Semantic Analysis by spaCy
Ram Parkash and ors. Vs. Subhash Chand and ors.
Decided On : May-04-2010
Court : Himachal Pradesh
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Vs. Subhash Chand and ors.', 'casenote' => ' - ', 'caseanalysis' => null, 'casesref' => 'In Durga and Ors. v. Milkhi Ram and Ors. P.L.J.;', 'citingcases' => '', 'counselplain' => '', 'counseldef' => '', 'court' => 'Himachal Pradesh', 'court_type' => 'HC', 'decidedon' => '2010-05-04', 'deposition' => 'Appeal dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' Kuldip Singh, J.', 'judgement' => '<p style="text-align: justify;">Kuldip Singh, J.</p><p style="text-align: justify;">1. This appeal has been directed against the judgment, decree dated 9.4.1999 passed by the learned Additional District Judge (I), Kangra at Dharamshala (Camp at Una) in Civil Appeal No. 131/94 RBT. 33/95 affirming the judgment, decree dated 7.6.1994 passed by the learned Sub Judge, 1st Class (I), Amb in Case No. 209 of 1986 decreeing the suit of the respondents.</p><p style="text-align: justify;">2. The brief facts of the case are that respondents had filed a suit for declaration regarding land comprised in Khewat No. 418, Khatauni No. 1819/1 Khasra No. 6446 measuring 45 Kanals 1 Marla situated in village Lohara, Tehsil Amb, District Una on the grounds that suit land is in possession of the respondents as owners and prior to their becoming owners of the suit land it was in their possession as tenants on payment of rent to the original owners. It has been pleaded that appellants in connivance with the revenue staff got themselves entered as owners qua the suit land to the extent of share from Rabi 1984 at the back of the respondents. The further case of the respondents is that the entries of ownership of appellants to the extent of share qua suit land and subsequently attestation of mutation No. 4785 on 4.5.1984 is illegal, void. The entry of ownership and attestation of mutation is without jurisdiction and authority of law. It has been alleged that on the basis of wrong revenue record, the mutation conferring proprietary rights has been conferred on the appellants. The further case of the respondents is that appellants are interfering on the suit land and, therefore, the suit was filed.</p><p style="text-align: justify;">3. The suit was contested by the appellants. They have taken the plea that they were tenants on the suit land to the extent of share. The proprietary rights have been conferred on them to the extent of share of the suit land under the H.P. Tenancy and Land Reforms Act, 1972 (for short 'Act'). The entry of tenancy to the extent of share on the suit land was not made in their favour in the revenue record but it was corrected on the spot during crop inspection. They are owners to the extent of share on the basis of mutation Ex.D-1. The replication was filed by the respondents in which they contested the claim of the appellants and reiterated their stand.</p><p style="text-align: justify;">4. On the pleadings of the parties, the following issues were framed:</p><p style="text-align: justify;">1. Whether the plaintiffs are owners in possession of the suit land as alleged? OPP</p><p style="text-align: justify;">2. Whether the entry of ownership to the extent of share in favour of the defendants and subsequent mutation No. 4785 in their favour is wrong and is liable to be corrected in favour of the plaintiff as alleged? OPP</p><p style="text-align: justify;">3. If issues Nos. 1 and 2 are proved in favour of the plaintiffs, whether the plaintiffs are entitled to the relief of injunction? OPP</p><p style="text-align: justify;">4. Whether the defendant was a tenant over the suit land previously to the extent of share and has now become owner in possession of the same by operation of H.P. Tenancy and Land Reforms Act? OPD.</p><p style="text-align: justify;">5. Relief.</p><p style="text-align: justify;">The issues No. 1, 2, and 3 were answered in affirmative and issue No. 4 in negative and the suit was decreed by the learned Sub Judge on 7.6.1994. In appeal the learned Additional District Judge on 9.4.1999 affirmed the judgment, decree dated 7.6.1994 passed by the learned Sub Judge. Hence, the defendants have come in second appeal which has been admitted on the following substantial questions of law:</p><p style="text-align: justify;">1. Whether the court below has misread and misconstrued the oral and documentary evidence, especially the statements of DW-1, Sukh Dev, DW-2 Lachhman Singh, Ex.D-1 mutation dated 4.5.1984, Ex.D-2 Rapat, Ex.D-3 Kh. Girdwari Kharif 1981 to Rabi 1985?</p><p style="text-align: justify;">2. Whether in view of the full bench judgment 1991 (1) Sim.LC 223, the jurisdiction of the Civil Court was barred in the instant case?</p><p style="text-align: justify;">5. I have heard Mr. Rajnish K. Lal, Advocate, learned Counsel for the appellants and Mr. Ashwani K. Sharma, Advocate, learned Counsel for the respondents and have also gone through the record. It has been submitted by the learned Counsel for the appellants that two courts below have misconstrued and misinterpreted the statements of DW-1 Sukh Dev, DW-2 Lachhman Singh. The Courts below have also misconstrued and misinterpreted the mutation dated 4.5.1984 Ex.D-1, rapat dated 24.4.1984 Ex.D-2, Khasra Girdwari Kharif 1981 to Rabi 1985 Ex.D-3. The learned Counsel for the appellants has submitted that the courts below have not properly appreciated the law laid down by the High Court in Chuhniya Devi v. Jindu Ram 1991 (1) Shim.L.C. 223. It has been submitted that in view of the facts and circumstances of the case, the Civil Court has no jurisdiction to decide the matter.</p><p style="text-align: justify;">6. The learned Counsel for the respondents has supported the impugned judgment, decree. He has submitted that the two courts below have recorded a concurrent finding of fact in favour of the respondents that they were earlier tenants on the suit land and now they are the owners of the suit land in view of the Act. He has submitted that the consistent revenue record showing the respondents as tenants on the suit land was abruptly changed by Patwari by recording rapat Ex.D-2. It appears that on the basis of rapat Ex.D-2 lateron proprietary rights were conferred in favour of the appellants vide mutation Ex.D-1 dated 4.5.1984. He has submitted that under the Act, on the commencement of the Act and the Rules, the respondents had already acquired the proprietary rights, therefore, there was no question of conferring proprietary rights on the appellants on 4.5.1984.</p><p style="text-align: justify;">7. The case of the appellants is that they were tenants on the suit land to the extent of share. The perusal of jamabandi for the year 1968-69 Ex.P-1, jamabandi for the year 1973-74 Ex.P-2 and jamabandi for the year 1979-80 Ex.P-3 indicates that the names of the appellants were nowhere recorded showing them as tenants on the suit land. The rapat dated 24.4.1984 Ex.D-2 is only to the extent that on 24.4.1984 Patwari recorded change in the possession. It is not understandable how on the basis of rapat dated 24.4.1984, it can be construed that the appellants were tenants on the land in dispute. At the most, Ex.D-2 indicates change of possession and nothing more than that.</p><p style="text-align: justify;">8. On 4.5.1984 vide Ex.D-1 mutation 4.7.1985 proprietary rights were conferred on the appellants by the Assistant Collector 2nd Grade. The conferment of proprietary rights on the appellants is without jurisdiction for more than one reason. This Court has taken consistent view in many cases that conferment of proprietary rights is automatic under the Act and the Rules. On the commencement of Act and Rules, it is undisputed that as per the revenue record only the respondents were recorded as tenants on the suit land, therefore, on the commencement of the Act and the Rules, the proprietary rights were conferred automatically on the respondents and the entry to this effect was to be made by the authorities. Once the conferment of proprietary rights is automatic then on 4.5.1984 mutation Ex.D-1 conferring proprietary rights of half share of the suit land could not be attested in favour of the appellants. In jamabandis from 1968-69 to 1979-80 the respondents have been recorded as tenants on the suit land. Therefore, the respondents on the commencement of Act and Rules had already automatically become the owners of land over which they were recorded tenants. There was nothing left for conferring proprietary rights of suit land on the appellants.</p><p style="text-align: justify;">9. The respondents in jamabandis 1968-69 to 1979-80 were recorded tenants on the suit land. The change in the revenue record on or after 24.4.1984 in favour of the appellants showing them to be the tenants on the suit land is without any authority of law. The appellants have not placed on record any order of the competent authority authorizing the change of entry in their favour in the revenue record. In these circumstances, the presumption of truth is attached to the earlier record and not the later record which has not been shown to be based upon some order showing how change was made.</p><p style="text-align: justify;">10. In Durga and Ors. v. Milkhi Ram and Ors. P.L.J. 1969, 105, the Supreme Court has held that where earlier revenue entries were changed in the later revenue entries and the change was effected without any mutation and there was no order of the revenue authorities showing how the change was made, although the presumption would be in favour of the later entries but that presumption was a rebuttable one and it would stand rebutted by the fact that the alteration in the later entries was made unauthorisedly or mistakenly, there being no material to justify the change of entries. In these circumstances, no presumption of truth is attached to later revenue record in favour of the appellants showing them to be tenants on the suit land.</p><p style="text-align: justify;">11. The statement of DW-1 Sukhdev Raj was recorded on 28.4.1994 and he has stated that his father was in possession of land in dispute who used to pay Rs. 4/- as Chakota. His father was non-occupancy tenant. DW-1 in his statement has nowhere stated about the contract of tenancy. He has not stated when the tenancy was created and what were the terms of the tenancy. The statement of DW-1 that his father used to pay Rs. 4/- as Chakota is not enough to establish tenancy. The tenancy is a creation of contract, it is to be pleaded and proved, from the statement of DW-1 the creation of the tenancy has not been established.</p><p style="text-align: justify;">12. DW-2 Lachhman Singh has stated that Dhani Ram was in possession of the suit land, he paid Rs. 4/- to him on account of payment of grass. Dhani Ram was their tenant. In cross-examination, he has stated that Rs. 4/- were paid four years ago. The statement of DW-2 was recorded on 28.4.1994. The proprietary rights were conferred in favour of the appellants on 4.5.1984, therefore, there was no question of even payment of Rs. 4/- by Dhani Ram to Lachhman Singh one of the previous owners of the suit land on account of rent. Moreover, the statement of DW-2 Lachhman Singh is clear that Rs. 4/- were paid by Dhani Ram on account of grass. The statement of Lachhman singh also does not prove that Dhani Ram or any other appellant was tenant on any portion of the suit land. In Khasra Girdawari Ex.D-3 name of Dhani Ram was entered vide rapat No. 305 dated 4.5.1984. The legal value of Ex.D-3 is not better than mutation Ex.D-1 and rapat Ex.D-2. The appellants cannot take benefit of Khasra Girdawari Ex.D-3 in which name of Dhani Ram was recorded after 4.5.1984.</p><p style="text-align: justify;">13. The learned Counsel for the appellants has submitted that in view of Chuhniya Devi (Supra), the civil court has no jurisdiction in the facts and circumstances of the case. The Full Bench in Chuhniya Devi (Supra) has held that civil court has no jurisdiction to go into any question connected with the conferment of proprietary rights under the Act except in a case where it is found that the statutory authorities envisaged by that Act had not acted in conformity with the fundamental principles of judicial procedure or where the provisions of the Act had not been complied with. The mutation Ex.D-1 dated 4.5.1984 has been attested by Assistant Collector 2nd Grade, wheras under Rule 29 of the Himachal Pradesh Tenancy and Land Reforms Rules, 1975 such mutation is required to be attested by the Assistant Collector 1st Grade when there is a dispute between the parties. The mutation Ex.D-1 was attested by the Assistant Collector 2nd Grade, who had no jurisdiction to attest such mutation under the Act. Therefore, civil court has jurisdiction when mutation in question is without jurisdiction.</p><p style="text-align: justify;">14. It has not been pointed out that impugned judgment and decree are perverse. The two courts below have rightly appreciated the material on record. In second appeal, re-appreciation of the evidence is not permissible. The substantial questions of law No. 1 and 2 are decided against the appellants.</p><p style="text-align: justify;">15. No other point was urged.</p><p style="text-align: justify;">16. The result of the above discussion, the appeal fails and is accordingly dismissed with no order as to costs.<p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Subhash Chand and ors.', 'sub' => 'Property', 'link' => null, 'circuit' => null ) ), 'args' => array( (int) 0 => '903793' ) ) $title_for_layout = 'Ram Parkash and ors. Vs. Subhash Chand and ors. 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Vs. Subhash Chand and ors.', 'casenote' => ' - ', 'caseanalysis' => null, 'casesref' => 'In Durga and Ors. v. Milkhi Ram and Ors. P.L.J.;', 'citingcases' => '', 'counselplain' => '', 'counseldef' => '', 'court' => 'Himachal Pradesh', 'court_type' => 'HC', 'decidedon' => '2010-05-04', 'deposition' => 'Appeal dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' Kuldip Singh, J.', 'judgement' => '<p style="text-align: justify;">Kuldip Singh, J.</p><p style="text-align: justify;">1. This appeal has been directed against the judgment, decree dated 9.4.1999 passed by the learned Additional District Judge (I), Kangra at Dharamshala (Camp at Una) in Civil Appeal No. 131/94 RBT. 33/95 affirming the judgment, decree dated 7.6.1994 passed by the learned Sub Judge, 1st Class (I), Amb in Case No. 209 of 1986 decreeing the suit of the respondents.</p><p style="text-align: justify;">2. The brief facts of the case are that respondents had filed a suit for declaration regarding land comprised in Khewat No. 418, Khatauni No. 1819/1 Khasra No. 6446 measuring 45 Kanals 1 Marla situated in village Lohara, Tehsil Amb, District Una on the grounds that suit land is in possession of the respondents as owners and prior to their becoming owners of the suit land it was in their possession as tenants on payment of rent to the original owners. It has been pleaded that appellants in connivance with the revenue staff got themselves entered as owners qua the suit land to the extent of share from Rabi 1984 at the back of the respondents. The further case of the respondents is that the entries of ownership of appellants to the extent of share qua suit land and subsequently attestation of mutation No. 4785 on 4.5.1984 is illegal, void. The entry of ownership and attestation of mutation is without jurisdiction and authority of law. It has been alleged that on the basis of wrong revenue record, the mutation conferring proprietary rights has been conferred on the appellants. The further case of the respondents is that appellants are interfering on the suit land and, therefore, the suit was filed.</p><p style="text-align: justify;">3. The suit was contested by the appellants. They have taken the plea that they were tenants on the suit land to the extent of share. The proprietary rights have been conferred on them to the extent of share of the suit land under the H.P. Tenancy and Land Reforms Act, 1972 (for short 'Act'). The entry of tenancy to the extent of share on the suit land was not made in their favour in the revenue record but it was corrected on the spot during crop inspection. They are owners to the extent of share on the basis of mutation Ex.D-1. The replication was filed by the respondents in which they contested the claim of the appellants and reiterated their stand.</p><p style="text-align: justify;">4. On the pleadings of the parties, the following issues were framed:</p><p style="text-align: justify;">1. Whether the plaintiffs are owners in possession of the suit land as alleged? OPP</p><p style="text-align: justify;">2. Whether the entry of ownership to the extent of share in favour of the defendants and subsequent mutation No. 4785 in their favour is wrong and is liable to be corrected in favour of the plaintiff as alleged? OPP</p><p style="text-align: justify;">3. If issues Nos. 1 and 2 are proved in favour of the plaintiffs, whether the plaintiffs are entitled to the relief of injunction? OPP</p><p style="text-align: justify;">4. Whether the defendant was a tenant over the suit land previously to the extent of share and has now become owner in possession of the same by operation of H.P. Tenancy and Land Reforms Act? OPD.</p><p style="text-align: justify;">5. Relief.</p><p style="text-align: justify;">The issues No. 1, 2, and 3 were answered in affirmative and issue No. 4 in negative and the suit was decreed by the learned Sub Judge on 7.6.1994. In appeal the learned Additional District Judge on 9.4.1999 affirmed the judgment, decree dated 7.6.1994 passed by the learned Sub Judge. Hence, the defendants have come in second appeal which has been admitted on the following substantial questions of law:</p><p style="text-align: justify;">1. Whether the court below has misread and misconstrued the oral and documentary evidence, especially the statements of DW-1, Sukh Dev, DW-2 Lachhman Singh, Ex.D-1 mutation dated 4.5.1984, Ex.D-2 Rapat, Ex.D-3 Kh. Girdwari Kharif 1981 to Rabi 1985?</p><p style="text-align: justify;">2. Whether in view of the full bench judgment 1991 (1) Sim.LC 223, the jurisdiction of the Civil Court was barred in the instant case?</p><p style="text-align: justify;">5. I have heard Mr. Rajnish K. Lal, Advocate, learned Counsel for the appellants and Mr. Ashwani K. Sharma, Advocate, learned Counsel for the respondents and have also gone through the record. It has been submitted by the learned Counsel for the appellants that two courts below have misconstrued and misinterpreted the statements of DW-1 Sukh Dev, DW-2 Lachhman Singh. The Courts below have also misconstrued and misinterpreted the mutation dated 4.5.1984 Ex.D-1, rapat dated 24.4.1984 Ex.D-2, Khasra Girdwari Kharif 1981 to Rabi 1985 Ex.D-3. The learned Counsel for the appellants has submitted that the courts below have not properly appreciated the law laid down by the High Court in Chuhniya Devi v. Jindu Ram 1991 (1) Shim.L.C. 223. It has been submitted that in view of the facts and circumstances of the case, the Civil Court has no jurisdiction to decide the matter.</p><p style="text-align: justify;">6. The learned Counsel for the respondents has supported the impugned judgment, decree. He has submitted that the two courts below have recorded a concurrent finding of fact in favour of the respondents that they were earlier tenants on the suit land and now they are the owners of the suit land in view of the Act. He has submitted that the consistent revenue record showing the respondents as tenants on the suit land was abruptly changed by Patwari by recording rapat Ex.D-2. It appears that on the basis of rapat Ex.D-2 lateron proprietary rights were conferred in favour of the appellants vide mutation Ex.D-1 dated 4.5.1984. He has submitted that under the Act, on the commencement of the Act and the Rules, the respondents had already acquired the proprietary rights, therefore, there was no question of conferring proprietary rights on the appellants on 4.5.1984.</p><p style="text-align: justify;">7. The case of the appellants is that they were tenants on the suit land to the extent of share. The perusal of jamabandi for the year 1968-69 Ex.P-1, jamabandi for the year 1973-74 Ex.P-2 and jamabandi for the year 1979-80 Ex.P-3 indicates that the names of the appellants were nowhere recorded showing them as tenants on the suit land. The rapat dated 24.4.1984 Ex.D-2 is only to the extent that on 24.4.1984 Patwari recorded change in the possession. It is not understandable how on the basis of rapat dated 24.4.1984, it can be construed that the appellants were tenants on the land in dispute. At the most, Ex.D-2 indicates change of possession and nothing more than that.</p><p style="text-align: justify;">8. On 4.5.1984 vide Ex.D-1 mutation 4.7.1985 proprietary rights were conferred on the appellants by the Assistant Collector 2nd Grade. The conferment of proprietary rights on the appellants is without jurisdiction for more than one reason. This Court has taken consistent view in many cases that conferment of proprietary rights is automatic under the Act and the Rules. On the commencement of Act and Rules, it is undisputed that as per the revenue record only the respondents were recorded as tenants on the suit land, therefore, on the commencement of the Act and the Rules, the proprietary rights were conferred automatically on the respondents and the entry to this effect was to be made by the authorities. Once the conferment of proprietary rights is automatic then on 4.5.1984 mutation Ex.D-1 conferring proprietary rights of half share of the suit land could not be attested in favour of the appellants. In jamabandis from 1968-69 to 1979-80 the respondents have been recorded as tenants on the suit land. Therefore, the respondents on the commencement of Act and Rules had already automatically become the owners of land over which they were recorded tenants. There was nothing left for conferring proprietary rights of suit land on the appellants.</p><p style="text-align: justify;">9. The respondents in jamabandis 1968-69 to 1979-80 were recorded tenants on the suit land. The change in the revenue record on or after 24.4.1984 in favour of the appellants showing them to be the tenants on the suit land is without any authority of law. The appellants have not placed on record any order of the competent authority authorizing the change of entry in their favour in the revenue record. In these circumstances, the presumption of truth is attached to the earlier record and not the later record which has not been shown to be based upon some order showing how change was made.</p><p style="text-align: justify;">10. In Durga and Ors. v. Milkhi Ram and Ors. P.L.J. 1969, 105, the Supreme Court has held that where earlier revenue entries were changed in the later revenue entries and the change was effected without any mutation and there was no order of the revenue authorities showing how the change was made, although the presumption would be in favour of the later entries but that presumption was a rebuttable one and it would stand rebutted by the fact that the alteration in the later entries was made unauthorisedly or mistakenly, there being no material to justify the change of entries. In these circumstances, no presumption of truth is attached to later revenue record in favour of the appellants showing them to be tenants on the suit land.</p><p style="text-align: justify;">11. The statement of DW-1 Sukhdev Raj was recorded on 28.4.1994 and he has stated that his father was in possession of land in dispute who used to pay Rs. 4/- as Chakota. His father was non-occupancy tenant. DW-1 in his statement has nowhere stated about the contract of tenancy. He has not stated when the tenancy was created and what were the terms of the tenancy. The statement of DW-1 that his father used to pay Rs. 4/- as Chakota is not enough to establish tenancy. The tenancy is a creation of contract, it is to be pleaded and proved, from the statement of DW-1 the creation of the tenancy has not been established.</p><p style="text-align: justify;">12. DW-2 Lachhman Singh has stated that Dhani Ram was in possession of the suit land, he paid Rs. 4/- to him on account of payment of grass. Dhani Ram was their tenant. In cross-examination, he has stated that Rs. 4/- were paid four years ago. The statement of DW-2 was recorded on 28.4.1994. The proprietary rights were conferred in favour of the appellants on 4.5.1984, therefore, there was no question of even payment of Rs. 4/- by Dhani Ram to Lachhman Singh one of the previous owners of the suit land on account of rent. Moreover, the statement of DW-2 Lachhman Singh is clear that Rs. 4/- were paid by Dhani Ram on account of grass. The statement of Lachhman singh also does not prove that Dhani Ram or any other appellant was tenant on any portion of the suit land. In Khasra Girdawari Ex.D-3 name of Dhani Ram was entered vide rapat No. 305 dated 4.5.1984. The legal value of Ex.D-3 is not better than mutation Ex.D-1 and rapat Ex.D-2. The appellants cannot take benefit of Khasra Girdawari Ex.D-3 in which name of Dhani Ram was recorded after 4.5.1984.</p><p style="text-align: justify;">13. The learned Counsel for the appellants has submitted that in view of Chuhniya Devi (Supra), the civil court has no jurisdiction in the facts and circumstances of the case. The Full Bench in Chuhniya Devi (Supra) has held that civil court has no jurisdiction to go into any question connected with the conferment of proprietary rights under the Act except in a case where it is found that the statutory authorities envisaged by that Act had not acted in conformity with the fundamental principles of judicial procedure or where the provisions of the Act had not been complied with. The mutation Ex.D-1 dated 4.5.1984 has been attested by Assistant Collector 2nd Grade, wheras under Rule 29 of the Himachal Pradesh Tenancy and Land Reforms Rules, 1975 such mutation is required to be attested by the Assistant Collector 1st Grade when there is a dispute between the parties. The mutation Ex.D-1 was attested by the Assistant Collector 2nd Grade, who had no jurisdiction to attest such mutation under the Act. Therefore, civil court has jurisdiction when mutation in question is without jurisdiction.</p><p style="text-align: justify;">14. It has not been pointed out that impugned judgment and decree are perverse. The two courts below have rightly appreciated the material on record. In second appeal, re-appreciation of the evidence is not permissible. The substantial questions of law No. 1 and 2 are decided against the appellants.</p><p style="text-align: justify;">15. No other point was urged.</p><p style="text-align: justify;">16. The result of the above discussion, the appeal fails and is accordingly dismissed with no order as to costs.<p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Subhash Chand and ors.', 'sub' => 'Property', 'link' => null, 'circuit' => null ) ) $args = array( (int) 0 => '903793' ) $pattern = '/\(((0[1-9]|[12][0-9]|3[01])[.](0[1-9]|1[012])[.](17|18|19|20)[0-9]{2}).*\)/'include - APP/View/Case/meta.ctp, line 36 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
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Vs. Subhash Chand and ors.', 'casenote' => ' - ', 'caseanalysis' => null, 'casesref' => 'In Durga and Ors. v. Milkhi Ram and Ors. P.L.J.;', 'citingcases' => '', 'counselplain' => '', 'counseldef' => '', 'court' => 'Himachal Pradesh', 'court_type' => 'HC', 'decidedon' => '2010-05-04', 'deposition' => 'Appeal dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' Kuldip Singh, J.', 'judgement' => '<p style="text-align: justify;">Kuldip Singh, J.</p><p style="text-align: justify;">1. This appeal has been directed against the judgment, decree dated 9.4.1999 passed by the learned Additional District Judge (I), Kangra at Dharamshala (Camp at Una) in Civil Appeal No. 131/94 RBT. 33/95 affirming the judgment, decree dated 7.6.1994 passed by the learned Sub Judge, 1st Class (I), Amb in Case No. 209 of 1986 decreeing the suit of the respondents.</p><p style="text-align: justify;">2. The brief facts of the case are that respondents had filed a suit for declaration regarding land comprised in Khewat No. 418, Khatauni No. 1819/1 Khasra No. 6446 measuring 45 Kanals 1 Marla situated in village Lohara, Tehsil Amb, District Una on the grounds that suit land is in possession of the respondents as owners and prior to their becoming owners of the suit land it was in their possession as tenants on payment of rent to the original owners. It has been pleaded that appellants in connivance with the revenue staff got themselves entered as owners qua the suit land to the extent of share from Rabi 1984 at the back of the respondents. The further case of the respondents is that the entries of ownership of appellants to the extent of share qua suit land and subsequently attestation of mutation No. 4785 on 4.5.1984 is illegal, void. The entry of ownership and attestation of mutation is without jurisdiction and authority of law. It has been alleged that on the basis of wrong revenue record, the mutation conferring proprietary rights has been conferred on the appellants. The further case of the respondents is that appellants are interfering on the suit land and, therefore, the suit was filed.</p><p style="text-align: justify;">3. The suit was contested by the appellants. They have taken the plea that they were tenants on the suit land to the extent of share. The proprietary rights have been conferred on them to the extent of share of the suit land under the H.P. Tenancy and Land Reforms Act, 1972 (for short 'Act'). The entry of tenancy to the extent of share on the suit land was not made in their favour in the revenue record but it was corrected on the spot during crop inspection. They are owners to the extent of share on the basis of mutation Ex.D-1. The replication was filed by the respondents in which they contested the claim of the appellants and reiterated their stand.</p><p style="text-align: justify;">4. On the pleadings of the parties, the following issues were framed:</p><p style="text-align: justify;">1. Whether the plaintiffs are owners in possession of the suit land as alleged? OPP</p><p style="text-align: justify;">2. Whether the entry of ownership to the extent of share in favour of the defendants and subsequent mutation No. 4785 in their favour is wrong and is liable to be corrected in favour of the plaintiff as alleged? OPP</p><p style="text-align: justify;">3. If issues Nos. 1 and 2 are proved in favour of the plaintiffs, whether the plaintiffs are entitled to the relief of injunction? OPP</p><p style="text-align: justify;">4. Whether the defendant was a tenant over the suit land previously to the extent of share and has now become owner in possession of the same by operation of H.P. Tenancy and Land Reforms Act? OPD.</p><p style="text-align: justify;">5. Relief.</p><p style="text-align: justify;">The issues No. 1, 2, and 3 were answered in affirmative and issue No. 4 in negative and the suit was decreed by the learned Sub Judge on 7.6.1994. In appeal the learned Additional District Judge on 9.4.1999 affirmed the judgment, decree dated 7.6.1994 passed by the learned Sub Judge. Hence, the defendants have come in second appeal which has been admitted on the following substantial questions of law:</p><p style="text-align: justify;">1. Whether the court below has misread and misconstrued the oral and documentary evidence, especially the statements of DW-1, Sukh Dev, DW-2 Lachhman Singh, Ex.D-1 mutation dated 4.5.1984, Ex.D-2 Rapat, Ex.D-3 Kh. Girdwari Kharif 1981 to Rabi 1985?</p><p style="text-align: justify;">2. Whether in view of the full bench judgment 1991 (1) Sim.LC 223, the jurisdiction of the Civil Court was barred in the instant case?</p><p style="text-align: justify;">5. I have heard Mr. Rajnish K. Lal, Advocate, learned Counsel for the appellants and Mr. Ashwani K. Sharma, Advocate, learned Counsel for the respondents and have also gone through the record. It has been submitted by the learned Counsel for the appellants that two courts below have misconstrued and misinterpreted the statements of DW-1 Sukh Dev, DW-2 Lachhman Singh. The Courts below have also misconstrued and misinterpreted the mutation dated 4.5.1984 Ex.D-1, rapat dated 24.4.1984 Ex.D-2, Khasra Girdwari Kharif 1981 to Rabi 1985 Ex.D-3. The learned Counsel for the appellants has submitted that the courts below have not properly appreciated the law laid down by the High Court in Chuhniya Devi v. Jindu Ram 1991 (1) Shim.L.C. 223. It has been submitted that in view of the facts and circumstances of the case, the Civil Court has no jurisdiction to decide the matter.</p><p style="text-align: justify;">6. The learned Counsel for the respondents has supported the impugned judgment, decree. He has submitted that the two courts below have recorded a concurrent finding of fact in favour of the respondents that they were earlier tenants on the suit land and now they are the owners of the suit land in view of the Act. He has submitted that the consistent revenue record showing the respondents as tenants on the suit land was abruptly changed by Patwari by recording rapat Ex.D-2. It appears that on the basis of rapat Ex.D-2 lateron proprietary rights were conferred in favour of the appellants vide mutation Ex.D-1 dated 4.5.1984. He has submitted that under the Act, on the commencement of the Act and the Rules, the respondents had already acquired the proprietary rights, therefore, there was no question of conferring proprietary rights on the appellants on 4.5.1984.</p><p style="text-align: justify;">7. The case of the appellants is that they were tenants on the suit land to the extent of share. The perusal of jamabandi for the year 1968-69 Ex.P-1, jamabandi for the year 1973-74 Ex.P-2 and jamabandi for the year 1979-80 Ex.P-3 indicates that the names of the appellants were nowhere recorded showing them as tenants on the suit land. The rapat dated 24.4.1984 Ex.D-2 is only to the extent that on 24.4.1984 Patwari recorded change in the possession. It is not understandable how on the basis of rapat dated 24.4.1984, it can be construed that the appellants were tenants on the land in dispute. At the most, Ex.D-2 indicates change of possession and nothing more than that.</p><p style="text-align: justify;">8. On 4.5.1984 vide Ex.D-1 mutation 4.7.1985 proprietary rights were conferred on the appellants by the Assistant Collector 2nd Grade. The conferment of proprietary rights on the appellants is without jurisdiction for more than one reason. This Court has taken consistent view in many cases that conferment of proprietary rights is automatic under the Act and the Rules. On the commencement of Act and Rules, it is undisputed that as per the revenue record only the respondents were recorded as tenants on the suit land, therefore, on the commencement of the Act and the Rules, the proprietary rights were conferred automatically on the respondents and the entry to this effect was to be made by the authorities. Once the conferment of proprietary rights is automatic then on 4.5.1984 mutation Ex.D-1 conferring proprietary rights of half share of the suit land could not be attested in favour of the appellants. In jamabandis from 1968-69 to 1979-80 the respondents have been recorded as tenants on the suit land. Therefore, the respondents on the commencement of Act and Rules had already automatically become the owners of land over which they were recorded tenants. There was nothing left for conferring proprietary rights of suit land on the appellants.</p><p style="text-align: justify;">9. The respondents in jamabandis 1968-69 to 1979-80 were recorded tenants on the suit land. The change in the revenue record on or after 24.4.1984 in favour of the appellants showing them to be the tenants on the suit land is without any authority of law. The appellants have not placed on record any order of the competent authority authorizing the change of entry in their favour in the revenue record. In these circumstances, the presumption of truth is attached to the earlier record and not the later record which has not been shown to be based upon some order showing how change was made.</p><p style="text-align: justify;">10. In Durga and Ors. v. Milkhi Ram and Ors. P.L.J. 1969, 105, the Supreme Court has held that where earlier revenue entries were changed in the later revenue entries and the change was effected without any mutation and there was no order of the revenue authorities showing how the change was made, although the presumption would be in favour of the later entries but that presumption was a rebuttable one and it would stand rebutted by the fact that the alteration in the later entries was made unauthorisedly or mistakenly, there being no material to justify the change of entries. In these circumstances, no presumption of truth is attached to later revenue record in favour of the appellants showing them to be tenants on the suit land.</p><p style="text-align: justify;">11. The statement of DW-1 Sukhdev Raj was recorded on 28.4.1994 and he has stated that his father was in possession of land in dispute who used to pay Rs. 4/- as Chakota. His father was non-occupancy tenant. DW-1 in his statement has nowhere stated about the contract of tenancy. He has not stated when the tenancy was created and what were the terms of the tenancy. The statement of DW-1 that his father used to pay Rs. 4/- as Chakota is not enough to establish tenancy. The tenancy is a creation of contract, it is to be pleaded and proved, from the statement of DW-1 the creation of the tenancy has not been established.</p><p style="text-align: justify;">12. DW-2 Lachhman Singh has stated that Dhani Ram was in possession of the suit land, he paid Rs. 4/- to him on account of payment of grass. Dhani Ram was their tenant. In cross-examination, he has stated that Rs. 4/- were paid four years ago. The statement of DW-2 was recorded on 28.4.1994. The proprietary rights were conferred in favour of the appellants on 4.5.1984, therefore, there was no question of even payment of Rs. 4/- by Dhani Ram to Lachhman Singh one of the previous owners of the suit land on account of rent. Moreover, the statement of DW-2 Lachhman Singh is clear that Rs. 4/- were paid by Dhani Ram on account of grass. The statement of Lachhman singh also does not prove that Dhani Ram or any other appellant was tenant on any portion of the suit land. In Khasra Girdawari Ex.D-3 name of Dhani Ram was entered vide rapat No. 305 dated 4.5.1984. The legal value of Ex.D-3 is not better than mutation Ex.D-1 and rapat Ex.D-2. The appellants cannot take benefit of Khasra Girdawari Ex.D-3 in which name of Dhani Ram was recorded after 4.5.1984.</p><p style="text-align: justify;">13. The learned Counsel for the appellants has submitted that in view of Chuhniya Devi (Supra), the civil court has no jurisdiction in the facts and circumstances of the case. The Full Bench in Chuhniya Devi (Supra) has held that civil court has no jurisdiction to go into any question connected with the conferment of proprietary rights under the Act except in a case where it is found that the statutory authorities envisaged by that Act had not acted in conformity with the fundamental principles of judicial procedure or where the provisions of the Act had not been complied with. The mutation Ex.D-1 dated 4.5.1984 has been attested by Assistant Collector 2nd Grade, wheras under Rule 29 of the Himachal Pradesh Tenancy and Land Reforms Rules, 1975 such mutation is required to be attested by the Assistant Collector 1st Grade when there is a dispute between the parties. The mutation Ex.D-1 was attested by the Assistant Collector 2nd Grade, who had no jurisdiction to attest such mutation under the Act. Therefore, civil court has jurisdiction when mutation in question is without jurisdiction.</p><p style="text-align: justify;">14. It has not been pointed out that impugned judgment and decree are perverse. The two courts below have rightly appreciated the material on record. In second appeal, re-appreciation of the evidence is not permissible. The substantial questions of law No. 1 and 2 are decided against the appellants.</p><p style="text-align: justify;">15. No other point was urged.</p><p style="text-align: justify;">16. The result of the above discussion, the appeal fails and is accordingly dismissed with no order as to costs.<p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Subhash Chand and ors.', 'sub' => 'Property', 'link' => null, 'circuit' => null ) ), 'args' => array( (int) 0 => '903793' ) ) $title_for_layout = 'Ram Parkash and ors. Vs. Subhash Chand and ors. Semantic Analysis' $shops = array( 'LAW' => array( (int) 0 => 'Rabi 1984', (int) 1 => 'Rule 29' ), 'PERSON' => array( (int) 0 => 'Kuldip Singh', (int) 1 => 'Kangra', (int) 2 => 'Amb', (int) 3 => 'Khasra No', (int) 4 => 'Tehsil Amb', (int) 5 => 'Nos', (int) 6 => 'Sukh Dev', (int) 7 => 'D-3 Kh', (int) 8 => 'Girdwari Kharif', (int) 9 => 'Rabi', (int) 10 => 'Rajnish K. Lal', (int) 11 => 'Ashwani K. Sharma', (int) 12 => 'Sukh Dev', (int) 13 => 'Khasra Girdwari Kharif', (int) 14 => 'Devi v. Jindu Ram 1991', (int) 15 => 'rapat Ex', (int) 16 => 'jamabandi', (int) 17 => 'jamabandi', (int) 18 => 'Sukhdev Raj', (int) 19 => 'Dhani Ram', (int) 20 => 'Dhani Ram', (int) 21 => 'Dhani Ram', (int) 22 => 'Lachhman Singh', (int) 23 => 'Dhani Ram', (int) 24 => 'singh', (int) 25 => 'Dhani Ram', (int) 26 => 'Khasra Girdawari Ex', (int) 27 => 'Dhani Ram', (int) 28 => 'rapat Ex', (int) 29 => 'Khasra Girdawari Ex', (int) 30 => 'Dhani Ram', (int) 31 => 'jurisdiction.14' ), 'NORP' => array( (int) 0 => 'J.1', (int) 1 => 'Patwari', (int) 2 => 'P-1', (int) 3 => 'Patwari', (int) 4 => 'Chakota', (int) 5 => 'Chakota' ), 'FAC' => array( (int) 0 => 'Additional District' ), 'CARDINAL' => array( (int) 0 => '131/94', (int) 1 => '33/95', (int) 2 => '7.6.1994', (int) 3 => '209', (int) 4 => '418', (int) 5 => '45', (int) 6 => '4.5.1984', (int) 7 => '1', (int) 8 => '2', (int) 9 => '1', (int) 10 => '2', (int) 11 => '3', (int) 12 => '4', (int) 13 => '7.6.1994', (int) 14 => '9.4.1999', (int) 15 => '7.6.1994', (int) 16 => '4.5.1984', (int) 17 => '1', (int) 18 => '223', (int) 19 => 'two', (int) 20 => '24.4.1984', (int) 21 => '1', (int) 22 => 'two', (int) 23 => '4.5.1984', (int) 24 => '24.4.1984', (int) 25 => '24.4.1984', (int) 26 => '24.4.1984', (int) 27 => 'more than that.8', (int) 28 => '4.5.1984', (int) 29 => '4.7.1985', (int) 30 => 'more than one', (int) 31 => '4.5.1984', (int) 32 => 'half', (int) 33 => '105', (int) 34 => '28.4.1994', (int) 35 => '28.4.1994', (int) 36 => '4.5.1984', (int) 37 => 'one', (int) 38 => '305', (int) 39 => '4.5.1984', (int) 40 => '4.5.1984', (int) 41 => 'two', (int) 42 => '1', (int) 43 => '2' ), 'ORG' => array( (int) 0 => 'RBT', (int) 1 => 'the H.P. Tenancy', (int) 2 => 'OPP3', (int) 3 => 'H.P. Tenancy', (int) 4 => 'DW-1', (int) 5 => 'DW-2', (int) 6 => 'the Civil Court', (int) 7 => 'DW-1', (int) 8 => 'DW-2', (int) 9 => '4.5.1984 Ex', (int) 10 => 'rapat', (int) 11 => 'Rabi 1985 Ex', (int) 12 => 'the High Court', (int) 13 => 'L.C. 223', (int) 14 => 'the Civil Court', (int) 15 => 'Court', (int) 16 => 'Durga', (int) 17 => 'Milkhi Ram and Ors', (int) 18 => 'the Supreme Court', (int) 19 => 'DW-1', (int) 20 => 'DW-1', (int) 21 => 'DW-1', (int) 22 => 'DW-1', (int) 23 => 'DW-2', (int) 24 => 'DW-2', (int) 25 => 'DW-2', (int) 26 => 'Lachhman', (int) 27 => 'Chuhniya Devi (Supra', (int) 28 => 'the Himachal Pradesh Tenancy', (int) 29 => 'Land Reforms Rules' ), 'DATE' => array( (int) 0 => '1986', (int) 1 => '6446', (int) 2 => '4785', (int) 3 => '1972', (int) 4 => '4785', (int) 5 => '1981', (int) 6 => '1991', (int) 7 => '1981', (int) 8 => '4.5.1984.7', (int) 9 => 'the year 1968-69', (int) 10 => 'the year 1973-74', (int) 11 => 'the year 1979-80', (int) 12 => '1968-69 to 1979-80', (int) 13 => '1968-69 to 1979-80', (int) 14 => '24.4.1984', (int) 15 => '1969', (int) 16 => 'four years ago', (int) 17 => '4.5.1984.13', (int) 18 => '1975' ), 'GPE' => array( (int) 0 => 'Khewat', (int) 1 => 'Lohara', (int) 2 => 'Singh', (int) 3 => 'Rapat', (int) 4 => 'Singh', (int) 5 => 'Singh', (int) 6 => 'Singh' ), 'LOC' => array( (int) 0 => 'Additional District' ), 'ORDINAL' => array( (int) 0 => 'second', (int) 1 => 'second' ), 'PRODUCT' => array( (int) 0 => 'P-3', (int) 1 => 'The Full Bench' ), 'WORK_OF_ART' => array( (int) 0 => 'Collector 2nd Grade', (int) 1 => 'Collector 2nd Grade', (int) 2 => 'Collector 1st Grade', (int) 3 => 'Collector 2nd Grade' ) ) $desc = array( 'Judgement' => array( 'id' => '903793', 'acts' => '', 'appealno' => '', 'appellant' => 'Ram Parkash and ors.', 'authreffered' => '', 'casename' => 'Ram Parkash and ors. Vs. Subhash Chand and ors.', 'casenote' => ' - ', 'caseanalysis' => null, 'casesref' => 'In Durga and Ors. v. Milkhi Ram and Ors. P.L.J.;', 'citingcases' => '', 'counselplain' => '', 'counseldef' => '', 'court' => 'Himachal Pradesh', 'court_type' => 'HC', 'decidedon' => '2010-05-04', 'deposition' => 'Appeal dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' Kuldip Singh, J.', 'judgement' => '<p style="text-align: justify;">Kuldip Singh, J.</p><p style="text-align: justify;">1. This appeal has been directed against the judgment, decree dated 9.4.1999 passed by the learned Additional District Judge (I), Kangra at Dharamshala (Camp at Una) in Civil Appeal No. 131/94 RBT. 33/95 affirming the judgment, decree dated 7.6.1994 passed by the learned Sub Judge, 1st Class (I), Amb in Case No. 209 of 1986 decreeing the suit of the respondents.</p><p style="text-align: justify;">2. The brief facts of the case are that respondents had filed a suit for declaration regarding land comprised in Khewat No. 418, Khatauni No. 1819/1 Khasra No. 6446 measuring 45 Kanals 1 Marla situated in village Lohara, Tehsil Amb, District Una on the grounds that suit land is in possession of the respondents as owners and prior to their becoming owners of the suit land it was in their possession as tenants on payment of rent to the original owners. It has been pleaded that appellants in connivance with the revenue staff got themselves entered as owners qua the suit land to the extent of share from Rabi 1984 at the back of the respondents. The further case of the respondents is that the entries of ownership of appellants to the extent of share qua suit land and subsequently attestation of mutation No. 4785 on 4.5.1984 is illegal, void. The entry of ownership and attestation of mutation is without jurisdiction and authority of law. It has been alleged that on the basis of wrong revenue record, the mutation conferring proprietary rights has been conferred on the appellants. The further case of the respondents is that appellants are interfering on the suit land and, therefore, the suit was filed.</p><p style="text-align: justify;">3. The suit was contested by the appellants. They have taken the plea that they were tenants on the suit land to the extent of share. The proprietary rights have been conferred on them to the extent of share of the suit land under the H.P. Tenancy and Land Reforms Act, 1972 (for short 'Act'). The entry of tenancy to the extent of share on the suit land was not made in their favour in the revenue record but it was corrected on the spot during crop inspection. They are owners to the extent of share on the basis of mutation Ex.D-1. The replication was filed by the respondents in which they contested the claim of the appellants and reiterated their stand.</p><p style="text-align: justify;">4. On the pleadings of the parties, the following issues were framed:</p><p style="text-align: justify;">1. Whether the plaintiffs are owners in possession of the suit land as alleged? OPP</p><p style="text-align: justify;">2. Whether the entry of ownership to the extent of share in favour of the defendants and subsequent mutation No. 4785 in their favour is wrong and is liable to be corrected in favour of the plaintiff as alleged? OPP</p><p style="text-align: justify;">3. If issues Nos. 1 and 2 are proved in favour of the plaintiffs, whether the plaintiffs are entitled to the relief of injunction? OPP</p><p style="text-align: justify;">4. Whether the defendant was a tenant over the suit land previously to the extent of share and has now become owner in possession of the same by operation of H.P. Tenancy and Land Reforms Act? OPD.</p><p style="text-align: justify;">5. Relief.</p><p style="text-align: justify;">The issues No. 1, 2, and 3 were answered in affirmative and issue No. 4 in negative and the suit was decreed by the learned Sub Judge on 7.6.1994. In appeal the learned Additional District Judge on 9.4.1999 affirmed the judgment, decree dated 7.6.1994 passed by the learned Sub Judge. Hence, the defendants have come in second appeal which has been admitted on the following substantial questions of law:</p><p style="text-align: justify;">1. Whether the court below has misread and misconstrued the oral and documentary evidence, especially the statements of DW-1, Sukh Dev, DW-2 Lachhman Singh, Ex.D-1 mutation dated 4.5.1984, Ex.D-2 Rapat, Ex.D-3 Kh. Girdwari Kharif 1981 to Rabi 1985?</p><p style="text-align: justify;">2. Whether in view of the full bench judgment 1991 (1) Sim.LC 223, the jurisdiction of the Civil Court was barred in the instant case?</p><p style="text-align: justify;">5. I have heard Mr. Rajnish K. Lal, Advocate, learned Counsel for the appellants and Mr. Ashwani K. Sharma, Advocate, learned Counsel for the respondents and have also gone through the record. It has been submitted by the learned Counsel for the appellants that two courts below have misconstrued and misinterpreted the statements of DW-1 Sukh Dev, DW-2 Lachhman Singh. The Courts below have also misconstrued and misinterpreted the mutation dated 4.5.1984 Ex.D-1, rapat dated 24.4.1984 Ex.D-2, Khasra Girdwari Kharif 1981 to Rabi 1985 Ex.D-3. The learned Counsel for the appellants has submitted that the courts below have not properly appreciated the law laid down by the High Court in Chuhniya Devi v. Jindu Ram 1991 (1) Shim.L.C. 223. It has been submitted that in view of the facts and circumstances of the case, the Civil Court has no jurisdiction to decide the matter.</p><p style="text-align: justify;">6. The learned Counsel for the respondents has supported the impugned judgment, decree. He has submitted that the two courts below have recorded a concurrent finding of fact in favour of the respondents that they were earlier tenants on the suit land and now they are the owners of the suit land in view of the Act. He has submitted that the consistent revenue record showing the respondents as tenants on the suit land was abruptly changed by Patwari by recording rapat Ex.D-2. It appears that on the basis of rapat Ex.D-2 lateron proprietary rights were conferred in favour of the appellants vide mutation Ex.D-1 dated 4.5.1984. He has submitted that under the Act, on the commencement of the Act and the Rules, the respondents had already acquired the proprietary rights, therefore, there was no question of conferring proprietary rights on the appellants on 4.5.1984.</p><p style="text-align: justify;">7. The case of the appellants is that they were tenants on the suit land to the extent of share. The perusal of jamabandi for the year 1968-69 Ex.P-1, jamabandi for the year 1973-74 Ex.P-2 and jamabandi for the year 1979-80 Ex.P-3 indicates that the names of the appellants were nowhere recorded showing them as tenants on the suit land. The rapat dated 24.4.1984 Ex.D-2 is only to the extent that on 24.4.1984 Patwari recorded change in the possession. It is not understandable how on the basis of rapat dated 24.4.1984, it can be construed that the appellants were tenants on the land in dispute. At the most, Ex.D-2 indicates change of possession and nothing more than that.</p><p style="text-align: justify;">8. On 4.5.1984 vide Ex.D-1 mutation 4.7.1985 proprietary rights were conferred on the appellants by the Assistant Collector 2nd Grade. The conferment of proprietary rights on the appellants is without jurisdiction for more than one reason. This Court has taken consistent view in many cases that conferment of proprietary rights is automatic under the Act and the Rules. On the commencement of Act and Rules, it is undisputed that as per the revenue record only the respondents were recorded as tenants on the suit land, therefore, on the commencement of the Act and the Rules, the proprietary rights were conferred automatically on the respondents and the entry to this effect was to be made by the authorities. Once the conferment of proprietary rights is automatic then on 4.5.1984 mutation Ex.D-1 conferring proprietary rights of half share of the suit land could not be attested in favour of the appellants. In jamabandis from 1968-69 to 1979-80 the respondents have been recorded as tenants on the suit land. Therefore, the respondents on the commencement of Act and Rules had already automatically become the owners of land over which they were recorded tenants. There was nothing left for conferring proprietary rights of suit land on the appellants.</p><p style="text-align: justify;">9. The respondents in jamabandis 1968-69 to 1979-80 were recorded tenants on the suit land. The change in the revenue record on or after 24.4.1984 in favour of the appellants showing them to be the tenants on the suit land is without any authority of law. The appellants have not placed on record any order of the competent authority authorizing the change of entry in their favour in the revenue record. In these circumstances, the presumption of truth is attached to the earlier record and not the later record which has not been shown to be based upon some order showing how change was made.</p><p style="text-align: justify;">10. In Durga and Ors. v. Milkhi Ram and Ors. P.L.J. 1969, 105, the Supreme Court has held that where earlier revenue entries were changed in the later revenue entries and the change was effected without any mutation and there was no order of the revenue authorities showing how the change was made, although the presumption would be in favour of the later entries but that presumption was a rebuttable one and it would stand rebutted by the fact that the alteration in the later entries was made unauthorisedly or mistakenly, there being no material to justify the change of entries. In these circumstances, no presumption of truth is attached to later revenue record in favour of the appellants showing them to be tenants on the suit land.</p><p style="text-align: justify;">11. The statement of DW-1 Sukhdev Raj was recorded on 28.4.1994 and he has stated that his father was in possession of land in dispute who used to pay Rs. 4/- as Chakota. His father was non-occupancy tenant. DW-1 in his statement has nowhere stated about the contract of tenancy. He has not stated when the tenancy was created and what were the terms of the tenancy. The statement of DW-1 that his father used to pay Rs. 4/- as Chakota is not enough to establish tenancy. The tenancy is a creation of contract, it is to be pleaded and proved, from the statement of DW-1 the creation of the tenancy has not been established.</p><p style="text-align: justify;">12. DW-2 Lachhman Singh has stated that Dhani Ram was in possession of the suit land, he paid Rs. 4/- to him on account of payment of grass. Dhani Ram was their tenant. In cross-examination, he has stated that Rs. 4/- were paid four years ago. The statement of DW-2 was recorded on 28.4.1994. The proprietary rights were conferred in favour of the appellants on 4.5.1984, therefore, there was no question of even payment of Rs. 4/- by Dhani Ram to Lachhman Singh one of the previous owners of the suit land on account of rent. Moreover, the statement of DW-2 Lachhman Singh is clear that Rs. 4/- were paid by Dhani Ram on account of grass. The statement of Lachhman singh also does not prove that Dhani Ram or any other appellant was tenant on any portion of the suit land. In Khasra Girdawari Ex.D-3 name of Dhani Ram was entered vide rapat No. 305 dated 4.5.1984. The legal value of Ex.D-3 is not better than mutation Ex.D-1 and rapat Ex.D-2. The appellants cannot take benefit of Khasra Girdawari Ex.D-3 in which name of Dhani Ram was recorded after 4.5.1984.</p><p style="text-align: justify;">13. The learned Counsel for the appellants has submitted that in view of Chuhniya Devi (Supra), the civil court has no jurisdiction in the facts and circumstances of the case. The Full Bench in Chuhniya Devi (Supra) has held that civil court has no jurisdiction to go into any question connected with the conferment of proprietary rights under the Act except in a case where it is found that the statutory authorities envisaged by that Act had not acted in conformity with the fundamental principles of judicial procedure or where the provisions of the Act had not been complied with. The mutation Ex.D-1 dated 4.5.1984 has been attested by Assistant Collector 2nd Grade, wheras under Rule 29 of the Himachal Pradesh Tenancy and Land Reforms Rules, 1975 such mutation is required to be attested by the Assistant Collector 1st Grade when there is a dispute between the parties. The mutation Ex.D-1 was attested by the Assistant Collector 2nd Grade, who had no jurisdiction to attest such mutation under the Act. Therefore, civil court has jurisdiction when mutation in question is without jurisdiction.</p><p style="text-align: justify;">14. It has not been pointed out that impugned judgment and decree are perverse. The two courts below have rightly appreciated the material on record. In second appeal, re-appreciation of the evidence is not permissible. The substantial questions of law No. 1 and 2 are decided against the appellants.</p><p style="text-align: justify;">15. No other point was urged.</p><p style="text-align: justify;">16. The result of the above discussion, the appeal fails and is accordingly dismissed with no order as to costs.<p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '', 'ratiodecidendi' => '', 'respondent' => 'Subhash Chand and ors.', 'sub' => 'Property', 'link' => null, 'circuit' => null ) ) $args = array( (int) 0 => '903793' ) $pattern = '/\(((0[1-9]|[12][0-9]|3[01])[.](0[1-9]|1[012])[.](17|18|19|20)[0-9]{2}).*\)/' $shops2 = nullinclude - APP/View/Case/meta.ctp, line 39 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
LAW: Rabi 1984, Rule 29
PERSON: Kuldip Singh, Kangra, Amb, Khasra No, Tehsil Amb, Nos, Sukh Dev, D-3 Kh, Girdwari Kharif, Rabi, Rajnish K. Lal, Ashwani K. Sharma, Sukh Dev, Khasra Girdwari Kharif, Devi v. Jindu Ram 1991, rapat Ex, jamabandi, jamabandi, Sukhdev Raj, Dhani Ram, Dhani Ram, Dhani Ram, Lachhman Singh, Dhani Ram, singh, Dhani Ram, Khasra Girdawari Ex, Dhani Ram, rapat Ex, Khasra Girdawari Ex, Dhani Ram, jurisdiction.14
NORP: J.1, Patwari, P-1, Patwari, Chakota, Chakota
FAC: Additional District
CARDINAL: 131/94, 33/95, 7.6.1994, 209, 418, 45, 4.5.1984, 1, 2, 1, 2, 3, 4, 7.6.1994, 9.4.1999, 7.6.1994, 4.5.1984, 1, 223, two, 24.4.1984, 1, two, 4.5.1984, 24.4.1984, 24.4.1984, 24.4.1984, more than that.8, 4.5.1984, 4.7.1985, more than one, 4.5.1984, half, 105, 28.4.1994, 28.4.1994, 4.5.1984, one, 305, 4.5.1984, 4.5.1984, two, 1, 2
ORG: RBT, the H.P. Tenancy, OPP3, H.P. Tenancy, DW-1, DW-2, the Civil Court, DW-1, DW-2, 4.5.1984 Ex, rapat, Rabi 1985 Ex, the High Court, L.C. 223, the Civil Court, Court, Durga, Milkhi Ram and Ors, the Supreme Court, DW-1, DW-1, DW-1, DW-1, DW-2, DW-2, DW-2, Lachhman, Chuhniya Devi (Supra, the Himachal Pradesh Tenancy, Land Reforms Rules
DATE: 1986, 6446, 4785, 1972, 4785, 1981, 1991, 1981, 4.5.1984.7, the year 1968-69, the year 1973-74, the year 1979-80, 1968-69 to 1979-80, 1968-69 to 1979-80, 24.4.1984, 1969, four years ago, 4.5.1984.13, 1975
GPE: Khewat, Lohara, Singh, Rapat, Singh, Singh, Singh
LOC: Additional District
ORDINAL: second, second
PRODUCT: P-3, The Full Bench
WORK_OF_ART: Collector 2nd Grade, Collector 2nd Grade, Collector 1st Grade, Collector 2nd Grade