KANSHI RAM Vs. NIKA RAM

JUDGEMENT

(1.) This judgment will dispose of two appeals, namely, RSA No. 42 of 1977 and MSA No. 4 of 1977. The former is against the judgment of the learned District Judge, Shimla, Kinnaur and Bilaspur Districts, dt. Feb. 26, 1977 whereby he set aside the judgment and decree of the learned Senior Sub-Judge, Bilaspur, dt. Dec. 11, 1972 and dismissed the suit of Kanshi Ram, appellant before this Court, (hereinafter referred to as 'the plaintiff') against the respondent Nika Ram, respondent (hereinafter referred to as 'the defendant'). The latter is against the order of the same District Judge, of the same date whereby the order of the Compensation Officer, Bilaspur, dt. April 10, 1973, dismissing the application of the defendant Nika Ram for acquisition of proprietary rights as tenant against the plaintiff as landlord under S.11 of the H.P. Abolition of Big Landed Estates and Land. Reforms Act, 1953, (hereinafter referred to as 'the Land Reforms Act'), was set aside and the Compensation Officer was directed to grant proprietary rights in respect of the land which was common in both the proceedings, that is, the civil suit before the Senior Sub-Judge, Bilaspur and the proceedings for acquisition of proprietary rights before the Compensation Officer, Bilaspur.

(2.) The facts are that the plaintiff and the defendant are real brothers. The plaintiff instituted a Civil Suit No. 178/1 on Feb. 25, 1971, in the Court of the Senior Sub-Judge, Bilaspur, wherein he averred that he was the owner in possession of Khewat No. 4 min, Khatoni No. 7/1 and Khasra Nos. 111 and 133 measuring 2-16 bighas, situate in village Tihra in Bilaspur District ; that previously he was in possession of this land along with other land as non-occupancy tenant and subsequently acquired proprietary rights in respect of the entire tenancy holdings in his possession inclusive of the land in dispute by making an application in this behalf to the Compensation Officer under the Land Reforms Act but that during the consolidation of holding operations in the area, the defendant got his name entered as tenant under him in respect of the suit land in collusion with the consolidation staff at the back of the plaintiff and when he learnt about it he got the said entries in favour of the defendant qua the suit land set aside vide the order of the Settlement Officer dt. Oct. 23, 1964. The defendant, however, even thereafter in collusion with the consolidation officials got the entries incorporated in his favour as tenant under the plaintiff which was totally false and inaccurate and the plaintiff came to know about these wrong entries in favour of the defendant in the year 1971 and hence the suit for declaration that the plaintiff was owner in possession of this land and the defendant had nothing to do with it and the entries qua this land in his favour as non-occupancy tenant on the payment of 1/4th of 'Galla Batai were wholly wrong and deserved to be cancelled.

(3.) The defendant contested this suit and in his written statement while admitting that the plaintiff was owner of the land in suit, stoutly denied that he was also in possession and asserted that as a matter of fact it was the defendant who was in possession of the suit land as non-occupancy tenant under the plaintiff on payment of 1/4th of 'Galla Batai'. He asserted that formerly the plaintiff was non-occupancy tenant 'aval' (of first degree) in respect of the suit land while he himself was non-occupancy tenant 'deom' (of second degree) (Sub-tenant) under the plaintiff and that after the plaintiff acquired proprietary rights in respect thereof be became non-occupancy tenant under the plaintiff. He denied that he got these entries in his favour made in collusion with the consolidation revenue officials.