BABU Vs. DEWAN CHAND

JUDGEMENT

(1.) These appeals may be dealt with together since they involve rights claimed by one and the same parties though in respect of different extent of land. The learned Counsel appearing on either side also made common submissions and as a matter of fact the learned First Appellate Judge disposed of all the appeals before him by a common order.

(2.) The real contest is between the Plaintiffs and the Ist Defendant, who are real brothers. The Plaintiffs filed suits for declaration to the effect that they being the tenants-as-will under Defendant No. 2 or more than one Defendants who are the original owners of the land and the Plaintiffs have acquired proprietary rights and have become the owners of the respective extent of land after the coming into force of the Himachal Pradesh Tenancy and Land Reforms Act, 1972. The Plaintiffs projected the claim that they had been the tenants-at-will in respect of the lands under the respective owners or their predecessor-in-interest for the past so many years and they were paying Galla-batai for the cultivation of the land. The Ist Defendant, the other brother of the Plaintiffs contested the claim of the Plaintiffs on the ground that the suit lands were originally under the occupation, as a tenant, of one Dhanu and inasmuch as the said Dhanu related to parties as under died without leaving any direct heirs and the Plaintiffs as well as the 1st Defendant, who are real brothers succeeded to the tenancy rights held by late Dhanu and, as such, he became not only the joint tenant, but was cultivating the land jointly and the proprietary rights conferred under the Act have to be also of the three brothers including the 1st Defendant and, therefore, the 1st Defendant would be entitled to 1/3rd rights of ownership. The 1st Defendant appears to have subsequently got also his name introduced under an order dated 18.4.1983 passed by the Assistant Collector 2nd Grade, Rajakhasa by attesting mutation of inheritance of late Dhanu in favour of the Plaintiffs, as also the 1st Defendant. The learned trial Judge after considering the oral and documentary evidence on record was of the view that the tenant Dhanu through whom the 1st defedant projected his claim was said to have died in the year 1950-51, that, therefore, no tenancy could have remained with such a person in the year 1962-63 and the entries for those years are absolutely wrong and cannot be relied upon. Thereafter, the learned trial Judge also came to the conclusion that in his view neither Dhanu was a tenant nor the tenancy rights of the said person ever succeeded to by the Plaintiffs and Defendant No. 1 jointly, but on the other hand from the revenue records and the evidence adduced, it stood proved that the tenancy was created in favour of the Plaintiffs and it is only the Plaintiffs, who remained in possession of the suit land as tenants-at-will. On that view of the matter, the suit came to be decreed. Aggrieved, the 1st Defendant filed appeals before the District Court and the learned Additional District Judge (1), Kangra Division at Dharamshala by his common judgment and decree dated 21.5.1992 allowed the appeals and declared that the 1st Defendant is entitled to 1/3rd share in the suit land, as has been held by the Assistant Collector 2nd Grade vide his order marked as Ex. DA in the proceedings. Felt aggrieved, the first Plaintiff has filed these appeals making the 2nd Plaintiffs as a pro forma Respondent along with the other Respondents.

(3.) Mr. Ramakant Sharma, learned Counsel appearing for the Appellant as also Mr. D.K. Khanna, learned Counsel appearing for the contesting 1st Defendant-Respondent in all these appeals invited my attention to the relevant portions of the judgments and also the provisions of law in addition to adverting to some of the materials on record to project and substantiate their respective stand points. The contention on behalf of the Appellant in all these appeals by the learned Counsel is that the 1st Defendant has failed to prove that the succeeded to the tenancy rights of Dhanu in terms of Section 45 of the Act and that the Jamabandi records at any rate for the year 1967-68 onwards would go to show that it was the Plaintiffs, who were entered, as against the lands in question, as tenants in occupation and merely on the basis of the orders passed by the Assistant Collector 2nd Grade, the learned First Appellate Judge could not have come to the conclusion that the 1st Defendant also was entitled to 1/3rd share of the tenancy rights and consequently 1/3rd rights of ownership in the lands under Section 104 of the Act. The further contention on behalf of the Appellant is that the 1st Defendant failed to sufficiently substantiate the claim of tenancy in favour of late Dhanu in respect of the land at the relevant point of time when the Act came into force and on the materials on record, the learned First Appellate Judge could not have interfered with the findings of the learned trial Judge and consequently, the rights claimed by the 1st Defendant could not have been countenanced in law. The further submission of the learned Counsel for the Appellant is that the First Appellate Court misread the evidence on vital aspects, in disturbing the judgment and decree passed by the learned trial Judge in favour of the Plaintiffs.