Allowed

Chuni Lal v. Ajay Kumar

Himachal Pradesh HC12 Dec 2022RSA/625/2009

Case brief

AI extract

What is this about?

The High Court allowed the appeal and set aside the lower courts' decree in favor of the plaintiff for possession. The court held that subsequent revenue entries, based on a 2013 order, correctly recorded the respondent as a tenant, entitling him to proprietary rights under the H.P. Tenancy and Land Reforms Act, thus defeating the plaintiff's title.

What did the court decide?

The appeal is allowed; the impugned judgments and decree are set aside; the plaintiff's suit is dismissed with no orders as to cost.

Chuni Lal Vs Ajay Kumar — Land Acquisition | Himachal Pradesh HC (2022)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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	RSA No. 625 of	2009
	Reserved on:	24.11.2022
	Date of decisio	n : 12.12.2022.
Chuni Lal		...Appellant
	Versus
Ajay Kumar		...Respondent

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Coram:

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The Hon’ble Mr. Justice Satyen Vaidya, Judge .

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Whether approved for reporting?¹ Yes. For the appellant : Mr. Ashok Chaudhary, Advocate. For the respondent : Mr. Ajay Kumar Dhiman, Advocate.

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Satyen Vaidya, Judge:

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CMP No. 4436 of 2015

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By way of instant application, the

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applicant/appellant has prayed for placing on record copy of order dated 7.2.2013, passed by Land Reforms Officer in case titled Chuni Lal vs. Om Prakash and copy of “Jamabandi” for the year 2009-10 in respect of Khasra No. 507. Noticeably, the application for additional evidence was filed in the year 2015 but despite opportunities, respondent did not file any reply to the application.

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

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The applicant/appellant has sought to place on record certified copy of order dated 7.2.2013, passed by Assistant Collector-cum-Land Reforms Officer, Jawali, District Kangra, H.P. in proceedings between the same parties which are before this Court in the instant appeal. In addition, a copy of Jamabandi for the year 2009-10 pertaining to suit land has also been sought to be produced, in the remarks column of which, an entry has been reflected to have been incorporated in pursuance to order dated 7.2.2013, passed by Assistant Collector-cum-Land Reforms Officer, Jawali, District Kangra. Both these documents are relevant and necessary for adjudication of the instant appeal, hence the application is allowed and both the above mentioned documents are taken on record in evidence. Since both the documents are per-se admissible, no formal proof is required.

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RSA No. 625 of 2009

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By way of instant appeal, appellant has assailed judgment and decree dated 5.11.2009, passed by the learned District Judge (1), Kangra at Dharmshala, H.P. in Civil Appeal No. 80-J/08, whereby judgment and decree dated 2.6.2008, passed by learned Civil Judge (Jr. Division), Jawali, District Kangra, in Civil Suit No. 116/04, was affirmed.

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Parties hereafter shall be referred by the same status as they held before learned trial Court. Respondent herein was the plaintiff and appellant herein was the defendant. 3. The facts necessary for adjudication of the instant appeal are that the plaintiff filed a suit seeking relief of possession of suit land, comprised in Khasra No. 507, measuring 0-19-44 hects., situated in Mohal Dhasoli-Shikli, Mauza Dhasoli, Tehsil Jawali, District Kangra, H.P., on the premise that plaintiff was recorded as one of the co-owners of suit land and the possession of defendant over the same was without any right, title or interest. On the other hand, defendant alleged that the suit land comprised in Khasra No. 507 was part of old Khasra No. 247. Defendant further claimed that he was inducted as a tenant by the predecessor-in-interest of plaintiff in the entire area of land earlier comprised in Khasra Nos. 246 and 247. On coming into force of H.P. Tenancy of Land Reforms Act, the defendant acquired title over the same, save and except the portions of land resumed by land owners. As per defendant, mutation No. 340 dated 25.7.1981 was attested and at the time of such attestation, the proprietary rights were conferred upon the defendant only in respect of Khasra No. 246 and part of Khasra No. 247, whereas the

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mutation should have been sanctioned qua the whole of the land comprised in Khasra Nos. 246 and 247. Thus, entry of “ Kabiz” of defendant in Khasra No. 507 in post settlement revenue records was termed to be wrong and illegal. Defendant had further averred in the written statement that he had already taken recourse to legal proceedings for correction of entries and the matter was sub-judice before revenue authorities.

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On the basis of pleadings of the parties, the learned trial Court framed following issues:-

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“1. Whether the plaintiff is entitled for vacant possession of the suit land, as alleged? OPP.

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Whether the defendant has become owner of the suit land after the enforcement of H.P. Tenancy and Land Reforms Act? OPD.

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Whether the plaintiff is stopped by his act and conduct from filing the present suit, as alleged? OPD

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Whether the suit of the plaintiff is not maintainable in the present form? OPD

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Relief.”

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Issue No.1 was decided in affirmative and remaining

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issues were decided in negative and the suit of the plaintiff was decreed and a decree of possession was passed in favour of

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plaintiff in respect of the suit land comprised in Khasra No. 507.

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Defendant filed appeal before learned Lower Appellate Court under Section 96 of CPC but he remained unsuccessful, hence the present appeal.

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Vide order dated 25.3.2010, the appeal of defendant has been admitted by this Court on the following substantial questions of law:-

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“1. Whether the learned courts below have failed to appreciate the evidence on the record particularly Ext. D-1, copy of Jamabandi for the year 1975-76 wherein the appellant is the tenant over the suit land comprising old Khasra Nos. 246 and 247.

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Whether the impugned judgment and decree is contrary to the mandatory provisions particularly Section 104 of the H.P. Tenancy and Land Reforms Act whereby the propriety rights over the suit land have not been conferred upon the appellant qua the suit land on the operation of H.P. Tenancy and Land Reforms Act.”

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I have heard learned counsel for the parties and have also gone through the records carefully.

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Document Ext. D-1, Jamabandi for the year 197576 reveals that the defendant was recorded as a tenant under

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predecessor-in-interest of plaintiff and other co-owners in respect of entire area of Khasra Nos. 246 and 247. Ext. D-2 is a copy of mutation No. 340, by virtue of which, the proprietary rights acquired by defendant were recorded in the records of rights. Mutation order dated 25.3.1981 Ext D-2 reveals that the plaintiff was ordered to be recorded as owner in possession of Khasra Nos. 246 and 247 Min, corresponding to latest Khasra No. 454, measuring 0-70-50 hects. Accordingly, the subsequent revenue entries were carried in subsequent Jamabandies.

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Both the courts below have proceeded to decree the suit in favour of plaintiff on the premise that the presumption of truth was attached to the revenue entries and the defendant was simply holding the possession of suit land and was so recorded in the revenue records. Since the suit of plaintiff was on the basis of title, he was held entitled to possession of the suit land from defendant. Both the learned courts below placed reliance on the contents of mutation order and the subsequent entries in records of rights by attaching the presumptive value.

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It had been the case of defendant throughout that the bifurcation of old Khasra No. 247 at the time of mutation

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was wrong and illegal and he was holding the entire land comprised in Khasra No. 247 (old) as tenant and accordingly, the proprietary rights in entire said land had vested in him on coming into force of H.P. Tenancy of Land Reforms Act. Defendant had also specifically averred that he had taken the recourse to legal proceedings under the provisions of H.P. Land Revenue Act and H.P. Tenancy of Land Reforms Act for correction of revenue entries. However, both the courts below had ignored such fact. Thus, the suit of the plaintiff was decreed by learned trial Court and such decree was affirmed by learned Lower Appellate Court only on the presumptive value of revenue entries.

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The appeal of defendant before learned Lower Appellate Court was decided on 5.11.2009. It is after said decision and during the pendency of instant appeal that the application of defendant before competent revenue authorities for correction of entries was decided on 7.2.2013 and a copy of which is now brought on record by virtue of allowance of CMP No. 4436 of 2015. Perusal of said order reveals that the revenue entry was ordered to be corrected vide aforesaid order. The suit land was ordered to be recorded in possession of defendant as a tenant. Accordingly, mutation No. 275 was

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attested and in the remarks column of Jamabandi for the year 2009-10, the defendant has been shown as tenant in Khasra No. 507. As a necessary consequence, the defendant will be deemed to have acquired proprietary rights under the H.P. Tenancy and Land Reforms Act. In this manner, the better title of defendant over the suit land has been proved. Noticeably, the plaintiff did not contest the averments made in CMP No. 4436 of 2015 in which the defendant had specifically pleaded that order dated 7.2.2013, passed by Assistant Collector-cumLand Reforms Officer, Jawali had attained finality as none of the parties had challenged the same. Even otherwise, the application of defendant for producing additional evidence in the shape of aforesaid order and Jamabandi remained pending since 2015 and nothing contrary has been shown on behalf of plaintiff throughout such period.

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Order dated 7.2.2013, passed by Assistant Collector-cum-Land Reforms Officer is an order, passed by the authority having jurisdiction to pass such order. Therefore, such order has already been given effect in the revenue records, which carries presumption of truth unless rebutted. As noticed above, there is no rebuttal to such fact, which stands proved on record.

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Substantial questions of law are answered accordingly in light of above discussion, and the appeal of the defendant is allowed. Judgment and decree dated 5.11.2009, passed by the learned District Judge (1), Kangra at Dharmshala, H.P. in Civil Appeal No. 80-J/08, whereby judgment and decree dated 2.6.2008, passed by learned Civil Judge (Jr. Division), Jawali, district Kangra, in Civil Suit No. 116/04, was affirmed, is set aside and the suit of the plaintiff is ordered to be dismissed with no orders as to cost. Decree Sheet be prepared.

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Records of the learned courts below be returned

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forthwith.

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(Satyen Vaidya) 12^th December, 2022 Judge (kck)

Chuni Lal v. Ajay Kumar

Case brief

What is this about?

What did the court decide?

Chuni Lal v. Ajay Kumar

Case brief

What is this about?

What did the court decide?

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