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Judgment
V.K. Ahuja, J.—The regular second appeal u/s 100 of C.P.C filed by the appellants against the judgment and decree passed by the learned District Judge Hamirpur dated 01.02.2001 affirming the judgment and decree passed by the learned Sub Judge Ist Clss (II), Hamirpur dated 28.3.1994 vide which he had dismissed the suit of the appellants for declaration and permanent prohibitory injunction. Briefly stated, the facts of the case are that the appellants hereinafter referred to as the plaintiffs filed a suit for declaration and permanent injunction in their favour in regard to the land comprised in khasra Nos. 855,856,857,860,863,864,865 measuring 462.87 Sq. mtrs. It was alleged that the father of the plaintiffs namely Jagat Ram was a tenant on the suit land measuring 1 Kanal 5 marlas under the District Board Kangra on payment of fixed annual rent of Rs.12/-. On the abolition of District Board Kangra by operation of law, Panchayat Samiti, became the owner of the suit land and Jagat Singh ipso-facto became the tenant under the Panchayat Samiti. Smt. Jayanti Devi purchased 2/9 share of old khasra No.1784/1197 and became co-owner with Panchayat Samiti. Later on defendant No.1, Mansha Devi purchased 1/12 share in this khasra Number measuring 3 marlas from Smt. Jayanti Devi and she also became co-sharer of the suit land.
It was further alleged that the plaintiffs being successor in interest of Jagat Singh remained in possession of remaining land measuring 17 marlas as a tenant under defendant No.2 and 8 marlas was in the possession of owners including Mansha Devi, defendant No.1. It was alleged that after coming into force of the H.P. Tenancy Land Reforms Act, the plaintiffs were conferred proprietary rights of 17 marlas of land. It was also alleged that being legal heirs of Smt. Jayanti Devi, the land of Smt. Jayanti also devolved upon them. Thus, it was alleged by the plaintiffs that they alongwith defendants are co-sharer of the suit land and share of defendant No.1 is 3 marlas. They are entitled to remain in possession as such till partition and defendant has no right to claim her separate possession in the land. The prayer for permanent prohibitory injunction was not pressed during the course of arguments.
On the pleadings of the parties as many as nine issues were framed by the learned trial Court which reads as under:
1 & 9-C. Whether the suit is not maintainable in the present form? OPD
Whether this Court has no jurisdiction to try the present suit? OPD
Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OP- Parties.
Whether the suit is liable to be dismissed u/o 7 rule 7 C.P.C. as alleged? OPD
5 & 9-A Whether the plaintiffs are estopped to file the present suit by their act & conduct, as alleged in the preliminary objection No.2 of the written statement. OPD
Whether the suit is barred by limitation? OPD
Whether the defendant is entitled to special cost u/s 35A C.P.C, if so, how much.
Whether the plaintiff is properly verified in accordance with law? OPP
Whether the plaintiffs are entitled to injunction as prayed for? OPP
9-B Wheather the suit is not properly valued for the purpose of court fee and jurisdiction? OPD
On conclusion of the case, the learned trial Court vide its impugned judgment, decided the suit as against the plaintiffs and in favour of the defendants and consequently dismissed the suit of the plaintiffs that suit for declaration and injunction was not maintainable.
On appeal, those findings were affirmed by the learned District Judge by framing the following point which arose for determination in the appeal:
Whether the learned trial Judge has been just in adjudging that the suit land did not happen to be agricultural land and that the conferment of proprietary rights was erroneous which order of conferment of proprietary rights has already been set aside in appeal by the Settlement Officer.
The appeal was admitted by this Court on two substantial questions of law:
Whether both the Courts below have wrongly ignored Ext. PX where the relationship of landowner and tenant between defendant No.2/respondent and predecessor-in-interest of the plaintiffs/ appellants were duly acknowledged. Were not such admissions contained in Ext. PX acknowledging such relationship binding on defendant No.2? Are not the findings rendered to the contrary illegal, erroneous and perverse?
Whether the conferment of proprietary rights is automatic under the provisions of the H.P.Tenancy and Land Reforms Act? Have not both the Courts below ignored from consideration that at the relevant time by virtueof enforcement of the said act, the land in question was an agricultural land? Have not both the Courts below mis-interpreted the definition of "Land" as contained in the H.P. Tenancy & Land Reforms Act to hold incorrectly that the proprietary rights qua such land could not be conferred?
I have heard the learned counsels for the parties and have gone through the record of the case.
The averments made by the learned counsel for the appellants were that the plaintiff''s father was in possession as a tenant under District Board Kangra and then under Panchayat Samiti. It was also submitted that the plaintiffs were not the tress passers and the land in question was agricultural land and findings to the contrary of the revenue authorities as well as that of the learned trial Court and the learned District Judge to the contrary were incorrect. It was also submitted that the plaintiffs had been confirmed proprietary rights which order was set-aside in appeal but plaintiffs continued to be a tenant even if the proprietary rights were not conferred upon them. It was also submitted that the plaintiffs have succeeded to the estate of Jayanti Devi and as such the suit for declaration was maintainable. On the other hand, learned counsel for the defendants had submitted the impugned judgment for the reasons given therein supplementing it by the submission that no substantial question of law arises in this case and the findings of the learned trial Court as affirmed by the learned appellate Court are liable to be affirmed accordingly.
I have gone through the judgment of both the Courts below and it is clear that earlier Jagat Singh, father of the plaintiffs was entered as in possession as a tenant under District Board as per copy of jamabandi Ex. P-9 for the year 1962-63. There is also a reference in the remarks column that the part of the land had been sold in favour of Jayanti Devi and Jayanti Devi further sold 3 marlas of land in favour of defendant No.1. Similar entries are also there in jamabandi for the year 1978-79 showing Jagat Singh as a tenant. However, a perusal of the subsequent copies of khatauni namely Ex. P-1,P-2,P-3,P-4,P-5 and P-6 shows that the kind of the land entered in the revenue record was gair mumkin sehan, Gair mumkin dukan and there is nothing to suggest that it was an agricultural land in possession of Jagat Singh or his legal heirs. A perusal of record including the copy of order passed by Sub Divisional Officer exercising the powers of Collector under the Land Revenue Act shows that by his order dated 10.4.1989 he had affirmed the order of Revenue Officer rejecting the mutation conferring the proprietary rights on the plaintiffs. It was clearly observed by the learned Collector in the said order Ex. PX that the land ceased to be the land within the meaning of H.P. Tenancy and Land Reforms Act and therefore, once it ceases to be an agricultural land proprietary rights could not have been conferred and accordingly the order passed by LRO rejecting the mutation of conferring proprietary rights on the appellants was affirmed.
The Courts have relied upon the orders Ex.Px but there is no question ignoring the observation in regard to the admission of relationship of landlord and tenant between defendant No.2 and predecessor-in-interest of the plaintiffs since no such admission was proved on record and the order passed by the Revenue Officer was rightly relied upon by both the Courts below. Both the Courts below had rightly held that once the land ceased to be an agricultural land and therefore the order passed conferring proprietary rights was rightly set-aside which order of Collector had become final. Therefore, the plaintiffs had failed to prove that they were in possession of the suit land as a tenant since the land was admittedly was in possession by virtue of the shops rented out to the parties. The relief of permanent injunction was not pressed during the trial of the case and it was rightly held that the suit for declaration was not maintainable which has been filed by the plaintiffs claiming ownership rights over the whole land including the land for which proprietary rights were conferred which order had been set-aside and had become final since no appeal admittedly was filed against that order. The remedy to the plaintiffs if any was to file the suit for partition but not the suit for declaration and permanent injunction as filed by the plaintiffs. The findings of learned both the Courts below are based upon the correct appreciation of law and facts and as such there is no merit in the appeal filed by the appellants which is accordingly dismissed. However, parties are left to bear their own costs.