in a Civil

Suit filed by the occupant.

In Chuhniya Devi’s case it has been qualified by the Full Bench of this High Court that Civil Court has jurisdiction in a case where it is found

that statutory authorities envisaged by that Act, has not acted in conformity with the fundamental principles of judicial procedure or where the

provisions of the Act have not been complied with. In present case, plaintiff has failed to adduce any evidence to substantiate his claim of tenancy

upon the suit land and, therefore, there is no question of omission or commission on the part of statutory authority under the Tenancy Act, warranting

invocation of the jurisdiction of Civil Court with respect to Tenancy Act and further there is material in evidence placed on record by the plaintiff that

he and proforma defendants have been found in unauthorized possession of Khasra No. 1779. Therefore, no case of fault or inconformity with the

provisions of law or fundamental principles of judicial procedure is made out in initiation of ejectment proceedings against the plaintiff and proforma

defendants and further, as held in Bhagat Ram’s case, right, title and/or interest of plaintiff and performa defendants, entitling them to continue

with the possession with right of conferment of ownership, can be pleaded, adjudicated and decided in the proceedings under PP Act. Therefore,

appreciation of Chuhniya Devi’s case by the first Appellate Court is in consonance with the ratio of law laid down in the said judgment.

In Sarwan Kumar’s case, referred supra, the Supreme Court has observed that where Civil Court lacks the inherent jurisdiction to take

cognizance of the case and to pass a decree, challenge to such decree on the ground of nullity could be raised at any later stage including the

execution proceedings. In present case, though no decree has been passed in favour of plaintiff, but he has approached the Civil Court after the

initiation of eviction proceedings under PP Act with respect to which Civil Court lacks jurisdiction, and when a decree passed in such a case can be

objected and nullified in any later stage proceedings, then prayer for passing such decree can definitely be dealt with at any stage including the

Appellate stage. Moreover, issue of jurisdiction is a legal question which can be raised at any stage and further that even consent or submission of

parties to the jurisdiction of the Court, which has no jurisdiction, does not confer jurisdiction upon such Court to adjudicate the matter regarding which

jurisdiction has been barred.

The first Appellate Court, replying upon Sarwan Kumar, Chuhniya Devi and Bhagat Ram’s cases, has rightly held that when proceedings with

respect to Khasra No. 1779 have been initiated against the plaintiff and proforma- defendants, under PP Act, then they have every right and

opportunity to establish their title upon the suit land in the said proceedings and for bar created to file a civil suit, after initiation of ejectment

proceedings under the PP Act, the first Appellate Court has rightly held that suit filed by plaintiff was not maintainable in present case. The ratio of

law reiterated by the Apex Court in Ravinder Kaur Grewal’s case that a person in possession cannot be ousted except by due process of law has

nowhere been ignored by Courts below as plaintiff and proforma-defendants have every right to establish their case before the authorities under PP

Act and in the said proceedings a person can be ejected only by following due process of law.

The Courts below have rightly recorded findings that no cogent, convincing and corroborating evidence has been placed on record or proved by

plaintiff to show that predecessors-in-interest of plaintiff and proforma defendants remained in possession of suit land under Devta and they were

paying any rent to Devta Surya Narayan Ji. No receipt qua alleged payment of rent has been proved by plaintiff. The statement of PW4 Pushpa Dutt

and other evidence on record has been appreciated in right perspective by the Courts below. However, these findings shall not have any bearing on

merits of the defence of plaintiff and/or proforma defendants if they lead any further evidence to substantiate their claims in addition to the evidence

led in present suit. Plaintiff and proforma defendants have every right to contest the ejectment proceeding initiated against them under PP Act by

leading cogent, reliable and convincing evidence.

The claim of plaintiff is of tenancy under Devta Surya Narayan and further that tenancy has ripen in ownership automatically by operation of law.

Section 104 of Tenancy Act provides acquisition of ownership rights by tenants, but with certain exceptions as provided under sub Sections 8 and 9

thereof, which read as under:-

“104. Rights of tenant other than occupancy tenant to acquire interests of landowner.

(1) to (7). …. …. …. …

(8). Save as otherwise provided in sub-section

(9). , nothing contained in sub-section (1) to (6) shall apply to a tenancy of landowner owner during the period mentioned for each

category of such landowners in sub-section (9), who,--

(a). is a minor or unmarried woman, or if married, divorced or separated from husband or widow; or

(b). is permanently incapable of cultivating land by reason of any physical or mental infirmity; or

(c). is a serving member of the Armed Forces; or

(d). is the father of the person who is serving in the Armed Forces, up to the extent of inheritable share of such a member of the Armed

Forces on the date of his joining the Armed Forces, to be declared by his father in the prescribed manner.

(9). In the case of landowners mentioned in clauses (a) to (d) of sub-section (8), the provisions of sub-sections (1) to (6) shall not apply :-

(a). in case of minor during his minority and in case of other persons mentioned in clauses (a) and (b) of sub-section (8) during their life

time;

(b). in case of persons mentioned in clauses (c) and (d) sub-section (8) the period of their service in the Armed Forces subject to resumption

of land by such persons to the extent mentioned in first proviso to clauses (d) and (dd) of sub-section (1) of section 34

Provided that nothing contained in this section shall apply to such land which is either owned by or is vested in Government under any law,

whether before or after the commencement of this Act, and is leased out to any person.â€​

Proviso to Sub-section (9) was inserted in 1988 by way of amendment Act No. 6 of 1988. A Division Bench of this Court in State of Himachal

Pradesh Vs. Chander Dev and others, reported in 2007 (2) Shim. LC 7, has held that proviso added at the end of sub section 9 of Section 104 of the

Act, by amendment Act No. 6 of 1988, is retrospective in nature and it also takes away the rights of the persons which rights may have vested in

them automatically under the provisions of the unamended Act.

From the provisions of Section 104(8) and 104(9), it is clear that in case of minor allows in case of a person who is permanently incapable in

cultivating land by reason of any physical or mental infirmity, provisions of Sub-sections 1 to 6 shall not apply. Meaning thereby that tenant of such

person shall not be entitled to acquire ownership rights in the tenancy land.

It is settled law that Idol is a juristic person in whom title of properties of temple vests. But it is only in an ideal sense that the idol is the owner. It

has to act through human agency and, therefore, he is a person permanently incapable of managing his property including cultivating the land owned

by it personally by reason of his infirmity with respect to his physical existence. It is also settled that Diety/Idol is a perpetual minor and, therefore, for

minority as well as for physical disability or infirmity, it is incapable of cultivating its holding personally and, thus, its rights are to be protected by the

Manager/Mohatmeen or by the State. No person can acquire ownership rights for tenancy in land belonging to minor or a person with disability, infirm

and incapable of cultivating land personally.

I am in agreement with the observation made by learned Single Judge of Rajasthan High Court in case titled Temple of Thakurji Vs. State of

Rajasthan and others, reported in AIR 1998 Raj 85, wherein it has been held that it is obligation and function of the State to ensure the welfare of

Deity being a person, may be juristic or may be a person on account of fiction of law, but incapable to protect its interest being perpetual minor and

physically disabled.

In any case for minority or disability or infirmity of Deity, even if plaintiff and performa defendants are accepted to be tenants of Devta, they were

and are not having any right of conferment of ownership of the suit land belonging to the Devta. Therefore, till the time the land was in the ownership

of Devta, tenants were not having any right of conferment of ownership. Suit land had vested in the State under Ceiling Act vide order dated

19.3.1975. Section 11 of Ceiling Act reads as under:-

“11. Vesting of surplus area in the State Government

The surplus area of a person shall, on the date on which possession hereof is taken by or on behalf of the State Government be deemed to

have been acquired by the State Government for a public purpose on payment of amount hereafter provided and all rights, title interests

(including the contingent interest, if any) recognized by an law, custom or usage for the time being in force, of all persons in such area

shall stand extinguished and such rights, title and interests shall vest in the State Government free from all encumbrances.

Provided that where any land within the permissible area of the mortgagor is mortgaged with possession and falls within the surplus area of

the mortgagee, only mortgagee rights shall be deemed to have been acquired by the State Government and the same shall vest in it.â€​

Vesting of land under the Ceiling Act in the State is free from all encumbrances. Otherwise also, even as a tenant, for insertion of proviso to sub

section (9) of Section 104 of Tenancy Act, plaintiff and proforma defendants have no right to acquire the ownership in the suit land as this proviso

provides that Section 104 also provides that Section 104, entitling the tenant to acquire ownership right upon the tenancy land shall not be applicable to

the land which is either owned by or is vested in Government under any law, whether before or after commencement of Tenancy Act, and is leased

out to any person.

As observed by the Division Bench in Chander Dev’s case, supra, Section 2(18) of Tenancy Act defines that ‘Tenancy’ means a

parcel of land held by a tenant of a land owner under one lease or one set of conditions and there word ‘lease’ has been used in the Tenancy

Act as synonymous of the work ‘Tenancy’. Therefore, tenancy rights on the date of vestment of the land in the State stands extinguished and,

therefore, thereafter plaintiff and proforma defendant, even if considered in possession of suit land shall be treated as unauthorized occupant for

vestment of land in the State Government free from all encumbrances.

Tenancy Act came in force at once on receiving assent of the President of India on 02.02.1974 and Rules framed thereunder came in force on

4.10.1975 i.e. the date of publication in Rajpatra Himachal Pradesh, whereas, Ceiling Act came into force on receiving the assent of the President of

India on 10.7.1973 and it was published in Rajpatra Himachal Pradesh on 28.7.1973. However, order of vestment of suit land in Government was

passed on 11.03.1975, mutation whereof was attested on 8.6.1975.

In aforesaid facts and circumstances, in the light of provision of law discussed herein-above, there is nothing on record to establish that plaintiff

and proforma defendants were and are having any right to be inducted as owners for their tenancy, if any, in the suit land. Therefore, it cannot be said

that in given facts and circumstances, statutory authority envisaged either by Tenancy Act or Ceiling Act or PP Act has not acted in accordance with

law.

In the light of aforesaid evidence I find no perversity in concurrent findings with regard to claim of plaintiff with respect to tenancy upon the suit

land.

It is more than settled that in absence of perversity, this Court is not expected to interfere in the findings of fact even for inadequacy of evidence

or for any other inference from the evidence. As a matter of fact, the findings of fact which may be drawn recorded by the Courts below, are possible

plausible view which can be inferred from the material placed on record or proposed to be placed on record along with application under Order 41

Rule 27 C.P.C, by applying principle of preponderance of probability.

For the aforesaid discussion, I find no perversity in the findings of fact recorded by the Courts below and there is no perversity or illegality in

rejecting the application under Order 41 Rule 27 CPC and the applicant/respondent No. 4 Company has also no right to become a party in present

appeal. Substantial questions of law are answered accordingly.

In the light of above discussion, claim of plaintiff is not sustainable in any manner and thus I find no cause, reason or ground for interfering in the

impugned judgments and decrees and accordingly appeal is dismissed along with application filed by applicant/respondent No. 4 Company.