Ved Prakash Deceased Through His LRs and Others vs Satya Bhan and Others

Dharam Chand Chaudhary, J.—The defendants in the trial Court are in Regular Second Appeal before this Court.

Challenge herein is to the judgment and decree dated 28th May, 2001, passed by learned District Judge, Una, District Una, H.P. in Civil Appeal No. 69/95, on the grounds inter-alia that there being no iota of evidence to show that the respondents (hereinafter referred to as the ''plaintiffs'') being tenant are in possession of the land measuring 3 kanals 15 marlas in Khasra No. 2560 and 1 kanal 2 marlas in Khasra No. 2561/1 (hereinafter referred to as the suit land) situated in village Khad, Tehsil and District Una, H.P. the suit could not have been decreed. Also that the State being recorded owner of the suit land bearing Khasra No. 2560, the suit could not have been maintained without impleading the State as party-defendant nor any decree in its absence could have been passed, keeping in view that the suit land having vested with the State under the provisions of H.P. Village Common Land and Utilization Act, the jurisdiction of the Civil Court being barred, the suit could not have been entertained. The findings that the plaintiffs are in possession of the suit land as tenants without any proof qua the creation of tenancy or payment of rent are not only erroneous but perverse also.

The appeal has been admitted on the following substantial questions of law:

Whether the learned lower appellate court acted with material illegality and irregularity in granting the decree with respect to khasra no. 2560 whereof State of Himachal Pradesh who is admittedly owner of such land and is not a party to the suit?

Whether the civil court has no jurisdiction to adjudicate upon the claim of the parties, with respect to land which has vested in the State of Himachal Pradesh under the provisions of HP Village Common Lands and Utilization Act, 1974.

On behalf of the appellants, Shri Naresh Thakur, learned Senior Advocate has urged that learned lower Appellate Court has decreed the suit without there being any cogent and reliable evidence on record. The impugned judgment and decree, according to learned counsel being nullity and the findings recorded perverse and contrary to the record is not legally sustainable.

On the other hand, Shri Kapil Dev Sood, learned Senior Advocate appearing on behalf of the respondents while repelling the contentions raised by Mr. Naresh Thakur, has pointed out from the evidence consisting of oral as well as documentary that the respondents are in possession of the suit land as tenants and as such the Court below has rightly decreed the suit.

On analyzing the rival submissions and also the record, it is seen that the learned trial Court has decreed the suit for the relief of permanent prohibitory injunction in favour of the plaintiffs and against the defendants with respect to land measuring 1-2 bighas bearing Khasra No. 2561/1, however, dismissed the suit for the relief of permanent prohibitory injunction with respect to suit land bearing Khasra No. 2560. While the plaintiffs preferred an appeal against the dismissal of the suit qua the suit land bearing Khasra No. 2560, the defendants also preferred objections to that part of the decree, whereby the suit was decreed for the relief of permanent prohibitory injunction with respect to suit land bearing Khasra No. 2561/1. Learned lower Appellate Court has accepted the appeal and decreed the suit for the relief of permanent prohibitory injunction qua the suit land bearing Khasra No. 2560 as well and the cross objections preferred by the defendants dismissed. This Court is in agreement with the findings recorded by the learned lower Appellate Court for the reason that plaintiffs have successfully pleaded and proved that it is they who are in possession of the land in dispute in the capacity of tenant on payment of rent i.e. ''chakota'' to the extent of 1/4 of the total produce from the land in dispute to the Gram Panchayat. A reference in this behalf can be made to the entries in the jamabandi Ext. P-4 for the year 1966-67, which reveals that Shri Khushi Ram, predecessor-in-interest of the plaintiffs was in possession of the suit land bearing Khasra No. 2560 as ''Gair Maurusi Sovyam''. In column No. 9 of this document, it is recorded that the plaintiffs are paying ''chakota'' to the extent of 1/4 of the produce every year to the local Gram Panchayat by way of rent. Similar entries find mention in the jamabandi for the year 1973-74 Ext. P-5. Jamabandi for the year 1981-82 Ext. P-1 also reveals that suit land bearing Khasra No. 2560 was in possession of Khushi Ram aforesaid as ''Gair Maurusi Doyam''. Meaning thereby that plaintiffs were sub-tenants(''Gair Maurusi Sovyam'') under the tenants (''Gair Maurusi Doyam''), however, on payment of ''chakota'' as rent. The copies of the khasra girdwaris for the years 1982-83 to 1986-87, Ext. P-3 and for the year 1988-89 to 1990-91 Ext. P-7 also reveal that Khushi Ram, predecessor-in-interest of the plaintiffs was in possession of the suit land bearing Khasra No. 2560 in the capacity of non-occupancy tenants.

If adverting to the oral evidence, plaintiff No. 1 Shri Satya Bhan while in the witness box as PW-1 has categorically stated that the suit land is in their possession since the time of his father in the capacity of tenant and on payment of rent i.e. 1/4 of the produce. He further tells us qua the plantation of mango trees by the plaintiffs over the suit land and it is they who are harvesting the crop also. He has also deposed about the defendants having threatened to interfere in the suit land. Not only this but it has come in his cross-examination that rent was being paid to Parma Nand by their father, of course he failed to produce receipts in this behalf.

PW-2 Natha Ram belongs to same village. He while in the witness box has deposed about the suit land being in possession of the plaintiffs and that it is they who have been harvesting the crop of mangoes. According to him, the distance of his house is 1.5 kilometers away from the suit land. He further tells us about some report lodged with the police and the police visited the spot also.

If coming to the evidence produced by the defendants in rebuttal, deceased defendant Ved Prakash (DW-1) has stated that the suit land bearing Khasra No. 2561/1 belongs to the State Government, however, is in their possession. According to him, the plaintiffs were not owner of any land in the village and that land bearing Khasra No. 2561/1 is under mortgage with Shiv Nath etc. He has denied that it is the plaintiffs who have planted mango trees over the suit land and that it is they alone who are harvesting the crop. Bal Krishan (DW-2) also states that entire suit land is in possession of the defendants and also that late Shri Khushi Ram (father of the plaintiffs) never remained in possession thereof. Constable Kashmir (DW-3) has produced the record and produced the copy of agreement Ext. DW-3/A. When cross-examined, he admits that the same was not entered in his presence. The agreement Ext. DW-3/A is hardly of any help to the case of the defendants, as has rightly been observed by the learned lower Appellate Court.

The reappraisal of oral as well as documentary evidence reveals that plaintiffs are in possession of the entire suit land bearing Khasra Nos. 2560 and 2561/1 in the capacity of tenant on payment of rent to the Gram Panchayat. The entries in the revenue record itself demonstrate that rent is being given, which establishes the creation of tenancy and factum of payment of rent to the owner. The learned lower Appellate Court has not committed any illegality or irregularity in decreeing the suit for the relief of permanent prohibitory injunction, restraining thereby the defendants from causing interference in the entire suit land. The findings recorded cannot be termed as illegal or invalid.

If coming to the second substantial question of law, of course the recorded owner of the suit land is the State of Himachal Pradesh and the suit land seems to be vested with the State of Himachal Pradesh, pursuant to the provisions contained under H.P. Village Common Land and Utilization Act, 1974. The defendants themselves submit that they are also in possession of the suit land, which claim has been rejected as per the findings recorded hereinabove. Although, in the written statement, the case of the defendants is that in view of the suit land bearing Khasra No. 2560 has been recorded in the ownership of the State, the State is a necessary party in the suit, however, without pressing any issue in this behalf. Even in the learned lower Appellate Court, no such ground is urged. Therefore, at this stage, in the present appeal, they cannot be allowed to raise this issue. Any how, it is for the State to proceed in accordance with law against the plaintiffs, in case they are in unauthorized possession of the suit land. The defendants cannot be said to have any complaint in this regard.

In view of what has been stated hereinabove, this Court finds no illegality or infirmity with the impugned judgment and decree and the same rather is legally and factually sustainable. There is no question of law, muchless the substantial question of law, as formulated in this appeal, arises for adjudication and the appeal as such deserves to be dismissed.

In view of the above, this appeal fails and the same is accordingly dismissed. Parties are left to bear their own costs.