1. The present appeal has been preferred against the judgment and decree, passed by learned Additional District Judge, Una in Civil Appeal No. 44 of 2009, decided on 20.10.2010, whereby the learned First Appellate Court has affirmed the findings of the learned Civil Judge (Jr. Div.), Court No. 2, Amb, District Una, in Civil Suit No. 196 of 2000 dated 28.04.2009.
2. The dispute between the parties is with regard to land bearing Khewat No. 273, Khatauni Nos. 671 and 672 Khasra Nos. 3126, 3342, 3345, 3127, 3343, 3344 and 3349, Kittas 7, total measuring 1-59-80 hectares as entered in the Jamabandi for the year 1994-95 situated in UP Mohal Ram Nagar (Nakroh), Tehsil-Amb, District Una, H.P.
3. The case of the appellants is that as per Missal Hakiyat Istemal for the year 1966-1967, the suit land was denoted by Khewat No. 2 min, Khatauni No. 31, Khasra Nos. 2453, 2458 and 2459. The land measured 41.19 Kanals. The same was owned and possessed by their predecessor-in-interest and the forefathers of the proforma respondents. The respondents, according to the appellants had nothing to do with the land in dispute. The predecessor-in-interest of the respondents, according to the appellants, had never been inducted as tenant(s) over suit land. There existed no relationship of landlord(s) and tenant (s) between the appellants, proforma respondents and the respondents or their ancestors. According to the appellants, one Sh. Jalha (predecessor-in- interest of the respondents) had in connivance with the Revenue Officers wrongly got his name incorporated in the revenue record as a non-occupancy tenant in/over the suit land. The further grievance of the appellants is that late Sh. Lachhman Dass (son of deceased Sh. Jalha) and Sh. Nanak Chand (respondent No. 2) on the basis of wrong and illegal entries had got mutation No. 3166 dated 27.09.1983 sanctioned in their favour, whereby proprietary rights had been conferred on them.
4. In the aforesaid backdrop, the present appellants had sought a decree of declaration to the effect that the appellants alongwith with proforma respondents are owners in possession of the suit land and entries in the name of respondents reflecting them to be non-occupancy tenant(s) and subsequent conferment of proprietary rights by virtue of mutation No. 3166 dated 27.09.1983 be set-aside being wrong, illegal and without jurisdiction. Besides aforesaid a decree for permanent injunction restraining the defendants from interfering in any manner in the suit land was also sought. In the alternative, a decree for possession was also asked for.
5. On notice, since proforma respondents did not appear in the Trial Court despite being served they were proceeded against ex-parte on 31st October, 2000.
6. The contesting respondents No. 1 and 2 had filed their written statement. On merits, it was admitted that the appellants and the proforma respondents were the owners of the suit land. According to the contesting respondents, the suit land was in the occupation of their predecessor-in-interest of Sh. Palli. In the aforesaid backdrop, the wrong revenue entries existing in favour of the appellants and the proforma respondents, whereby they were shown to be owners with possession of the suit land were got corrected vide Rapat No. 121 dated 23.10.1968. The aforesaid correction was made in favour of Sh. Jalha and Munshi, Sons of Sh. Palli after a spot inspection. According to the contesting respondents, the appellants and the proforma respondents as well as their forefathers had been admitting Sh. Palli and after his demise Sh. Jalha and Sh. Munshi as their tenant(s) on payment of rent. As per the contesting respondents, the correction made in the Khasra Girdawari in October, 1968 was as per the actual and factual possession. It was further alleged that the present appellants had intentionally suppressed true and material facts. Last but not the least, according to the contesting respondents, mutation No. 3166 had been rightly attested.
7. Heard learned counsel for the parties and perused the record. Though the appeal had been admitted on five substantial questions of law, but with the consent of the parties, the present appeal is being heard only on substantial questions of law Nos. 2 and 5.
8. Admittedly, as has been noticed by both Courts below, the contesting respondents have been shown as non occupancy tenants since 1943-44 qua the suit land. The same is evident from the entries in Ext. D-2 and Ext. D-3 i.e. copies of Jamabandi for the year 1943-44 and 1956-57, respectively.
9. In these Jamabandies, Sh. Jalha, the predecessor- in-interest of the contesting respondents had been recorded as Gair Marusi in/over the suit land on a payment of rent. There is nothing on record to show that Sh. Jalha or his successor-in- interest had relinquished the tenancy rights or that their tenancy had been terminated at any point of time. There is nothing on record to show, as to how the name of Sh. Jhalla or his Progeny was deleted from the record of rights, at the time of consolidation which took place in the year 1961-1962. The change in the revenue entries was effected in favour of the predecessor-in- interest of the appellants and the proforma respondents without any order of Competent Authority or mutation. Therefore, the subsequent revenue entries existing in favour of Sh. Mulk Raj etc. showing them to be the owner in possession of the suit land are of no consequence.
10. The entries were changed in favour of Jalha etc. at the time of spot verification they were recorded in possession of the suit land as tenants on payment of rent. Exhibits P-10 and DY, are the copies of Rapat No. 121 dated 23rd October, 1968. They clarify that at the time of Girdwari, a change of possession qua the land in dispute was found. Ext.P-11 is the copy of the Rapat No. 97 dated 19.10.1969 which shows that no change was detected, on that day. Subsequent to the aforesaid, Ext. P-2 and Ext. D-5 are copies of Jamabandi for the year 1971-1972 they unfold that appellants and proforma respondents are the owners of the suit land. The possession of Sh. Jalha, S/O Sh. Palli and Sh. Nanak, S/O Sh. Munshi, S/O Sh. Palli, is recorded over the land as Gair Marusi, on payment of rent.
11. From the aforesaid, it is evident that the appellants and proforma respondents are trying to take undue advantage of a stray entry which in view of the over whelming documentary evidence needs to be ignored. Substantial question of law No. 2 is, therefore, answered in the negative.
12. The issue of conferment of proprietary rights under Section 104 (3) of the HP Tenancy and Land Reforms Act has been dealt with in the case of Daulat Ram & others vs. State of H.P. & others, reported in 1979 SLC, Shimla Law Cases 215, wherein it has been laid that conferment of proprietary rights under Section 104 (3) of the HP Tenancy and Land Reforms Act is automatic and it commences from the date of issue of the notification.
13. In view of the aforesaid settled position of law, in the facts and attending circumstances of the case at hand, I see no infirmity in the conferment of proprietary rights in the case at hand. Substantial question of law No. 5 is, therefore, answered in the negative.
14. In view of aforesaid discussion, there is no merit in this appeal and the same is accordingly dismissed. No order as to costs. Pending miscellaneous application(s), if any, shall also stand disposed of.
