PRAN NATH KHANNA Vs. STATE OF H.P.

JUDGEMENT

(1.) This second appeal has been preferred by the plaintiffs -appellant (hereinafter referred to as the appellant) against the judgment and decree dated 1.6.1994 passed by the learned District Judge, Sirmaur at Nahan, whereby the first appeal of the appellant against the judgment and decree dated 23.11.1991 passed by the learned Sub Judge 1st Class (II), Paonta Sahib has been dismissed.

(2.) Brief facts leading to the presentation of this appeal are as follows. The appellant instituted a suit for declaration that he is owner in possession of the land comprising Khata Khatauni No. 378/522, Khasra No. 126 min, measuring 9.1 bighas and Khata Khatauni No. 12/17, Khasra No. 130/2, measuring 12 biswas, situate in village Devi Nagar, Teh. Paonta Sahib, Distt. Sirmaur, (hereinafter referred to as the suit land) and for permanent prohibitory injunction restraining the defendant -respondent (hereinafter referred to as the respondent) from interfering with his possession over the suit land. It has been averred in the plant that one Rainasury who was the Mohatmin of Mandir Thakurdwara Daiji Sahiba, Paonta Sahib had created a lease for 99 years in favour of the appellant in respect of the suit land on 14.5.1962. The purpose of lease was to instal an industry by the plaintiffs over the suit land. The annual rent, as per the lease deed, was fixed at Rs. 289/ -. As per the terms and conditions of the lease deed, the appellant was free to use the suit land in any manner and was authorised to transfer the same on rent etc. and has been in peaceful, uninterrupted and continuous possession thereof since the execution of the lease deed. I has further been claimed that the appellant acquired proprietary rights in the suit land by virtue of the provisions of H.P. Tenancy and Land Reforms Act, 1972 on and with effect from 3.10.1975 and the respondent has no right, title and interest in the suit land. It is further claimed that one Bhagta alias Jagir Singh, who is recorded as tenant in the Misal Hakiyat for the year 1959 -60 and in the jamabandi for the years 1963 -64 had already relinquished the tenancy and surrendered the possession of the suit land after having received money from the appellant. Therefore, the entries in the revenue record showing him in possession of the suit land are not correct and at the time of mutation regarding vestment of the suit in favour of the respondent, the appellant was in possession of the suit land as a tenant and as such, the entry showing the respondent as owner of the suit land is illegal, void abi nitio and not binding on the appellant. In the alternative, it is claimed that in case it is found that the vestment of the suit land in the respondent under the provisions of Section 27(1) of the H.P. Abolition of Big Landed Estates and Land Reforms Act is correct, in that event, the proprietary rights of the suit land ought to have been conferred upon the appellant under Section 27(4) of the said Act, as he had stepped into the shoes of the tenant and the respondent cannot claim the ownership of the suit land and the entry showing it to be the owner thereof is illegal and fraudulent. The entries in the revenue record showing the appellant as tenant of the suit land had been changed in an unjust and fraudulent manner and the appellant has been recorded as "Kabij". This change has been brought about at the back of the appellant and without any notice to him. On the strength of this change, an illegal and ex parte order of ejectment has been passed by the Assistant Collector, 1st Class, Paonta Sahib under Section 163 of the H.P. Land Revenue Act, which is also illegal, as the appellant was not afforded any opportunity of being heard. The appellant being in possession, his possession deserves to be protected by restraining the respondent from interfering in his possession. Hence the suit.

(3.) The respondent contested the suit and in the written statement raised the preliminary objections that the suit is not maintainable : that it is bad for want of service of notice under Section 80 of the Code of Civil Procedure : that the appellant is estopped from filing the present suit; that the Court has no jurisdiction to entertain the suit; that the suit is bad for non -joinder of necessary parties and that the suit is barred by res judicata under Section 11 of the Code of Civil Procedure. On merits, while admitting that the suit land was once owned and possessed by Mandir Thakurdwara Dei Ji Sahiba and Ramanuj was its Manager, it has been averred in the written statement that said Ramanuj had no power to transfer the land in suit in any manner to any other person. Thus, he could not execute the lease deed in favour of the plaintiffs. Therefore, the lease deed executed in favour of the appellant is against law having no binding force. It has, thus, been claimed that the lease deed, on the basis of which the appellant has laid his claim to the suit property, being illegal, the appellant has no cause of action to institute the present suit and is thus, an encroacher over the suit land belonging to the respondent. Therefore, legal action under Section 163 of the H.P. Land Revenue Act was duly taken against him and he was ordered to be ejected from the suit land. The respondent, thus, denied the claim of he appellant in toto.