MADAN LAL Vs. RUP LAL

JUDGEMENT

(1.) This Regular Second Appeal has been directed against the judgment and decree dated 31.3.1999 passed by the learned Additional District Judge (1), Kangra at Dharamshala in Civil Appeal No. l-D/1997.

(2.) Material facts necessary for the adjudication of this Regular Second Appeal are that plaintiffs No. 1 and 2, and predecessor-in-interest of plaintiffs No. 3 (a) to 3(c), Sh. Ghunghar (hereinafter referred to as 'the plaintiffs' for convenience sake) filed a suit for declaration to the effect that the plaintiffs and predecessor in interest of appellants-defendants are in joint possession as tenants and have acquired proprietary rights in respect of the land detailed in civil suit measuring 1-37-42 hectares situated in Mohal Patni, Mauza Pasu, Tehsil Dharamshala, District Kangra, Himachal Pradesh as per jamabandi for the year 1970-71 on the averments that the land in suit is recorded in the ownership of proforma respondents-defendants No. 4 to 8 and is in possession of defendant No. 1 Phangan (defendant Phangan died during the pendency of the suit and his legal heirs were brought on record, i.e. Madan Lal, Ranjit Singh and Subhash Chand vide order dated 1.3.1994 passed by the learned trial Court) as tenant at will. It is also averred that the Missal Haquiat and jamabandi for the year 1968-69 further reveals that prior to the recent settlement, it was denoted with khasra Nos. 309, 324, 308 and small insignificant parts of khasra Nos. 307, 314 min, 311 min and 324 min and the land of Khasra No. 309 min, 324 and 308 min, plots 3, measuring 35 kanals 2 marlas were in possession of the tenant at will of the predecessor-in-interest of respondents No. 3-(a) and 3-(b), namely, Sh. Ghunghar-plaintiff and defendant No. 1 Sh. Phangah. However, even the name of Ghunghar was left out during the settlement and as per jamabandi for the year 1931-32, the land comprised Khasra No. 213 min and 224 min area measuring 22 kanals 2 marlas was owned by Sh. Sansaru, the predecessor-in-interest of proforma defendants No. 4 to 8 and in possession of the predecessor-in-interest of the plaintiffs and defendant No. 1 Phangan as tenant-at-will on payment of Galla Batai as rent and when Sh. Parma, the predecessor-in-interest of the plaintiffs expired, the plaintiffs and Phangan were minors and after the demise of Sh. Parma, the land in suit was cultivated by Kalu for sometime and when he left the cultivation, the same came in possession of the plaintiffs and defendant Phangan as tenants, but Sh. Phangan being the eldest brother of the plaintiffs, the suit land was recorded in possession of Ghunghar and Phangan as Gair Maurusi tenants under the owners on payment of Galla Batai alongwith some other land. They used to live in a joint family till 1983 and the land was also jointly cultivated after paying the rent to the land owners. It is further stated that the land comprising 214 min, 224 and 213 min was denoted by new khasra No. 309 min, 324 and 308 min, measuring 35 kanals 2 marlas and the possession of the suit land was again shown in the name of Ghunghar and Phangan. It is further stated that notwithstanding that the possessory column showed Ghunghar and Phangan as tenants, yet the land in suit was cultivated and is being cultivated jointly by the plaintiffs and Phangan. The parties started leaving separately from 1983. However, during the settlement operation, Phangan in collusion with other defendants and the settlement staff showed himself as sole tenant of the land in suit, which is contrary to the facts and thereafter Phangan started proclaiming himself that he is the sole tenant of the suit land. It is in these circumstances that the proprietary rights were conferred upon him under the Himachal Pradesh Tenancy and Land Reforms Act. The suit was contested by defendant No. 1-Phangan by filing written statement. He raised various preliminary objections. On merits, he has contended that the settlement took place in Tikka and during the settlement all the entries of the revenue record were recorded according to the factual position on the spot and the suit land was never cultivated by Ghunghar and he was not in possession of the suit land. It was further averred that Ghunghar was in police service and there was no occasion for him being in possession of the suit land and he has no knowledge about the revenue entries in the copy of jamabandi for the year 1968-69. He further contended that he was in possession of the suit land as tenant and remained in possession of the same throughout after paying Galla Batai and according to him other plaintiffs, including Ghunghar never cultivated the land and there was no question of joint cultivation by them with him. He lastly contended that he is leaving separately from the plaintiffs for many years. Proforma respondents No. 7 and 8 filed separate written statement and have stated that Phangan was in cultivating possession of the suit land as tenant and he was in possession of the suit land as a tenant and he had been paying rent to them as their tenants. The learned Senior Sub-Judge, Kangra at Dharamshala dismissed the suit on 30.10.1996. The plaintiffs preferred an appeal before the learned Additional District Judge (1), Kangra at Dharamshala vide Civil Appeal No. l-D/97. The learned Additional District Judge allowed the appeal on 31.3.1999 and the judgment and decree passed by the trial Court was set aside. The suit of the plaintiffs was decreed as per operative portion of the judgment.

(3.) The appellants have filed the present Regular Second Appeal against the judgment and decree dated 31.3.1999. The Regular Second Appeal was admitted on the following substantial questions of law: