Dismissed

Shashi Kumar v. Sunka Ram

Himachal Pradesh HC17 Jul 2017RSA/333/2005

Case brief

AI extract

What is this about?

The High Court of Himachal Pradesh dismissed a regular second appeal. The court held that the plaintiffs were not owners of the suit land as proprietary rights vested automatically in deceased tenants Raghu Nath and Madan Lal under the H.P. Tenancy and Land Reforms Act, 1975. Consequently, the suit for possession was bad for non-joinder of the legal heirs of the tenants and was dismissed.

What did the court decide?

The appeal is dismissed. Pending applications are disposed of. Parties to bear their own costs.

Shashi Kumar Vs Sunka Ram — Landlord and Tenant | Himachal Pradesh HC (2017)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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RSA No.333 of 2005. Reserved on: 03.07.2017. Decided on : 17.07.2017.

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Shashi Kumar and others ...Appellants.

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Versus

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Sunka Ram …Respondent.

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Coram

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The Hon’ble Mr. Justice Chander Bhusan Barowalia, Judge. Whether approved for reporting?¹ Yes. For the appellants : Mr. G.R. Palsra, Advocate. For the respondent : Mr. Bhupender Gupta, Sr. Advocate with Ms. Rinki Kashmiri, Advocate.

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Chander Bhusan Barowalia, Judge.

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By way of the present appeal, the appellants have challenged the judgment passed by the Court of learned Additional District Judge, Mandi, District Mandi, (H.P), in Civil Appeal No.48 of 1999, dated 28.3.2005, vide which, the learned lower Appellate Court has set aside the judgment and decree passed by the then learned Sub Judge 1^st Class, Jogindernagar, District Mandi, in Case No.149 of 1996, dated 12.5.1999.

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Material facts necessary for adjudication of this Regular Second Appeal are that appellants/plaintiffs (hereinafter referred to as ‘plaintiffs’) maintained a suit for possession and mandatory injunction against the respondent/defendant (hereinafter referred to as ‘defendant’) alleging that plaintiff is recorded as co-owner-in-possession

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1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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of the suit land alongwith other co-sharers, whereas the defendant has no right, title or interest over the suit land. The suit land is situated in Mohal Tharu, Pargana Ahju, Tehsil Jogindernagar, District Mandi, (H.P) (hereinafter referred to as ‘suit land) and is adjacent to the shop of plaintiff and the defendant. Defendant during the year 1992, moved an application before the Assistant Collector 2^nd Grade, Jogindernagar, alleging that he is in possession of the suit land and prayed that he be entered in possession of the suit land and Assistant Collector 2^nd Grade, Jogindernagar, on 24.12.1992, ordered the defendant to be recorded in possession of the suit land as ‘Gair Marusi’ tenant, which order of Assistant Collector, 2^nd Grade, Jogindernagar, is illegal, null and void and not binding upon the plaintiff, as no relief of tenancy was claimed by the defendant and there was no evidence before Assistant Collector 2^nd Grade, Jogindernagar. As such, the order passed by the Assistant Collector 2^nd Grade, Jogindernagar, is against the provisions of law and is liable to be set aside. The defendants after passing of the order without any right, title or interest started interference over the suit land and the defendant now has started construction work over the suit land inspite of repeated request of the plaintiff not to do so, in such a manner has encroached upon the suit land.

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Defendant contested the suit by raising preliminary objections qua maintainability, jurisdiction, non-joinder of necessary parties, estoppel, valuation and suit is bad for want of better particulars.

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On merits, it has been contended that the plaintiff is co-owner-inpossession of the suit land. It is also denied that the defendant has no right, title or interest in the suit land. It is denied that the order of Assistant Collector 2^nd Grade, Jogindernagar, is illegal, null and void and not binding upon the plaintiff, but stated that the Assistant Collector 2^nd Grade, Jogindernagar, ordered that the defendant is to be recorded in possession of the suit land as a tenant, which order is legal and binding upon the parties. It has been stated that the defendant has been in possession of the suit land since 1972 and the plaintiff is not in possession of the suit land. It has been contended that the defendant being in possession of the suit land has got every right to raise construction over the suit land.

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On the pleadings of parties, the learned trial Court framed following issues on 12.9.1997 :

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“1. Whether the order dated 24.12.1992 of Assistant Collector is null and void, as alleged ? OPP.

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2. Whether the plaintiff is entitled for the relief of mandatory injunction, as prayed ? OPP.

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3. Whether the plaintiff is entitled for the relief of possession, as alleged ? OPP.

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4. Whether the suit is not maintainable ? OPD.

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

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6. Whether the plaintiff is estopped to file

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the suit by his act and conduct ? OPD.

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7. Whether the suit is time barred ? OPD.

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8. Whether the suit is not properly valued for the purpose of Court fee and jurisdiction ? OPD.

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9. Relief .”

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The learned trial Court after deciding Issue Nos.1 to 3 in favour of the plaintiff, Issue Nos.4 to 8 against the plaintiff, decreed the suit.

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Feeling aggrieved thereby defendant maintained first appeal before the learned Additional District Judge, Mandi, District Mandi, H.P, assailing the findings of learned trial Court below being against the law and without appreciating the evidence and pleading of the parties to its true perspective. The learned lower Appellate Court set aside the findings of the learned Court below. Now, the appellant has maintained the present Regular Second Appeal, which was admitted for hearing on 18.4.2006 on the following substantial questions of law:

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“ 1. Whether the suit as filed by the appellants was not bad for non-joinder of Raghunath and Madan Lal recorded as tenants at will (Gair Moursi) in the jamabandi for the year 1987-88 and the finding to the contrary given by the first appellate court is erroneous ?

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2. Whether the order passed by the Assistant Collector holding that the respondent-defendant held the property as tenant under the persons

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recorded as owners in the jamabandi is without

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jurisdiction, if so, to what effect?”

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Mr. G.R. Palsra, learned counsel appearing on behalf of

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the appellants has argued that the learned lower Appellate Court has not appreciated the fact that Assistant Collector 2^nd Grade, Jogindernagar, has no power to change the revenue entry, so the judgment and decree passed by the learned lower Appellate Court is required to be set aside.

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On the other hand, Mr. Bhupender Gupta, learned Senior Counsel appearing on behalf of the respondent has strenuously argued that the judgment and decree passed by the learned lower Appellate Court, is as per law. He has argued that on 24.12.1992, one of the co-owner was present, when the revenue entries were corrected. He has further argued that there is no substantial question of law, which is involved in the present appeal and the same deserves to be dismissed.

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To appreciate the arguments of learned counsel appearing on behalf of the parties, I have gone through the record in detail.

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Plaintiff (Baldev Singh) while appearing in the witness box as PW-1, has deposed that the defendant has encroached upon the suit land, as he has started raising construction over the suit land after obtaining an order from Tehsildar in the year 1992, in his favour. He

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has further stated that the defendant never remained his tenant in the suit land and never paid any rent to him qua the suit land. He exhibited on record an application, Ex.P-2, made by the defendant for correction of girdawari before Assistant Collector 2^nd Grade, Jogindernagar, as well as order dated 24.12.1992. From the perusal of Ex.P-2, application moved by the defendant for correction of revenue entry qua the suit land in his favour, it is evident that the only claim, which the defendant has laid before Assistant Collector 2^nd Grade, Jogindernagar, was that the defendant is in cultivating possession of the suit land, as he has constructed a house and a cow shed in the suit land, but girdawari qua the suit land is required to be corrected. On perusal of Ex.P-2, it is also evident that the defendant has no where claimed that he is in possession of the suit land, as a tenant under the plaintiff and other cosharers, who were impleaded as respondent in an application moved by the defendant and there is no pleading of the defendant before Assistant Collector 2^nd Grade, Jogindernagar, that he has been paying rent qua the suit land to its owner. However, Assistant Collector 2^nd Grade, Jogindernagar, vide order, dated 24.12.1992, Ex.P-3, found defendant to be in possession of the suit land and ordered that he be recorded as tenant over the suit land on payment of ¼ of produce from rabi 1992, which order of Assistant Collector 2^nd Grade, Jogindernagar, ordering the defendant to be recorded as a tenant over the suit and is wrong and illegal, as there was neither any pleading of the defendant

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that he is a tenant under the recorded owner of the suit land and he has been paying 1/4^th of the produce as a rent to the owners of the suit land nor there was any other material before Assistant Collector 2^nd Grade, Jogindernagar, on the basis of which, he came to the conclusion that the defendant is a tenant on payment of 1/4^th of the produce over the suit land. There is nothing in the order passed by the Assistant Collector 2^nd Grade, Jogindernagar, to show that on which basis, he came to the conclusion that the defendant is a tenant in cultivating possession of the suit land on payment of 1/4^th of produce. In absence of any pleading or any other material on record to show that there was any sufficient material before Assistant Collector 2^nd Grade, Jogindernagar, to come to the conclusion that the defendant was a tenant on payment of rent over the suit land, order of Assistant Collector 2^nd Grade, Jogindernagar, defendant is ordered to be recorded as a tenant over the suit land cannot be sustained in the eyes of law. Other than as a tenant, however, defendant is held to be in possession of the suit land correctly and as per actual position. On the other hand, defendant has also examined Jagdish Chand (DW-2), Udho Ram (DW-3) and Hoshiar Chand (DW-4). DW-2 Jagdish Chand and DW-4 Hoshiar Chand, are concerned, their statements are of no help for the defendant, as both of them have deposed that they have no knowledge, as to who is in possession of the suit land and their statement does not prove in any manner whatsoever that the defendant is in possession of

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the suit land as a tenant. DW-3 Udho Ram, has deposed that defendant is in possession of the suit land and he is constructing some wall over the suit land. There is nothing in the statement of DW-3 Udho Ram, to show that defendant is in possession of the suit land as a tenant or defendant has been paying any rent qua the suit land to the plaintiff and other co-sharers, but the statement of these witnesses make it clear that defendant is in possession of the suit land. So, statement of DW-3, Udho Ram, also does not prove at all that the defendant is in possession of the suit land, as a tenant, however entire evidence shows that the defendant is in possession of the suit land, so the order of Assistant Collector 2^nd Grade, Jogindernagar, is legal and binding upon the plaintiff to the extent holding defendant is in possession of suit land. 11. After analyzing the evidence hereinabove, it is clear that it is the defendant, who is in possession over the suit land. The next question arises whether the order of Tehsildar recorded the defendant is in possession of the suit land, as a tenant, is as per record. From the copy of jamabandi in the year 1992-1993, Ex.P-1, it is clear that Sunka Ram (defendant), who was cultivating in possession of the suit land as ‘gair marusi’ tenant on an application made by him, Assistant Collector 2^nd Grade, Jogindernagar, being competent authority recorded its finding vide order dated 24.12.1992 ordering that the defendant is recorded as ‘gair marusi’ tenant. The co-owner’s was heard by the Assistant Collector 2^nd Grade, Jogindernagar, as is evident from the

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record. Defendant’s witnesses have categorically stated that since the year 1992, defendant is in possession over the suit land measuring 0-118 bighas and to this effect their testimonies are reliable and not shattered by their cross-examination. The documentary evidence have also been placed on record i.e. copy of jamabandi for the year 19921993, Ex.P-1, in whose column of cultivation, Sunka Ram (defendant) has been shown as ‘gair marusi’ tenant and Ex.P-2, application for correction of revenue entries as preferred by the defendant before the Assistant Collector 2^nd Grade, Jogindernagar, with a prayer that the ‘girdawari’ prepared by the revenue officer with regard to the suit land having erroneously reflected Raghu Nath and Madan Lal, to be the cultivators of the suit property, the entry being not in consonance with the factual position the ‘girdawari’ pertaining to the suit land be set aside and ‘girdawari’ with regard to the suit property be recorded in favour of the applicant/defendant. On an application, as preferred by the defendant before the Assistant Collector 2^nd Grade, Jogindernagar, a direction was made that the defendant be entered as ‘gair marusi’ with respect to the suit land, vide order, dated 24.12.1992.

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The jamabandi for the year 1987-1988 also shows that Raghu Nath and Madan Lal, have been shown to be recorded as ‘gair marusi’ tenant over the suit property. Both Raghu Nath and Madan Lal

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are dead. The jamabandi for the year 1987-1988 showed Raghu Nath and Madan Lal, are in possession over the suit property. This entry is

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not rebutted by the plaintiff by leading clear and cogent evidence. From the record, it is correct that when an application for substitution of the entries in favour of Raghu Nath and Madan Lal, on the basis of earlier entries, as ‘gair marusi’ tenant over the suit property was preferred before the Assistant Collector 2^nd Grade, Jogindernagar, Raghu Nath and Madan Lal, both were alive, however, they expired during the pendency of an application before the Assistant Collector 2^nd Grade, Jogindernagar. The question, which involved, in this case, is that Raghu Nath and Madan Lal, were the tenants over the suit property at the time of coming into operation of H.P. Tenancy and Land Reforms Act, 1975. The proprietary rights vested with them automatically as per the provision of Section 104 of the H.P. Tenancy and Land Reforms Act, as they were ‘gair marusi’ tenant over the suit property. On the coming into force of the Act the conferment of the proprietary rights were automatic. So, it is Raghu Nath and Madan Lal, who are owner of the suit property and not the plaintiff. Mere existence of the revenue entries in the revenue record in their favour is of no consequence.

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The learned lower Appellate Court has rightly held that the plaintiff has no right, as he was not owner of the suit property to maintain the suit against the defendant, who was in possession of the suit property. Since the plaintiffs were not owner of the suit property, their arise no occasion to pay the rent by the defendant to the plaintiff.

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The right to institute a suit only lies with the legal heirs of

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Raghu Nath and Madan Lal and not with the plaintiff. So, substantial question of law No.1, is answered holding that the suit maintained by the plaintiff is bad for non-joinder of Raghu Nath and Madan Lal or their legal heirs, who are tenants and who have legally become owner of the suit property. The suit being bad for non joinder of necessary parties is required to be dismissed. As far as substantial question of law No.2 is concerned, plaintiffs are not owner of the suit land and they have no right to maintain suit and challenge the order of Assistant Collector 2^nd Grade, Jogindernagar. Admittedly, the defendant is having possession over the suit property and it is only the true owner, who can maintain the suit. Plaintiff not being owner of the suit property and in absence of the true owner, i.e. legal heirs of Raghu Nath and Madan Lal, cannot maintain the present suit. The plaintiffs were never owner of the suit land as owner of the suit land was Raghu Nath and Madan Lal, as the proprietary rights vested them automatically on coming into force the H.P. Tenancy and Land Reforms Act. The suit by stranger is not maintainable against a person in possession. This Court finds that the judgment passed by the learned lower Appellate Court, is after appreciating the facts and evidence, which have come on record to its true perspective. The documents are properly appreciated. The plaintiff, who is stranger, has no right to maintain the present suit.

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In view of the above discussion, the appeal of the

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appellants is without merit and deserves dismissal, hence the same is dismissed. In the peculiar facts and circumstances of the case, parties

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are left to bear their own costs. Pending application (s), if any, shall also stands disposed of.

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(Chander Bhusan Barowalia) 17^th July, 2017 Judge (CS)

Shashi Kumar v. Sunka Ram

Case brief

What is this about?

What did the court decide?

Shashi Kumar v. Sunka Ram

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

Parties & counsel

Coram

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