Dismissed

Roshan Lal deceased through Lrs. Lalita Devi Ors. v. Ramesh Chand

Himachal Pradesh HC24 Jul 2017RSA/454/2007

Case brief

AI extract

What is this about?

In a second appeal regarding land ownership, the Court held that while revenue entries generally carry a presumption of truth, this presumption was rebutted here as the challenged entries were created without the plaintiffs' knowledge or a valid court order following the H.P. Tenancy and Land Reforms Act. Consequently, the plaintiffs' automatic ownership rights as former non-occupancy tenants were

What did the court decide?

The appeal was dismissed with no costs awarded; parties bear their own costs.

Roshan Lal deceased through Lrs. Lalita Devi… — Specific Performance | Himachal Pradesh HC (2017)

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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

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RSA No. 454 of 2007 Reserved on: 18.07.2017 Decided on: 24.07.2017

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Roshan Lal deceased through LRs Lalita Devi & ors

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…..Appellants Versus

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Ramesh Chand & another

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……Respondents

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___________________________________________________ Coram_

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The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge. 1 Whether approved for reporting? Yes.

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For the appellants Mr. G.D. Verma, Sr. Advocate with Mr. B.C. Verma, Advocate. For the respondents. Mr. Dushyant Dadwal, Advocate.

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Chander Bhusan Barowalia, Judge

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The present regular second appeal is

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maintained by the appellants, who were the defendants before the learned Trial Court (hereinafter referred to as “the defendants”), challenging the judgment and decree, dated 26.07.2007, passed by learned District Judge, Kangra at Dharamshala, H.P., in Civil Appeal No. 146-P/XIII of 2005,

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

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whereby the judgment and decree, dated 23.09.2005, passed by learned Civil Judge (Senior Division) Palampur, District Kangra, H.P., in Civil Suit No. 96 of 2002, was set aside.

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Tersely, the key facts, which are indispensable

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for determination and adjudication of the present appeal, are that the plaintiffs, maintained a suit for declaration to the effect that they, being non-occupancy tenants of the suit land, comprised in Khata No. 8 min, Khatauni No. 17, Khasra No. 451, measuring 0-61-25 hectares, situated at Mohal Rathan, Mouza Maniara, Tehsil Palampur, District Kangra, H.P. (hereinafter to be called as the “suit land”) by operation of H.P. Tenancy and Land Reforms Act (hereinafter to be called as “the Act”), have now become owners of the suit land and now in possession of the same,

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hence the order, dated 02.08.1976, passed by learned Assistant Collector 1^st Grade, Palampur, implemented by Rapat No. 299, dated 14.05.1980, be declared illegal, null and void and also claimed a decree for permanent prohibitory injunction, restraining the defendants from interfering in the suit land. The said relief has been claimed

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on the ground that the father of the plaintiffs was a tenant over the suit land and by operation of H.P. Tenancy and Land Reforms Act has become owner of the suit land. It was further been averred in the suit that the defendants have no right, title or interest over the suit land, however the defendants, in connivance with the revenue staff, have procured entry of correction in their favour in respect of the land, measuring 0-34-60 hectares, out of the suit land, illegally and against the procedure, whereas the plaintiffs or their predecessor-in-interest were neither served nor associated in the proceedings of correction and all such proceedings were performed behind their back. It has been further alleged that on inquiry, it was found that no such missal or file pertaining to the correction application is on record and the entry of the remarks column, showing 0-3460 hectares out of the total land, in favour of the defendants is illegal, null and void. It has been further averred that cause of action accrued in the year, 1980, when the order of correction was passed without the knowledge of plaintiffs and in May, 2002, when the defendants started encroachment over the suit land.

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The defendants, contested and resisted the suit

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of the plaintiffs by taking preliminary objections, viz., maintainability, jurisdiction, cause of action, non-joinder of necessary parties, limitation, valuation, estoppels and locus standi. On merits, it has been averred that the entries showing the predecessor-in-interest of the plaintiffs, namely Prabhu and the plaintiffs as tenants of the defendants, qua the suit land, are wrong and incorrect, as neither they were inducted by the defendants as tenants, nor they remained in possession of the suit land and, so, the Assistant Collector 1^st Grade, Palampur, has rightly passed the order on the basis of actual possession over the suit land. It has been further averred that the plaintiffs and their forefather were wrongly shown in possession of the suit land, upon which the defendants filed an application for correction of revenue entries before the Assistant Collector 1^st Grade, Palampur, who after conducting the detailed inquiries, has rightly ordered for correction of the revenue entries and order passed by the Assistant Collector 1^st Grade, Palampur, is legal and the suit of the plaintiffs deserve dismissal.

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4. The learned Trial Court on 20.07.2004 framed the

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following issues for determination and adjudication:

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“1. Whether the plaintiffs have become owners of the suit land, as alleged? OPP

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2. Whether the order of correction dated 02.08.1976 and its implementation vide Rapat No. 299, dated 14.05.1980, by A.C. 1^St Grade, is illegal, wrong, null and void, as alleged? OPP

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3. Whether the plaintiff is entitled to the relief of permanent prohibitory injunction, as prayed for? OPP

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4. Whether the suit is not maintainable? OPD

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5. Whether this Court has no jurisdiction to try this suit? OPD

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6. Whether the plaintiffs have no cause of action and locus standi to file the present suit? OPD

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7. Whether the suit is bad for non-joinder and mis-joinder of parties, as alleged? OPD.

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8. Whether the suit is time barred? OPD 9. Whether the suit is not properly valued for the purpose of Court fees and jurisdiction? OPD

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10. Whether the plaintiffs are estopped by their acts and conduct to file the present suit? OPD

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11. Relief.”

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After deciding issues No. 1 to 5, 7, 9 & 10 in

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negative and issued No. 6 & 8 in affirmative, the suit of the plaintiffs was dismissed. Subsequently, the plaintiffs preferred an appeal before the learned Lower Appellate Court which

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was allowed and the suit of the plaintiffs was decreed. Hence the present regular second appeal, which was admitted for hearing on the following substantial questions of law:

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“1. Whether presumption of truth is attached to the Revenue entries and these entries does not support the claim of plaintiffs on the point of tenancy.

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2. Whether the claim of the plaintiff is belied by the entries in Jamabandies Ext. P-1 and Ext. P-2, which are contradictory.”

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Learned counsel for the appellants has argued

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that the as per the plaintiffs, cause of action arose in the

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years 1976, 1980 and 2002, but if cause of action arose in the above said years, the suit is much beyond the limitation. He has further argued that Civil Court has no jurisdiction to adjudicate the present case, as it was a tenancy dispute of agricultural land. On the other hand learned counsel for the respondents has argued that cause of action accrued only in the year, 2002, when the defendants started interfering in the suit land. He has further argued that plaintiffs were having no knowledge with respect to the change of revenue entries and the order regarding change in revenue entries has been passed behind their back. In rebuttal,

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learned counsel for the appellants has argued that suit is time barred and without any cause of action, hence the same may be dismissed.

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In order to appreciate the rival contentions of the parties, I have gone through the record carefully.

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At the very outset, it is observed that earlier the suit land was under tenancy of the predecessors of the plaintiffs and it is only in the year, 1976, when allegedly some order was passed, on the basis of which, in the year 1980, entries in the revenue record were changed. As per the plaintiffs, they only came to know about these entries in the year, 2002 and immediately thereafter they filed the suit. As far as the limitation is concerned, the same is of one year from the date of passing of the order, however in the instant case, no order has ever been produced by the defendants and they only state that some order was passed in the year, 1976. At the same point of time, the plaintiffs, being sons of late Shri Prabhu, have claimed decree for declaration to the effect that they be declared as owners-in-possession of the suit land, as no order was never passed by Assistant Collector 1^st Grade, Palampur,

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hence implementation of the said order by Rapat No. 299, dated 14.05.1980, is null and void. The plaintiffs also sought decree for permanent prohibitory injunction, restraining the defendants from interfering in the possession of the suit land,

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on the premise as their father was a tenant over the suit land and they have now become owners after coming into force the Act. On the other hand, this fact has been opposed by the defendants by setting up a case that neither Prabhu, nor the plaintiffs were ever inducted as tenants, thus they are not in possession of the suit land and the order passed by Assistant Collector 1^st Grade, is legal and valid.

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One of the plaintiffs, Sh. Ramesh Chand, has stepped into the witness box as PW-1 and deposed that earlier the suit land was being cultivated and possessed by his father and thereafter they are cultivating the suit land and possessing the same, as non-occupancy tenants on payment of rent. This witness, in his cross examination, has denied that the defendants are not receiving the rent.

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PW-2, Joginder Singh, has deposed that the defendants are the owners of the suit land and Prabh

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Dayal, father of the plaintiffs, was in possession of the same. He has further deposed that previously the suit land was being cultivated by Prabh Dayal, and thereafter by the plaintiffs, who cultivated the suit land till, 2002 and thereafter the defendants have started interference in the suit land. In his cross-examination, he has completely denied the possession of the defendants over the suit land. 11. As per the entries made in the copy of Missal Haqiyat Instemal (Ext. P-3), land comprised in Khasras No. 284, 285, 286, 287, 299, 300 & 302, measuring 13 kanals, 7 marlas has been recorded in the ownership of Atma Ram, father of the defendants and Prabhu, father of the plaintiffs, as non occupancy tenant, on payment of rent in the shape of one third share of the produce as rent. However, in the copy of Jamabandi, for the year 1966-67 (Ext. P-2), land comprised in Khasras No. 286 & 287, measuring 2 kanals, 7 marlas, shown to be recorded in the ownership and possession of Atma Ram, whereas the land comprised in Khasras No. 284, 285, 299, 300 and 302, measuring 11 kanals, shown to be recorded in possession of Prabhu, father of the

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plaintiffs, as a non occupancy tenant on payment of one third share of the produce.

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As per the copy of Missal Haqiyat Instemal for

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the year 1960-61 (Ext. P-3), the rent has been shown one third of the share of the produce and the same was changed and came to be recorded against the payment of one and half share of the produce in the copy of Jamabandi (Ext. P-2) and Missal Haqiyat Bandobast Jadid (Ext. P-1). In the copy of Jamabandi for the year 2000-01, one fourth of the share of the produce has been shown as rent, however no such order showing the change in the amount of rent has been produced or proved on record, hence the said entries regarding the change of rent in column No. 9 of copy of Jamabandi (Ext. P-2), Missal Haqiyat Bandobast Jadid (Ext. P-1) and in copy of Jamabandi for the year 2000-01 (Ext. P-4), are without there being any basis and, therefore, such change in the amount of rent seems to be fictitious. Even, as per the note given in the remarks column of the copy of Missal Haqiyat Bandobast Jadid (Ext. P-1), no change in the rent, which was being paid by Prabhu, in favour of the landlord, has

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been shown to exist. Further the defendants have also not placed on record the copy of alleged order passed by the Assistant Collector, dated 02.08.1976. The order, dated 02.08.1976 is shown to have been passed after coming into effect the provisions of the Act. Thus, after enactment of the said Act, Prabhu, non occupancy tenant has automatically became owner of the suit land, however, it was not explained, as to why the entries to this effect are not updated. Further the defendants have neither pleaded the relinquishment or abandonment of the tenancy, nor such abandonment or relinquishment of tenancy could be done by the tenant in favour of the land owner, after coming into

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force the said Act. In the rent column of all the documents i.e., Ext. P-1 to Ext. P-4, the payment of rent has been shown in favour of the landlord by Prabhu (father of the plaintiffs), however learned trial Court without appreciating the said revenue entries, has erroneously held that no rent was shown to be paid by the plaintiffs in favour of the defendants. The defendants, in their evidence, were bound to produce and prove the order, passed by the Assistant Collector, however no such order was produced or proved.

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After coming into force the Act, the landlord was egible to apply for resumption of the tenancy, but no document has been placed on record by the defendants to prove that they made any resumption application before the Land Reforms Officer. As per Section 29 of the Himachal Pradesh Tenancy and Land Reforms Rules, 1975, if dispute regarding the entries of the land records arises, the Land Reforms Officer, in his capacity as Assistant Collector 1^st Grade, shall decide the dispute under Sub-section (4) of Section 104, in accordance with the relevant provisions of the Punjab Land Revenue Act, 1887, or the Himachal Pradesh Land Revenue Act, 1954, as the case may be, in a summary manner. However, no such order, which was passed by the Assistant Collector 1^st Grade, in the capacity of Land Reforms Officer, has been produced in evidence. Even, in the note given with red ink in remarks column of Missal Haqiyat Bandobast Jadid (Ext. P-1), the alleged order has not been shown to have been passed by the Assistant Collector 1^st Grade, in the capacity of Land Reforms Officer, but the same has shown to have been passed by the Assistant Collector. Prabhu, father of the plaintiffs, is being recorded in

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possession of the suit land since the year 1960-61 till the Missal haqiyat Bandobast Jadid (Ext. P-1) was prepared. Accordingly, it is safe to hold that Prabhu, father of the plaintiffs is in possession of the suit land as a non occupancy tenant on payment of rent and by virtue of the provisions of Act, the plaintiffs shall be deemed to have become the owners of the suit land automatically.

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It is a matter of fact that the proprietary rights vested in the plaintiffs, when the Act was notified and the predecessor-in-interest of the plaintiffs became owner of the suit land automatically, being non occupancy tenant and the order, which was neither produced by the defendants nor the plaintiffs were associated in the proceedings of correction makes it evidently clear that the entries were without any basis, accordingly, substantial question of law No. 1 is answered holding that though the presumption of truth is attached to the revenue entries, but in the present case the revenue entries came into existence without knowledge of the plaintiffs, as the change has come on a day when the proprietary rights vested in the predecessor of the plaintiffs without any oder. Why the

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change came into existence at that time, is un-explained, so the presumption of truth attached to the revenue entries in the present case is rebutted and the presumption of truth to the revenue entries existing in favour of the defendants is not there, rather the presumption is with the revenue entries existing in favour of the father of the plaintiffs, as non occupancy tenant. The revenue entries existing in favour of the defendants are of no consequence, as the change is not explained by the defendants.

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At the same point of time, there is nothing on record to show that at any point of time the proceedings of correction remained pending with the authorities, or the plaintiffs were having any knowledge with respect to correction of the revenue entries. So, the suit maintained by the plaintiffs is within limitation from the date of the knowledge, i.e., 2002, immediately whereafter the suit was filed. However, there is nothing on record to show that the plaintiffs were having knowledge, with regard to Ext. P-1 & P-2, entries in Jamabandi, which were incorporated behind the back of the plaintiffs and their father, as the plaintiffs, were recorded as non occupancy tenant and there is no

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order of the competent authority regarding change of revenue entries and the said entries were changed immediately after coming into operation of the Act, which automatically vests ownership rights in the tenants i.e., plaintiffs. In these circumstances, when the plaintiffs have become owners of the suit land automatically, the entries in Jamabandies, Ext. P-1 & P-2, are of no help to the defendants. Therefore, substantial question of law No. 2 is answered accordingly.

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The net result of the above discussion is that the instant appeal, sans merits, deserves dismissal and is dismissed. However, in view of peculiar facts and circumstances of the case, the parties are left to bear their own costs.

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Pending miscellaneous application(s), if any, also stand(s) disposed of.

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(Chander Bhusan Barowalia) Judge

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24^th July, 2017 (raman)

Roshan Lal deceased through Lrs. Lalita Devi Ors. v. Ramesh Chand

Case brief

What is this about?

What did the court decide?

Roshan Lal deceased through Lrs. Lalita Devi Ors. v. Ramesh Chand

Case brief

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What did the court decide?

What the court decided

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Statutes considered

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