Himachal Pradesh High Court
Soma Devi (Deceased) Through Lrs vs Sudershan Singh & Ors. Rt on 6 August, 2026
2026:HHC:30745
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No. 370 of 2007
.
Reserved on: 27.07.2026
Date of Decision: 06.08.2026
Soma Devi (deceased) through LRs ...Appellant
of
Versus
Sudershan Singh & Ors. rt ...Respondents
Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes.
For the Appellants : Mr Bhupender Gupta, Senior
Advocate with Mr Janesh Gupta,
Advocate.
For the respondents : Mr Ajay Sharma, Senior Advocate
with Mr Atharv Sharma,
Advocate.
Rakesh Kainthla, Judge
The present appeal is directed against the judgment
and decree dated 22.05.2007 passed by the learned Additional
District Judge, Fast Track Court, Kangra, at Dharamshala
(learned Appellate Court), vide which the judgment and decree
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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dated 28.11.2001 passed by the learned Sub Judge-II, Nurpur,
District Kangra (learned Trial Court), were upheld. (The parties
.
shall hereinafter be referred to in the same manner as they were
arrayed before the learned Trial Court for convenience).
2. Briefly stated, the facts giving rise to the present
appeal are that the plaintiffs filed a civil suit before the learned
of
Trial Court for seeking a declaration that they are the tenants of
the suit land as mentioned in the head note and para 1 of the
rt
plaint, they have become the owners after the commencement
of the HP Tenancy and Land Reforms Act, the entries showing
the defendant to be the owner in possession of the suit land are
bad, and the order dated 07.04.1982 passed by the learned
Assistant Collector 2nd Grade, Indora, was null and void and not
binding upon the plaintiffs’ rights. A consequential relief of
permanent prohibitory injunction for restraining the defendant
from interfering with the plaintiffs’ possession was also sought.
It was asserted that Chhaju Ram was the owner in possession of
the suit land. He was the real cousin of the plaintiffs’ father. He
was unmarried and died without any wife or children. His estate
was mutated in the name of the plaintiffs’ father. The plaintiffs’
father died on 10.02.1987, and the plaintiffs inherited the suit
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land. Chhaju Ram was cultivating the suit land much before
1960, and he became the owner after the commencement of the
.
HP Tenancy and Land Reforms Act. The defendant and her
husband, in connivance with the revenue official, secured an
order dated 07.04.1982 for the correction of Khasra Girdawari
without issuing a notice to Chhaju Ram or his family members.
of
The revenue entries were attested in the defendant’s favour.
The defendant rt started interfering with the plaintiffs’
possession based on the revenue entries. Therefore, the suit was
filed for seeking the relief mentioned above.
3. The suit was opposed by filing a written statement
taking preliminary objections regarding lack of maintainability,
jurisdiction and locus standi. The contents of the plaint were
denied on the merits. It was specifically denied that Chhaju Ram
was inducted as a tenant of the suit land. It was asserted that the
order was passed in the presence of Chhaju Ram. The defendant
is in possession of the suit land exclusively as the owner. The
suit has been filed without any basis. Hence, it was prayed that
the suit be dismissed.
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4. A replication denying the contents of the written
statement and affirming those of the plaint was filed.
.
5. The learned Trial Court framed issues on 11.06.1999.
The learned Appellate Court deleted issue No. 1 framed by the
learned Trial Court, and framed two issues. The following issues
were finally settled between the parties:
of
1(a) Whether Chhaju Ram was a tenant of the land in
dispute and after enforcement of the H.P. Tenancy and
rt
Land Reforms Act, Chhaju Ram became full owner in
possession of the land in dispute? OPP1(b) Whether father of the plaintiffs, namely Sant Ram,
succeeded Chhaju Ram on his death and became owner
of the land in dispute on the death of Chhaju Ram? OPP
2. Whether the suit is not maintainable? OPD
3. Whether this Court has got no jurisdiction to try the
present suit? OPD.
4. Whether the plaintiff has got no locus standi to file the
present suit? OPD
5. Relief.
6. The parties were called upon to produce the evidence
and the plaintiffs examined H.S. Katoch (PW1) and Baldev Singh
(PW2). The defendant examined Thuru Ram (DW1).
7. The learned Trial Court decreed the suit on
01.06.1999. The defendant filed an appeal which was dismissed
by the learned District Judge, Kangra at Dharamshala on
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2026:HHC:3074508.09.2000. A regular second appeal No. 603 of 2000 was filed
before this Court, and this Court set aside the judgment and
.
decree passed by the learned District Judge on 23.03.2001 and
remitted the matter to the learned District Judge. The learned
District Judge deleted Issue No. 1 and framed Issues No. 1(a) and
1(b) and remitted the matter to the learned Trial Court for a
of
fresh decision.
8. Learned Trial Court held that the dispute between
rt
the landlord and tenant could have been resolved by the
Assistant Collector 1st Grade as per Rule 29 of the HP Tenancy
and Land Reforms Rules. The order passed by the learned
Assistant Collector 2nd Grade was without jurisdiction. The
tenancy could have been surrendered in favour of the State
Government and not in favour of the landlord. Chhaju Ram was
a tenant in possession of the suit land, who became the owner
after the commencement of the H.P Tenancy and Land Reforms
Act. The order was passed without jurisdiction, and the
jurisdiction of the Civil Court to hear and entertain the suit was
not barred. Hence, the learned Trial Court answered issues No.
1(a) and 1(b) in the affirmative, the rest of the issues in negative
and decreed the suit.
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9. Being aggrieved by the judgment and decree passed
by the learned Trial Court, the plaintiff filed an appeal. An
.
application for additional evidence was filed before the learned
Appellate Court, which was dismissed by the learned Appellate
Court. However, the dismissal order was set aside by this Court
in CMPMO No. 449 of 2004 subject to the payment of costs of
of
₹1,000/-.
10. Statements of Smt. Darshana Devi (DW2), Harnam
rt
Singh (DW2) and HS Katoch (PW3) were recorded, and some
documents were also tendered in evidence before the learned
Appellate Court.
11. Learned Appellate Court held that the Assistant
Collector, 2nd Grade, was not competent to pass the order. No
relinquishment of tenancy could have been made in favour of
the landlord, and the relinquishment could have only been
made in favour of the State as per the provisions of the HP
Tenancy and Land Reforms Act. There was no infirmity in the
judgment and decree passed by the learned Trial Court. Hence,
the appeal was dismissed.
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12. Being aggrieved by the judgment and decree passed
by the learned Appellate Court, the plaintiff has filed the present
.
appeal, which was admitted on the following substantial
questions of law on 28.08.2008:
1. Whether the two Courts below were justified in raising a
presumption against the defendant on the ground thatof
she has not herself entered into the witness box?
2. Whether the two Courts below were justified in not
relying upon the statement made by the predecessor in
interest of the plaintiffs given before the Tehsildar, while
rt
returning the findings in favour of the plaintiffs?
3. Whether the suit of the plaintiff/respondent was barred
by limitation?
4. Whether the learned First Appellate Court has erred in
omitting to consider and discuss the documents Dx, Dyand Dz, freshly tendered in evidence by way of additional
evidence under Order 41, r.27 CPC, thereby vitiating the
impugned judgment and decree?
13. I have heard Mr Bhupender Gupta, learned Advocate
Counsel assisted by Mr Janesh Gupta, learned counsel for the
appellants and Mr Ajay Sharma, learned Senior Advocate
assisted by Mr Atharv Sharma, learned counsel for the
respondents.
14. Mr Bhupender Gupta, learned Senior Advocate for
the appellants submitted that the learned Appellate Court failed
to consider the evidence produced before it and the judgment
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and decree passed by the learned Appellate Court is vitiated
because of this omission. The defendant examined her power of
.
attorney, who had appeared before the revenue authorities and
was managing the affairs of the defendant. He was conversant
with the facts of the case, and no adverse inference could have
been drawn against the defendant for not appearing in the
of
Court. Chhaju Ram had appeared before the Revenue Official
and made a statement that he was not in possession of the suit
rt
land for many years. The provisions of the Punjab Tenancy Act
applied to the present case at that time, and the tenant could
have surrendered the tenancy in favour of the landlord. Learned
Courts below erred in holding that the name of the defendant
was wrongly recorded. It was based upon the admission made
by Chhaju Ram. Subsequently, H.S. Katoch had also appeared
before the revenue official and admitted the defendant’s claim
that Chhaju Ram was not the tenant of the suit land. Learned
Courts below ignored all these circumstances and dismissed the
suit. Hence, he prayed that the present appeal be allowed and
the judgments and decrees passed by learned Courts below be
set aside.
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15. Mr Ajay Sharma, learned Senior Advocate for the
respondent submitted that the jurisdiction to decide the dispute
.
between the landlord and the tenant has been conferred upon
the Assistant Collector 1st Grade and the Assistant Collector 2nd
Grade had no jurisdiction to pass the order. No notice was
served upon Chhaju Ram, and the order was passed in his
of
absence. No power of attorney was brought on record to prove
that H.S. Katoch had any authority to make a statement on
rt
behalf of Sant Ram. Therefore, the statement relied before the
learned Appellate Court could not have bound Sant Ram. There
is no infirmity in the judgment and decree passed by the learned
Courts below. Hence, he prayed that the present appeal be
dismissed.
16. I have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
Substantial Question of Law No.1:
17. Learned Courts below held that an adverse inference
has to be drawn for the non-examination of the defendant,
Soma Devi. This finding cannot be sustained. It was laid down
by the Hon’ble Supreme Court in Rattan Dev v. Pasam Devi,
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(2002) 7 SCC 441: 2002 SCC OnLine SC 86, that the non-
appearance of the party will become insignificant when there is
.
other evidence on record. It was observed at page 443: –
“5. Learned counsel for the respondent has placed
reliance on Iswar Bhai C. Patel v. Harihar Behera [(1999) 3
SCC 457] wherein this Court has emphasised that
withholding of the plaintiff himself from the witness boxof
and thereby denying the defendant an opportunity for
cross-examination of himself results in an adverse
inference being drawn against the plaintiff. That
proposition of law is undoubted. However, as we have
rt
already said, that is a fact to be kept in view and taken
into consideration by the appellate court whileappreciating other oral and documentary evidence
available on record. Maybe, that from other evidence —
oral and documentary — produced by the plaintiff, or
otherwise brought on record, the plaintiff has been ableto discharge the onus which lay on him, and, subject to
the court forming that opinion, a mere abstention of the
plaintiff himself from the witness box may pale intoinsignificance.”
18. It was laid down by the Hon’ble Karnataka High
Court in Smt. Gangavva vs. Arjunsa AIR 2001 Karnataka 231 that it
is not necessary that a party should examine himself in all the
cases. If some facts are in exclusive knowledge of the party, it
has to appear before the court; otherwise, it can rely upon the
other evidence. It was observed:
“It is also not necessary in law that always the party to
the proceedings should examine himself. The
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2026:HHC:30745forth his case should prove the material facts set up. A
party without examining himself can as well establish his
case, if possible, by examining the witnesses who are
competent to testify. However, in cases where there is an.
onus placed on the party to discharge and if the facts
required to be deposed are necessarily to be testified by
the party in person, in such a situation, such a party runsthe risk of facing adverse inference for non-examination.
Otherwise, it is also open for the party to give evidence
through the power of attorney, and such evidence wouldof
be valid substituted evidence of the plaintiff. Ultimately,
appreciation of the probative value of the evidence and
competence of the person testifying is a matter that is to
be tested in the course of the cross-examination.”
rt
19. This position was reiterated in Janki Vashdeo
Bhojwani v. IndusInd Bank Ltd., (2005) 2 SCC 217: 2004 SCC
OnLine SC 1538, and it was held that the power of attorney can
depose for the principal for the acts done by him as a power of
attorney. It was observed at page 222:
“13. Order III, Rules 1 and 2 CPC, empowers the holder of
power of attorney to “act” on behalf of the principal. In
our view, the word “acts” employed in Order III, Rules 1
and 2 CPC, confines only in respect of “acts” done by thepower of attorney holder in the exercise of the power
granted by the instrument. The term “acts” would not
include deposing in place and instead of the principal. In
other words, if the power of attorney holder has rendered
some “acts” in pursuance to power of attorney, he may
depose for the principal in respect of such acts, but he
cannot depose for the principal for the acts done by the
principal and not by him. Similarly, he cannot depose for
the principal in respect of the matter which only the
principal can have personal knowledge and in respect of
which the principal is entitled to be cross-examined.”
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20. It was held in Man Kaur v. Hartar Singh Sangha,
(2010) 10 SCC 512: 2010 SCC OnLine SC 1125 that a power of
.
attorney can appear as a witness to prove the transactions
carried out by him as an attorney. It was observed at page 523:
18. We may now summarise for convenience, the position
as to who should give evidence in regard to mattersof
involving personal knowledge:
(a) An attorney-holder who has signed the plaint and
instituted the suit, but has no personal knowledge of
the transaction, can only give formal evidence about
rt
the validity of the power of attorney and the filing of
the suit.
(b) If the attorney-holder has done any act or handled
any transactions, in pursuance of the power of
attorney granted by the principal, he may beexamined as a witness to prove those acts or
transactions. If the attorney-holder alone has
personal knowledge of such acts and transactions andnot the principal, the attorney-holder shall be
examined, if those acts and transactions have to beproved.
(c) The attorney-holder cannot depose or give
evidence in place of his principal for the acts done bythe principal or transactions or dealings of the
principal, of which the principal alone has personal
knowledge.
(d) Where the principal at no point of time had
personally handled or dealt with or participated in the
transaction and has no personal knowledge of the
transaction, and where the entire transaction has
been handled by an attorney-holder, necessarily the
attorney-holder alone can give evidence in regard to
the transaction. This frequently happens in the case of
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2026:HHC:30745managers/attorney-holders or persons residing
abroad managing their affairs through their attorney-
holders.
.
(e) Where the entire transaction has been conducted
through a particular attorney-holder, the principal
has to examine that attorney-holder to prove the
transaction, and not a different or subsequent
attorney-holder.
(f) Where different attorney-holders had dealt with
the matter at different stages of the transaction, if
of
evidence has to be led as to what transpired at those
different stages, all the attorney-holders will have to
be examined.
rt
(g) Where the law requires or contemplates the
plaintiff or other party to a proceeding to establish or
prove something with reference to his “state of mind”
or “conduct”, normally the person concerned alone
has to give evidence and not an attorney-holder. A
landlord who seeks eviction of his tenant, on theground of his “bona fide” need and a purchaser
seeking specific performance who has to show his
“readiness and willingness” fall under this category.
There is, however, a recognised exception to this
requirement. Where all the affairs of a party arecompletely managed, transacted and looked after by
an attorney (who may happen to be a close family
member), it may be possible to accept the evidence ofsuch attorney even with reference to bona fides or
“readiness and willingness”. Examples of such
attorney-holders are a husband/wife exclusively
managing the affairs of his/her spouse, a
son/daughter exclusively managing the affairs of an
old and infirm parent, a father/mother exclusively
managing the affairs of a son/daughter living abroad.
21. Therefore, an adverse inference can only be drawn
against a party if it has some knowledge and it fails to appear
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before the Court; otherwise, if the General Power of Attorney
has the knowledge, he can always appear on behalf of the party,
.
and no adverse inference can be drawn against a party for
failure to appear before the Court.
22. In the present case, the application (Ext.P3) was filed
by the husband of Soma Devi in his capacity as a General Power
of
of Attorney. He had appeared before the revenue authority as a
defendant’s General Power of Attorney. He had also appeared
rt
before the Tehsildar (Settlement) and made a statement
(Ext.DW2/D) in his capacity as a General Power of Attorney of
Soma Devi. Thus, he was representing the defendant before the
revenue authorities. The plaintiff is aggrieved by the
proceedings initiated by the defendant before the revenue
officer, and only the power of attorney could have deposed
about the proceedings. The defendant had never appeared
before the revenue authorities, and she did not have any
knowledge regarding the proceedings conducted by the revenue
authorities. Therefore, the defendant was not a better witness
than her General Power of Attorney, and no adverse inference
could have been drawn against the defendant for not appearing
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before the Court. Hence, this substantial question of law is
answered accordingly.
.
Substantial Question of Law No.2:
23. The plaintiff filed a civil suit before the Court,
challenging the order dated 07.04.1982. The defendant filed a
of
written statement and claimed that the order passed by the
Assistant Collector 2nd Grade bearing No. 60/82 was correct,
rt
valid and binding. No plea was taken by the defendant in the
written statement that any proceedings were conducted before
Tehsildar (Settlement) in which H.S. Katoch had appeared and
made a statement. Thuru Ram (DW1) stated that Chhaju Ram
made a statement that he was not cultivating the land and an
order was passed in favour of the defendant in the year 1982 and
an appeal was filed, which was dismissed. Thus, he never
claimed that any proceedings were conducted before Tehsildar
(Settlement), and the learned Trial Court could not have noticed
the statement made by H.S. Katoch before Tehsildar
(Settlement).
24. The defendant filed an application under Order 41
Rule 27 of CPC for producing the copy of order dated 30.07.1986
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passed by Naib Tehsildar (Settlement) Raja Ka Talab alongwith
the statement of H.S. Katoch, which application was initially
.
rejected by learned Appellate Court, but was allowed by this
Court subject to the payment of cost of ₹1,000/- and the
statement of H.S. Katoch was proved before the learned
Appellate Court.
of
25. Mr Ajay Sharma, learned Senior Advocate submitted
that there is no evidence that the cost ordered to be paid by this
rt
Court was ever paid and the evidence recorded by the learned
Appellate Court is to be excluded from consideration. This
submission cannot be accepted. It was laid down by a full bench
of the Punjab and Haryana High Court in Prem Sagar v. Phul
Chand, 1983 SCC OnLine P&H 398: ILR (1984) 1 P&H 54, that
where a party failed to demand the cost on the adjourned date of
hearing, the party liable to pay the cost is not debarred from
prosecuting the suit or defending it. It was observed at page 63:
16. To conclude, both on principle and precedent, as also
on the language of Section 35-B, the answer to the
question posed at the very outset is rendered in the
negative. It is held that the party defaulting in the
payment of costs on the date fixed for the payment
thereof (on which date this issue is not at all raised)
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2026:HHC:30745further prosecuting the suit or the defence, as the case
may be.
26. This judgment was followed in Roor Singh v. Raghbir
.
Singh, 2002 SCC OnLine P&H 805: (2003) 1 RCR (Civil) 159 (2) and
it was observed at page 160:
“6. Having heard the learned counsel for the parties, I am
of the considered opinion that the view taken by the Civilof
Judge does not suffer from any illegality warranting
interference of this Court under Section 115 of the Code.
The judgment in the case of Prem Sagar (supra) is
absolutely clear in as much as it is observed that if the
rt
issue of non-payment of costs is not raised, the same
cannot be resuscitated. Moreover, the subsequent viewtaken by this Court in Slier Singh v. Mehma, 1993 (2) RCR
(Civil) 558 (P&H): 1993 (1) PLR 751 is that the objection of
Section 35-B of the Code is to secure efficacious
prosecution of the suit and not to penalise the partyagainst whom the costs have been awarded. Therefore,
the principle of waiver would apply to this case. A similar
view has been taken by this Court in the caseof Pushpa v. Kundan Lal, 1994 (2) RCR (Civil) 134 (P&H):
1994 (1) PLR 717.”
27. This Court also held in Piaro Devi v. Anant Ram, 2008
SCC OnLine HP 8: AIR 2008 HP 107 that the provision of Section
35B of the CPC is not mandatory and the Court is not bound to
stop the prosecution of the suit or defence as the case may be. It
was observed at page 110:
“13. After considering all the aforesaid Authorities, with
due respect to the Punjab and Haryana High Court, I am
not inclined to accept the view taken by that Court. The::: Downloaded on – 06/08/2026 20:41:24 :::CIS
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2026:HHC:30745Rules of Procedure are meant to be the handmaiden of
justice to further the cause of justice. The party in a given
case may have a very valid ground to explain why it could
not pay the costs on the next date. The Court must always.
have a discretion to examine whether the reasons put
forth by the party are valid or not. Section 148 CPC
empowers a Court to extend time in any matter. Thispower would be set at nought if it is held that the
provisions of Section 35-B CPC are mandatory and that
the Court would have no option but to stop the furtherof
prosecution of the suit by the plaintiff or strike off the
defence of the defendants in case of non-payment of
costs. I am in agreement with the reasoning given by the
Orissa, Patna, Gauhati and Rajasthan High Courts and
rt
consequently I hold that the provisions of Section 35-B
CPC are not mandatory but are only directory. The Courtmay, in the absence of the concerned party, or in the
absence of any plausible explanation for non-payment of
costs, pass an order stopping the further prosecution of
the case by the defaulting party. However, the Court, insome circumstances, may not pass such an order.
28. In the present case, the record does not show that
the plaintiffs had demanded the costs on 07.07.2005, when the
matter was taken up or on 01.08.2005, when the evidence was
ordered to be summoned. Therefore, it is not permissible for the
plaintiffs to submit before this Court that the evidence could not
have been led without the payment of the cost.
29. The defendant had not claimed before the learned
Trial Court or in the written statement that any proceedings had
taken place before Tehsildar (Settlement). Therefore, the
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evidence led before the learned Appellate Court regarding the
proceedings conducted before Tehsildar (Settlement) is beyond
.
pleadings. It was laid down by the Judicial Committee of the
Privy Council about 100 years ago in Siddik Mahomed Shah v.
Saran, 1929 SCC OnLine PC 79: AIR 1930 PC 57 (1): (1930) 58 Mad
LJ 7: PLR (1930) 31 PC 150 (1) that no amount of evidence can be
of
looked into on a plea never put forward by the party. It was
observed: rt
“This is a hopeless appeal. A certain Hote Khan is alleged
by the appellant, who is in possession of certain lands
which belonged to Hote Khan, to have given these lands
to him. That story is not accepted, and there are
concurrent findings as to the fact by both Courts. After
Hote Khan’s death, there was a transference of the lands
in question by mutation of names effected upon the
application of Hote Khan’s widow. The Judicial
Commissioners think it very probable that Hote Khan’s
widow, being an ignorant person and with no one to help
her, transferred the lands in that way in order that her
spiritual adviser might hold them as trustees. The
spiritual adviser, who is the appellant wishes to keep
them first upon the ground already specified which their
Lordships have already disposed of and, secondly upon
the ground that it was a gift made by the widow herself
but that claim was never made in the defence presented and
the learned Judicial Commissioners therefore, very truly find
that no amount of evidence can be looked into upon a plea
which was never put forward. The result is that their
Lordships will humbly advise His Majesty that the appeal
should be dismissed. As the respondents have not
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appeared, there will be no order as to costs.” (Emphasis
supplied)
30. This judgment has been consistently followed by the
.
various Courts. It was held by the Hon’ble Supreme Court in
Duggi Veera Venkata Gopala Satyanarayana v. Sakala Veera
Raghavaiah, (1987) 1 SCC 254 that any amount of proof offered
of
without appropriate pleadings is generally of no relevance. It
was observed: –
rt
6. There can be no doubt that under the law of pleadings
facts mentioned in sub-clause (iii) are to be pleaded inthe petition and thereafter proved at the trial for the
purpose of an order of eviction against the tenant. In a
decision of this Court in Hasmat Rai v. Raghunath Prasad
[(1981) 3 SCC 103, 109: AIR 1981 SC 1711 : (1981) 3 SCR 605] ithas been observed by Desai, J. that in order to obtain an
order of eviction of a tenant under Section 12(1)(f) of
Madhya Pradesh Accommodation Control Act, 1961, thelandlord has to plead and establish (i) that he bona fide
requires the accommodation let to the tenant for non-
residential purposes for the purpose of continuing or
starting his business; and (ii) that he has no other
reasonably suitable non-residential accommodation of
his own in his occupation in the city or the town
concerned. Further, it has been observed that any amount of
proof offered without appropriate pleading is generally of no
relevance. We respectfully agree with the above statement of
law and reiterate the same. We are, however, not inclined
to interfere with the impugned order of eviction in the
instant case for the reasons stated hereinafter.”
(Emphasis supplied)
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31. Similarly, it was held in Kishor Kirtilal Mehta v.
Lilavati Kirtilal Mehta Medical Trust, (2007) 10 SCC 21 that
.
evidence led beyond the pleading has to be discarded and no
amount of the evidence led regarding the fact which was never
pleaded can be looked into by the Court. It was observed: –
13. By and large, which part of the evidence is to be
of
discarded as being outside the pleadings is something
that the court considers when it discusses the evidence.
There cannot also be any doubt that no amount of
rt
evidence can be looked into on a plea never put forward.
(See Siddik Mohd. Shah v. Saran [AIR 1930 PC 57 (1)].)
Therefore, at this stage, if the operation of those two
orders is not stayed, it would mean that the examination
of the witnesses will cover only that portion of the plea
admitted to be put forward by Defendants 11 to 13 or in
the plaint, and that would cause inconvenience to the
trial which has been directed to be expedited by this
Court. Merely because some more or not strictly
necessary questions are also asked either in cross-
examination or in chief examination, that cannot also
prejudice the contesting defendants since they can
always plead either that a part of the evidence has to be
discarded as not being covered by the pleadings in the
case, or that it is irrelevant.”
32. It was laid down by this Court in Deepak Parkash v.
Sunil Kumar, 2014 (1) Him. L.R. 654 that no amount of
evidence beyond pleadings can be looked into. It was observed:
17. It is a settled law that no amount of evidence beyond
pleadings can be looked into. It is further the well-settled
principle of law that the evidence adduced beyond the::: Downloaded on – 06/08/2026 20:41:24 :::CIS
22
2026:HHC:30745pleading would not be admissible nor can any evidence be
permitted to be adduced which is at variance with the
pleadings. The Court at the later stage of the trial, as also
the Appellate Court, having regard to the rule of pleading.
would be entitled to reject the evidence wherefore there
does not exist any pleading.”
33. This position was reiterated in Sonam Chomdan v.
Ranjit Singh, 2017 SCC OnLine HP 2617, wherein it was held: –
of
31. Mr Verma, while placing reliance upon Deepak Prakash
v. Sunil Kumar, (2014) 2 Shim LC 822 and C. Mackertich v.
Stuart & Co. Ltd., (1971) 3 SCC 39: AIR 1970 SC 839,
contended that no amount of evidence beyond Pleading
rt
can be looked into. There cannot be any quarrel with
regard to the aforesaid proposition of law as laid down in
the case referred to above. It is well settled that evidence
adduced beyond the Pleadings would not be admissible, nor
can any evidence be permitted to be adduced which is at
variance with the Pleadings. However, the contention
having been made by Mr Verma cannot be accepted since
no Plea with regard to nonregistration of agreement, on
the basis of which Plaintiff came into possession over the
land, was raised in written statement having been filed
by appellant-defendant, they cannot be allowed to raise
this Plea in the instant appeal because of the fact that
submission with regard to non-registration of
agreement relied upon by the Plaintiff to claim
ownership and possession of the suit land is purely legal
submission and can be raised/made at any stage of the
case.” (Emphasis supplied)
34. It was laid down by the Hon’ble Supreme Court in
Iqbal Ahmed v. Abdul Shukoor, 2025 SCC OnLine SC 1787, that the
additional evidence can only be led if the foundation for the
evidence is laid in the pleadings. It was observed:
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2026:HHC:30745
“8. In our opinion, before undertaking the exercise of
considering whether a party is entitled to lead additional
evidence under Order XLI Rule 27(1) of the Code, it would
be first necessary to examine the pleadings of such party.
to gather if the case sought to be set up is pleaded so as to
support the additional evidence that is proposed to be
brought on record. In the absence of necessary pleadings
in that regard, permitting a party to lead additional
evidence would result in an unnecessary exercise and
such evidence, if led, would be of no consequence, as it
of
may not be permissible to take such evidence into
consideration. Useful reference in this regard can be
made to the decisions in Bachhaj Nahar v. Nilima Mandal,
(2008) 17 SCC 491: AIR 2009 SC 1103 and Union of India v.
rt
Ibrahim Uddin, (2012) 8 SCC 148. Thus, besides the
requirements prescribed by Order XLI Rule 27(1) of the
Code being fulfilled, it would also be necessary for the
Appellate Court to consider the pleadings of the party
seeking to lead such additional evidence. It is only
thereafter, on being satisfied that a case as contemplated
by the provisions of Order XLI Rule 27(1) of the Code has
been made out, that such permission can be granted. In
the absence of such exercise being undertaken by the
High Court in the present case, we are of the view that it
committed an error in allowing the application moved by
the defendant for leading additional evidence.”
35. In the present case, no foundation for producing
additional evidence was laid in the pleadings, and the evidence
is inadmissible.
36. It was submitted that this Court had granted
permission to produce the additional evidence and its
admissibility is not open to challenge. This submission is not
acceptable. This Court had clarified while passing an order on
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2026:HHC:30745
10.05.2005 that the evidence led by the petitioner would be
subject to the principle of relevance based on the law of
.
evidence. Therefore, the defendant was to satisfy the Court
regarding the relevance of the evidence. Since only a fact in
issue and the relevant facts are admissible, and a fact which has
not been pleaded cannot be proved. Therefore, this evidence
of
could not have been produced by the defendant, and the learned
Appellate Court cannot be faulted for discarding the evidence.
rt
37. Moreover, H.S. Katoch (PW3) specifically stated that
he never remained the General Power of Attorney or Special
Power of Attorney of his father. His father had never appointed
any person as General Power of Attorney or Special Power of
Attorney. Harnam Singh (DW2) proved the record. He stated in
his cross-examination that there was no Power of Attorney of
any person in the record. His testimony corroborates the
statement of H.S. Katoch that he was not a power of attorney
and no reliance could have been placed on his testimony.
38. Thus, the learned Appellate Court cannot be faulted
for not relying upon the statement made by H.S. Katoch before
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2026:HHC:30745
Tehsildar, and this substantial question of law is answered
accordingly.
.
Substantial Question of Law No.3:
39. It was submitted that the order was passed on
07.04.1982 and the suit was filed on 30.09.1992. Therefore, the
of
suit was barred by limitation. This submission cannot be
accepted. Learned Courts below had rightly held that the order
rt
was passed by the learned Assistant Collector 2nd Grade and not
by the Land Reforms Officer/Assistant Collector 1st Grade.
Therefore, the order was without jurisdiction. It was laid down
by this Court in Krishan Chand Vs. Jeet Ram, Latest HLJ (2009)
2978, that only the Assistant Collector of the First Grade is
competent to hold an enquiry into the relationship of the
landlord and tenant as per Rule 29 of HP Tenancy Rules. It was
observed: –
7. In Besru vs. Shibu, 1999(1) Shim.L.C. 343, this Court has
held: –
“10. Admittedly, in the present case, no attempt
was made by the Assistant Collector 2nd Grade to
serve the plaintiff in accordance with the law. As
such, the mutation is void ab initio, being violative
of the principles of natural justice. It can be held, so
far, as another reason why it was not passed by the
competent authority. From Rule 29 of the Rules, it::: Downloaded on – 06/08/2026 20:41:24 :::CIS
26
2026:HHC:30745is clear that only an Assistant Collector of the Ist
Grade was the competent Land Reforms Officer to
hold an inquiry under Section 104 of the Act. It is
further fortified by the Notifications dated.
27th/29th September, 1995, whereby all the
Tehsildars in Himachal Pradesh were conferred
with powers of Assistant Collector of Ist Grade forpurposes of Chapter X of the Act under which
Section 104, pertaining to acquisition of
proprietary rights by the tenants, fails. By anotherof
Notification of the same date, Tehsildars conferred
with the powers of Assistant Collector, Ist Grade,
were appointed Land Reforms Officers for carrying
out the purposes of Chapter X of the Act within
rt
their respective jurisdiction with immediate effect.
So far as the present case is concerned, from theperusal of the mutation, it is clear that it was
attested by the Assistant Collector 2nd Grade, who
had no jurisdiction to do so. Had the plaintiff been
served in accordance with law and the competentauthority held proper inquiry, the mutation
conferring proprietary rights on the defendants
would not have been passed in view of the Barunder sub-section (8)(a) of Section 104 of the Act.”
8. By Notification No.1-8/68-Rev.1 issued by the
competent Authority under Section 86 of the Act, it is
only the Assistant Collector, Ist Grade, who is empowered
to take up proceedings of conferment of proprietary
rights. Notification reads: –
“No.1-8/68-Rev.1- In exercise of the powers
vested in him under sub-section (1) of section 86 of
the Himachal Pradesh Tenancy and Land Reforms
Act, 1972 (Act No.8 of 1974) and all other powers
enabling him in this behalf, the Governor,
Himachal Pradesh, is pleased to confer on all the
Tehsildars in Himachal Pradesh, all the powers
exercisable by an Assistant Collector of First Grade,
for the purposes of Chapter IX of the aforesaid Act,::: Downloaded on – 06/08/2026 20:41:24 :::CIS
27
2026:HHC:30745within their respective jurisdiction, with
immediate effect.”
It is undisputed that the provision of conferment of
.
proprietary rights by tenants is contained in Chapter IX
of the Act as aforesaid.
These proceedings are, therefore, void ab initio, having
been conducted by an officer who is not empowered to
exercise the power to grant proprietary rights or to
perform any other ancillary act. The very basis set up by
the defendants for claiming ownership is, therefore,
of
without any basis. This question would have concluded
the entire controversy; however, since the appeal has
been admitted on other questions, I am taking them up
rt
for consideration.
40. This position was reiterated in Khushi Ram versus
Rajni Devi 2010 (2) Shim. LC 421 and it was observed: –
“8. Now, when the plaintiff-respondent was in
possession of the suit land and there were entries in
revenue papers, continuing since 1967-68, Ex.P-3,
showing the plaintiff in possession of the suit land, onpayment of rent in kind, Assistant Collector 2nd Grade
ought not to have entertained the application forcorrection of entries, in view of the provisions of Section
104 of the H.P. Tenancy and Land Reforms Act, 1972,which provides that on and with effect from the
appointed day, i.e. 3.10.1975, a person recorded as non-
occupancy tenant, would become owner, unless land
owner exercises right to resume the tenanted land, and
sub section (4) of Section 104 of the aforesaid Act says
that if any dispute arises as to whether a person is a
tenant under a land owner or not, the onus of proof shall
be on the land owner to prove that the person recorded as
tenant, is not a tenant. Assistant Collector 2nd Grade
ought not to have passed the impugned order, as he had
no jurisdiction in the matter. Jurisdiction of even Civil
Courts is barred to entertain or determine this kind of::: Downloaded on – 06/08/2026 20:41:24 :::CIS
28
2026:HHC:30745dispute, by virtue of Section 112 of the H.P. Tenancy and
Land Reforms Act, 1972. Such a question, as per rule 29 of
the H.P. Tenancy and Land Reforms Rules, 1975, is
required to be determined only by the Land Reforms.
Officer, exercising powers of Assistant Collector 1st
Grade.”
41. It was laid down by this court in Krishan Singh v.
Dayal Singh, 2016 SCC OnLine HP 1128 that the Assistant
of
Collector Second Grade has no jurisdiction to deal with the
tenancy disputes. It was observed:
rt
20. In the case of Besru v. Shibu, reported in 1999 (1) Shim.
L.C. 343, this Court has held that it was evident from Rule
29 of the H.P. Tenancy and Land Reforms Rules, 1975 that
only the Assistant Collector (1st Grade) was a competent
Land Reforms Officer to hold an enquiry under Section
104 of the Act. It has been held as follows:
“9. Rule 28 of the Rules provides that mutation is to
be attested in the presence of the parties and Rule29 provides that a dispute under subsection (4) of
Section 104 of the Act shall be decided by the LandReforms Officer in his capacity as an Assistant
Collector 1st Grade in accordance with the relevant
provisions of the Punjab Land Revenue Act or theH.P. Land Revenue Act, as the case may be, though
the inquiry held by him would be summary inquiry.
In the H.P. Land Revenue Act, which applies to the
present case. Sections 20 to 23 provide for
summoning persons for the purpose of any
business before a Revenue Officer and the mode of
service of summons. Under Section 21 thereof, it is
stated that summons issued by a Revenue Officer
shall, if practicable, be served personally upon the
person to whom it is addressed or, failing him, his
recognised agent, or in case it is refused by::: Downloaded on – 06/08/2026 20:41:24 :::CIS
29
2026:HHC:30745affixation on the last known address or by sending
the same by registered post of proclamation, etc.
10. Admittedly, in the present case no attempt was made
.
by the Assistant Collector 2nd Grade to serve the plaintiff
in accordance with the law. As such, the mutation is void
ab initio being violative of the principles of natural
justice. It can be held so for another reason that it wasnot passed by the competent authority. From Rule 29 of
the Rules, it is clear that only the Assistant Collector of
the 1st Grade was the competent Land Reforms Officer toof
hold an inquiry under Section 104 of the Act. It is further
fortified by the Notifications dated 27 th/29th September
1995 whereby all the Tehsildars in Himachal Pradesh
were conferred with powers of Assistant Collector of 1 st
rt
Grade for purposes of Chapter X of the Act under which
Section 104, pertaining to the acquisition of proprietaryrights by the tenants, fails. By another Notification of the
same date, Tehsildars conferred with the powers of
Assistant Collector 1st Grade were appointed Land
Reforms Officers for carrying out the purposes of ChapterX of the Act within their respective jurisdiction with
immediate effect. So far as the present case is concerned,
from the perusal of the mutation, it is clear that it wasattested by the Assistant Collector 2nd Grade who had no
jurisdiction to do so. Had the plaintiff been served inaccordance with law and the competent authority held a
proper inquiry, the mutation conferring proprietaryrights on the defendants would not have been passed in
view of the Bar under sub-section (8)(a) of Section 104 of
the Act.”
21. In the case of Krishan Chand v. Jeet Ram, reported in
Latest HLJ 2009 (HP) 978, this Court has held that the
proceedings for conferment of proprietary rights
conducted by A.C. 2nd Grade would be void ab initio. This
Court has further held that since the very purpose of the
tenancy had been challenged, the Civil Court had the
jurisdiction to decide the matter. It has been held as
follows:
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2026:HHC:30745
6. Learned counsel has urged that proprietary rights were
conferred on the appellants herein in accordance with
law and has emphasised that Ex.DX-1 to DX-3, which are
the basis and foundation for claiming ownership under.
Section 104 of the H.P. Tenancy and Land Reforms Act,
1972 (hereinafter referred to as the ‘Act’).
8. By Notification No. 1-8/68-Rev.1 issued by the
competent Authority under Section 86 of the Act, it
is only the Assistant Collector Ist Grade, who is
empowered to take up proceedings of conferment
of
of proprietary rights. The notification reads: –
“No. 1-8/68-Rev.1- In exercise of the powers
rt vested in him under sub-section (1) of
section 86 of the Himachal Pradesh Tenancy
and Land Reforms Act, 1972 (Act No. 8 of
1974) and all other powers enabling him inthis behalf, the Governor, Himachal Pradesh,
is pleased to confer on all the Tehsildars in
Himachal Pradesh, all the powers exercisableby an Assistant Collector of First Grade, for
the purposes of Chapter IX of the aforesaid
Act, within their respective jurisdiction, withimmediate effect.”
It is undisputed that the provision of conferment of
proprietary rights by tenants is contained in
Chapter IX of the Act as aforesaid.
These proceedings are, therefore, void ab initio,
having been conducted by an officer who is not
empowered to exercise the power to grant
proprietary rights or to perform any other ancillary
act. The very basis set up by the defendants for
claiming ownership is, therefore, without any
basis.
42. It was laid down by this Court in Shiam Singh v.
Chaman Lal, 2010 SCC OnLine HP 689 that a person can institute
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31
2026:HHC:30745
a suit for declaration of his right under Section 46 of the HP
Land Revenue Act as and when he feels aggrieved by it. It was
.
observed:
13. Coming to substantial question of law No. 4, a reading
of Section 46 of the H.P. Land Revenue Act shows that if
any person considers himself aggrieved as to any right of
which he is in possession by an entry in a record-of-
of
rights or in a periodical record, he may institute a suit for
declaration of his right under Chapter VI of the Specific
Relief Act, 1963.
14. It is well settled that for a suit for declaration, referred
rt
to in Section 46, limitation begins to run not from the
date of the entry affecting the right of the person
concerned, but from the date when he feels aggrieved by
the entry and it is the satisfaction of such person as to
when he feels aggrieved. Defendant cannot be heard to
say that he (the plaintiff) felt aggrieved by the entry at
some earlier point of time or when the entry was actually
made.
43. The plaintiffs claimed that the defendant started
interfering with their possession based on the wrong revenue
entries. H.S. Katoch (PW1) stated that the defendant wanted to
take forcible possession from the plaintiffs. Sant Ram, the
plaintiffs’ predecessor, was found to be in possession as per the
report (Ex DW2/A) and the plaintiffs were only required to file
the suit on the interference. Hence, the suit cannot be said to be
barred by limitation, and this substantial question of law is
answered accordingly.
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2026:HHC:30745
Substantial Question of Law No. 4:
44. The defendant had only tendered Ex DA in additional
.
evidence as per the statement dated 02.9.2006. Ex Dx, Ex Dy or
Ex Dz were not tendered in additional evidence, and the same
could not have been considered by the learned Appellate Court
and the judgment passed by the learned Appellate Court is not
of
vitiated on this account. Hence, this substantial question of law
is answered accordingly.
rt
Final Order:
45. In view of the above, the present appeal fails and is
dismissed.
46. The appeal stands disposed of, so also the pending
application(s), if any.
47. Records of the learned Courts below be sent down
forthwith.
(Rakesh Kainthla)
Judge
6th August, 2026
(Nikita)
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