DEV LATA Vs. CHEND

JUDGEMENT

(1.) This appeal was filed against a decision recorded by the District Judge, Mahasu, on the 5th December 1967.

(2.) In the course of the appeal Civil Miscellaneous Petition No. 148 of 1969 was filed for recording a compromise as between the appellant and the legal representatives of Chitaku deceased. The Civil miscellaneous petition was dealt with by a Division Bench of this Court. By an order dated 20th August, 1970, the said petition was dismissed and it was directed that the present appeal be decider on merits. It may also be noticed that during the pendency of this appeal C. M. P. No. 224 of 1969 was filed by one Parsa with the prayer that he being in possession of the land in dispute be made a party. That petition was dismissed on the 28th May 1970. There is a finding recorded by the learned District Judge that Chitaku was the tenant in cultivatory possession and was thus entitled to the transfer of the rights within the meaning of sub-section (4) of Section 27 of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953 (hereinafter referred to as the Act) I have allowed Mr. Chitkara to deal with all aspects of this appeal without being confined to the aforesaid finding of fact. The learned counsel for the appellant has pointed out that in the Jamabandi for the years 1954- 55. Dev Lata was recorded as the occupancy tenant and Chitaku was recorded as non-occupancy tenant liable to pay rent at the rats mentioned in the relevant columb of that Jambandi to the occupancy tenant. The entries contaiaing the same situation stand repeated in the Jamabandi pertaining to the years 1962-63 The learned counsel took me through the Exhibits C.W, 1/A dated 11th September, 1959 and stressed that Chitaku had relinquished his right. It is note-worthy that the present appellant's name is not mentioned in that document. Chitsku's statement dated 30th May, 1967 recorded by the Compensation Officer has been read out to me by Mr. Chitkara. In that statement Chitaku stated that so long he could work he did not allow any body else to touch the land in question, but for the last six years Parsa was tilling that land on his behalf. In his statement certain words are used which would literally mean that Chiaku had resigned from his rights in respect of that land but then the land which was to be given in lieu thereof was not made over to him and for that reason he did not give up the actual cultivatory possession of the land in dispute. I was taken through the statement of Karam Singh OW-1 and it was urged that he being the general attorney of Rani Sahiba who was looking after the interest of Dev Lata, the latter being a minor, had dealt with Chitaku at the time when OW. 1/A was executed. Both the versions have been brought to my notice. One being that Chitaku gave up his rights on the 11th September, 1959 in respect of the disputed land and the other contained in Chitaku's statement that he did not actually give up the possession because the land which was to be given to him. In exchange was never in fact given to him. Karam Singh OW-1 who was looking after the interest of the present appellant stated in the course of his statement that he never asked the Patwari to record the change resulting from the execution of Exhibit OW. 1/A. He no where stated that the minor was cultivating the land herself. He did not mention the name of any person through whom the minor may have culivated the land at any time after the 11th of September, 1959 when Exhibit OW -1/A was executed. It was put to Karam Singh that the signature, of Chitako were obtained on OW-1/A on the 11th September, 1959 by making a false representation that he will be given some other land in exchange. That suggestion was denied by Karam Singh.

(3.) . It defies imagination as to why no change in the revenue papers was sought by Karam Singh or any body else acting on behalf of the present appellant if Chitaku had really relinquished his rights in the land in dispute and had given up his cultivatory possession. If be had really parted with possession and if somebody else started ploughing the laud and cultivating it in that way then his name would have certainly appeared in the Khasra-girdawaris as froro 1954-55 to 1962-63. The entries contained in the Jamabandi for the years 1962.63 provide presumptive evidence and In this case clinching evidence to the effect that it was Chitaka who remained in cultivatory possession of the land in dispute throughout.