Rajiv Sharma, J.@mdashThis regular second appeal is directed against the judgment and decree of the learned District Judge, Una, H.P. dated 3.4.2002, passed in Civil Appeal No. 90 of 1998.
2. Key facts, necessary for the adjudication of this regular second appeal are that the predecessor in interest of respondents No. 1((i) to 1(viii), namely, Sh. Kishan Singh has instituted suit for declaration against the appellant and proforma respondents No. 2 to 4 (hereinafter referred to as the defendants) to the effect that land measuring 3 kanals 1 marlas, comprised in khewat No. 178, khatauni No. 229-230, bearing khasra Nos. 2236/369 min (2K-1M) and 2236/369 min (1K-0M), situated in village Rampur Tehsil and Distt. Una, is jointly owned and possessed by the plaintiff and defendants. The alleged entries appearing in the revenue record in the column of ownership in the name of Santokh Singh son of Tulsa Singh, predecessor-in-interest of defendant Pritam Singh and in the column of cultivation showing kh. No. 2236/369 min (2K-1M) as Khud Kasht and Kh. No. 2236/369 min (1K-0M) under the tenancy of defendant No. 2, namely, Sh. Tarsem Singh, and his brother Harbans Singh, as per array of parties given in the original suit and mutation bearing No. 3282 transferring ownership rights of deceased Santokh Singh in the name of defendant No. 1 are incorrect, wrong and illegal. The suit land is jointly owned and possessed by the parties and the illegal entries appearing in the revenue record in the column of ownership in the name of Santokh Singh and in the column of cultivation as Khud Kasht under the tenancy of defendant No. 2 and his brother Harbans Singh predecessor-in-interest of defendants No. 3 and 4 and further mutation No. 3282 transferring ownership rights of deceased Santokh Singh in the name of defendant No. 1 are absolutely wrong, incorrect and void.
3. The suit was contested by defendants No. 1 and 4 by filing separate written statements whereas defendants No. 2 and 3 have filed joint written statement. Pritam Singh, defendant No. 1 has taken the preliminary objection that the Civil Court has no jurisdiction to go into any question connected with the conferment of proprietary rights under Section 104 of the H.P. Tenancy and Land Reforms Act, 1972. He has denied the averments made by the plaintiff in his plaint and further submitted that Santokh Singh father of defendant No. 1 had been coming in physical cultivating possession of the suit land as tenant-at-will on payment of rent since long. The owners of the suit land filed LR-V application for resumption of the suit land which was allowed and suit land fell in the share of Santokh Singh, father of the replying defendant. Thus the suit land is owned and possessed by him. The replying defendant has admitted that his grandfather died on 3.7.1975. According to defendants No. 2 and 3, Tulsa Singh, the predecessor-in-interest of the parties abandoned his cultivation rights in the suit land before 1961 and after that Santokh Singh and Sunder Singh became joint tenant of the suit land under the original land owners. The plaintiff remained out of the village for his livelihood and never cultivated the suit land nor his father after the year 1961, have cultivated the same. The defendant No. 4 has filed written statement through her Court Guardian whereby she has denied the averments made by the plaintiff and taken the specific defence that Tulsa Singh, predecessor-in-interest of the parties has relinquished his tenancy in favour of Santokh Singh and Sunder Singh.
4. The replication was filed by the plaintiff. The learned Sub Judge, Una, framed the issues on 3.12.1993. The learned Sub Judge, Una, decreed the suit on 22.4.1998 for declaration to the effect that plaintiff, defendant No. 1 and defendants No. 2 to 4 were owners in possession qua 1/3rd share over suit land measuring 3 kanals 1 marlas which came to them after the decision of LR-V form. Defendant No. 1, Pritam Singh, as arrayed in the original suit, has filed an appeal against the judgment and decree dated 22.4.1998 before the learned District Judge, Una. The remaining defendants No. 2 to 4, as per the original suit, were arrayed as proforma respondents. The learned District Judge, Una, dismissed the appeal on 3.4.2002. Hence, this regular second appeal.
5. This Regular Second Appeal was admitted on the following substantial question of law on 22.8.2002:
"1. Whether the Civil Court had jurisdiction in the matter in view of provisions of H.P. Tenancy and Land Reforms Act, and full bench judgment of this Hon''ble Court in
6. Mr. T.S. Chauhan, Advocate, for the appellant has vehemently argued that both the Courts below have not correctly appreciated the oral as well as the documentary evidence on record. He also contended that the Civil Court had no jurisdiction in the matter in view of the provisions of H.P. Land Reforms Act, 1972. On the other hand, Mr. N.K. Thakur, learned Sr. Advocate, has supported the judgments and decrees passed by both the Courts below. Mr. Ajay Sharma, Advocate, has adopted the arguments of Mr. T.S. Chauhan, Advocate.
7. I have heard the learned Advocates for the parties and gone through the records of the case carefully.
8. Sh. Kishan Singh, plaintiff has appeared as PW-1. He testified that the suit land is owned and possessed by the parties and Sh. Santokh Singh father of Pritam Singh never remained gair morusi tenant over the suit land. The suit land was earlier cultivated by Tulsa Singh when the total area was 6 kanals 3 marlas before resumption. Tulsa Singh used to cultivate it on payment of chakota of Rs. 75/- per annum. Santokh Singh has got revenue entries made in his name in the absence of witnesses. In his cross-examination, he clarified that Chiranji Lal and Achhar Singh etc. were the earlier owners of the suit land.
9. Sh. Moti Ram, PW-2 has testified that he is familiar with the suit land and that Kishan Singh, Pritam Singh and Tarsem Singh cultivate it apart from the legal representatives of Harbans Singh and they are the owners of the same. He never saw any party cultivating the suit land exclusively at any time. In his cross-examination, he stated that the suit land is situated about 10-15 fields away for the suit land.
10. Sh. Wattan Chand, PW-3 has testified that the suit land was earlier cultivated by Tulsa Singh and now it is cultivated by the parties. According to him, Pritam Singh, Santokh Singh or Tarsem Singh never cultivated the suit land exclusively or individually. Tusla Singh had been paying Rs. 75/- as Chakota. In his cross-examination, he has denied that the suit land was earlier in joint possession of Santokh Singh and Sunder Singh.
11. The appellant-defendant Pritam Singh has appeared as DW-1. According to him, the disputed total land was earlier 6 kanals 3 marlas being cultivated by his father Santokh Singh on payment of Chakota per annum. His grandfather Tulsa Singh or the defendant/proforma respondents Tarsem Singh or deceased Harbans Singh or their children never cultivated the suit land. His father had been cultivating the total land prior to the year 1962. In his cross-examination, he has admitted that his father and grandfather used to live together.
12. Sh. Somi Ram DW-2, Patwari has proved copy of Khasra Girdawari Ext. D-1 for Kharif 1979 and Rabi 1980 showing that land measuring 1 kanal has been entered in the name of Tarsem Singh and Harbans Singh in a different ink and handwriting. He has also placed on file regular copy of Khasra Girdawari Ext. D-2 for the same period.
13. Sh. Tarsem Singh has appeared as DW-3. He testified that earlier his grandfather Tulsa Singh had been cultivating the suit land where after, it came in possession of Sunder Singh and Santokh Singh. He admitted in his cross-examination that Sunder Singh and Kishan Singh had been residing out of the village. He has also admitted categorically that Tulsa Singh used to cultivate the suit land earlier and he was never dispossessed from the same. He also admitted that Tulsa Singh was looked after and helped in his work by Santokh Singh and after the death of Tulsa Singh, his legal heirs have been cultivating the suit land. He has also admitted that the suit land was never given to Santokh Singh exclusively by the owners.
14. Sh. Bishan Dass, DW-4 testified that he remained Pradhan of village from the year 1972 to 1984. According to him, Harbans Singh, Santokh Singh and Tarsem Singh came to him about their land dispute and out of the said land 1 kanal was given to Tarsem Singh and Harbans Singh whereas remaining 2 kanals was retained by Santokh Singh. He has admitted in his cross-examination that Kishan Singh used to live outside the village and his family had been residing in the village only and they had been helping in the agricultural work. He also admitted that Santokh Singh used to cultivate the suit land on behalf of all brothers.
15. Ramesh Chand, Patwari, DW-6 has proved water bills Ext. DW-6/A to DW-6/C.
16. The plaintiff has produced jamabandi for the year 1954-55 Ext. P-1 and jamabandi for the year 1959-60 Ext. P-2. In these revenue entries, Tulsa has been shown to be in possession of the suit land as Gair morusi tenant. The name of Santokh Singh exclusively came in the revenue record for the first time in the year 1962-63. The same position was reflected in the jamabandi for the year 1968-69, 1973-74, Ext. P-4 and P-5, respectively. Santokh Singh was shown as owner in possession of the suit land comprised in Kh. No. 2236/369 and the owners were shown on other � of the suit land by conferment of proprietary rights by decision in LR-V form. The defendants have produced copy of khasra girdawari for the year 1979-80, copy of jamabandi for the year 1962-63, copy of jamabandi for the year 1968-69, copy of jamabandi for the year 1973-74, copy of jamabandi for the year 1978-79, copy of jamabandi for the year 1983-84, copy of missal haquiat bandobast for the year 1989-90, copy of Bandobast Jadid Sani for the year 1994-95 and copy of irrigation bills Ext. DW-6/A to DW-6/C.
17. It is apparent from the oral as well as documentary evidence placed on record by the parties that the predecessor-in-interest of the parties Tulsa Ram was gair marusi tenant over the suit land. There are no orders to show that he has relinquished or abandoned his tenancy in favour of land owners. Santokh Singh used to help his father in the cultivation of the land and they were residing in the same house. The change in the entries in favour of predecessor-in-interest of defendant No. 1 came for the first time during the consolidation proceedings in the year 1962. According to the jamabandi for the year 1954-55 Ext. P-1 and jamabandi for the year 1959-60 Ext. P-2, Tulsa was shown as gair marusi tenant on payment of chakota. Sh. Bishan Dass, DW-4 has admitted that Santokh Singh used to cultivate the suit land on behalf of all the brothers. In the absence of any order or any convincing evidence regarding abandonment or relinquishment of tenancy in favour of Tarsem Singh and Harbans Singh, presumption can be drawn that he remained tenant over the suit land till his death. Thus, the tenancy over the suit land was ancestral.
18. According to Section 8 of the Punjab Security of Land Tenures Act, 1953, the continuity of tenancy would not be affected by death of the land lord or the tenant except where the tenant does not leaves some male lineal descendants, mother or widow nor change made in the area of tenancy under the same landowner and for the purposes of section 17 and 18 of the Act. Even Section 45 of the H.P. Tenancy and Land Reforms Act, 1972 provides for succession to right of tenancy. Tulsa was the predecessor-in-interest of the parties. He was the original tenant. The tenancy after his death devolved upon Santokh Singh, Kishan Singh and Sunder Singh. Thus, the entries in record of rights, showing Santokh Singh predecessor-in-interest of the defendant No. 1 as owner of the suit land and in possession of part thereof comprised in Kh. No. 2236/369 min measuring 2 kanals 1 marlas and entries showing defendant No. 2 and Harbans Singh, predecessor in interest of defendants No. 3 and 4 as tenant-at-will, qua the remaining suit land measuring 1 kanal are illegal, wrong and void. The plaintiff and defendants jointly owned and possessed the suit land as owners.
19. Mr. T.S. Chauhan, Advocate, has also vehemently argued that the Civil Court has no jurisdiction in the matter. There is no dispute regarding relationship of landlord and tenant. The dispute is inter se the legal heirs of the tenant. Hence, Civil Court had the jurisdiction to entertain the suit. The substantial question of law is answered accordingly.
20. Consequently, there is no merit in this appeal and the same is dismissed, so also the pending application(s), if any.
