RAJINDER SINGH Vs. SHAKUNTLA DEVI

JUDGEMENT

(1.) This appeal under Order 43 Rule 1(a) of the Code of Civil Procedure Code is directed against the judgment of the District Judge, Sirmaur at Nahan in Civil Appeal No. 6-N/13 of 1994 dated 16.8.1996 whereby he has remanded the case to the trial Court for returning the plaint to the Plaintiff under Order 7 Rule 10 Code of Civil Procedure for its presentation before a competent Court/office of law.

(2.) The facts which are necessary for disposal of the present appeal are that the original Plaintiff had filed a suit for declaration that he was a non-occupancy tenant on Khasra Nos. 164/130 old measuring 61.2 bighas under the predecessors of some of the Defendants. The holding of the landlords was assessed to land revenue exceeding Rs. 125/- and, therefore, the ownership of some of the land which was held by the tenants vested in the State of Himachal Pradesh under Section 27 of the H.P. Abolition of Big Landed Estates and Land Reforms Act, 1953 (hereinafter called as the Abolition Act). It was further the case of the Plaintiff that half share of the land measuring 28.8 bighas vested in the State of Himachal Pradesh vide mutation No. 345. Later on the proprietary rights of this half share which was shown as khasra Nos. 165/130 were conferred upon the Plaintiff vide mutation No. 381 dated 21.9.1967. The remaining half share of 28.8 bighas was recorded in the ownership of Defendants 1 to 3 but the Plaintiffs continued to be recorded as tenant even on this land.

(3.) The Plaintiff's case was that when the proprietary rights of half share of the land were vested in the State of Himachal Pradesh vide Mutation No. 345 a map/tatima was drawn. According to the Plaintiff in this map the land which was held by the Plaintiff as tenant was shown by two khasra numbers i.e. khasra Nos. 176/165/130 and 164/130. The mutation in respect of khasra Nos. 176/165/130 was entered and attested in favour of the State while the land bearing khasra Nos. 164/130 was entered in the ownership and cultivatory possession of Defendants 1 to 5. According to the Plaintiff the revenue officials in collusion with the Defendants prepared the map incorrectly. The portion of the land which was under a riverbed and was shown to have vested in the State. Subsequently the land which had vested in the State was allotted to the Plaintiff and the land under the riverbed was shown to have vested in him. The Plaintiff claims that he was never a tenant in respect of the land which is under the riverbed. He in fact was in cultivating possession of whole of the land depicted by khasra Nos. 164/130 in the map drawn vide order No. 345 and a portion of the khasra Nos. 176/165/130 shown as khasra Nos. 176/165/130/1 in the tatima filed with the plaint. The land which is under the river bed is shown as khasra Nos. 176/165/130/2 in the said tatima. According to the Plaintiff he never surrendered the possession of the land bearing khasra Nos. 164/130 and 176/165/130/1 both measuring 28.8 bighas and that he has always been in possession of the same. In a nutshell the case of the Plaintiff was that when the map was prepared the land which was under the riverbed was wrongly shown under his cultivating possession and the land which was actually in his possession was shown to have vested in the land owners.