25.2.2026 vs Of on 31 March, 2026

Himachal Pradesh High Court

Reserved On: 25.2.2026 vs Of on 31 March, 2026

                                                                                   2026:HHC:9403




     IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

                                              RSA No. 367 of 2005




                                                                                   .
                                              Reserved on: 25.2.2026





                                              Date of Decision: 31.03.2026





    Tulsi Ram & ors.                                                    ...Appellants
                                          Versus




                                                     of
    Chet Ram & ors.                                                     ...Respondents

    Coram                  rt
    Hon'ble Mr Justice Rakesh Kainthla, Judge.
    Whether approved for reporting?1 Yes.

    For the Appellants                :         M/s Mohinder Verma and Sumit
                                                Sharma, Advocates.


    For the Respondents               :         M/s Dinesh Kumar and Y. Paul,
                                                Advocates.




    Rakesh Kainthla, Judge

The present appeal is directed against the judgment

and decree dated 20.4.2005, passed by learned Additional

District Judge, (Presiding Officer), Fast Track Court, Solan,

District Solan, H.P. (learned First Appellate Court), vide which

the judgment and decree dated 30.7.2003, passed by learned

Civil Judge, Junior Division, Arki, District Solan, HP, (learned

Trial Court) were upheld. (Parties shall hereinafter be referred to in

1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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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 plaintiff filed a civil suit before the learned

Trial Court for seeking permanent prohibitory injunction

restraining the defendant from interfering in the peaceful

of
possession of the plaintiff and cutting and removing the trees

from the suit land comprised in Khata/Khatauni No. 3/3, Khasra
rt
Nos. 9 and 11, measuring 33-15 bighas, situated in Village

Samoth, Pargana Deora, Tehsil Solan, H.P. It was asserted that

the plaintiffs are joint owners-in-possession of the suit land.

The defendants trespassed into the suit land on 20.5.1996 and

threatened to cultivate it, cut and remove the standing trees

from it. Hence, a suit was filed for seeking relief(s) mentioned

above.

3. The suit was opposed by filing a written statement,

as amended before the learned Trial Court and the learned

Appellate Court, taking preliminary objections regarding lack of

maintainability, locus standi and cause of action, suit being

barred by limitation, suit being bad for non-joinder of necessary

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parties, suit having not been properly valued for Court fees and

jurisdiction, suit being bad for proper identification of the suit

.

land, plaintiffs being estopped to file the present suit by their

own acts and conduct, and the plaintiffs having concealed the

material facts from the Court. The contents of the plaint were

denied on merits. It was asserted that the possession of the suit

of
land measuring 17-9 bigha was with the defendants. The pencil

entry of the name of the defendant was made in the Jamabandi,
rt
which was removed without any basis. The plaintiff No. 2

quarrelled with the defendant over taking possession, and a

criminal case was registered. Defendant had also filed a

correction application before Teshildar, Arki, in which an

inquiry was conducted. Possession of the defendant was verified

in Khasra No.11/1. The plaintiffs concealed the family settlement

effected between the plaintiffs and defendant Tulsi Ram, which

was reduced into writing on 10.1.1977. Hence, it was prayed that

the suit be dismissed.

4. A replication denying the contents of the written

statement and affirming those of the plaint was filed. It was

asserted that no pencil entry was made in favour of Tulsi Ram.

The defendant did not raise any objection at the time of the

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removal of the entry. The defendants never remained in

possession of the suit land. They interfered with the possession

.

of the plaintiffs. It was specifically denied that any family

settlement had taken place between the parties. It was asserted

that Bhagi Rath was the tenant, who was conferred with the

proprietary rights under the H.P. Abolition of Big Land Estate

of
and H.P. Land Reforms Act. He deposited the compensation and

became the owner. Defendants had no right over the suit land.

rt
Hence, it was prayed that the suit be decreed.

5. Learned Trial Court framed the following issues on

30.9.2000 and additional issues on 29.10.2002: –

1. Whether the plaintiffs are joint owners in possession of
the suit land as alleged? OPP.

2. Whether the plaintiffs are entitled to the relief of

injunction as prayed for? OPP.

3. Whether the suit is not maintainable as alleged? OPD.

4. Whether the plaintiffs have no cause of action? OPD.

5. Whether the plaintiffs have no locus standi to file the
present suit? OPD.

6. Whether the suit is not within limitation? OPD.

7. Whether the suit is bad for non-joinder of necessary
parties? OPD.

8. Whether the suit is not properly valued for the purpose of
Court fee and jurisdiction? OPD.

9. Whether the plaintiffs are estopped from filing the
present suit by their acts and conduct? OPD.

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9-A. Whether Shri Bhagi Rath and Shri Tulsi Ram were to
inherit the tenancy of late Shri Keshav Ram in equal
shares as alleged? OPD.

9-B. Whether the mutation No.63 dated 31.7.1965 attested and

.

accepted in favour of Shri Bhagi Rath alone is illegal, null

and void as alleged? OPD.

9-C. Whether the revenue entries showing Shri Bhagi Rath and

plaintiffs alone as owners-in-possession of the suit land
are wrong and illegal as alleged? OPD.
9-D. Whether this Court has no jurisdiction to determine the
issue of tenancy between the parties as raised by the

of
defendants in para No. 2-A of his written statement? OPP.

10. Relief.

6. The parties were called upon to produce evidence.

rt
The plaintiffs examined plaintiff No.2 Bhagwan Dass (PW1) and

Geeta Ram (PW2). Defendants examined Naveen Kumar (DW1),

Tulsi Ram (DW2), Rishi Ram Dogra (DW3), Ram Krishan (DW4),

Kanhiya Ram (DW5), Sant Ram (DW6). The defendants recalled

Kanhiya Lal (DW1), Tulsi Ram (DW2) and examined Lekh Ram

(DW8) after the amendment of issues. Tulsi Ram (defendant)

and Bhagwan Dass (plaintiff) were examined before the learned

Appellate Court.

7. The learned Trial Court held that the plaintiffs’

witnesses and revenue entries proved their possession. The

evidence of the defendant was not sufficient to rebut the

plaintiffs’ evidence. Keshav Ram, grandfather of the parties, was

recorded as a non-occupancy tenant till 1942-43. Defendant

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No.1 was entitled to inherit the tenancy rights with Bhagi Rath,

but the mutation was not entered based on the natural

.

succession. The defendants failed to challenge the mutation

conferring the proprietary rights as per the law, and they could

not do so in the present suit. The defendants claimed possession

of 17 bighas 09 biswas of the land, but they did not file any

of
tatima to show their possession. The defendants claimed

ownership which amounts to sufficient interference with the
rt
possession of the plaintiffs. Hence, the learned Trial Court

answered Issues No.1, 2 and 9A in the affirmative, the rest of the

issues in the negative and decreed the suit.

8. Being aggrieved from the judgment and decree

passed by the learned Trial Court, the defendants filed an appeal

which was decided by the learned Additional District Judge,

Presiding Officer (Fast Track Court), Solan, H.P. (learned

Appellate Court). Learned Appellate Court held that Tulsi Ram is

the son of Sadhu, son of Keshav. Bhagi Rath was the brother of

Keshav. The defendants failed to produce any mutation of the

succession of the tenancy. Only an occupancy tenancy was

inheritable and not a non-occupancy tenancy. There was no

evidence that Tulsi Ram was paying any rent. Tulsi Ram was

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aged 8-9 years at the time of the death of his grandfather, and

his version that he was a tenant or had participated in the

.

division of the property was not reliable. The evidence regarding

the possession of Tulsi Ram was not satisfactory, whereas the

evidence of the plaintiffs was duly corroborated by the revenue

record. There was no infirmity in the judgment and decree

of
passed by the learned Trial Court. Hence, the appeal was

dismissed. rt

9. Being aggrieved from the judgment and decree

passed by the learned First Appellate Court, the present appeal

has been filed, which was admitted on the following substantial

questions of law on 22.7.2005 and additional substantial

questions of law were framed on 30.7.2024. : –

1. Whether the Courts below have ignored the family
settlement Ex. DX, which took place between the parties

in the year 1971?

2. Whether Ex.DW7/A Jamabandi for the year 1941-42 has
been misread and misinterpreted by the Courts below,
which shows that the defendants are in the joint
possession with the plaintiffs over the suit land?

3. Whether the mandatory provisions of Order 20 CPC have
been ignored by the Courts below by clubbing all the
material issues and all the issues were required to be
decided separately?

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4. Whether the Civil Court has got the jurisdiction to
determine the controversy qua the tenancy rights in
favour of the plaintiffs?

.

(i) Whether findings recorded by both the Courts are

vitiated on account of misreading, misconstruction
and misinterpretation of the pleadings of parties and
oral as well as documentary evidence on record.

(ii) Whether mere suit for injunction without seeking
declaration of their alleged absolute ownership right

of
and possession is not maintainable and the same is
liable to be dismissed especially when the Defendant
No.1 Tulsi Ram son of Sh. Sadh son of Sh. Keshwa
Nand has claimed hat he succeeded to the tenancy
rt
rights in equal share with Sh. Bhagi Rath son of Sh.
Keshwa Nand.

(iii) Whether the findings recorded by Ld. Trial Court on
issue No.9A could be reversed by the Ld. Additional
District Judge in the absence of cross

objection/Appeal.

10. I have heard M/s Mohinder Verma and Sumit

Sharma, learned counsel for the appellants/defendants and M/s

Dinesh Kumar and Y. Paul, learned counsel for the

respondents/plaintiffs.

11. Mr Mohinder Verma, learned counsel for the

appellants/defendants, submitted that the learned Courts below

erred in holding that the defendants were not in possession of

the suit land or that Tulsi Ram had not succeeded to the estate of

his grandfather. The non-occupancy tenancy is regulated by

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succession. Therefore, he prayed that the present appeal be

allowed and the judgments and decrees passed by learned Courts

.

below be set-aside. He relied upon the following judgments in

support of his submission:

(i) Charno Devi and ors. Vs. Dali Mal (deceased) through
his L.Rs. Shamsher Singh and others, 1994 (2) Shim. LC

of
279;

(ii) Gurunath Manohar Pavaskar & ors. Vs. Nagesh
Siddappa Navalgund & ors. AIR 2008 SC 901;

rt

(iii) Gurmit Ram & ors. Vs. Financial Commissioner,

Revenue, Punjab and others PLJ 1979 PG 152.

(iv) State of H.P. Vs. Keshav Ram and others. AIR 1997 SC
2181;

(v) Union of India & ors. Vs. Vasavi Co-op. Housing Society
Ltd. & ors. 2014 SLC (1) 411.

12. Mr Dinesh Thakur, learned counsel for the

respondents/plaintiffs, submitted that both the learned Courts

below had rightly held that the non-occupancy tenancy is not

heritable. There is no infirmity in the findings recorded by the

learned Courts below, and this Court should not interfere with

the concurrent findings of fact recorded by the learned Courts

below. Therefore, he prayed that the present appeal be

dismissed.

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13. 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:

14. The defendants relied upon the family settlement

(Ex.DX) before the learned Appellate Court by way of additional

of
evidence, which was a memorandum of partition and mentioned

the land allotted to Tulsi Ram, Bhagwan Dass and Chet Ram. It
rt
mentions the local names of the land allotted to each of the

signatories. It also mentions that Tulsi Ram had left some land

in favour of Chet Ram. The nature of the document shows that it

extinguished the existing rights of the parties and conferred new

rights upon them. Therefore, it would require compulsory

registration. It was laid down by the Hon’ble Supreme Court in

Roshan Singh v. Zile Singh, (2018) 14 SCC 814, that when the

instrument of partition is intended to operate a declared volition

constituting or severing ownership and changing legal position,

it is compulsorily required to be registered, in the absence of

which it cannot be looked into. It was observed: –

“9. It is well settled that while an instrument of partition
which operates or is intended to operate as a declared
volition constituting or severing onwership and causes a
change of legal relation to the property divided amongst

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the parties to it, requires registration under Section 17(1)

(b) of the Act, a writing which merely recites that there
has in time past been a partition, is not a declaration of
will, but a mere statement of fact, and it does not require

.

registration. The essence of the matter is whether the
deed is a part of the partition transaction or contains
merely an incidental recital of a previously completed

transaction. The use of the past tense does not necessarily
indicate that it is merely a recital of a past transaction. It
is equally well settled that a mere list of properties

of
allotted at a partition is not an instrument of partition
and does not require registration. Section 17(1)(b) lays
down that a document for which registration is
compulsory should, by its own force, operate or purport
rt
to operate to create or declare some right in immovable
property. Therefore, a mere recital of what has already

taken place cannot be held to declare any right, and there
would be no necessity of registering such a document.
Two propositions must therefore flow: (1) A partition may
be effected orally; but if it is subsequently reduced into a

form of a document and that document purports by itself
to effect a division and embodies all the terms of the
bargain, it will be necessary to register it. If it be not

registered, Section 49 of the Act will prevent its being
admitted in evidence. Secondary evidence of the factum of

partition will not be admissible by reason of Section 91 of
the Evidence Act, 1872. (2) Partition lists, which are mere
records of a previously completed partition between the

parties, will be admitted in evidence even though they are
unregistered, to prove the fact of partition: see Mulla’s
Registration Act, 8th Edn., pp. 54-57.”

15. In the present case, the document (Ex. DX) severed

the status of the co-sharers in relation to the land from the date

of the execution of the instrument, and conferred new rights

upon the parties. Therefore, it was compulsorily required to be

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registered and could not have been looked into without the

registration. Admittedly, the document (Ex. DX) was not

.

registered and could not have been looked into. Therefore, there

is no error in ignoring the family settlement, and this

substantial question of law is answered accordingly.

Substantial Question of Law No. 2:

of

16. Copy of Jamabandi for the year 1941-42 (Ex.DW7/A)
rt
shows Keshav Ram, son of Bhajju, to be a non-occupancy tenant

over Khata No.2, Khatauni No.3, Kitta-2, measuring 33.15

bighas. The plaintiffs did not dispute in the written statement

that Keshav Ram was the tenant of the suit land. They asserted

that proprietary rights were conferred upon Bhagi Rath, as Tulsi

Ram never remained a tenant over the land, and only Bhagi Rath

was the tenant. Bhagwan Dass (PW1) admitted in his cross-

examination that Bhagi Rath and Sadhu Ram were brothers, and

his grandfather, Keshav Ram, was the tenant. Hence, the fact

that Keshav Ram was a tenant and Bhagi Rath and Sadhu Ram

were his sons, and Tulsi Ram is the son of Sadhu Ram are not

disputed.

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17. Learned Trial Court held that there was no evidence

that tenancy was inherited by way of natural succession.

.

Learned Appellate Court held that only an occupancy tenancy is

heritable, and a non-occupancy tenancy cannot be inherited.

The copy of the Jamabandi for the year 1941-42 (Ex.DW7/A)

contains the endorsement in the column of remarks that Keshav

of
had died and Bhagi Rath was in possession. Plaintiff Bhagwan

Dass nowhere claimed that a fresh tenancy was created in favour
rt
of Bhagi Rath by the land owners, and the entry shows that it

was based on natural succession. Thus, the learned Trial Court

erred in holding that there was no proof of the fact that Bhagi

Rath had succeeded to the tenancy by way of natural succession.

18. Learned Appellate Court held that non-occupancy

tenancy was not heritable, Tulsi Ram was not entitled to inherit

the tenancy with Bhagi Rath, and the observations of the learned

Trial Court were contrary to the law. The attention of the learned

Appellate Court was not brought to the binding precedents of

this Court.

19. It was held by this Court in Charno Devi and ors. Vs.

Dali Mal (deceased) through his L.Rs. Shamsher Singh and others,

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1994 (2) Shim. LC 279, that the Punjab Tenancy Act provides for

the devolution of the tenancy upon the heirs of a tenant after his

.

death, irrespective of the fact whether the tenancy is occupancy

or a non-occupancy. It was observed: –

“18. In the instant case, it is not in dispute that the Act is
the local law in force in the State of Himachal Pradesh

of
providing for devolution of the rights of a tenant on his
death, irrespective of the fact whether he is an occupancy
tenant or a non-occupancy tenant. The order in which the
right of tenancy is to devolve has been enumerated in
rt
section 45 of the Act, which neither in express terms nor
impliedly provides for the extinguishment of the rights of

a tenant in the event of there being none available on the
date of death, out of the persons as specified in Clauses

(a) to (d). The legislature was aware, at the time of the
enactment of the Act, of subsection (4) of section 59 of

the Punjab Tenancy Act, 1887, providing for the
extinguishment of rights of tenancy in the eventuality of
there being none on whom, under sub-section (1) of

section 59, such a right may devolve. Section 45 of the Act
cannot be construed in such a manner so as to

incorporate therein a provision similar to the one as was
contained in subsection (4) of section 59 of the Punjab
Tenancy Act, so as to read therein a clause providing for

the extinguishment of tenancy rights. In case it is done, it
will amount to supplying words in a statute that are not
there.”

20. It was held in Smt. Nathi Vs. Shri Ned Chand 1997 (2)

Shim. LC 179 HP that the heirs of a non-occupancy tenant would

succeed to the tenancy as per the general law of succession. It

was observed: –

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“33. Having held that the succession of tenancy rights of a
tenant-at-will would not be governed by section 59,
Punjab Tenancy Act, 1887, the question which arises for
determination is as to how the succession in such a case is

.

to be regulated.

34. Admittedly, save and except section 59, Punjab
Tenancy Act, 1887 there is no other provision in the said

Act governing succession to the tenancy rights of a tenant
at-will In the absence of such a provision in the relevant
tenancy laws as in force at the relevant time, succession

of
to the tenancy rights of a tenant-at-will prior to the
coming into force of the H. P. Tenancy and Land Reforms
Act, 1972, in the areas to which the provisions of Punjab
Tenancy Act, 1887, were applicable, would, therefore, be
rt
governed by the general law of succession, viz, Hindu
Succession Act, 1956. Under section 8 of the said Act

widow and son(s) succeed to the estate of the deceased in
equal shares.”

21. This judgment was followed in Hari Singh and others

Vs. Milap Chand 2000 (1) Shim. LC 403, and it was held that the

non-occupancy tenancy is not governed by Section 59 of the

Punjab Tenancy Act but by Section 8 of the Hindu Succession

Act. It was observed:-

“5. This Court has heard learned counsel for the parties
and gone through the record. At the time of admission
substantial question of law was not framed. During the
course of arguments, learned counsel for the defendants
has urged that concurrent findings arrived at by both the
Courts below deserve to be interfered with on the
substantial questions of law (i) whether non-occupancy
tenancy under the Punjab Tenancy Act was heritable; (ii)
Whether the presumption of truth attached to the
revenue entries which are in favour of the defendants that

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their father late Chuni Lal was in exclusive possession as
tenant stood rebutted to hold the plaintiff in joint
possession with him and after his death with defendants.
Arguing the first substantial question of law, learned

.

counsel has pointed out that in the year 1970, when
Chamaru had died, the Act had not come into force and
the Addl. The District Judge has erred in holding that the

plaintiff had a right to inherit the tenancy rights to the
extent of a 1/2 share under Section 45 of the Act.
According to the learned counsel, since the suit land is in

of
District Kangra, which is part of the erstwhile State of
Punjab, before its merger with the State of Himachal
Pradesh, the Punjab State Tenancy Act was applicable,
and the inheritance of tenancy rights will be governed by
rt
it, under which there is no provision for succession of
non-occupancy tenancy rights. This submission is

correct, and there is no difficulty in accepting it, but
unfortunately, it does not help the learned counsel for the
defendants. No doubt, Section 59 of the Punjab Tenancy
Act governs the succession in the case of a tenant having

a right of occupancy and a tenant having a right of non-
occupany i.e. tenant at will are not covered by this
provision. Therefore, the question arises which law will

govern the succession in the case of a tenant having a
right of non-occupancy (tenant at will). The answer will

be found in the general law of succession, i.e. Hindu
Succession Act, 1956, Section 8 of which provides that the
widow and son(s) succeed to the estate of the deceased in

equal shares. Therefore, this Court has no hesitation to
hold that the plaintiff had a right to succeed to the
tenancy rights of the suit land along with his brother, late
Chuni Lal, in equal share after the death of their father in
the year 1970, and he has been deprived of that right
wrongly and illegally as held by both the Courts below.
For taking this view, this Court has taken support from
the judgment of the learned Single Judge in Smt. Nathi v.
Shri Neel Chand, 1997 (2) Shim. L.C. 179.”

22. Therefore, the learned Appellate Court erred in

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holding that the non-occupancy tenancy could not be inherited.

The non-occupancy tenancy was to be inherited as per the

.

provisions of the Succession Act.

23. Section 8 of the Hindu Succession Act deals with the

general rules of succession in case of males. Section 8(a) of the

Hindu Succession Act provides that the property of a male Hindu

of
shall devolve upon his heirs specified in Class I of the schedule.

The schedule mentions the son of the predeceased son as the
rt
heir along with the son. Thus, as per the Hindu Succession Act,

the son of the predeceased son is entitled to succeed to the estate

of a Hindu. Even if the Hindu Succession Act was not applicable,

the son of a predeceased son is a coparcener and would get a

right in the property on the date of his birth. Thus, the learned

Courts below erred in holding that Bhagirath alone would inherit

the estate of Keshav. The defendant no. 1, being the son of the

predeceased son, was entitled to inherit the tenancy with

Bhagirath. Hence, this substantial question of law is answered

accordingly.

Substantial Question of Law No.3:

24. It was submitted that the learned Trial Court erred in

taking the issues together. This submission cannot be accepted.

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It was laid down by this Court in Hiru vs. Mansa Ram 2003 (1)

Curr. L.J. 133 that the judgment of the court is not bad simply

.

because issues were taken together for discussion. It was

observed:

“8. A bare perusal of this rule shows that the Court has to
give a decision on each of the issues along with reasons

of
thereof unless the findings upon any one or more of the
issues are sufficient for the decision of the suit. There is
nothing in the language of Rule 5 of Order 20 which
indicates that two or more issues cannot be clubbed
rt
together for discussion and findings in the context of the
evidence on record. What is required by rule 5 is that the

Court has to give its findings on all the issues unless the
findings on any one or more of the issues are sufficient
for the decision of the suit. The provision is aimed at
curbing unnecessary protraction of litigation. The true

import of rule 5 of order 20, as pointed out by a Division
Bench of Patna High Court in Ram Ranbijaya Prasad Singh
v. Sukar Ahir, AIR 1947 (34) Patna 334, is that the Courts of

fact must decide all the issues of fact which arise between
the parties so that if the appellate court takes a different

view, the parties are saved from further harassment.
However, clubbing most of the issues and writing a
conclusion at the end of the judgment would not

contravene rule 5 of order 20 of the Code, nor would it
vitiate the findings for that reason.

9. It is true that sometimes Judicial Officers as a
convenience club together all or most of the issues and
write a judgment though not often without applying their
minds on a particular matter that has to be decided under
each issue and then conclusions on several issues are
given at the end of the judgment but even such a
judgment cannot be said to contravene the provisions of
rule 5 of Order 20 of the Code which requires no more
than that reasons should be given for the findings in

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respect of each issue. Such a judgment may be open to
criticisms, but it cannot be said to be no judgment in the
eyes of the law.”

.

25. This position was reiterated in Jagat Singh vs. Shanti

Swaroop 2007 HLJ 192, wherein it was held:

“13. Now coming to the question with regard to the
discussion and decision by the learned trial court of issues
No.1, 3 and 6 together. As far as Issues No.1 and 3 are

of
concerned, I am of the opinion that there was no error
committed by the trial court in discussing the deciding
these issues together because both issues overlap to some
extent. Though normally, the trial court should
rt
endeavour to decide every issue separately, there is no bar
to two or more issues being decided together. Issues that

overlap or where the same evidence has to be considered,
and where points to be decided are similar in nature, can
always be decided together. In the present case, I find that
issue No.1 is with regard to the entitlement of the plaintiff

to claim possession and issue No.3 is whether he was
estopped by his acts, conduct and acquiescence from
claiming possession. These could have been conveniently

decided together by the learned trial court.”

26. In the present case, the issues were related to each

other and would have involved the repetition of the evidence;

therefore, the learned Trial Court was justified in discussing the

issues together. No prejudice has been shown to the parties by

the discussion of the issues together. Hence, the substantial

question of law is answered in the negative.

Substantial Question of Law No.4:

27. It was submitted that the order passed by the

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Compensation Officer under the H.P. Big Land Abolition of

Estates Act is final and cannot be challenged before the Court.

.

This submission cannot be accepted. It was laid down by this

Court in Rajinder Singh Vs. Shakuntla Devi and others, 2005 (3)

Shim. LC 1, that a party aggrieved by an order passed by the

Compensation Officer under the H.P. Abolition of Big Land

of
Estate Act can file a civil suit to correct the error. It was

observed: – rt
“17. The moot point is that, as noticed above, there was

no bar to the jurisdiction of the Civil Court under the
Abolition Act. Even if a mistake had been committed by
the Compensation Officer, any party was free to go to
Court to challenge the same.

18. A Division Bench of the Delhi High Court (Himachal
Bench at Shimla) in Balak Ram v. Kanehya, 1968 Delhi Law
Times, Vol-IV, 384, held that the decision of the

Compensation Officer on the question whether the
applicant was a tenant was not conclusive so as to exclude

the jurisdiction of the Civil Court. It was also held that the
land owner can establish his right in a competent Civil
Court that the person claiming to be his tenant is not a

tenant.

19. A Full Bench of the Delhi High Court (Himachal Bench
at Shimla) in Chuhary v. Sirtu, 1968 Delhi Law Times, Vol-
IV, 412, considered this question and held that a tenant
dispossessed without his consent from his tenancy or
part thereof could file a civil suit for possession and the
same would not be barred and the Civil Court had the
jurisdiction to decide the case. A similar view has been
taken by a single Judge of this Court in Gulabi v. Rukmani
and others, 1995 (1) Sim. L.C. 159.

20. Therefore, it is clear that the jurisdiction of the Civil

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Court is not barred. If a mistake was made by the
Compensation Officer, a party could either go to him to
correct the mistake, or it could file an appeal to the
District Judge, or it could file a civil suit. It was for the

.

party concerned to decide which mode it adopted. The
provisions of the Tenancy and Land Reforms Act barring
the jurisdiction of the Civil Court cannot be applied to

proceedings seeking correction of an order or
proceedings or a map issued under the Abolition Act.

28. It was held by this Court in Shiam Singh v. Chaman

of
Lal, 2010 SCC OnLine HP 689, that the jurisdiction of the civil

court is only barred to question the amount of compensation
rt
determined by the compensation officer and not to determine

the rights. It was observed:

“10. With regard to substantial question of law No. 1, it

was submitted on behalf of the appellants that Civil
Court’s jurisdiction, to test the validity of the order of
Compensation Officer, conferring proprietary rights, was

barred, by virtue of the provision of sub-section (4) of
Section 12 of the Himachal Pradesh Abolition of Big

Landed Estates and Land Reforms Act, 1953. From a bare
reading of Section 12, which is reproduced below for
ready reference, it is clear that finality attaches to an

order of a Compensation Officer only with regard to the
quantum of compensation and not with regard to the
conferment of proprietary rights.

12. (1) The amount of compensation payable by a
tenant for the acquisition of the right, title and
interest of the landowner in the land of the tenancy
shall be determined by the Compensation Officer in
accordance with the provisions of the Schedule.

(2)(a) Any person aggrieved by an order of the
compensation officer under subsection (1) may,

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within forty-five days from the date of the order,
appeal to the District Judge.

(b) Where any such appeal is preferred to the

.

District Judge, he shall cause to be published in the

prescribed manner a notice requiring the land
owner or the tenant, as the case may be, to appear
before him and, after giving the parties a

reasonable opportunity of being heard, shall give
his decision.

of

(c) As against the decision of the District Judge, an
appeal shall lie within such period as may be
prescribed to the Judicial Commissioner, whose
decision shall be final and shall not be liable to be
rt
called in question in any court or before any
authority.

(3) No decision of the District Judge or the Judicial
Commissioner under sub-section (2) shall be
invalid by reason of any defect in the form of notice
or manner of its publication.

(4) Every decision of the Compensation Officer
under this section shall, subject to the provision of

sub-section (2), be binding on all persons claiming
an interest in the holding concerned,

notwithstanding any such person not having
appeared or participated in the proceedings before
the Compensation Officer, the District Judge or the

Judicial Commissioner, as the case may be.”

Therefore, the first substantial question of law, on which
the appeal has been admitted, is answered against the
appellants.

11. Coming to substantial question of law No. 2, in view of
the answer to substantial question of law No. 1, this
question does not survive, when it is held that Civil
Court’s jurisdiction is not barred in a matter of the
present nature, but it is barred only when the dispute is

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with regard to the quantum of compensation determined
by the Compensation Officer.

12. So far as the substantial question of law No. 3 is

.

concerned, the jurisdiction of the Compensation Officer

extends to the determination of compensation and
settling the same between the land owner and the tenant.
He does not have the jurisdiction to determine the rights

of different persons, who claim to be tenants and are, as
such, entitled to conferment of proprietary rights on
payment of compensation. Hence, there is no question of

of
the finding, if any, of the Compensation Officer that Nand
Lal was the exclusive tenant, operating as res judicata in
the present litigation.”

29.
rt
In the present case, the tenancy was inherited by

Tulsi Ram and Bhagi Rath, and the proprietary rights could not

have been conferred upon Bhagi Rath alone. This was a mistake

committed by the Compensation Officer, which can be rectified

by the Civil Suit and the jurisdiction of the Civil Court is not

barred; hence, this substantial question of law is answered

accordingly.

30. The judgments in Gurunath Manohar Pavaskar

(supra), Keshav Ram (supra) and Vasavi Co-op. Housing Society

Ltd. (supra) deal with the principle that the revenue entries are

presumed to be correct but they cannot form the basis/title.

There is no dispute with this proposition of law. The judgment in

Gurmeet Ram (supra) deals with the succession of the tenancy

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under Pepsu Tenancy and Agriculture Land Act which is

inapplicable to the present case. Hence, no advantage an be

.

derived from the cited judgments.

Substantial Question of Law No.(i):

31. Learned Trial Court held that Bhagi Rath and Tulsi

Ram were entitled to inherit the tenancy of late Sh. Keshav Ram

of
in equal share but there was no evidence that mutation was

recorded on the basis of succession which is actually incorrect as
rt
noticed above. Learned Appellate Court held that the non-

occupancy tenancy is not heritable which is in ignorance of the

judgments passed by this Court. Therefore, the findings

recorded by learned Courts below are based upon the

misinterpretation of the evidence on record. Hence this

substantial question of law is answered accordingly.

Substantial Question of Law No.(ii):

32. The Hon’ble Supreme Court held in Anathula

Sudhakar v. P. Buchi Reddy, (2008) 4 SCC 594: 2008 SCC OnLine SC

550 that where the plaintiff is in lawful possession of the

property and the defendant interferes with such a possession, a

suit for an injunction will lie. A prayer for declaration will only

be necessary when the denial of the title by defendant raises a

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cloud on the title of the plaintiff to the property in a sense that

there is some apparent defect in the title to a property when or

.

some prima facie right of third party is shown over the land. It

was observed:-

13. The general principles as to when a mere suit for
permanent injunction will lie, and when it is necessary to

of
file a suit for declaration and/or possession with
injunction as a consequential relief, are well settled. We
may refer to them briefly.

13.1. Where a plaintiff is in lawful or peaceful
rt
possession of a property and such possession is
interfered with or threatened by the defendant, a

suit for an injunction simpliciter will lie. A person
has a right to protect his possession against any
person who does not prove a better title by seeking
a prohibitory injunction. However, a person in

wrongful possession is not entitled to an injunction
against the rightful owner.

13.2. Where the title of the plaintiff is not disputed,
but he is not in possession, his remedy is to file a

suit for possession and seek in addition, if
necessary, an injunction. A person out of
possession, cannot seek the relief of injunction

simpliciter, without claiming the relief of
possession.

13.3. Where the plaintiff is in possession, but his
title to the property is in dispute, or under a cloud,
or where the defendant asserts title thereto and
there is also a threat of dispossession from the
defendant, the plaintiff will have to sue for
declaration of title and the consequential relief of
injunction. Where the title of the plaintiff is under a
cloud or in dispute and he is not in possession or
not able to establish possession, necessarily the

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plaintiff will have to file a suit for declaration,
possession and injunction.

14. We may, however, clarify that a prayer for declaration

.

will be necessary only if the denial of title by the

defendant or challenge to the plaintiff’s title raises a
cloud on the title of the plaintiff to the property. A cloud is
said to rise over a person’s title, when some apparent

defect in his title to a property, or when some prima facie
right of a third party over it, is made out or shown. An
action for declaration is the remedy to remove the cloud

of
on the title to the property. On the other hand, where the
plaintiff has clear title supported by documents, if a
trespasser without any claim to title or an interloper
without any apparent title, merely denies the plaintiff’s
rt
title, it does not amount to raising a cloud over the title of
the plaintiff and it will not be necessary for the plaintiff to

sue for declaration and a suit for an injunction may be
sufficient. Where the plaintiff, believing that the
defendant is only a trespasser or a wrongful claimant
without title, files a mere suit for injunction, and in such a

suit, the defendant discloses in his defence the details of
the right or title claimed by him, which raise a serious
dispute or cloud over the plaintiff’s title, then there is a

need for the plaintiff, to amend the plaint and convert the
suit into one for declaration. Alternatively, he may

withdraw the suit for bare injunction, with permission of
the court to file a comprehensive suit for declaration and

injunction. He may file the suit for declaration with
consequential relief, even after the suit for injunction is
dismissed, where the suit raised only the issue of
possession and not any issue of title.”

33. It was held in Jharkhand State Housing Board v. Didar

Singh, (2019) 17 SCC 692 : (2020) 3 SCC (Civ) 588: 2018 SCC OnLine

SC 2170 that every dispute does not oblige the plaintiff to file a

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civil suit for declaration and the dispute should be genuine. It

was observed at page 694:

.

“10. The issue that falls for our consideration is:
“Whether the suit for a permanent injunction is
maintainable when the defendant disputes the title of the

plaintiff?”

11. It is well settled by catena of judgments of this Court
that in each and every case where the defendant disputes

of
the title of the plaintiff, it is not necessary that in all those
cases plaintiff has to seek the relief of declaration. A suit
for a mere injunction does not lie only when the
defendant raises a genuine dispute with regard to title and
rt
when he raises a cloud over the title of the plaintiff, then
necessarily in those circumstances, the plaintiff cannot

maintain a suit for bare injunction.”

34. A similar view was taken in Kayalulla Parambath

Moidu Haji v. Namboodiyil Vinodan, 2021 SCC OnLine SC 675

wherein it was observed:

“12. It could thus be seen that this Court in unequivocal

terms has held that where the plaintiff’s title is not in
dispute or under a cloud, a suit for injunction could be de-
cided with reference to the finding on possession. It has

been clearly held that if the matter involves complicated
questions of fact and law relating to title, the court will
relegate the parties to the remedy by way of a compre-
hensive suit for declaration of title, instead of deciding
the issue in a suit for mere injunction.

13. No doubt, this Court has held that where there are
necessary pleadings regarding title and appropriate is-
sues relating to the title on which parties lead evidence if
the matter involved is simple and straightforward, the
court may decide upon the issue regarding title, even in a
suit for injunction. However, it has been held that such

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cases are the exception to the normal rule that the ques-
tion of title will not be decided in suits for injunction”.

35. In the present case, the plaintiffs are recorded to be

.

in possession being the successor of Bhagi Rath in the revenue

record. There was no apparent defect on the date of the

institution of the suit. The mere fact that the defendants had

of
taken a plea that they were to inherit the tenancy of Keshav Ram

was a matter of adjudication which would not oblige the
rt
plaintiffs to file a civil suit for declaration. Hence, this

substantial question of law is answered accordingly.

Substantial Question of Law No.(iii):

36. Order 41 Rule 22 of the CPC provides that any

respondent may not only support the decree but may also state

that finding against him in respect of any issue ought to have

been in his favour. Thus, a right is conferred upon the

respondent to challenge any finding which is against him

without filing a cross objection. It was laid down by Hon’ble

Supreme Court in S. Nazeer Ahmed v. State Bank of Mysore, (2007)

11 SCC 75 that the respondent can support the decree of the Trial

Court even by challenging any finding recorded by learned Trial

Court. He is not required to file a cross objection to do so. The

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cross objection is only required to be filed when he seeks a relief

which was denied by the learned Trial Court. It was observed:-

.

7. The High Court, in our view, was clearly in error in
holding that the appellant not having filed a
memorandum of cross-objections in terms of Order 41
Rule 22 of the Code, could not challenge the finding of the

trial court that the suit was not barred by Order 2 Rule 2 of
the Code. The respondent in an appeal is entitled to
support the decree of the trial court even by challenging

of
any of the findings that might have been rendered by the
trial court against himself. For supporting the decree
passed by the trial court, it is not necessary for a
respondent in the appeal, to file a memorandum of cross-

rt
objections challenging a particular finding that is
rendered by the trial court against him when the ultimate
decree itself is in his favour. A memorandum of cross-

objections is needed only if the respondent claims any
relief which had been negatived to him by the trial court
and in addition to what he has already been given by the
decree under challenge. We have therefore no hesitation

in accepting the submission of the learned counsel for the
appellant that the High Court was in error in proceeding
on the basis that the appellant not having filed a
memorandum of cross-objections, was not entitled to

canvas the correctness of the finding on the bar of Order 2
Rule 2 rendered by the trial court.

37. Therefore, the respondent before learned Appellate

Court was not required to file the cross objection for supporting

the decree. Hence, this substantial question of law is answered

accordingly.

Final Order:

38. In view of the above, the plea taken by the plaintiffs

that the defendants have no right over the suit land and they

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should be restrained by way of a permanent prohibitory

injunction is not acceptable. Tulsi Ram succeeded to the tenancy

.

along with Bhagi Rath and cannot be restrained being a co-

owner. The learned Trial Court erred in decreeing the suit, and

the learned Appellate Court erred in affirming the decree.

39. Hence, the judgments and decrees passed by learned

of
Courts below are not sustainable, and they are ordered to be set-

aside. The suit of the plaintiff is ordered to be dismissed. The
rt
record of the learned Courts below be returned forthwith.

40. Pending application(s), if any, also stand(s) disposed

of.

(Rakesh Kainthla)

Judge
31st March, 2026

(Chander)

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