Judgment:
Rajiv Sharma, J.
1. This Regular Second Appeal has been directed against the judgment and decree dated 30.12.1998 passed by the learned District Judge, Una in Civil Appeal No. 93 of 1990.
2. Brief facts necessary for the adjudication of this Regular Second Appeal are that the respondent-plaintiff (hereinafter referred to as 'the plaintiff' for convenience sake) filed a suit for declaration to the effect that he being in possession as non-occupancy tenant over the suit land detailed in the plaint had acquired the proprietary rights over the suit land on the appointed day of enforcement of the Himachal Pradesh Tenancy Whether the reporters of Local Papers may be allowed to see the judgment? No. and Land Reforms Act, 1972 and also for declaration that the revenue entry showing the appellants-defendants (hereinafter referred to as 'the defendants' for convenience sake) as Khudkasht with effect from Kharif 1983 on the basis of order dated 18.6.1983 of the Assistant Collector IInd Grade, Amb are totally illegal, void ab initio and not binding upon him. He has also prayed for consequential relief of permanent injunction restraining the defendants from interfering in any manner whatsoever in the peaceful possession of the plaintiff over the suit land. He has alleged that he had been coming in possession of the suit land as non-occupancy tenant since the time of his fore-father and has acquired the proprietary rights over the suit land. The learned Sub Judge decreed the suit on 18.5.1990. The defendants preferred an appeal before the learned District Judge, Una. He dismissed the appeal on 30.12.1998. This Regular Second Appeal has been preferred against the judgment and decree dated 30.12.1998. The same was admitted on the following substantial questions of law:
1. Whether both the learned courts below erred in appreciating the provisions of law applicable, pleadings of the parties and evidence adduced by them in its true and correct perspective, thereby vitiating the impugned judgments and decrees?
2. Whether both the Courts below misread and misappreciated documents specifically Ext-D1 thereby vitiating the impugned judgments and decrees?
3. Whether both the Courts below misread ad misappreciated documentary evidence with special reference to Ext. P-6, thereby vitiating the impugned judgments and decrees?
4. Whether declaration of the plaintiff to be the tenant and then owner of the suit land is contrary to the provisions of Section 2 Sub-section (17) of the Tenancy and Land Reforms Act?
3. Mr. Himat Negi, Advocate appearing vice Mr. Ajay Sharma, Advocate has strenuously argued that the judgments and decrees of both the learned courts below are not sustainable in the eyes of law. He then argued that the learned District Judge has come to a conclusion that the order dated 19.2.1990 Ex. D-1 was passed without hearing the plaintiff.
4. Mr. N.K. Thakur, Advocate has supported the judgments and decrees passed by both the learned courts below.
5. I have heard the learned Counsel for the parties and perused the record carefully.
6. Since all the substantial questions of law are inter-linked and interconnected, therefore, the same are being taken up together for determination to avoid repetition of discussion of the evidence.
7. A bare perusal of Ex. P-1, copy of jamabandi for the year 1967-68 reveals that the plaintiff has been recorded as cultivating the suit land in the capacity of non-occupancy tenant against payment of half produce from the land as rent. The defendants, including Kishan Chand and Hans Raj are recorded as owners of the other half of the land. Similarly, in jamabandi for the year 1977-78 (Ex.P-3), the plaintiff has been recorded as non-occupancy tenant. Ex. P-4 is the copy of jamabandi for the year 1972-73. In this copy also the similar entry regarding the cultivation of the suit land by the plaintiff has been recorded. It is thus evident that in continuity, the name of the plaintiff was recorded as non-occupancy tenant. However, a stray entry was made in Khasra Girdwari for the year 1983 whereby the defendants have been recorded in possession of the suit land. In sequel thereto, in jamabandi for the year 1982-83 (Ex.P-2), the defendants were recorded in possession of the suit land. This entry has been made on the basis of order passed by the Assistant Collector IInd Grade dated 18.6.1983 (Ex.D-2). The plaintiff had filed an appeal against this order before the Sub Divisional Collector. The order passed by the Assistant Collector IInd Grade dated 18.6.1983 was set aside by the Sub Divisional Collector vide Ex. P-7 on 2.4.1986. In view of the order passed by the Sub Divisional Collector, the earlier entries made in the Khasra Girdawari and jamabandi i.e. P-2 were rendered otiose. Sh. Shambu Ram filed another application for correction of Khasra Girdawari pertaining to the suit land. The order was passed by the competent authority on 19.2.1990 (Ex.D-1). The Land Reforms Officer surprisingly reiterated the earlier order, which was set aside by the Sub Divisional Collector on 2.4.1986. A copy of this order is Ex. D-1. There is over-writing/cutting in Ex. D-1. In the opening portion of Ex. D-1, there is overwriting in para two. It is also clear from this that the date of inspection has been shown as 14.2.1990. However, the order is dated 19.2.1990. The impression is given in this order dated 19.2.1990 is that he has visited the spot on 19.2.1990. However, in the subsequent portion of the order, it is specifically mentioned that he visited the spot on 14.2.1990. How this difference has crept in, has not been explained satisfactorily by Mr. Himat Negi. There is over-writing towards the end of the order also. The finding has been recorded by the learned District Judge that the order has been passed without hearing the plaintiff. This finding is liable to be upheld. It is mentioned in the order that the Chowkidar was sent for procuring the presence of the plaintiff. However, he did not appear. In these circumstances, it was necessary for him to fix some other date to enable the plaintiff to appear before him. He could not reiterate the earlier order dated 18.6.1983 by passing subsequent order dated 19.2.1990.
8. The matter is required to be seen from another angle. The civil court was seized of the matter and it was not appropriate for the Land Reforms Officer to pass order on 19.2.1990. It is settled law by now that when the civil court is seized of the matter, the revenue authorities shall not pass orders, which have direct bearing on the outcome of the civil court, as is in the present case. These authorities should restrain themselves from passing the orders, which may over reach the judgments which ultimately are to be passed by the civil courts. It was appropriate for the Land Reforms Officer not to entertain the application and to apprise the parties to wait for the outcome of the civil case.
9. It is not borne out from the record that the plaintiff has ever abandoned or relinquished his tenancy. He was never ejected by the defendants. He had been cultivating the suit land. The entries made in favour of the plaintiff were consistent and immediately after coming into the Himachal Pradesh Tenancy and Land Reforms Act, 1972, the proprietary rights stood conferred upon him. Both the learned courts below have correctly appreciated all the exhibits, including Ex. D-1 and Consequently, there is no merit in the Regular Second Appeal and the same is dismissed. There shall, however, be no order as to costs.