In a regular second appeal concerning a property suit, the single-judge High Court of Himachal Pradesh analyzed the transfer of tenancy rights to proprietary rights under the H.P. Tenancy and Land Reforms Act.
Appeal dismissed; parties to bear their own costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
RSA No. 422 of 2002 Reserved on: 08.08.2017 Decided on: 29.08.2017
__________________________________________________________ Ved Ram …..Appellant Versus Atma Ram and others ……Respondents ___________________________________________________ Coram_ The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge. 1 Whether approved for reporting? Yes.
For the appellant : Mr. Bhupinder Gupta, Senior Advocate with Mr. Neeraj Gupta, Advocate. For respondents No. 1(a) : Mr. Sanjeev Kuthiala, Advocate. to 1(c) None for other respondents.
For respondents No. 1(a) : Mr. Sanjeev Kuthiala, Advocate. to 1(c)
Chander Bhusan Barowalia, Judge
The present regular second appeal is maintained by the appellant, challenging the judgment and decree, dated 01.06.2002, passed by the learned District Judge, Kullu, H.P., in Civil Appeal No. 6 of 2002, whereby the judgment and decree, dated 22.11.2001,
1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
passed by the then sub-Judge, 1st Class, Manali, District Kullu, H.P., in Civil Suit No. 17 of 2001, was affirmed.
also liable to be modified and be modified. It is further averred that suit land comprised in Khata/Khatauni No. 10/14 to 19, measuring 10-19-0 bighas of Phati Riara, as per jamabandi for the years 1966-67 was entered in joint ownership of Shiam Chand, predecessor-in-interest of defendants No. 3 to 6, Maya Dass, Mehar Chand, Chanan Singh, Bishan Dass, defendants No. 2, 7 to 9, 10 & 12 and one Utti, predecessor-in-interest of defendants No. 7 to 9. However, as per family partition, the owners were in separate and specific possession of the land and thereafter as per their respective shares, they have been alienating the same. The plaintiff has claimed that he was tenant in possession over the suit land, under one Smt. Poshi, defendant No. 11, on payment of rent and subsequently vide mutation No. 859, dated 28.08.1991, got proprietary rights, under Section 104 of the H.P. Tenancy and Land Reforms Act (hereinafter to be called as “the Act”), since than he is absolute owner-in-possession of the suit land and defendants had no right, title or interest over the suit land. It is further averred that defendant No. 2, in connivance with
defendant No. 1, by making wrong revenue entries,
executed a fictitious registered sale deed, dated
06.01.2001, showing therein to have sold 25/72 share of the suit land to defendant No. 1 for a consideration of ` 80,000/(Rupees eighty thousand), on the basis of which, mutation No. 13, was sanctioned in favour of defendant No. 1. The sale deed is illegal and not binding upon the plaintiff and defendants be restrained from causing any interference in the peaceful possession of the plaintiff on the suit land.
of the plaintiffs by taking preliminary objections, viz., maintainability and that the plaintiff is not in possession of the suit land, neither tenant nor inducted as a tenant by any of the owner of the suit land, suit is time barred by resjudicata and under Rule 2, Order 2 CPC and suit was not properly valued for the purpose of court fee. On merits, it has been averred that the entries in the revenue record in favour of the plaintiff are fictitious, baseless, without material and were recorded behind the back of defendants, without their knowledge. It has been further averred that the defendants are joint owners-in-possession of the suit land and no family partition had ever been affected
among the co-owners of the suit land, for cultivatory purpose and they are in separate possession without partition. Defendants further declared that they had never inducted the plaintiff as tenant and mutation No. 859, dated 28.08.1991 is baseless and wrong. It was denied that defendant No. 2 has executed fictitious and illegal sale deed in favour of defendant No. 1, Maya Dass. Hence suit of the plaintiff deserves dismissal.
case.
following issues for determination and adjudication:
2. If issue No. 1 is proved in affirmative, whether the plaintiff is entitled for the relief of declaration as alleged? OPP
3. Whether the sale deed dated 06.01.2001 is liable to be declared null and void to extent to share of defendant No. 11 etc. etc., as allged? OPP
4. Whether the plaintiff is entitled for relief of injunction, as alleged? OPP
5. Whether the suit is not maintainable as alleged? OPD
6. Whether the suit of plaintiff is hit by the provision of resjudicata, as alleged, if so its effect? OPD
7. Whether the suit of plaintiff is hit by the provision of order 2, Rule II CPC, as allged, if so its effect? OPD
8. Whether the suit of plaintiff is time bar, as allged? OPD
9. Whether the suit of plaintiff is not properly valued for purpose of court fee jurisdiction, if so, what is proper value of suit and its effect? OPD
10. Whether the suit of plaintiff has got no cause of action, as alleged? OPD
11. Whether the suit of plaintiff is stopped to file present suit by his act, conduct and deeds, as alleged, if so its effects? OPD
12. Relief.”
second appeal, which was admitted for hearing on the following substantial question of law:
3. Whether the findings rendered by both the courts below that Shri Maya Dass was not having any share in the suit property are erroneous and perverse being against the entries in the revenue
records thereby declaring the sale deed executed in favour of the defendant-appellant to be illegal, null and void? Are not such findings based on misreading of material evidence and misinterpreting the entries in the revenue records?
appearing on behalf of the appellant/defendants has argued that the judgments and decrees, passed by the learned Courts below are against the law, there is nothing on record with respect to payment of rent and ` 5/-, which is mentioned as Mamla , cannot be termed to be rent as it is required to be paid to the State. He has further argued that there is no agreement otherwise also proving the payment of rent or creation of the tenancy, in these circumstances the very basis of the claim of the plaintiff goes and so the suit would have been dismissed, but the learned Courts below without appreciating the facts, which has come on record to its true perspective and by misinterpreting the documents, including revenue record produced before the learned trial Court, has given its findings, which are contrary to law and liable to be set aside. He has further argued that the AC, Second Grade has no powers to confer the
proprietory rights on the tenants. On the other hand, Mr. Sanjeev Kuthiala, learned counsel for the respondents/plaintiff has argued that the judgments and decrees, passed by both the learned Courts below are after appreciating the facts, which has come on record to its true perspective and needs no interference. In rebuttal, Mr. Bhupinder Gupta, learned senior counsel has argued that the revenue entries in favour of the respondents/plaintiff are duly rebutted and so the plaintiff could not derive any
benefit from the revenue entries which are not correct, as there is no order or agreement with regard to tenancy that started in the name of the plaintiff.
age. After the death of his father he has been paying rent and he used to pay the rent after visiting the house of Poshi, however, in the year, 1991, the ownership rights were conferred upon him under the Act. He has further stated that three months ago Ved Ram has threatened him that he should not spray in the fields, as Ved Ram has purchased the land. He has deposed that he came to know about the sale of the land three months thereafter and after getting papers from the Patwari, he filed the suit. In his crossexamination, he has deposed that Poshi was the only owner of the suit land and it is wrongly shown in the revenue papers that she was one of the co-owner. He has further deposed that the partition took place somewhere in summers and there was maize crop standing in the fields at that time. He has denied the suggestion that at that time, Poshi has sown maize crop. He has stated that Poshi is widow of Dhani Ram. He has further stated that he used to pay the rent in presence of Teja Singh and Chet Ram. He feigned ignorance about the fact that earlier the defendants were ruling Bara Garh. He has denied that Maya Dass was having right to sold his land. He has further
denied that earlier he has filed the suit for adverse possession, with respect to this suit land.
is owned and possessed by plaintiff, Atma Ram and he has seen the plaintiff in possession of the land since childhood. He has further deposed that the suit land is approximately 5 ½ bighas and his land is adjacent to the suit land. In his cross-examination, he has given detailed description of the land, though he could not tell the khasra numbers of the suit land. He has admitted that he is having relations with the plaintiff, however this witness has admitted that he has come to the Court to help the plaintiff, but he denied that he is deposing falsely. The plaintiff through his counsel has also tendered in evidence copy of jamabandi, Ext. P-1, copy of mutation, Ext. P-2 and copy of jamabandies, Ext. P- 3 to P-8.
on record the sale deed, Ext. PA, executed in his favour and stated that Poshi has sold her share to him and he has sold the same to Karam Chand, son of Sh. Salig Ram, resident of Mandi and at that time, the plaintiff has made no objection and he was tenant on the suit land. He has further admitted that he sold the land about 5 to 7 years ago. In his crossexamination, he has denied that the suit land is having 7 fields. He has feigned ignorance about the khasra numbers of the land and he could not give any description of the fields. He has stated that he did not know that in the year, 1991, the ownership rights were conferred upon the plaintiff. He has denied that Poshi has never sold any land to him,
however he has stated that the plaintiff never remained in possession of the suit land. He has further stated that he paid 1300/- as stamp duty and full consideration amount of 80,000/- to Maya Dass. He has denied that Maya Dass was not owner-in-possession of the suit land.
parties as they are in his relations and the suit land is 5 ½
bighas to 6 bighas which is 1 ½ Kms away from his house. He has further deposed that suit land is having 8 to 9 fields and
Maya Dass has cultivated Saag on the suit land. He stated that in February, March he has also planted the plants for Ved Ram. He has further stated that Atma Ram has never cultivated the suit land. He has deposed that the father of Atma Ram died before his childhood. In his crossexamination, though he has admitted the relationship with the Atma Ram, however he could not tell that Atma Ram is his uncle or someone else, as their relations are from the time of his father. He admitted that he is relative to the defendants and he has come to the Court to depose their favour. He has denied that earlier Nokhu and thereafter Atma Ram was a tenant over the suit land. He has admitted that he never cultivated the above land on behalf of Maya Dass and Ved Ram. He has further stated that adjacent to the suit land, there are land of Ved Ram and Maya Dass.
denied that earlier Nokhu and thereafter Atma Ram was tenant. He has admitted that in the year, 1991, after coming into force the Act, the land was mutated in the ownership of Atma Ram.
over the suit land. She could not say when Nokhu was expired. She has admitted that she sold 1-17-0 bighas land to Ved Ram for a consideration of ` 11,000/-. She has denied that only Atma Ram is the owner of the suit land. She has admitted that the Patwari used to go for gildavari on the suit land twice a year and he used to make the entries as per the spot position. She has further admitted that before Nokhu she was in possession of the suit land. She further admitted that she is living in a distant village. She feigned ignorance about the owners of adjoining land to the suit land. She has admitted that she sold the land to Ved Ram.
was tenant and after his death his son Atma Ram is a tenant
on the suit land. Ext. P-1, copy of Jamabandi for the year 1999-2000, shows that Poshi, being co-owner, has given land on tenancy and after coming into force the Act, ownership rights were vested in Atma Ram and this ownership entry in possessory column was probably made in view of the mutation No. 859, dated 28.08.1991, Ext. P-2 and vide this mutation under the Act, proprietory rights were conferred
upon Atma Ram. Whereas Ext. P-3, copy of jamabandi for the year 1966-1967 of the land of khata/khatauni No. 10/14 to 19, including the suit land under khatauni No. 18, khata No. 10 shows that the plaintiff is entered as tenant-at-will under Poshi, co-owner and rent payable mentioned therein is ` 5/-. Same entries are also mentioned in jamabandies Ext. P-4 to Ext. P-7.
record since 1966-67, it means that there was some arrangement qua cultivation or for purpose of convenience and co-owners put themselves in specific possession of the joint land and from such joint land, they had been selling and alienating the land, which was in possession of every co-owner. To prove this fact it is apt to discuss the evidence led by the defendants. DW-5, Poshi, has admitted that she sold 1-17-0 bighas land to Ved Ram for a consideration of ` 11,000/-, DW-1, Ved Ram has also admitted that he purchased share in the suit land from Poshi, which he subsequently sold to one Karam Chand. It means that after such family arrangement, co-owners have been alienating property in their possession without objection from any other co-sharer.
owner of the suit land. PW-2, Meen Chand has also seen plaintiff possessing the suit land after its purchase. He has
denied the plaintiff to be owner of the suit land on the ground that it was owned by Maya Dass. As far as DW-2, Jeet Ram is concerned, he specifically stated that the plaintiff had never possessed or cultivated the suit land. He has denied that the suit land was owned and possessed by Poshi and Nokhu as tenant. DW-3, Churamani, co-owner of the suit land has claimed that the suit land is jointly owned and possessed by all the co-owners and plaintiff and his father were never inducted as tenants thereupon, nor they ever paid any rent. He claimed getting the suit land cultivated through labourers and according to him mutation of ownership was wrongly sanctioned in favour of the plaintiff. Similarly, DW-4, Maya Dass has also denied the possession of the plaintiff as tenant. DW-5, Poshi, has denied the fact that plaintiff was inducted as tenant on rent of ` 5/per annum. She has admitted that Patwari had been effecting in khasra gildawari on the spot twice a year. She has also admitted that prior to Nokhu, she herself was owner-in-possession of the suit land.
question to the plaintiff that Poshi has sown the maize crop on the suit land, meaning thereby that the defendants admitted that the land was in the exclusive possession of Poshi. Further the defendants are not even aware about the numbers of the fields, this also shows that they are neither in possession of the land nor they know about the land. Even Ved Ram has admitted that Atma Ram was tenant on the suit land and this also clinches the issue, so it is safe to hold that the suit land has rightly been vested in the plaintiff.
holding that the plaintiff has become owner of the suit land on the basis of the conferment of the proprietory rights. Further the partition is proved to be on record, as DW-1 has admitted that Poshi has sown the maize crop on the suit land.
acceptance of the plea would negate the
accomplishment of the object of securing to the actual tiller proprietory rights in the land under his cultivation as a measure of land reforms envisaged in the Act.”
landlord, thus the findings of the learned Court below are as per law and after appreciating the facts, which has come on record to its true perspective and the law has correctly been applied, in fact, the defendants have tried to play fraud by selling land to one of the defendant and to other persons to nullify, the proprietory rights of which were vested in the plaintiff, so the substantial question of law No. 2 is answered accordingly. As far as substantial question of law No. 3 is concerned, the findings of the learned Court below that Maya Dass is not having any share in the suit property is correct, as per the evidence, which has come on record, it was Poshi, who was owner of the suit land after the land was partitioned inter se the co-sharers, thus the learned Court below has correctly appreciated the evidence, pleadings and the documents, which has come on record to its true perspective.
also stand(s) disposed of.
(Chander Bhusan Barowalia) Judge
29th August, 2017
(raman)
3 issues framed by the court
Whether the co-owner can induct a tenant over a joint land without the consent of other co-owners affecting materially their share when partition is not proved?
Whether a mutation conferring proprietary rights can be relied upon as a foundation of title even if the initial contract of tenancy and proper procedure were not proved?
Whether the finding excluding the share of Maya Dass in the suit property is erroneous and perverse against the entries in the revenue records?
Colour shows how this judgement treated each authority
Chuniya Devi Vs. Jindu RamExplained¶95
Chuniya Devi Vs. Jindu Ram, SLC, 223
1 provisions across 1 enactments
Ved Ram
Atma Ram
Chander Bhusan Barowalia
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
Chander Bhusan Barowalia
Parties & counsel
