Pushap Raj Vs Khoob Ram and others

For the Appellants : Mr Mohinder Verma, Advocate. For respondent No.1 : Mr Y.P. Sood, Advocate. For respondents No.3 to 10 : Ms Mamta Bhatwan, Advocate.

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None for respondents No. 2(a) and 2(b).

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Name of respondent No.2(c) stands deleted vide order dated 18.07.2011

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Rakesh Kainthla, Judge

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The present appeal is directed against the judgment and decree dated 09.01.2008 passed by learned Additional District Judge Mandi camp at Karsog, (learned Appellate Court)

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vide which the judgment and decree dated 31.05.2004 passed by

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

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learned Civil Judge (Junior Division), Karsog District, Mandi H.P (learned Trial Court) were upheld. (The parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience)

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Briefly stated, the facts giving rise to the present appeal are that the plaintiff filed a suit before the learned Trial Court against the defendants for seeking a declaration that he is the owner in joint possession with defendant no. 1 of the suit land mentioned in para-1 of the plaint to the extent of half share, and the entry in the name of defendant no. 1 showing him to be the owner of the whole share is null and void. A consequential relief of permanent prohibitory injunction for restraining the defendants from alienating the suit land or creating any charge over it was also sought. It was pleaded that the plaintiff is the owner of the half share of the suit land. The defendant no. 1 filed an application for correction of revenue entries before Assistant Collector First Grade, Karsog, against Achhru, the predecessor-in-interest of the plaintiff, and others. Assistant Collector First Grade wrongly ordered that defendant no. 1 be recorded as a non-occupancy tenant of the suit land. The defendant no. 1 never came into possession, and the order is

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bad. Defendant No. 1 was claiming a right based on the entries made in his favour. Hence, the suit was filed to seek the relief mentioned above.

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The suit was opposed by filing a written statement, taking preliminary objection regarding the suit being barred by limitation, the plaintiff being estopped from filing the suit by his act and conduct, the suit being bad for misjoinder and nonjoinder of the parties, the plaintiff being out of possession and not entitled to maintain a suit for declaration, the suit having not been properly valued for the court fees and jurisdiction, and the Court having no jurisdiction to hear the dispute. The contents of the plaint were admitted to the extent that Achhru was the owner of the suit land. It was asserted that the suit land was in the ownership of Luharu, Parsu and their sister Ghogli. Luharu and Parsu gave the suit land to defendant no. 1 for cultivation on the payment of the rent. The defendant no. 1 used to pay rent to Luharu till 1972- 1973 and thereafter to Parsu. Defendant no. 1 filed an application for correction of the revenue entries. The Field Kannungo conducted a detailed inquiry and found the defendant no. 1 to be in possession as a non-occupancy tenant. Parsu had also executed a will of his

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share in favour of defendant no. 1. The suit was filed without any

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basis. Hence, it was prayed that the suit be dismissed.

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A replication denying the contents of the written statement and affirming those of the plaint was filed.

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The following issues were framed by the learned Trial Court on 03.07.2003:

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Whether the plaintiff is owner in possession to the extent of half share in the suit land? OPP

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Whether the order passed by Assistant Collector First Grade, Karsog, dated 02.05.1994 in file No.9 is illegal, null and void?OPP

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Whether the revenue entries showing the defendant No.1 as the exclusive owner in possession are illegal, null and void?OPP

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Whether the plaintiff or his grandfather never inducted the defendant No.1 as tenant in the suit land? OPP

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Whether the plaintiff is entitled for the decree of joint possession in the suit land?OPP

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Whether the mutation No. 98 dated 28.10.2002, conferring the proprietary rights on the defendant No.1 under Section 104 of H.P. Tenancy and Land Reforms Act, is liable to be set aside?OPP

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Whether this suit is time-barred?OPD

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Whether the plaintiff is estopped from filing the suit by his act, conduct and deed?OPD

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Whether this suit is bad for non-joinder and mis-joinder of necessary parties?OPD

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Whether this suit is not maintainable as the plaintiff is out of possession?OPD

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Whether this suit is not properly valued for the purpose of court fee and jurisdiction? OPD

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Whether this Court has no jurisdiction to try the present suit? OPD

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Whether the defendant No.1 was inducted as tenant by plaintiff and his predecessor-in-interest and proprietary rights has been rightly entered?OPD

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Relief.

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The parties were called upon to produce the evidence, and plaintiff examined himself (PW1), the defendant no. 1 examined himself (DW1), Narad Ram (DW2) and Sant Ram (DW3).

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Defendant No.1 died during the pendency of the suit, and his legal representatives were brought on record.

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Learned Trial Court held that Defendant no. 1 had applied for the correction of the revenue entries in his favour. The suit land was owned by Parsu and Ghogli. Most of the share of Ghogli was inherited by Achhru, who executed a Will in favour of the plaintiff. Defendant No. 1 was not inducted as a tenant. The column of rent does not mention anything, and the person aggrieved by the revenue entries was competent to file the suit based on his title. Hence, the learned Trial Court

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answered issue Nos. 1 to 6 in the affirmative, issue Nos. 7 to 13 in the negative and decreed the suit filed by the plaintiff.

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Being aggrieved by the judgment and decree passed by the learned Trial Court, the legal heirs of defendant no. 1 filed an appeal, which was decided by the learned Additional District Judge, Mandi, camp at Karsog (learned Appellate Court). The Appellate Court concurred with the findings recorded by the learned Trial Court that Luharu was an occupancy tenant of the suit land who became the owner after the commencement of the HP Tenancy and Land Reforms Act. The suit land was inherited by Parsu and Ghogli to the extent of a half share each. The share of Ghogli was inherited by Achhru, who had bequeathed his half share in favour of the plaintiff. Defendant no. 1 or his father was never inducted as a tenant by the predecessors-in-interest of the plaintiff or by Luharu. He had never paid any rent to Luharu. The entry in favour of defendant no. 1 was incorrect. There was no infirmity in the judgment and decree passed by the learned Trial Court. Hence, the appeal was dismissed.

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Being aggrieved by the judgments and decrees passed by learned Courts below, the legal heirs of the defendant

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No. 1 have filed the present appeal, which was admitted on the

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following substantial questions of law on 01.06.2010:

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Whether the subject matter of dispute regarding the claim of tenancy by the defendant over the suit land could not be adjudicated upon by the civil court, and the orders regarding conferment of ownership rights could not be interfered with?

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Whether the plaintiff, having raised a plea of acquiring title by virtue of a will, tenancy and adverse possession being mutually destructive, could not be entertained.

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I have heard Mr Mohinder Verma, learned counsel

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for the appellants, Mr Y.P. Sood, learned counsel for respondent No.1 and Ms Mamta Bhatwan, learned counsel for respondents No.3 to 10.

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Mr Mohinder Verma, learned counsel for the appellants, submitted that the order was passed by the Land Reforms Officer, and the Civil Court had no jurisdiction to set aside the order passed by the competent authority. The plaintiff claimed that he had become the owner by way of the Will executed by Achhru, and that he was a tenant of the suit land. Both these pleas contradicted each other because the tenancy rights cannot be bequeathed by way of a Will. The learned courts below failed to appreciate this aspect. Hence, he prayed that the present appeal be allowed and the judgments and decrees

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passed by the learned Courts below be set aside. He relied upon

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the following judgments in support of his submissions:

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1. Gopal Krishan vs. Jagtamba Parsad and others 2002 (1) Shim. LC 132.

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2. State of Rajasthan and others vs. Shiv Dayal and another (2019) 8 Supreme Court Cases 637.

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3. R. Suseela Devi vs. Kerala Public Service Commission (1998) SCC 242.

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4. Dharmi vs. Jania and Ors. Latest HLJ 2011 (HP) 3.

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5 . R. Ravindra Reddy and others vs. H. Ramaiah Reddy and others (2010) 2 SCC 214.

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Mr Y.P. Sood, learned counsel for respondent no. 1,

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submitted that both the learned Courts below have concurrently held that the defendant no. 1 had not paid any rent to the owners. Mere entry of a person to be in possession without the payment of rent was not sufficient to confer the rights of ownership upon a person. This Court should not interfere with the concurrent finding of facts recorded by the learned Courts below. Hence, he prayed that the present appeal be dismissed. He relied upon the judgments in Nirmala Devi and others vs. Pyar Chand and others, RSA No. 328 of 2005, decided on 22.05.2006, Varinder Kumar vs. Hajra & others 2024:HHC:6713 and State of H.P and Ors vs. Ajay Vij and others 2011:HHC:464 in support of his submissions.

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I have given a considerable thought to the submissions made at the bar and have gone through the records carefully.

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Substantial Question of Law No.1 :

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Defendant No.1 filed an application for the correction of the revenue entries before Assistant Collector 1^st Grade. He claimed in his application (Ext.P3) that he was in possession of the land for about 25 years. Therefore, an entry should be made in his favour. Learned Assistant Collector First Grade held vide order dated 02.05.1994 (Ext.PF) that the defendant no. 1 was found to be in possession, and the report of the field agency recommended that the name of defendant no. 1 be recorded in the column of possession. Defendant No. 1 was found to be in possession for about 30 years. Therefore, his name will be recorded as in possession.

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It is apparent from the order passed by the learned Assistant Collector 1^st Grade that the defendant no. 1 had filed an application to incorporate his name in the column of possession, and this claim was accepted by the learned Assistant Collector 1^st Grade. The defendant no. 1 never claimed

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to be a tenant of the suit land, or the conferment of proprietary rights in terms of the HP Tenancy and Land Reforms Act.

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A full Bench of this Court held in Chuhniya Devi vs. Jindu Ram 1991 (1) Shim. LC 223 that any person aggrieved by an entry in the record of right is entitled to institute a suit for seeking a declaration of his right, and the jurisdiction of the Civil Court to adjudicate such a claim is not barred. It was observed:

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“A look at Chapter IV would reveal that any dispute relating to the record-of-rights envisaged by section 32, or its preparation or revision under the succeeding provisions, is to be determined by the Revenue Officer under section 37 subject to the provisions of section 38 The Revenue Officer has Sarily to find out as to who is in possession of the property to which the Disputes relates He can do so on his own motion or on the application of any party invested- The enquiry which the Revenue Officer makes is in connection with the entries in respect of the matters about which it is to be made n terms of section 32. In other words, enquiry about the persons who as landowners, tenants or assignees of land revenue receive any of the Ss profits in the estate, or who are entitled to the produce of the estate or to occupy land therein..; the nature and extent of the interests of these persons and the conditions and liabilities attaching thereto; and the rent, land revenue, rates, cesses or other payments due from and to each of those persons and to the Government; a statement of customs respecting rights and liabilities in the estate.

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6 The Revenue Officer, on the basis of his decision, is to direct that the person, found by a summary enquiry as

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best entitled to the property, be put in possession thereof and an entry in accordance with his order be made in the records of right. The direction so made is subject to any decree or order which may subsequently be passed by any Court of competent jurisdiction.

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An entry made in the record-of-rights in accordance with law is presumed to be true, until the contrary is proved or a new entry is lawfully substituted therefor, under section 45. The succeeding section 46 provides that

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"If any person considers himself aggrieved as to any right of which he is in possession by an entry in a record-of-rights or in a periodical record, he may institute a suit for a declaration of his right under Chapter VI of the Specific Relief Act, 1963."

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Section 47 enables the Financial Commissioner to make Rules, inter alia, for the survey of land so far as may be necessary for the preparation and correction of the records and registers and for the conduct of inquiries by the Revenue Officer under Chapter IV.

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Chapter II provides for the Classes of Revenue Officers, their powers, administrative control over them, as well as for appeal from and the review and revision of the orders passed by Revenue Officers.

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Section 14 deals with appeals from orders of an Assistant Collector to the Collector and from the orders of the Collector to the Commissioner, and where the order is made by the Commissioner, to the Financial Commissioner. It, however, does not contemplate a second appeal. Section 16 provides for review of an order by a Revenue Officer in certain circumstances and lays down that no appeal shall lie from an order refusing to review or ' confirming on review a previous order. Power to revise proceedings of Revenue Officers is vested in the Financial Commissioner as also in the Commissioner or the Collector in certain circumstances under section 17.

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From the provisions noticed by us, it is clear that the

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matters which are entrusted specifically to a Revenue Officer by or under the Act are excluded from the jurisdiction of the Civil Court. But the exclusion, as is evident from the opening part of section 171, is "except as otherwise provided by this Act.'

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Stated more precisely, the position is that though a civil court cannot give any direction, amongst others, about correction of any entry in a record-of-rights, periodical' register of mutation or for framing of a record-of-rights or annual record or the preparation, signing or attestation of any of the documents included in the record, any decision which it may record in respect of a direction given by a Revenue Officer under subsection (2) of section 37 relating to the question as to who is in possession of a property to which the dispute relates or is the person best entitled to it as well as about any right under which a person is in possession, it will have to be given effect to in the record-of-rights by the Revenue Officer. This is more than clear from what is provided in section 37 (3) and section 46. The finality of the decision of the Revenue Officer is expressly made subject to a decision by the Civil Court by these provisions. The jurisdiction of the Civil Court, in matters falling within the ambit of these provisions, is not excluded. Instead, it has been expressly preserved.” The full bench answered the reference as under:

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Our answer, therefore, is:

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(a) that an order made by the competent authority under the H. P. Land Revenue Act, 1954, is open to challenge before a civil court to the extent that it relates to matters falling within the ambit of section 37 (3) and section 46 of that Act ;

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Therefore, it is apparent from the perusal of the

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judgment of the full Bench of this Court that the jurisdiction of

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the Civil Court to adjudicate the question of title is not barred when an order has been passed by the revenue authorities under the provisions of the HP Land Revenue Act. In the present case, an order was also passed by the Assistant Collector First Grade under the provisions of the HP Land Revenue Act, and the jurisdiction of the Civil Court would not be barred.

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A copy of Jamabandi for the year 1997–98 (Ext.PC) shows that Puran Chand, defendant no. 1, was recorded to be a non-occupancy tenant. It was submitted that the entry of a non-occupancy tenant will show that the defendant no. 1 is a tenant, and the jurisdiction of the Civil Court to go into the question of tenancy is barred. This submission cannot be accepted. The column of rent in the copy of the jamabandi does not mention any rent being paid by the defendant no. 1. It was laid down by this Court in Telu Ram Versus Hari Kumar ILR 1975 HP 464 that it is a usual practice of the revenue authorities to record a person in possession as non-occupancy. It was observed:

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“Mere entry as a non-occupancy tenant does not entitle a person to claim the right of the tenancy because it is a usual practice that whenever a person is found in

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possession, whether legal or illegal, of any land, the revenue officers invariably make such an entry.”

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A similar view was taken in Bhagat Ram v. Brahma

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Nand, 2010 SCC OnLine HP 116 , wherein it was observed: -

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“In Maman Singh v. The Resident Magistrate, Gohana and others, 1965. Vol.LXVII, PLR 161 , The Punjab High Court held that the question of whether a person is a tenant or not has to be decided not by looking at the column of cultivation of the Jamabandi because that column only relates to the name of the person in occupation, irrespective of the capacity in which he is occupying the land. It was held that tenancy must be determined with reference to the entry made in the column of rent.

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In Rulhu Ram v. Than Singh and others, 1966, Vol.LXVIII, PLR 866 held that the revenue entries, when they find a person in possession, normally enter his name as a tenant irrespective of the fact whether he is a tenant or not. It was held that non-payment of rent negates the existence of a relationship of landlord and tenant.

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In Sh. Tarlok Singh v. Sh. Harnam Singh and another, 1974, PLJ 396 , it was held that to determine whether a person is a tenant over the land, the entries in the column of cultivation and column of rent have to be read together. It was also held that no presumption of truth is attached to the Khasra Girdawaries.”

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This position was reiterated in Mandir Thakurdwara

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vs. Raj Kumar, 2020 (1) Him. L.R. 547 , wherein it was held: -

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“17. In question No.2, both parties have cited a number of judgments in support of their contentions. Before adverting to the facts, the law cited by learned counsel may be considered. Learned counsel for the appellant relies upon the decision of the Lahore High Court in

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Girdhari Ram and others vs. Qasim and others, AIR 1936 Lahore 461 , holding: -

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“... I am aware of the fact that it is the practice of revenue authorities in this province to record a person who is in possession of land without any ostensible title thereto, in the column of cultivator describing him as a tenant-at-will, and that sometimes a remark is added mentioning the grounds on which the person in possession claims to be in possession. No presumption of tenancy necessarily arises in such cases, but in the present case, there is something more than that.” (p.462)

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In Relhu Ram vs. Than Singh and others, 1966 (LXVIII) P.L.R.866, again the Court holds: -

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“5. Mr Nehra then sought to contend that the defendants had established on the present record that they were the tenants of the land in dispute. Again, on this matter, there is a concurrent decision on a question of fact by the courts below, which is binding on me in the second appeal. Moreover, there is no evidence that any rent was being paid by the defendants to the plaintiffs. As a matter of fact, the entry is that they are paying no rent because of the assertion of ownership. Therefore, the documentary evidence clearly shows that the entry that the tenants are nonoccupancy tenants is clearly erroneous. It is well known that the revenue authorities, when they find a person in possession of the land without any right, normally record him as a tenant irrespective of the fact whether he is a tenant or not . Non-payment of rent negatives existence of a relationship of landlord and tenant. This was so held in Kanwar A. Ahmed Khan v. The Union of India, (1954)56 P.L.R.468 : -

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“The relationship of landlord and tenant comes into existence as the result of an

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agreement, express or implied. It may be implied from the acts and conduct of the parties, which indicate that the landlord intended to divest himself of the possession of the premises and that the tenant intended to assume possession thereof. One of the most important circumstances from which this inference may be drawn is the payment of rent, for although rent is not essential, it is a normal incident of tenancy, and the fact that a person in possession of the premises paid rent to the owner thereof indicates to an extent at least that the relationship of landlord and tenant exists between the parties. On the other hand, the fact that no rent was paid would lead one to a contrary conclusion and negate the existence of such a relationship.” (pp.868-869)

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In Maman Singh vs. The Resident Magistrate, Gohana and others, 1965(LXVII) P.L.R. 161 , the Court holds: -

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“5. ...It is well-settled that in deciding whether a person is a tenant, we have not to look to the entries in the column of cultivation in the jamabandi because that column only gives the name of the person in occupation, irrespective of the capacity in which he is occupying the land. On the contrary, we have to look at the column of rent because it is the entries in that column which go to show as to whether the person is occupying the land as a tenant, and if so, on how much rent, or whether he is occupying the land in any other capacity. See Ghulam Murtaza v.Nagina, A.I.R. 1930 Lah 991, Puran v.Kure, 57 P.L.R.,57 and Sher v.Phuman Ram, 1942 P.L.R. 497 .....” (p.163)

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To similar effect is the judgment of the Punjab High Court in Shri Tarlok Singh vs.Shri Harnam Singh and Another, 1974 P.L.J. 396 , holding that the non-payment of rent negatives the existence of the relationship of

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landlord and tenant, the entries in cultivation column and the rent column are to be read together in order to ascertain the rights of the parties, entries in Khasra Girdawari do not attach presumption of truth and in case of any conflict in the entries in the copies of Khasra Girdawari with the copies of Jamabandi, the Patwari has to be examined for explaining the discrepancy. Similar is the decision in Ajmer Singh and Another vs. Surjit Singh and others, 1992 PLJ 311 , holding that a person reflected in cultivating possession of the suit land in the revenue record without mentioning any rent being paid does not establish the relationship of landlord and tenant. In fact, the Court held: -

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“7. ... Non-payment of rent negatives the existence of a relationship of landlord and tenant. Thus, the case set up by the first appellate Court that the defendants were in permissive possession cannot be sustained either on facts or in law.”

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The last case relied upon by the appellant is Kanshi Ram and Others vs. Rawat Singh and Others, 1 972 P.L.J. 580 . The Court holds: -

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“2. ...It was nobody’s case that these vendees were setting up any adverse possession or hostile title. The vendees were not claiming any better rights than those of tenants, and they had actually paid a substantial amount to the owner in acknowledgement of his superior title or right of ownership in the land. The simple fact that the column of rent does not mention any lagan or rent would not imply that we can force on these persons who have been described as muzaras ghair maurusi, the superior title or the ownership rights that they had never claimed. The expression “muzaras ghair maurusi” has to be given its ordinary meaning unless the entries in the column of rent were found to be inconsistent with the meaning to be assigned to the entries in the column of occupation. All the rulings cited before

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me by the counsel for the plaintiff-pre-emptor are on altogether different facts. In Maman Singh v. The Resident Magistrate, Gohana and others, 1965 P.L.R. 161, Rulhu Ram v.Than Singh and others, 1966 P.L.R. 866 and Annamalai Goundan v.Venkatasami Naidu and others, A.I.R. 1959 Madras 354 , the person who was in possession and who was described as a tenant-at-will in the column of cultivation was claiming better rights and could show entries in the column of rent in support of his plea of prescriptive title or better rights and could show entries in the column of rent in support of his plea of prescriptive title or better rights in the land. The entries in the column of rent in our case do not suggest that the person in possession was anything over and above a tenant-at-will, as described in the column of cultivation, and the person in possession does not claim any rights which could be described as hostile to the true owner. The words ‘muzaras’ or ‘ghair maurusi’ or ‘tenant-atwill’ in the column of cultivation have, therefore, to be given their ordinary meaning, and there is nothing in the entries in the column of rent to suggest that this description of the person in possession was incorrect. In fact, the person in possession does not claim to have any better rights than that of a tenant-at-will. The Courts are not entitled to make out a case for the parties which had not at all been pleaded by them....”

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Therefore, in the absence of any entry in the column

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of rent regarding the payment of rent, a person cannot claim himself to be the tenant merely because he has been recorded to be in possession as Gair Maurusi (non-occupancy). Therefore, the submission that since the defendant had projected a claim

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of tenancy, the jurisdiction of the Civil Court would be taken away cannot be accepted, and this substantial question of law is answered accordingly.

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Substantial Question of Law No.2 :

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Khoob Ram (PW1) stated that Achhru had bequeathed the land to him (Khoob Ram). Achhru had got the property from Ghogli. Luharu, Parsu and Ghogli were brothers and sisters. Luharu got the property from Pandit on a tenancy. Luharu died 24-25 years ago. Luharu used to cultivate the land. He is the son of Achhru.

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The plaintiff projected the claim of the acquisition of the property as a legal heir of Achhru as well as by way of inheritance based on a Will. Even if it is accepted that a tenant is not entitled to execute a Will in favour of another person regarding the share held by him on tenancy, the claim of the plaintiff, being the son of Achhru, would still exist. Therefore, it cannot be said that there was any contradictory claim projected before the Court and this substantial question of law is answered accordingly.

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Judgments cited

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R. Ravindra Reddy (supra) deals with the question of limitation, Dharmi (supra) deals with the appointment of a Local Commissioner and additional evidence, and R. Suseela Devi (supra) deals with inter-se seniority, which do not arise in the present case. Shiv Dayal (supra) and Gopal Krishan (supra) deal with the scope of regular second appeal, which is not involved in the present case. Varinder Kumar (supra) deals with the interpretation of the HP Tenancy and Land Reforms Act, which does not arise for determination in the present case. In Ajay V ij (supra), this Court had held that a person has to plead and prove the agreement between him and the landlord before he can claim to be a tenant, which is an undisputed position. Therefore, the cited judgments do not apply to the present case

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Final Order :

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Therefore, there is no infirmity in the judgment and decree passed by the learned Appellate Court requiring an interference from this Court. Hence, the present appeal fails and is dismissed.

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