Om Parkash v. Bidhia & Anr.

Mr. Ajay Sharma, Advocate. For the Respondents : Mr. N.K. Thakur, Advocate. Surjit Singh, Judge (Oral) Heard and gone through the record. Respondents- plaintiffs filed a suit, claiming that they are owners in possession of certain property described in the plaint. They alleged that initially respondent-plaintiff Bidhia was in possession of the suit land as tenant under the original owners, who are the members of royal family of Amb, and on coming into force of the H.P. Tenancy and Land Reforms Act he became the owner and thereafter he transferred a portion of the suit land in favour of second respondent Charan Dass who is his (Bidhia(cid:146)s) son. It was alleged that the present appellant- defendant, being the son of a person, who was a Minister in the State Government at the relevant time, using his clout got the name of respondent Bidhia removed from the revenue papers in the capacity 1 Whether the reporters of the local papers may be allowed to see the Judgment? (cid:133)2(cid:133) of a tenant and got his own name incorporated as tenant and on the strength of that entry mutation conferring the proprietary rights was also sanctioned in his favour. The respondents claimed that they were never dispossessed and continued to be in possession, despite the aforesaid alleged illegal order of correction of entries and mutation order, conferring the rights upon the appellant-defendant. So, they sought declaration that they were owners in possession of the suit land.

2. Appellant-defendant in his written statement denied that the respondents-plaintiffs were owners or even in possession of the suit land. It was alleged that the suit was bad for non-joinder of the original owners. Further, it was alleged that the plaintiffs had no cause of action and locus standi to file the suit. The maintainability of the suit was also challenged.

3. The trial Court returned the findings that the plaintiffs were not owners of the suit land nor were they in possession and that the entries showing the defendant as owners in possession were lawful and correct. Other issues, based on the preliminary objections raised by the appellant-defendant, were, however, found against the appellant-defendant as they were not pressed. Consequently, the suit was dismissed. Respondents-plaintiffs went in appeal to the Court of District Judge. Accepting the appeal, the learned District Judge has set aside the decree of the trial Court and passed a decree declaring that the plaintiffs-respondents are owners in possession of the suit land and has further passed a decree of permanent (cid:133)3(cid:133) prohibitory injunction, restraining the appellant-defendant causing any interference in the possession of the plaintiffs.

4. Appellant-defendant has come in appeal to this Court. Learned counsel representing the appellant-defendant states that the name of the appellant-defendant appeared in the revenue papers showing him as tenant, pursuant to an order passed by the Tehsildar on 16.7.1981, as is clear from Ex. R-1, copy of entry in the Roznamcha, but that order having not been challenged by the respondents-plaintiffs, no relief could have been granted to them. His further contention is that after the name of the appellant-defendant appeared in the revenue papers as a tenant. He has further submitted that the suit having not been filed within one year of the attestation of the mutation, the same was barred by limitation. His further contention is that there is unchallenged testimony of the appellant- defendant in the form of his affidavit that respondents-plaintiffs were present at the time when the mutation of conferment of proprietary rights was attested in his favour, and despite the order of mutation having been attested in the presence of the plaintiffs, the same had not been challenged and, hence, the suit was not maintainable.

5. I have considered the aforesaid submissions of the learned counsel. It is true that Ex. R-1, copy of an entry in the Roznamcha, suggests that some order was passed on 16.7.1981 in favour of the appellant-defendant whereby it was ordered that he (appellant-defendant) be entered as tenant in respect of the suit land under the original owners, but no material has been brought on record that the respondents-plaintiffs, who were already recorded as (cid:133)4(cid:133) tenants in the revenue papers, were made party to the proceedings in which the alleged order, dated 16.7.1981, was passed. As a matter of fact, appellant-defendant, while in the witness box as DW-1, admitted that he had not given any notice to the respondents-plaintiffs about the change of entry in the revenue papers in his favour. This statement implies that respondents-plaintiffs were unaware of the change, which was made in favour of the appellant-defendant, after deletion of their names. In any case, the order, dated 16.7.1981, to which reference has been made in the entry in the Roznamcha, was the primary evidence and, therefore, it was for the appellant- defendant to have produced and proved that order. The entry in the Roznamcha, is merely secondary evidence and it can not be used in favour of the appellant-defendant, unless it is shown that the primary evidence is lost or has been destroyed or for any other reason could not have been adduced.

6. The next contention is also devoid of any merit. Attestation of mutation in favour of the appellant-defendant cannot be said to have extinguished the right of the respondents-plaintiffs. It is too well known that mutation does not confer any right. A corollary of this statement of law is that mutation cannot destroy or take away any right, title or interest, which otherwise lawfully vests in a party.

7. Respondents-plaintiffs claim they are in possession of the suit land. Entries prior to the year 1981 in the revenue papers are in their favour. It has not been proved that the entries, which had been coming in favour of the plaintiffs-respondents for the last several years, were ordered to be changed in their presence. Therefore, the (cid:133)5(cid:133) alleged order dated 16.7.1981, which has not been produced on record, cannot be said to have affected their right. It was on the basis of the aforesaid alleged order that the names of respondents-plaintiffs were removed from the record and the name of present appellant- defendant was incorporated. After the incorporation of the appellant- defendant, the mutation of conferment of proprietary rights was entered and attested in his favour in accordance with the provisions of H.P. Tenancy and Land Reforms Act. There is nothing on record suggesting that the respondents-plaintiffs were present at the time when the mutation was attested in favour of the appellant-defendant, except the bald self-serving statement of the appellant-defendant in his affidavit. As a matter of fact, the said statement cannot be used as evidence, because it was the order of mutation which was required to be proved to support the allegation that the respondents-plaintiffs were present when the mutation was attested in favour of the appellant-defendant. That order having not been produced by the appellant-defendant, his self serving statement cannot be said to be enough to prove that the respondents-plaintiffs were present at the time of the attestation of mutation. This is especially so, when it has been specifically averred by the plaintiffs that they had no knowledge of the mutation. Now, when there is nothing to show that the respondents-plaintiffs were present when the mutation was attested in favour of the appellant-defendant, it does not lie in the mouth of the appellant-defendant to say that the order of mutation having not been challenged, the suit was not maintainable or that the suit having not (cid:133)6(cid:133) been filed within one year of the passing of the order of mutation, was barred by time.

8. Form the above discussion, it is clear that no substantial question of law arises. Hence, the appeal is dismissed. CMP No.1151/2005

9. Dismissed. Interim order, dated 4.1.2006, passed on this application is vacated. May 23, 2006(sd) ( Surjit Singh ) Judge.