Sita Ram vs Kuldeep Chand and Others

V.K. Ahuja, J.—This is a regular second appeal filed by the Appellant u/s 100 CPC against the judgment and decree, dated 26.6.2001, passed by the Learned District Judge, Kangra at Dharamshala, vide which he affirmed the judgment and decree, dated 10.1.2000, passed by the Learned Sub Judge Ist Class, Baijnath, dismissing the suit of the Plaintiff for declaration.

Briefly stated, the facts of the case are that the Appellant (hereinafter also referred to as the Plaintiff) filed a suit for declaration as against the original Defendant Roshan Lal, now represented by the present Respondents, (hereinafter also referred to as the Defendant). It was alleged by the Plaintiff that the land in suit comprised in Khasra No. 709 measuring 0-01-01 hectares is recorded in the ownership of State of H.P. and in possession of Sita Ram Plaintiff, through one Thakur Dass, as tenant Gair Marusi. It was alleged that the land in Khasra No. 709/1 measuring 0-00-34 hectares has been mutated in favour of the Defendant vide which proprietary rights have been conferred upon him of this portion of land by virtue of H.P. Tenancy and Land Reforms Act. It was alleged that the Defendant was a tenant of the building under the Plaintiff and a case regarding ejectment of the Defendant and recovery of rent was filed by the Plaintiff. During the litigation, the matter was compromised vide which the Defendant agreed to vacate the building and it was agreed by the Plaintiff to give the land in Khasra No. 709/1 for construction of a shop on a yearly rent of Rs. 12/-. The said agreement was later on not admitted by the Defendant and the agreement was rejected by the Hon''ble High Court. The said compromise has No. value in the eyes of law. The Defendant got the entries changed in the revenue record on the basis of the said compromise and later on the proprietary rights were conferred upon him on 5.12.1988 and mutation was also attested in his favour. It was alleged that since the compromise had No. legal value, therefore, the change of entries, order and mutation have No. force, hence the suit for declaration filed by the Plaintiff.

The Defendant took up preliminary objections in regard to locus standi, maintainability etc. On merits, he pleaded that the Government of H.P. was recorded in the ownership column but the remaining allegations showing the Plaintiff in possession were denied. It was alleged that the Defendant was in possession, who is in possession as an owner and mutation has been rightly attested in his favour. It was also pleaded that the Government was a necessary party and as such the suit is liable to be dismissed.

On the pleadings of the parties, the Learned trial Court framed as many as 8 issues. The main issues were issues No. 1 to 3, which may be reproduced as under:

Whether the Plaintiff is in possession of the suit land as tenant as prayed for? OPP

Whether the revenue entries showing the Defendant owner in possession are illegal, wrong and not binding as prayed for? OPP

2.A. Whether mutation 296 sanctioned in favour of Defendant is wrong, null and void, if so, its effect? OPP

Whether the suit land had given to Defendant in lieu of agreement to vacate the building in favour of Plaintiff as alleged, if so, its effect? OPP

The Learned trial Court decided all these issues as against the Plaintiff and in favour of the Defendant and consequently dismissed the suit of the Plaintiff. On appeal, those findings were affirmed by the Learned District Judge.

The present appeal was admitted by this Court on the following substantial questions of law:

Whether in the facts and circumstances of the case, both the Courts below have committed an error of law in not restoring possession of the Plaintiff, when the compromise was held to be bad by this Court?

Whether in the facts and circumstances of the case, both the Courts below have committed an error of law in dismissing the suit of the Plaintiff?

Whether in the facts and circumstances of the case, both the Courts below have committed an error of law in interpreting the documents on record?

I have heard the Learned Counsel for the parties on the above questions of law as to whether they arise from the facts of the case or not and as to whether the courts below have committed an error of law in not restoring the possession of the Plaintiff when the compromise in question was held to be bad by this Court.

A perusal of the judgment passed by the Learned trial Court shows that the Plaintiff had claimed as PW-1 that he was in possession of the disputed khasra number owned by Hari Krishan, his brother and a suit for ejectment qua a shop was filed against the Defendant by Hari Krishan through the Plaintiff. He stated that during the pendency of the appeal, compromise Ext. P-1 was executed vide which the Defendant had agreed to vacate the shop and the Plaintiff had agreed to rent out a portion of the land to Defendant on payment of Rs. 12/- per month. It was submitted that the Defendant had not vacated the shop, though he admitted the agreement before the Court of the Learned District Judge. The Defendant Kuldeep Chand as DW-1 has denied that the Plaintiff ever remained in possession of the suit land, rather he stated that the land was earlier in possession of the predecessor-in-interest of Defendants and now it is in possession of the Defendants. There is nothing on the record to establish that the revenue entries were got changed by the Defendant on the basis of the compromise in question. A perusal of the copy of the Bandobast Jadeed Ext. P-12 shows that the suit land was earlier entered in the ownership of Mandir Baijnath and then in possession of Thakur Dass through the Plaintiff. However, as per the remarks column, the mutation of ownership was changed from Mandir Baijnath to the State of H.P. A perusal of Ext. D-1, copy of the jamabandi for the year 1992-93 shows that the Defendant is entered in possession of the suit land as an owner. Ext. D-2, copy of the jamabandi for the year 1997-98 shows that the ownership and possession as entered is that of Kuldip Chand etc. A perusal of the remarks column in Ext. D-1 shows that on the death of Roshan Lal, the same was attested in favour of his legal representatives as per mutation dated 19.10.1993.

It is clear from the above discussion that nothing was established by the Plaintiff to show that on the basis of any compromise the entries were changed in favour of the Defendant, in which he had failed miserably and that was also concluded by the Learned trial Court. The entries in favour of the Defendant have not been proved to have been incorporated illegally. It is also on record that the mutation has been attested in favour of the Defendant of ownership under the H.P. Tenancy and Land Reforms Act.

According to a Full Bench decision of this Court in Chuhniya Devi Vs. Jindu Ram, the conferment of mutation under the H.P. Tenancy and Land Reforms Act in favour of a tenant cannot be challenged and that question cannot be looked into by a Civil Court, except when there are specific allegations that the authorities had not followed the procedure prescribed by law, which is not so the case of the Plaintiff.

The Learned District Judge in its judgment had also referred to the oral and documentary evidence and had finally concluded that the findings recorded by the Learned trial Court do not call for an interference by this Court. No. illegality was pointed out in the conclusions arrived at by both the courts below and as such there was no occasion to refer to the evidence led by the parties, though I have referred to the relevant evidence in brief. There cannot be any reappraisal of evidence once both the courts below have come to a definite conclusion and findings have been recorded accordingly and No. illegality could be pointed out in the conclusion drawn by the Learned trial Court and affirmed by the Learned Appellate Court.

In view of the above discussion, there is No. merit in the appeal filed by the Appellant, which is dismissed accordingly. However, the parties are left to bear their own costs.