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

Versus

Sudershan Singh & Ors. ...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.

2

2026:HHC:30745

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

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

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 2

nd

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

3

2026:HHC:30745

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.

The revenue entries were attested in the defendant’s favour.

The defendant 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.

4

2026:HHC:30745

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:

1(a)Whether Chhaju Ram was a tenant of the land in

dispute and after enforcement of the H.P. Tenancy and

Land Reforms Act, Chhaju Ram became full owner in

possession of the land in dispute? OPP

1(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

5

2026:HHC:30745

08.09.2000. 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

fresh decision.

8. Learned Trial Court held that the dispute between

the landlord and tenant could have been resolved by the

Assistant Collector 1

st

Grade as per Rule 29 of the HP Tenancy

and Land Reforms Rules. The order passed by the learned

Assistant Collector 2

nd

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.

6

2026:HHC:30745

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

₹1,000/-.

10. Statements of Smt. Darshana Devi (DW2), Harnam

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, 2

nd

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.

7

2026:HHC:30745

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 that

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

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, Dy

and 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

8

2026:HHC:30745

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

Court. Chhaju Ram had appeared before the Revenue Official

and made a statement that he was not in possession of the suit

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.

9

2026:HHC:30745

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 1

st

Grade and the Assistant Collector 2

nd

Grade had no jurisdiction to pass the order. No notice was

served upon Chhaju Ram, and the order was passed in his

absence. No power of attorney was brought on record to prove

that H.S. Katoch had any authority to make a statement on

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,

10

2026:HHC:30745

(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 box

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

already said, that is a fact to be kept in view and taken

into consideration by the appellate court while

appreciating 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 able

to 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 into

insignificance."

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

requirement of law insists only that the party who puts

11

2026:HHC:30745

forth 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 runs

the 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 would

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.”

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 the

power 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.”

12

2026:HHC:30745

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 matters

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

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 be

examined as a witness to prove those acts or

transactions. If the attorney-holder alone has

personal knowledge of such acts and transactions and

not the principal, the attorney-holder  shall be

examined, if those acts and transactions have to be

proved.

(c) The attorney-holder cannot depose or give

evidence in place of his principal for the acts done by

the 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

principals carrying on business through authorised

13

2026:HHC:30745

managers/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

evidence has to be led as to what transpired at those

different stages, all the attorney-holders will have to

be examined.

(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 the

ground 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 are

completely 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 of

such 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

14

2026:HHC:30745

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 Attorney. He had appeared before the revenue authority as a

defendant's General Power of Attorney. He had also appeared

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

15

2026:HHC:30745

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

written statement and claimed that the order passed by the

Assistant Collector 2

nd

Grade bearing No. 60/82 was correct,

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

16

2026:HHC:30745

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.

25. Mr Ajay Sharma, learned Senior Advocate submitted

that there is no evidence that the cost ordered to be paid by this

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)

cannot on subsequent date or dates be barred afresh from

17

2026:HHC:30745

further 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 Civil

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

issue of non-payment of costs is not raised, the same

cannot be resuscitated. Moreover, the subsequent view

taken 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 party

against 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 case

of 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

18

2026:HHC:30745

Rules 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. This

power 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 further

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

consequently I hold that the provisions of Section 35-B

CPC are not mandatory but are only directory. The Court

may, 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, in

some 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

19

2026:HHC:30745

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

looked into on a plea never put forward by the party. It was

observed:

“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

20

2026:HHC:30745

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

without appropriate pleadings is generally of no relevance. It

was observed: -

6. There can be no doubt that under the law of pleadings

facts mentioned in sub-clause (iii) are to be pleaded in

the 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] it

has 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, the

landlord 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)

21

2026:HHC:30745

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

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

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

22

2026:HHC:30745

pleading 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: -

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

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:

23

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

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.

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

24

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

could not have been produced by the defendant, and the learned

Appellate Court cannot be faulted for discarding the evidence.

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

25

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

suit was barred by limitation. This submission cannot be

accepted. Learned Courts below had rightly held that the order

was passed by the learned Assistant Collector 2

nd

Grade and not

by the Land Reforms Officer/Assistant Collector 1

st

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

26

2026:HHC:30745

is 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 for

purposes of Chapter X of the Act under which

Section 104, pertaining to acquisition of

proprietary rights by the tenants, fails. By another

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

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 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 competent

authority held proper inquiry, the mutation

conferring proprietary rights on the defendants

would not have been passed in view of the Bar

under 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,

27

2026:HHC:30745

within 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,

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

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, on

payment of rent in kind, Assistant Collector 2nd Grade

ought not to have entertained the application for

correction 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

28

2026:HHC:30745

dispute, 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

Collector Second Grade has no jurisdiction to deal with the

tenancy disputes. It was observed:

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 (1

st

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 Rule

29 provides that a dispute under subsection (4) of

Section 104 of the Act shall be decided by the Land

Reforms Officer in his capacity as an Assistant

Collector 1

st

Grade in accordance with the relevant

provisions of the Punjab Land Revenue Act or the

H.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

29

2026:HHC:30745

affixation 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 2

nd

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 was

not passed by the competent authority. From Rule 29 of

the Rules, it is clear that only the Assistant Collector of

the 1

st

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 27

th

/29

th

September

1995 whereby all the Tehsildars in Himachal Pradesh

were conferred with powers of Assistant Collector of 1

st

Grade for purposes of Chapter X of the Act under which

Section 104, pertaining to the acquisition of proprietary

rights by the tenants, fails. By another Notification of the

same date, Tehsildars conferred with the powers of

Assistant Collector 1

st

Grade were appointed Land

Reforms Officers for carrying out the purposes of Chapter

X 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 was

attested by the Assistant Collector 2

nd

Grade who had no

jurisdiction to do so. Had the plaintiff been served in

accordance with law and the competent authority held a

proper inquiry, the mutation conferring proprietary

rights 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. 2

nd

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:

30

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 I

st

Grade, who is

empowered to take up proceedings of conferment

of proprietary rights. The 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, within 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, 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

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-

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

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.

32

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

vitiated on this account. Hence, this substantial question of law

is answered accordingly.

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

6

th

August, 2026

(Nikita)