Himachal Pradesh High Court
Rikhi Ram (Deceased) Through Lrs& ... vs Dhannu Alias Prem Dass (Deceased) ... on 16 September, 2023
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.532 of 2005 Reserved on: 19.08.2023 Date of Decision:16.09.2023 .
Rikhi Ram (deceased) through LRs& others ....Appellant.
Versus Dhannu alias Prem Dass (deceased) through LRs & others of .....Respondents.
Coram rt Hon'ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 Yes For the appellants: Mr.K.D. Sood, Senior Advocate with Mr. Het Ram, Advocate.
For the Respondents: Mr.Neeraj Gupta, Sr.Advocate with Ms. Rinki Kashmiri, Advocate for respondents No.1(a) to 1(g), 2, 3, 5(a) to 5(e), 6(a) to 6(d) and 7.
None for respondents No.4(a) to 4(g).
Rakesh Kainthla, Judge The present appeal is directed against the judgment & decree dated 23.08.2005, passed by learned Presiding Officer/Additional District Judge, Fast Track Court, Hamirpur, 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 16/09/2023 20:35:48 :::CIS 2H.P., vide which, the appeal filed by respondents (plaintiffs before learned trial Court) was allowed and the judgment and .
decree passed by learned Sub-Judge, Ist Class (I), Hamirpur was set aside. (Parties shall hereinafter referred to in the similar manner in which they were arrayed before learned Trial Court for convenience).
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2. Briefly stated, the facts giving rise to the present appeal are that the plaintiffs filed a Civil Suit before the learned rt Trial Court for seeking a declaration that the plaintiffs being the tenants at 'Will', have become the owners of the land comprised in Khata No.115 min Khatouni No.162 min Khasra No.111, 126, and 127 measuring 24 Kanals 11 marlas situated in Tika Thana, Tappa Ugialta, Tehsil and District Hamirpur (hereinafter referred to as the suit land) under H.P Tenancy and Land Reforms Act and the entry in the revenue record is wrong. A consequential relief of permanent prohibitory injunction for restraining the defendant from interfering with the possession of the plaintiffs was also sought. It was pleaded that the plaintiffs and their predecessors were tenants at Will upon the suit land, since 1910-1914. They continued to be in possession till 1974-75 and became the owners after the conferment of ::: Downloaded on - 16/09/2023 20:35:48 :::CIS 3 proprietary rights under the H.P. Tenancy and Land Reforms Act. The names of the plaintiffs and their predecessors were .
unauthorizedly omitted from the revenue record; however, they continued to be in possession. The plaintiffs came to know about the omission during the consolidation. The defendant was interfering with the possession of the plaintiffs based on the of entry; hence, the suit was filed to seek the relief mentioned above.
3. rt The suit was opposed by filing a written statement taking preliminary objections regarding lack of maintainability, cause of action & locus standi, the suit being barred by limitation and the suit having not been properly valued for Court fees and jurisdiction. The contents of the plaint were denied on merits. It was asserted that the defendant purchased the suit land from one Situ in the year 1960. The defendant is an owner in possession of the suit land since the date of purchase; 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.
5. The following issues were framed on 12.4.1994:-
::: Downloaded on - 16/09/2023 20:35:48 :::CIS 41. Whether the plaintiffs are owners in possession of the suit land and entries to the contrary are wrong and illegal? OPP
2. Whether the suit is not maintainable in the .
present form? OPD.
3. Whether the suit is not within time? OPD.
4. Whether the plaintiffs have no locus standi to file the suit? OPD.
5. Whether the defendant is entitled to special costs? OPD.
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6. Relief.
6. The parties were called upon to produce the evidence and plaintiffs examined Jaishi Ram, plaintiff no.5, (PW-1), rt Damodar (PW-2),Pohlo Ram(PW-3), Duni Chand (PW-4), and Sarwan Kumar (PW-5). The defendant examined Vijay Kumar (DW-1), and Suresh Kumar (DW-2).
7. The learned Trial Court held that the purchase of the suit land by the plaintiffs was admitted by the defendant. An entry in the daily diary (Ext. PX-5) was recorded on 15.6.1994 vide which the predecessor-in-interest of the defendant was put in possession as per the order of learned Assistant Collector, 1st Grade, Dharamshala. Names of the plaintiffs did not appear in the revenue record thereafter. A presumption of correctness is attached to the revenue record and the evidence of the plaintiffs was not sufficient to rebut the presumption. The defendant is ::: Downloaded on - 16/09/2023 20:35:48 :::CIS 5 the owner in possession. Plaintiffs were not in possession as tenants and could not have become the owners after the .
commencement of the H.P. Tenancy and Land Reforms Act.
Hence, issue no.3 was answered in the affirmative, the rest of the issues were answered in negative and the suit of the plaintiffs was dismissed.
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8. Being aggrieved from the judgment and decree passed by the learned Trial Court, the plaintiffs filed an appeal, rt which was decided by the learned Additional District Judge, Fast Track Court, Hamirpur. It was held that the entries in favour of predecessor-in-interest were recorded in the copy of Jamabandi for the year 1918-19, which continued till 1942-43. The entries were changed in the names of the owners in the year 1950-51.
There was no explanation for the deletion of the entry by the order of any competent authority. The subsequent entries have to be ignored and will not have any presumption of correctness attached to them. The possession of the plaintiffs was proved by the evidence on record. The defendant did not appear in the witness box and examined his Power of Attorney. The examination of Power of Attorney is not equivalent to the examination of the party and an adverse inference has to be ::: Downloaded on - 16/09/2023 20:35:48 :::CIS 6 drawn against the defendant for not appearing in the Court.
Hence, the appeal was allowed and the judgment and decree .
passed by the learned Trial Court were set aside.
9. Being aggrieved and dissatisfied with the judgment and decree passed by the learned First Appellate Court, the present appeal has been filed asserting that the Learned First of Appellate Court erred in reversing the well-reasoned judgment passed by the learned Trial Court. The defendant had purchased rt the suit land in the year 1960. The presumption of correctness attached to the revenue record was ignored. The statement of Vijay Kumar was sufficient to prove the possession. The provisions of the H.P. Land Revenue Act and H.P. Tenancy and Land Reforms Act were ignored. The suit was barred by limitation and the learned First Appellate Court erred in decreeing the suit. Hence, it was prayed that the present appeal be allowed and judgment and decree passed by the learned First Appellate Court be set aside.
10. The appeal was admitted on the following substantial questions of law:
1. Whether the findings of the Courts below are perverse, based on misreading of oral and ::: Downloaded on - 16/09/2023 20:35:48 :::CIS 7 documentary evidence and wrong inferences have been drawn from the facts proved on record. The Jamabandis for the years 1950-51, Ext. PX1, 1954- 55 Ext. PX2, 1962-63 Ext. D1, 1967-68 Ext. D-2, .
1972-73 Ext. D-3, 1977-78 Ext. D-4, 1982-83 Ext.
D-6, 1987-88, Ext.D-7 and D-8 showed the appellant and their predecessor owner in possession of the property. The appellant had purchased the suit property in 1960 and the assumption that the plaintiff was in possession of of the property as tenant is wholly without any basis. The presumption of truth attached to the revenue record has been ignored and the judgment reversed on a wholly conjectural grounds? rt
2. Whether the judgment and decree of the learned District Judge reversing the judgment and decree of the trial Court without setting aside the findings that the suit was barred by limitation is sustainable?
3. Whether on a proper construction of the pleadings of the parties and the evidence on record, the learned District Judge has ignored the presumption of truth attached to the consistent revenue records, namely, jamabandis from 1950- 1951 to 1987-88 i.e. Ext. D-1 to Ext. D-8?
4. Whether wrong inferences have been drawn from the facts proved on record in holding that the plaintiff was owner in possession of the property when the suit of the plaintiff was not maintainable?
5. Whether the declaration that the plaintiff has become owner of the property is sustainable in law and the civil court has jurisdiction to pass the declaration decree?
::: Downloaded on - 16/09/2023 20:35:48 :::CIS 86. Whether the Court below was justified in ignoring the statement of Vijay Kumar, attorney of the defendant and has thus wrongly accepted the admissible evidence which has vitiated the .
findings?
11. I have heard Sh.K.D. Sood learned Senior Counsel assisted by Sh.Het Ram, learned counsel for the appellants-
defendants and Sh.Neeraj Gupta, learned Senior Counsel of assisted by Ms. Rinki Kashmiri, learned counsel for the respondents-plaintiffs.
12. rt Sh. K.D. Sood learned Senior Counsel for the appellants-defendants submitted that the learned First Appellate Court erred in reversing the well-reasoned judgment passed by the learned Trial Court. It was duly proved by the entry in the daily diary that the predecessor-in-interest of the plaintiffs were evicted, as per the order passed by the learned Assistant Collector, 1st Grade. The eviction of the tenant was permissible under the Punjab Security of Land Tenures Act.
Learned First Appellate Court had not discussed the entry in the daily diary. The plaintiffs were not in possession on the date of commencement of the H.P. Tenancy and Land Reforms Act.
Their names were not recorded as tenants in the revenue record and no ownership right could have been conferred upon them.
::: Downloaded on - 16/09/2023 20:35:48 :::CIS 9Hence, he prayed that the present appeal be allowed and judgment and decree passed by the learned First Appellate Court .
be set aside.
13. Sh. Neeraj Gupta, learned Senior Counsel for the plaintiffs-respondents submitted that the learned Trial Court had erred in relying upon the entry in the daily diary, when the of order based on which, the entry was recorded, was not brought on record. The primary evidence was the order passed by the rt learned Assistant Collector, 1st Grade and in the absence of the same, the learned First Appellate Court was justified in holding that the entry was not changed as per the law. Limitation does not start from the date of adverse entry, but from the date, when the rights of the plaintiff are invaded. Learned Trial Court had erred in holding that the suit was barred by limitation. Hence, he prayed that the appeal be dismissed.
14. I have given considerable thought to the rival submissions at the bar and have gone through the records carefully.
::: Downloaded on - 16/09/2023 20:35:48 :::CIS 10Substantial Question of Law no.1, 3 to 5:-
15. These substantial questions of law are .
interconnected and are being taken up together for convenience.
16. Both the learned Courts below have concurrently held that the revenue entries in favour of the predecessor-in-
interest of the plaintiffs continued since 1912-43 and were of changed in the year 1950-51. The learned Trial Court had relied upon the entry in the daily diary (Ext.PX-5) to hold that the rt change was properly explained. The entry (Ext.PX-5) reads that the possession of Khasra Nos.108, 111, 121, 126, 127 and 130 was delivered to Situ, Ram Dayal etc. decree holders by digging the land in a case titled Situ, Ram Dayal versus Wazira as per the order passed by Assistant Collector, 1st Grade at Dharamshala on 12.6.1994. The proclamation was made through Ganu, Peon and entry was recorded.
17. This entry clearly shows that some litigation was pending between Situ, Ram Dayal and Wazira and the possession was delivered as per the order of learned A.C. 1st Grade to Situ etc. Copy of Jamabandi for the year 1942-43 shows Situ, Ram Dayal are recorded as the co-owners and Gopala, ::: Downloaded on - 16/09/2023 20:35:48 :::CIS 11 Santu, Bhagat, Ganga, Cheba, Mehar, etc. are recorded to be non-occupancy tenant under Wazira Gair Maurusi Awwal. Thus, .
Wazira was recorded to be a non-occupancy tenant, whereas, Situ etc. were recorded to be the owner.
18. Section 38 of the Punjab Tenancy Act, 1887 deals with the ejectment of an occupancy tenant and Section 40 deals with of the ejectment of a tenant not having a right of occupancy on certain grounds. Section 41 provides for the ejectment of a rt tenant from year to year. Section 42 provides that a tenant shall not be ejected, otherwise, in an execution of a decree for ejectment. Thus, there were provisions for the ejectment of the tenant. Section 43 provides that the landlord may apply to the Revenue Officer for the ejectment of a tenant. The order of ejectment was passed by the Assistant Collector, 1st Grade, as per this entry. It is not shown that Wazira had ever taken any steps during his lifetime regarding ejectment. Therefore, the ejectment had become final and it is not permissible to say that the ejectment was bad.
19. It was submitted that the entry was not proved by examining the author. This submission cannot be accepted. The ::: Downloaded on - 16/09/2023 20:35:48 :::CIS 12 entries were made by a public official in the discharge of his official duties and are per se admissible under Section 35 of the .
Indian Evidence Act. It was laid down by this Court in Umardin vs. Jamna Dass 2003(2) Shim. L. C.522 that an entry made in the Rapat Rojnamcha recorded by Patwari is admissible without examining the Patwari. It was observed:
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13. Ext. P 5 is a copy of the 'Rojnamcha Wakiati' of Patwar Circle Lohara for the years 1967-68 and is duly certified by the Patwari. The short question involved is whether this document can be treated as a certified copy of the rt public document which is per se admissible or it was required to be proved by summoning the original record.
14. Section 74 of the Evidence Act defines a public document as under: "74. Public documents.-The following documents are public documents- (1) documents forming the acts or records of the acts-
(1) of the sovereign authority,
(ii) of official bodies and tribunals, and
(iii) of public officers, legislative, judicial and executive, of any part of India or of the Commonwealth, or of a foreign country; (2) public records kept in any State of private documents".
15. It is clear on a bare reading of the above provisions that the documents forming the acts or records of acts of the State and the public functionaries and the transactions which such functionaries are required to enter in books/ registers in the course of their public duties and which occur within the circle of their own personal knowledge and observations as such functionaries are the public documents.
::: Downloaded on - 16/09/2023 20:35:48 :::CIS 1316. Section 168 of the H.P. Land Revenue Act (hereafter referred to as 'the Act) empowers the Financial Commissioner, inter alia, to make rules consistent with the Act for:
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(i) regulating the procedure in cases where persons are entitled to inspect records of Revenue Officers or records or papers in the custody of village officers, or to obtain copies of the same and prescribing the fees payable for searches and copies;
(ii) prescribing forms for such books, entries, of statistics and accounts necessary to be kept, made or complied in revenue offices, or submitted to any authority; and rt (iii) generally for carrying out the purposes of this Act.
The rules so made by the Financial Commissioner shall be effective when sanctioned by the State Government.
17. The Himachal Pradesh Land Records Manual, 1992 contains, inter alia, the rules made/instructions issued by the Financial Commissioner in the exercise of the aforesaid powers. The said Manual came into force in Himachal Pradesh with effect from 15th of December, 1992 vide Government of H.P. Revenue Department Notification dated 3.12.1992 as approved by the Governor of the State. Thus, the Himachal Pradesh Land Records Manual contains the statutory rules/instructions as issued by the Financial Commissioner after approval of the State Government. The said Manual repealed the Himachal Pradesh Land Records Manual, 1951 which also contained almost similar provisions. Clause 59 of Chapter III of the said Manual provides that the Patwari, inter alia, will maintain a diary (Rojnamcha) of his whole Circle. Clause 75 further provides that the Patwari is required to keep a diary (Rojnamcha), Clause 77 provides that the various occurrences as specified therein must be noted in the diary (Rojnamcha) on the day when they came to the notice of the Patwari along with the manner in which he ::: Downloaded on - 16/09/2023 20:35:48 :::CIS 14 came to know about such occurrences which include the execution of any decree of Court affecting the land, its rent or its produce. Clause 52 of Chapter III provides for the inspection of records and grant of certified extracts .
thereof by the Patwari and permits him to supply copies of extracts from the diary(Rojnamcha) on payment of a prescribed fee by the applicant.
18. It is thus clear that Ext. P 5 is the copy of a document which consists of the acts of an official of the Revenue Department who is required to maintain a diary in the course of his public duties and which contains an of occurrence which occurs within the knowledge and observation of the Patwari or is his own act as an official of the Revenue Department. Thus, 'Rojnamcha' as maintained by the Patwari is a public document as rt defined in Section 74 of the Evidence Act.
19. Section 76 of the Indian Evidence Act provides that every public officer having custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of a legal fee.
20. Section 77 of the Evidence Act, which provides for proof of public documents, reads as follows:
"77. Proof of documents by production of certified copies.Such certified copies may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies."
21. It is evident from a bare reading of the aforesaid provisions that where the custodian of the public document, which any person has a right to inspect, has given a certified copy on demand, such certified copy may be produced in proof of the contents of the public document or its parts. Thus, a duly certified copy of 'Rapat Rojnamcha' as maintained by the Patwari, is per se admissible in evidence in view of Section 77 of the Evidence Act.
22. In view of the above position in law, it cannot be said that the copy of 'Rapat Rojnamcha Wakiati' Ext. P 5 could ::: Downloaded on - 16/09/2023 20:35:48 :::CIS 15 not and should not have been read in evidence by the Courts below.
20. A similar view was taken by Punjab & Haryana High .
Court in State of Punjab vs. Bakshish Singh, 2003 (2) Shim. L.J. 1540, wherein, it was observed that:-
"....It cannot be said by a stretch of the imagination that the entry made in the roznamha of the Patwari is not genuine. There is no reason to disbelieve the Patwari also of in this regard. The entry was made in the original roznamcha by an official concerned in the course of the performance of his official duties and is admissible under Section 35 of the Indian Evidence Act. The learned lower rt Appellate Court has entered into a detailed discussion in this regard and I have no reason to disagree with the same. Hence, it is hardly open to the State to call its records as of doubtful character."
21. It was submitted that this entry cannot be relied upon in the absence of the order of learned A.C. 1st Grade on which the entry was based. This submission cannot be accepted.
The entry in the daily diary was recorded by a public official in the discharge of his official duties and a presumption of correctness is attached to the same under Section 114 of the Indian Evidence Act. The burden lies upon the person who asserts to the contrary to rebut the same by leading evidence.
22. Jaishi Ram (PW-1) admitted in his cross-
examination that Situ, Ram Dayal sold the land to Rikhi Ram in ::: Downloaded on - 16/09/2023 20:35:48 :::CIS 16 the year 1960. He was not aware that Situ Ram was recorded as the owner in possession of the suit land before the sale and Rikhi .
Ram became the owner in possession after the sale. Therefore, he has not stated anything about the order of ejectment of the entry recorded in the Rapat Rojnamacha and his statement is not sufficient to rebut the presumption attached to the entry of recorded by a public official in the discharge of his official duties.
23. rt Learned First Appellate Court did not advert to this document at all and stated in Para 12 of its judgment that the entries were changed in the Jamabandi for the year 1950-51 without any explanation. It was not the case of the defendant that the tenant had abandoned or relinquished the tenancy in favour of the original owners or the entry was changed because of the order of the competent authority, hence, the change was unauthorized. Thus, the learned First Appellate Court missed an important document, which showed the basis for the change namely the ejectment.
24. Both the learned Courts below had found that the entry in the name of owners were recorded in the copy of ::: Downloaded on - 16/09/2023 20:35:48 :::CIS 17 Jamabandi for the year 1950-51. The land was sold to the defendant and his name was recorded to be the owner in .
possession. It was laid down by the Hon'ble Supreme Court in Partap Singh v. Shiv Ram, (2020) 11 SCC 242: 2020 SCC OnLine SC 228 that an entry in the jamabandi carries with it a presumption of correctness u/s 45 of H.P. Land Revenue Act and the burden is of upon the person, who alleges to the contrary. The burden can be discharged by leading evidence of incapable integrity. Oral rt evidence is not sufficient to hold that the presumption stands rebutted. It was observed:
16. As per Section 32(2)(a) of the 1954 Act, record-
of-rights i.e. jamabandi, shall include the name of persons who are landowners, tenants or assignees of land revenue and also the rent, land revenue, rates, cesses or other payments due from and to each of those persons and the Government. On the other hand, the periodical record i.e. khasra girdawari, as mentioned in Section 34 of the 1954 Act, is to be prepared every year as the proof of the statements, as mentioned in sub-section (2) clause
(a) of Section 32, which includes the name of the landowners, tenants and the rent and land revenue payable. In terms of Section 45 of the 1954 Act, the record of rights as prepared in terms of Sections 32 and 34 of the 1954 Act carries a presumption of truth. Still further, any person who is aggrieved by any entry in the record of rights or a periodical record has a right to invoke the jurisdiction of the civil court for correction of the entries in terms of Section 46 of the 1954 Act.
::: Downloaded on - 16/09/2023 20:35:48 :::CIS 1817. The detailed procedure for recording of periodical record-of-rights as well as the record-of-rights in terms of Sections 32 and 34 of the 1954 Act has been prescribed. The record-of-rights contains entries of the revenue .
record for the four years. Such record-of-rights carries the presumption of correctness in terms of Section 45 of the 1954 Act and also Section 35 of the Evidence Act, 1872 (for short "the Evidence Act"). Section 109 of the Evidence Act further contemplates whether there exists a relationship of landowner and tenant and the burden of proving such a relationship is on the person who affirms of it.
18. The relevant provisions of the Evidence Act read as under:
"35. Relevancy of entry in public record or an rt electronic record made in performance of duty.--An entry in any public or other official book, register or record or an electronic record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register, or record or an electronic record is kept, is itself a relevant fact.
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109. Burden of proof as to relationship in the cases of partners, landlord and tenant, principal and agent.-- When the question is whether persons are partners, landlord and tenant, or principal and agent, and it has been shown that they have been acting as such, the burden of proving that they do not stand, or have ceased to stand, to each other in those relationships respectively, is on the person who affirms it."
19. In the State of Himachal Pradesh, jamabandi, under Section 32 of the 1954 Act as well as Khasra Girdawari, under Section 34 of the 1954 Act, both are record-of-rights in terms of Section 32 of the 1954 Act and have statutory presumption of truth. How that ::: Downloaded on - 16/09/2023 20:35:48 :::CIS 19 presumption can be inferred has come up for consideration before this Court in Harish Chander v. Ghisa Ram, (1981) 1 SCC 431. This Court held that the entries in the jamabandi carry presumption of truth but such .
presumption is rebuttable. Once that presumption is raised, still another comes to the aid of Respondent 1 [therein] [Ed.: The facts of Harish Chander, (1981) 1 SCC 431, are that the name of Respondent 1 therein was recorded as a tenant in the jamabandi for the year 1959- 60 (Ext. P-1) and consistently thereafter till the year 1968 (Khasra-girdawaris Exts. P-2 to P-7). Thus it was held of that the statutory presumption of truth of these entries was attracted to the benefit of Respondent 1 tenant, and so also the reversal of burden of proof under Section 109 of the Evidence Act, 1872, was held to be to his benefit. rt The facts of the present case are exactly the opposite-- see para 20 below--there is no entry at all in the record of rights of the tenancy claimed by the respondent-
defendant herein. Thus, the presumption of the truth of the record-of-rights has been held to enure to the benefit of the appellants whose names were found to be recorded in the record-of-rights.] by reason of the rule contained in Section 109 of the Evidence Act, namely, that when two persons have been shown to stand to each other in the relationship of landlord and tenant, the burden of proving that such relationship has ceased, is on the party who so asserts. It was held as under: (SCC pp. 431-433, paras 2 &
6) "2. ... Apart from the oral evidence there is no material on the record which may indicate the falsity of any of the entries in the revenue records and we are of the opinion that the lower courts were fully justified in relying on them.
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6. No suspicion can attach to the entries in the jamabandi for the year 1959-60, nor have the contents of that document been assailed before us. A presumption of truth attaches to those entries in view ::: Downloaded on - 16/09/2023 20:35:48 :::CIS 20 of the provisions of Section 44 of the Punjab Land Revenue Act. That presumption is no doubt rebuttable but no attempt has been made to displace it. Further, once that presumption is raised, still another comes to .
the aid of Respondent 1 by reason of the rule contained in Section 109 of the Evidence Act, 1872, namely, that when two persons have been shown to stand to each other in the relationship of landlord and tenant, the burden of proving that such relationship has ceased, is on the party who so asserts. It may therefore be legitimately presumed that the plaintiff continued to of possess the land as a tenant till the institution of the suit."
20. The present is a case where no relationship of landlord and tenant is mentioned in the revenue record rt though required in terms of Section 32(2)(a) of the 1954 Act. In the absence of an entry in the revenue record, which is also expected to contain the entry of rent and possession, the tenancy cannot be treated to be in existence only on the basis of oral evidence of the witnesses examined by the defendant. The burden of proving the relationship was on the defendant. Such a burden cannot be said to be rebutted only by oral evidence. The witnesses may lie but the documents do not, is a golden rule. The presumption of truth attached to the revenue record can be rebutted only on the basis of evidence of impeccable integrity and reliability. The oral evidence can always be adduced contrary to the revenue record but such oral testimony will not be sufficient to hold that the statutory presumption stands rebutted.
21. This Court in Vishwa Vijay Bharati v. Fakhrul Hassan, (1976) 3 SCC 642 held that the entries in the revenue record ought to be generally accepted at their face value and courts should not embark upon an appellate inquiry into their correctness. But the presumption of correctness can apply only to genuine, not forged or fraudulent entries. This Court held as under: (Fakhrul Hassan ::: Downloaded on - 16/09/2023 20:35:48 :::CIS 21 case [Vishwa Vijay Bharati v. Fakhrul Hassan, (1976) 3 SCC 642], SCC p. 645, para 14) "14. It is true that the entries in the revenue record ought, generally, to be accepted at their face value and .
courts should not embark upon an appellate inquiry into their correctness. But the presumption of correctness can apply only to genuine, not forged or fraudulent, entries. The distinction may be fine but it is real. The distinction is that one cannot challenge the correctness of what the entry in the revenue record states but the entry is open to the attack that it was of made fraudulently or surreptitiously. Fraud and forgery rob a document of all its legal effect and cannot found a claim to the possessory title."
22. This Court in Guru Amarjit Singh v. Rattan Chand, rt (1993) 4 SCC 349: AIR 1994 SC 227 was examining a dispute of the relationship of landlord and tenant. A copy of a more than thirty-year-old lease deed was produced to prove the relationship between the landowner and tenant. However, the revenue record did not show any payment of rent but only the existence of terms of lease to pay rent.
This Court held that non-production of the receipts of payment of rent clearly indicates that there was no relationship between landlord and tenants.
23. In Sodhi Transport Co. v. State of U.P., (1986) 2 SCC 486: 1986 SCC (Tax) 410], this Court was considering Section 28-B of the Uttar Pradesh Sales Tax Act, 1948 which raises a presumption of sale of goods in a manner prescribed therein. This Court considered Section 4 of the Evidence Act and also the previous judgments and held as under: (SCC p. 496, para 14) "14. A presumption is not in itself evidence but only makes a prima facie case for a party in whose favour it exists. It is a rule concerning evidence. It indicates the person on whom the burden of proof lies. When the presumption is conclusive, it obviates the production of any other evidence to dislodge the conclusion to be ::: Downloaded on - 16/09/2023 20:35:48 :::CIS 22 drawn on proof of certain facts. But when it is rebuttable it only points out the party on whom lies the duty of going forward with evidence on the fact presumed, and when that party has produced evidence .
fairly and reasonably tending to show that the real fact is not as presumed the purpose of presumption is over. Then the evidence will determine the true nature of the fact to be established. The rules of presumption are deduced from enlightened human knowledge and experience and are drawn from the connection, relation and coincidence of facts, and circumstances."
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24. In another judgment in Kumar Exports v. Sharma Carpets, (2009) 2 SCC 513 : (2009) 1 SCC (Civ) 629 : (2009) 1 SCC (Cri) 823, this Court examined the presumption of fact in proceedings under Section 138 of the Negotiable rt Instruments Act, 1881. It was held that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something, which is probable has to be brought on record for getting the burden of proof shifted to the complainant. It was held as under: (SCC p. 521, para 21) "21. The accused has also an option to prove the non-existence of consideration and debt or liability either by letting in evidence or in some clear and exceptional cases, from the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial. Once such rebuttal evidence is adduced and accepted by the court, having regard to all the circumstances of the case and the preponderance of probabilities, the evidential burden shifts back to the complainant and, thereafter, the presumptions under Sections 118 and 139 of the Act will not again come to the complainant's rescue."
25. The presumption of truth attached to the revenue record can be rebutted if such entry was made fraudulently or surreptitiously (Vishwa Vijay ::: Downloaded on - 16/09/2023 20:35:48 :::CIS 23 Bharati v. Fakhrul Hassan, (1976) 3 SCC 642) or where such entry has not been made by following the prescribed procedure (Bhimappa Channappa Kapali v. Bhimappa Satyappa Kamagouda, (2012) 13 SCC 759: (2014) 5 SCC (Civ) .
419). Even in Guru Amarjit Singh v. Rattan Chand, (1993) 4 SCC 349: AIR 1994 SC 227, where thirty years old lease deed was produced, this Court had not accepted the proof of the relationship between landowner and tenant in the absence of receipt of payment of rent.
26. Therefore, we find that the presumption of truth attached to the record of rights can be rebutted only if of there is fraud in the entry or the entry was surreptitiously made or the prescribed procedure was not followed. It will not be proper to rely on the oral evidence to rebut the statutory presumption as the credibility of oral evidence rt vis-à-vis documentary evidence is at a much weaker level."
25. Thus, the entries in the revenue record could not have been rebutted by the oral evidence as per the judgment of the Hon'ble Supreme Court of India and the learned First Appellate Court erred in holding that the presumption was rebutted by the oral evidence led by the plaintiffs.
26. Learned First Appellate Court had relied upon the suggestion made to the plaintiff in the cross-examination that the defendant had cut the maize crop forcibly to hold that the plaintiffs were in possession. The mere suggestion could not have been made a basis for rebutting the presumption attached to the revenue record and learned First Appellate Court erred in ::: Downloaded on - 16/09/2023 20:35:48 :::CIS 24 holding that this suggestion was sufficient to prove the possession of the plaintiffs.
.
27. Therefore, the learned First Appellate Court erred in reversing the judgment of the learned Trial Court without displacing the reasons assigned by the learned Trial Court:
28. It was laid down by the Hon'ble Supreme Court in of Somakka v. K.P. Basavaraj, (2022) 8 SCC 261 : (2022) 4 SCC (Civ) 437: 2022 SCC OnLine SC 736 that the Appellate Court must come rt into close quarters with the reasoning assigned by the learned Trial Court and then assign its reasoning for arriving at different findings. It was observed:
"32.1. In Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179, para 15] (relevant portion of para 15) is reproduced below : (SCC pp. 188-89) "15. ... The appellate court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect if conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for the decision of the appellate court. ... while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would ::: Downloaded on - 16/09/2023 20:35:48 :::CIS 25 satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it."
32.2. In H.K.N. Swami v.Irshad Basith,(2005) 10 SCC .
243], this Court again reiterated the same principle in para 3 of the judgment: (SCC p. 244) "3. The first appeal has to be decided on facts as well as on law. In the first appeal, parties have the right to be heard both on questions of law as also on facts and the first appellate court is required to address itself to all issues and decide the case by giving of reasons. Unfortunately, the High Court, in the present case has not recorded any finding either on facts or on law. Sitting as the first appellate court it was the duty of the High Court to deal with all the issues and the rt evidence led by the parties before recording the finding regarding title."
32.3.In 2015, this Court again in Vinod Kumar v. Gangadhar, (2015) 1 SCC 391 : (2015) 1 SCC (Civ) 521 considering the previous judgment recorded its view in paras 18 and 19 which are reproduced hereunder : (SCC p.
396) "18. In our considered opinion, the High Court did not deal with any of the submissions urged by the appellant and/or the respondent nor it took note of the grounds taken by the appellant in grounds of appeal nor made any attempt to appreciate the evidence adduced by the parties in the light of the settled legal principles and decided case law applicable to the issues arising in the case with a view to find out as to whether the judgment of the trial court can be sustained or not and if so, how, and if not, why.
19. Being the first appellate court, it was the duty of the High Court to have decided the first appeal keeping in view the scope and powers conferred on it under Section 96 read with Order 41 Rule 31CPC mentioned above. It was unfortunately not done, thereby, ::: Downloaded on - 16/09/2023 20:35:48 :::CIS 26 resulting in causing prejudice to the appellant whose valuable right to prosecute in the first appeal on facts and law was adversely affected which, in turn, deprived him of a hearing in the appeal in accordance .
with law. It is for this reason, we were unable to uphold the impugned judgment [Vinod Kumar v. GangadharFirst Appeal No. 173 of 1999, order dated 21- 3-2013 (MP)] of the High Court."
32.4.Very recently, this Court in 2022 (to which one of us, Brother Abdul Nazeer, J. was a member) in Manjula v. Shyamsundar, (2022) 3 SCC 90 : (2022) 2 SCC (Civ) 33], of reiterated the same view in para 8 thereof, which is reproduced hereunder : (SCC p. 96) "8. Section 96 of the Civil Procedure Code, 1908 (for short "CPC") provides for filing of an appeal from the rt decree passed by a court of original jurisdiction. Order 41 Rule 31CPC provides the guidelines to the appellate court for deciding the appeal. This rule mandates that the judgment of the appellate court shall state:
(a) points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and
(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled.
Thus, the appellate court has the jurisdiction to reverse or affirm the findings of the trial court. It is settled law that an appeal is a continuation of the original proceedings. The appellate court's jurisdiction involves a rehearing of appeal on questions of law as well as fact. The first appeal is a valuable right, and, at that stage, all questions of fact and law decided by the trial court are open for reconsideration. The judgment of the appellate court must, therefore, reflect a conscious application of mind and must record the court's findings, supported by reasons for its decision ::: Downloaded on - 16/09/2023 20:35:48 :::CIS 27 in respect of all the issues, along with the contentions put forth and pressed by the parties. Needless to say, the first appellate court is required to comply with the requirements of Order 41 Rule 31CPC and non-
.
observance of these requirements lead to infirmity in the judgment."
33. From the above settled legal principles on the duty, scope and powers of the first appellate court, we are of the firm view and fully convinced that the High Court committed a serious error in neither forming the points for determination nor considering the evidence on of record, in particular, which had been relied upon by the trial court. The impugned judgment [K.P. Basavaraj v. Somakka, 2006 SCC OnLine Kar 992] of the High Court is thus unsustainable in law and liable to be set aside." rt
29. This position was reiterated in Dheeraj Singh v.
Greater Noida Industrial Development Authority, 2023 SCC OnLine SC 768, wherein, it was observed:
"19. In the case of Santosh Hazari Vs. Purushottam Tiwari (Dead) by LRs. (2001) 2 SC 407, this Court held that the court of appeal has a duty to apply its mind to all issues raised before it and to discharge such duty, it must also record its findings against all such issues raised. For the sake of convenience, the relevant paragraph of the said judgment is being extracted herein:
"The Appellate Court has jurisdiction to reverse or affirm the findings of the trial court. The first appeal is a valuable right of the parties and unless restricted by law. The whole case is therein open for rehearing both on questions of fact and law. The judgment of the Appellate Court must, therefore, reflect its conscious application of mind, and record findings supported by reasons, on all the issues arising ::: Downloaded on - 16/09/2023 20:35:48 :::CIS 28 along with the contentions put forth, and pressed by the parties for the decision of the Appellate Court.
While reversing a finding of fact the Appellate .
Court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the Court hearing a further appeal that the First Appellate Court had discharged the duty expected of it."
20. In the case of Madhukar and Ors. Vs. Sangram and of Ors. (2001) 4 SCC 756, this Court, while reiterating the principles laid down in the Santosh Hazari Judgment (Supra), observed that the court of first appeal has a duty to record its findings qua all the issues raised rt before it, and in cases where the High Court fails to do the same, the matter must be remanded to the same court again for fresh adjudication.."
22. The abovementioned discussions and judgments, when contextualized to the present case, would show that the High Court was under an obligation to consider the cross objections filed by the Appellants herein. Since such an obligation was not discharged while passing the judgment in appeal, we are of the considered opinion that the matter is fit for remand to the High Court for fresh adjudication on the grounds raised in the cross objections during the appeal by the appellants herein.
30. Similar is the judgment of this court in Sunder Singh v. Roop Singh 2019 SCC OnLine HP 550 wherein it was held:
"3. It is a settled principle of law that the right to file the first appeal against the decree under Section 96 of the Code of Civil Procedure is a valuable legal right of the litigant. The jurisdiction of the First Appellate Court while hearing the First appeal is very wide like that of the learned trial Court and it is open to the appellant to attack ::: Downloaded on - 16/09/2023 20:35:48 :::CIS 29 all findings of fact or/and of law in the first appeal. It is the duty of the first appellate Court to appreciate the entire evidence and may come to a different conclusion from that of the trial Court. While doing so, the judgment .
of the Appellate Court must reflect its conscious application of mind and record findings supported by reasons, on all issues arising along with the contentions put forth, and pressed by the parties for decision of the Appellate Court. While reversing a finding of fact, the Appellate Court must come into close quarters with the reasoning assigned by the trial Court and then assign its of own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the First Appellate Court had discharged the duty expected of it.
4. The scope, ambit and power of the first Appellate Court rt while deciding the first appeal have been the subject matter of various judicial pronouncements and I may refer to the pronouncement of the Hon'ble Supreme Court in Shasidhar and others vs. Smt. Ashwini Uma Mathad and another, (2015) AIR SCW 777 wherein it was held as follows:
"11. Having heard learned counsel for the parties and on perusal of the record of the case and examining the issue arising in this appeal, we find force in the submissions of the learned counsel for the appellants.
12. The powers of the first appellate Court, while deciding the first appeal under Section 96 read with Order XLI Rule 31 of the Code, are indeed well defined by various judicial pronouncements of this Court and are, therefore, no more res integra.
13. As far back in 1969, the learned Judge -V.R. Krishna Iyer, J (as His Lordship then was the judge of Kerala High Court) while deciding the first appeal under Section 96 of the CPC in Kurian Chacko vs. Varkey Ouseph, (1969) AIR Kerala 316, reminded the first appellate Court of its duty as to how the ::: Downloaded on - 16/09/2023 20:35:48 :::CIS 30 first appeal under Section 96 should be decided. In his distinctive style of writing and subtle power of expression, the learned judge held as under:
"1. The plaintiff, unsuccessful in two Courts, .
has come up here aggrieved by the dismissal of his suit which was one for declaration of title and recovery of possession. The defendant disputed the plaintiff's title to the property as also his possession and claimed both in himself. The learned Munsif, who tried the suit, recorded findings against the of plaintiff both on title and possession. But, in appeal, the learned Subordinate Judge disposed of the whole matter glibly and rt briefly, in a few sentences.
2. An appellate court is the final Court of fact ordinarily and therefore a litigant is entitled to a full and fair and independent consideration of the evidence at the appellate stage. Anything less than this is unjust to him and I have no doubt that in the present case, the learned Subordinate Judge has fallen far short of what is expected of him as an appellate Court. Although there is a furious contest between the counsel for the appellant and the respondent, they appear to agree with me in this observation....."
(Emphasis supplied)
14. This Court in a number of cases while affirming and then reiterating the aforesaid principle has laid down the scope and powers of the first appellate Court under Section 96 of the Code.
15. We consider it apposite to refer to some of the decisions.
16. In Santosh Hazari vs Purushottam Tiwari (Deceased) by L.Rs., (2001) 3 SCC 179, this Court held (at pages 188- 189) as under:
::: Downloaded on - 16/09/2023 20:35:48 :::CIS 31".........the appellate court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law, the .
whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, andpressed by the parties for the of decision of the appellate court......while reversing a finding of fact the appellate court must come into close quarters with the rt reasoning assigned by the trial court ... and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it............"
17. The above view has been followed by a three-
judge Bench decision of this Court in Madhukar & Ors. v. Sangram & Ors., (2001) 4 SCC 756, wherein it was reiterated that sitting as a court of first appeal, it is the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings.
18. In H.K.N. Swami v. Irshad Basith, (2005) 10 SCC 243, this Court (at p. 244) stated as under:
"3. The first appeal has to be decided on facts as well as on law. In the first appeal, parties have the right to be heard both on questions of law as also on facts and the first appellate court is required to address itself to all issues and decide the case by giving reasons. Unfortunately, the High Court, in the present case has not recorded any finding either on facts or on law. Sitting as the first appellate ::: Downloaded on - 16/09/2023 20:35:48 :::CIS 32 court it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording the finding regarding title."
.
19. Again in Jagannath v. Arulappa & Anr., (2005) 12 SCC 303, while considering the scope of Section 96 of the Code this Court (at pp. 303 -04) observed as follows:
"2. A court of first appeal can reappreciate the entire evidence and come to a different conclusion........."
of
20. Again in B.V Nagesh & Anr. vs. H.V.Sreenivasa Murthy, (2010) 13 SCC 530, this Court taking note of all the earlier judgments of this Court reiterated the rt aforementioned principle with these words:
"3. How the regular first appeal is to be disposed of by the appellate court/High Court has been considered by this Court in various decisions. Order 41 CPC deals with appeals from original decrees. Among the various rules, Rule 31 mandates that the judgment of the appellate court shall state: (a) the points for determination; (b) the decision thereon;
(c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled.
4. The appellate court has jurisdiction to reverse or affirm the findings of the trial court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, ... therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put ::: Downloaded on - 16/09/2023 20:35:48 :::CIS 33 forth, and pressed by the parties for decision of the appellate court. Sitting as a court of first appeal, it was the duty of the High Court to deal with all the issues and the evidence .
led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the of findings. (Vide Santosh Hazari v.Purushottam Tiwari, (2001) 3 SCC 179 at p. 188, para 15 and Madhukar v.Sangram, (2001) 4 SCC 756 at p. rt 758, para 5.)
5. In view of the above salutary principles, on going through the impugned judgment, we feel that the High Court has failed to discharge the obligation placed on it as a first appellate court. In our view, the judgment under appeal is cryptic and none of the relevant aspects have even been noticed. The appeal has been decided in an unsatisfactory manner. Our careful perusal of the judgment in the regular first appeal shows that it falls short of the considerations, which are expected from the court of first appeal. Accordingly, without going into the merits of the claim of both parties, we set aside the impugned judgment and decree of the High Court and remand the regular first appeal to the High Court for its fresh disposal in accordance with the law."
21. The aforementioned cases were relied upon by this Court while reiterating the same principle in State Bank of India & Anr. vs. Emmsons International Ltd. & Anr., (2011) 12 SCC 174. This Court has recently taken the same view on similar facts ::: Downloaded on - 16/09/2023 20:35:48 :::CIS 34 arising in Vinod Kumar vs. Gangadhar, (2014) 12 Scale 171."
5. Similar reiteration of law can be found in the subsequent judgments of the Hon'ble Supreme Court in .
Union of India vs. K.V. Lakshman and others, (2016) AIR SC 3139 and in Laliteshwar Prasad Singh & Ors. vs. S.P. Srivastava (deceased) through LRs, (2017) 2 SCC 415.
31. It was laid down by this Court in Rubi Sood v. Vijay Kumar Sud, 2015 SCC OnLine HP 1237 that a finding of fact of arrived at by the Court ignoring the relevant evidence is perverse. It was observed:--
rt "25..... A finding of fact recorded by the learned Courts below can only be said to be perverse, which has been arrived at without consideration of material evidence or such finding is based on no evidence or misreading of evidence or is grossly erroneous that, if allowed to stand, it would result in a miscarriage of justice, is open to correction, because it is not treated as a finding according to law.
26. If a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or even the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then the finding is rendered infirm in the eye of the law.
27. If the findings of the Court are based on no evidence or evidence, which is thoroughly unreliable or evidence that suffers from the vice of procedural irregularity or the findings are such that no reasonable persons would have arrived at those findings, then the findings may be said to be perverse."::: Downloaded on - 16/09/2023 20:35:48 :::CIS 35
32. Hence, the findings of the learned First Appellate Court are perverse based on the omission to consider a vital .
document relied upon by the learned Trial Court.
33. It has been found out above that the plaintiffs were lawfully ejected as per the order of learned Assistant Collector, 1st Grade; therefore, the suit filed by them that they had become of the owners on the commencement of the H.P. Tenancy and Land Reforms Act was not sustainable in law. The question whether rt the Civil Court had jurisdiction to grant the declaration or not does not arise in these circumstances and is left open to be considered in appropriate cases. Hence, these substantial questions of law are answered accordingly.
Substantial Question of Law No. 2:-
34. Learned Trial Court held that the entries were changed in the year 1944 and the suit was filed in the year 1993, hence, the same is barred by limitation. There is a force in the submission of Sh.Neeraj Gupta learned Senior Counsel for the plaintiffs that mere adverse entry will not have the effect of commencement of limitation and the cause of action will accrue to the plaintiffs from the date when the rights of the plaintiffs ::: Downloaded on - 16/09/2023 20:35:48 :::CIS 36 are actually invaded. There is force in this submission. It was laid down by Hon'ble Lahore High Court in Ghulam Mohammad .
Khan v. Samundar Khan, 1935 SCC OnLine Lah 268: AIR 1936 Lah 37: PLR (1936) 38 Lah 748 that mere adverse entry in the revenue record will not furnish a cause of action to file the suit and actual invasion of rights is necessary. It was observed at of page 39:
5. Counsel has further urged that the plaintiffs have no cause of action and hence their suits were incompetent.
rt He has contended that no encroachment took place on the rights of the plaintiffs, that the defendants did not come into conflict with the plaintiffs in any manner and that beyond the existence of an entry in the revenue records which did not touch the plaintiffs at all nothing had happened which could have justified the institution of these suits. Here also he is mistaken. Section 45 of the Punjab Land Revenue Act, clearly empowers any person aggrieved by an entry in the record of rights to seek relief under Section 42 of the Specific Relief Act. It is for the plaintiffs to decide whether they feel aggrieved by any such entry, and if the plaintiffs assert that they are so aggrieved, the defendants cannot be allowed to urge that the plaintiffs should not feel aggrieved and be not permitted to knock at the door of the Court. It is apparent that the names of the defendants were inserted in the column provided for the names of the ala maliks and this materially detracted from the status of the plaintiffs. Even an angel would have felt aggrieved in these circumstances, and we cannot blame the plaintiffs for being hypersensitive on this score. We hold, therefore, that the plaintiffs had a cause of action by virtue of Section 45 of the Punjab Land Revenue Act, read with ::: Downloaded on - 16/09/2023 20:35:48 :::CIS 37 Section 42 of the Specific Relief Act, when they came into Court, and that these suits were maintainable. Counsel has nest urged that if the entry complained of afforded a substantial cause of action to the plaintiffs then, .
inasmuch as this entry was made in 1905-1906, their suits are evidently time-barred. This also is a belated attempt to create stumbling blocks in the way of the plaintiffs. It was alleged in the plaints that the defendants, taking undue advantage of their position, got these entries made in the jamabandis behind the back of the plaintiffs and that they learnt of these entries for the of first time in 1929-1930. The defendants in their pleas, dated 21st May, 1932, traversed these allegations. Issues were struck on the 23rd May, but it appears that this objection was waived, as no issue was framed on this rt point. This fact is borne out by the judgment itself. The defendants again changed their minds and mooted this point at the time of arguments in the trial Court, and the Subordinate Judge decided this point against them on the merits. In the first place, in the face of the defendants' waiving this point at the time of the issues and thus depriving the plaintiffs of an opportunity of proving their assertions in the Court below, it would not be proper to allow them to raise this point in appeal. The bar of limitation is not patent on the face of the record. The plaintiffs, if confronted with this plea at the proper moment, could have led evidence to prove that they had no knowledge of these entries prior to 1929-1930, and as the determination of this question is not possible without the introduction of these facts and as these facts have been withheld on account of the defendants' waiver, we are not prepared to allow the defendants to contest this point before us. Secondly, to such suits Article 120, Lim. Act applies and the terminus a quo in such cases is when the cause of action accrues. Reading this Article with Section 45 of the Punjab Land Revenue Act, the cause of action in all such cases would accrue when the plaintiffs feel aggrieved, and in these circumstances, on the plaintiff's allegations, these suits will be within time.
::: Downloaded on - 16/09/2023 20:35:48 :::CIS 38Moreover, as laid down in the authorities cited before the Court below, where a person continues in possession of proprietary rights in spite of an adverse entry appearing in the revenue papers, no question of limitation arises:
.
vide 54 I.C. 317 [Bhagwan Bakhsh Singh v. Sant Prasad, 1919 Oudh 80: 54 I.C. 317: 22 O.C. 369.]. Even on the merits, therefore, there is no force in this contention and we overrule it. (His Lordship then examined the entry and held that entry by itself could not be sufficient to confer upon the defendants the status claimed by them. The judgment then proceeded).
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35. Similarly, it was laid down by Hon'ble Karnataka High Court in State of Karnataka v. Mohammed Kunhi, 1990 SCC rt OnLine Kar 396: ILR 1991 Kar 1500 that mere adverse entry in the revenue record will not have the effect of commencement of the period of limitation. It was observed (at page 1512):
18. Unlike the Limitation Act, 1908, Limitation Act, 1963 contains only three Articles in respect of suits relating to declarations i.e., Articles 56, 57 and 58. Undoubtedly, the relief of declaration sought in the suit does not fall either under Article 56 or under Article 57. Therefore, it has to necessarily fall under Article 58 which is a residuary article insofar as the suits relating to declarations are concerned. Article 58 of the Limitation Act, 1963 is equivalent to Article 120 of the Limitation Act, 1908 with the difference that the limitation beings to run in the case of Article 58 when the right to sue first accrues whereas in the case of Article 120 of the Limitation Act, 1908 the limitation begins when the right to sue accrued.
Therefore the word "first" contained in Column No. 3 of Article 58 after the words 'right to sue' is not found in Article 120 of the Limitation Act, 1908. The contention of the learned Government Advocate is that the right to sue first accrued to the plaintiffs when the entries in the ::: Downloaded on - 16/09/2023 20:35:48 :::CIS 39 revenue records were changed from redeemed to unredeemed in the year 1918 and continued till the date of filing of the suit; that the plaintiffs were also aware of this fact of changing the description of the land from .
redeemed to unredeemed when they purchased the suit property on 21st June 1965 as per Exs. P-1 to P-3. There is no doubt that P.W. 1 has stated in the cross-examination that when they purchased the suit property the revenue record described the suit property as an unredeemed estate. The learned Government Advocate also brought to our notice the averments made in the plaint as to how the of cause of action arose. In Para-12 of the plaint, the plaintiff has stated thus:
"12. The cause of action for this suit accrued to the plaintiffs against the Defendant on and from 17-8- rt 1966, 18-8-1966, 30-11-1966, 9-10-1967, 9-9-1969, 14-1-1971, 18-1-1971, 2-6-1973 and subsequently at Kundacherry Village, Bhagamandala Nadu, Mercara Taluk, Coorg District and at Mercara, Coorg District, within the jurisdiction of this Honourable Court."
It is not each and every entry in the Record of Rights that would give rise to a cause of action. As to when a cause of action would accrue to the plaintiffs has been the subject of interpretation in several decisions. In Mt. Bolo v. Mt. Koklan [AIR 1930 PC 270.] their Lordships considered the meaning and effect of the right to sue in Column No. 3 of Article 120 of the Limitation Act, 1908 and held thus:
"There can be no "right to sue" until there is an accrual of the right asserted in the suit and its infringement or at least a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted."
This was again reaffirmed in Annamalai Chettiar v. A.M.K.C.T. Muthukaruppan Chettiar. [AIR 1931 PC 9.] The Supreme Court in Mst. Rukhmabai v. Lala Laxminarayan [AIR 1960 SC 335.] after referring to the decisions of the Privy Council in A.I.R. 1930 P.C. 270 [AIR ::: Downloaded on - 16/09/2023 20:35:48 :::CIS 40 1930 PC 270.] and A.I.R. 1931 P.C. 9 [AIR 1931 PC 9.] has held that if there are successive invasions or denials of a right, then it can be held that a person's right has been clearly and unequivocally threatened so as to compel him to .
institute a suit to establish that right. The Supreme Court has also further held thus:
"The legal position may be briefly stated thus: The right to sue under Article 120 of the Limitation Act accrues when the defendant has clearly and unequivocally threatened to infringe the right asserted by the plaintiff in the suit. Every threat by a party to of such a right, however ineffective and innocuous it may be, cannot be considered to be a clear and unequivocal threat so as to compel him to file a suit. Whether a particular threat gives rise to a compulsory cause of action rt depends upon the question whether that threat effectively invades or jeopardizes the said right."(Emphasis supplied) It may be relevant to notice the facts of Rukmabai's case [AIR 1960 SC 335.] as stated in Para-34 of the very Judgment which are as follows:
"The facts relevant to the question of limitation in the present case may be briefly restated: The trust deed was executed in 1916. The suit house was constructed in 1920. If, as we have held, the trust deed as well as the construction of the building were for the benefit of the family, its execution could not constitute any invasion of the plaintiff's right. Till 1926, the plaintiff's father, Ratanlal was residing in that house.
In 1928 when Daga challenged the trust deed, the family compromised the matter and salvaged the house. From 1936 onwards the plaintiff has been residing in the suit house. It is conceded that he had knowledge of the litigation between Rukmabai and Chandanlal claiming the property under the trust deed; but, for that suit, he was not a party and the decision in that litigation did not in any way bind him or affect his possession of the house. But in the ::: Downloaded on - 16/09/2023 20:35:48 :::CIS 41 execution of the decree, the Commissioner appointed by the Court came to the premises on February 13, 1937, to take measurements of the house for affecting partition of the property, when the plaintiff raised an .
objection, and thereafter in 1940 filed the suit. From the aforesaid facts, it is manifest that the plaintiff's right to the property was not effectively threatened by the appellant till the Commissioner came to divide the property. It was only then there was an effectual threat to his right to the suit property and the suit was filed within six years thereafter. We, therefore, hold that of the suit was within time."
From the aforesaid facts, it is clear that the mere adverse entry in the Record of Rights in respect of the property in possession of the plaintiff cannot be taken as rt a real threat to the right of the plaintiff to the property in his possession. Rukhamabai was not a party to the proceeding. Her right to the property came to be threatened only when the order was tried to be executed and she was tried to be dispossessed. Their Lordships further held that even if it was considered that Laxminarayan had the knowledge of the litigation between Rukhmabai and Chandanlal claiming the property under the trust deed; but, for that suit, he was not a party and the decision in that litigation did not in any way bind him or affect his possession. In the instant case, it may be relevant to notice that the entries on which the reliance was placed changing the suit land from redeemed to unredeemed to form a basis for a starting point of limitation, even if it were in the knowledge of the plaintiffs the same could not affect the right of the plaintiffs adversely because those entries were not made in accordance with law, after due notice to the plaintiffs. As such as held by the Supreme Court in Khader's case [(1990) 2 SCC 271: AIR 1990 SC 1225.] they were void and non est. Therefore, they cannot be of any value as it cannot be held that the same affected the right of the plaintiffs in any manner. In C. Mohammad Yunus v. Syed Unnissa [AIR 1961 SC 808.] it has been further reiterated ::: Downloaded on - 16/09/2023 20:35:48 :::CIS 42 that 'there could be no right to sue until there is an accrual of the right asserted in the suit and its infringement or at least a clear and unequivocal threat to infringe that right'. There is no such clear and .
unequivocal infringement of the right of the plaintiffs or real threat to the right of the plaintiffs by the entries which have no legal effect in the eye of the law. Further, the very order dated 17th August 1966 - Ex. P-9 itself shows that the Government was not sure whether the suit schedule property was redeemed sagu or unredeemed sagu. They also did not assert in the Government Order of dated 17th August 1966 that the suit schedule property was redeemed sagu only. This conduct on the part of the Government would also show that the entries made from the year 1918 till the date relied upon by the learned rt Government Advocate to non-suit, the plaintiffs were not treated even by the State Government as final and conclusive and affecting the right of the plaintiffs. We may also refer to two more decisions of the Supreme Court having a bearing on the point. In Gannon Dunkerley and Co. Ltd. v. The Union of India [(1969) 3 SCC 607: AIR 1970 SC 1433.] it has been held thus:
"In our Judgment, there is no right to sue until there is an accrual of the right asserted in the suit, and its infringement, or at least a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted."
Thus in Gannon's case [(1969) 3 SCC 607: AIR 1970 SC 1433.] the decision of the Privy Council in A.I.R. 1930 P.C. 270 [AIR 1931 PC 9.] was again restated. In Raghubir Jha v. State of Bihar [1986 Supp SCC 372: AIR 1986 SC 508.] the Supreme Court held that the limitation would begin to commence only on the communication of the termination of the proceedings and not on the date the order was passed by the first authority. In the instant case, there is no evidence adduced by the defendant nor there is any material brought on record in the cross-examination of P.W. 1 that the right to sue accrued much earlier to the date of the suit. As in the instant case the entries in the ::: Downloaded on - 16/09/2023 20:35:48 :::CIS 43 record of rights, being non-est cannot be held to affect the right, title and interest of the plaintiffs and their predecessors-in-title in possession of the suit property. Such entries cannot also be held to be a threat to the title .
of the plaintiffs who are in possession of the suit property so as to give rise to the cause of action sufficient for the commencement of the period of limitation. However, the learned Government Advocate has placed reliance on a decision of this Court in Dada Jinnappa Khot v. Shivalingappa Ganapati Bellaniki ILR 1989 Kar 993. That was a case in which a learned single Judge of this Court of recorded a specific finding that in the light of the application filed by the defendant before the Tahsildar in the year 1967 denying the title of the plaintiff, there was a real threat to the plaintiff's right and therefore on that rt date the right to sue accrued because the plaintiff was also a party to that application. Thus, it is clear that the Decision in D.J. Khot's case [ILR 1989 Kar 993.] is confined to the facts of that case. Therefore, the contention of the learned Government Advocate that the change of entries from redeemed to unredeemed in the year 1918 and the continuation of the same in the subsequent years was a real threat to the rights of the plaintiffs cannot be accepted; because those entries are held to be void and non est. Therefore, the contention based on the change of entries from redeemed to unredeemed is rejected.
36. A similar view was taken by Hon'ble Punjab and Haryana High Court in Ibrahim v. Sharifan, 1979 SCC OnLine P&H 186: AIR 1980 P&H 25 wherein it was observed (at page 26):
7. It may be observed at the outset that the word 'first' occurring in Article 58 of the Act is of no significance at all for deciding the issue of limitation so far as the facts of the case in hand are concerned as the main point that requires determination is whether mere entry of a mutation in the name of the defendant would furnish a ::: Downloaded on - 16/09/2023 20:35:48 :::CIS 44 cause of action to the plaintiff to file a suit for declaration or not. There is no dispute that mutation was sanctioned in favour of the defendant after the death of Akbar and in case such an entry furnishes a cause of action, then .
certainly the suit would be barred by limitation. Even Mr. Aggarwal very fairly conceded this proposition. But what was argued by him was that mere entry of a mutation did not furnish any cause of action and in support of his contention he relied on a Division Bench judgement of this Court in Niamat Singh v. Darbari Singh etc., (1956) 58 PLR 461. In our view, the contention of the learned of counsel has considerable force. The plaintiff continued to be in possession of the entire property even after the sanction of the mutations in the name of the defendant after the death of her father Akbar or her mother Smt. rt Nanhi or her uncle Bhiku. The defendant was never given any share in the rent, nor was she given any produce out of the land of her share. In this situation, no cloud was cast on the title of the plaintiff by the mere entry of the mutation in the name of the defendant. Further, there is no proof on the record to show that before April 1969, by any act or assertion of the defendant, the right of the plaintiff was ever actually jeopardised. The defendant is occupying a house in the village.
8. The assertion of the plaintiff is that it was given by him to her out of compassion, while the plea of the defendant is that she occupied it as of right. Be that as it may, the fact remains that so far as the agricultural land is concerned, the defendant after the sanction of the mutations never asserted her right to her share in the land in dispute; nor did she ever get any rent or produce and that it was in the year 1969 that she tried to assert her right and interfere with the possession of the plaintiff. In this situation, mere entry of a mutation in the name of the defendant would not furnish any cause of action to the plaintiff. This view of ours finds full support from the judgement of the Division Bench in Niamat Singh's case. Thus, we do not agree with the learned single Judge that the cause of action arose when the mutation was entered ::: Downloaded on - 16/09/2023 20:35:48 :::CIS 45 in the name of the defendant and consequently, reverse the finding on issue No. 4 and hold that the suit filed by the plaintiff is within limitation.
37. This court also took the same view in Sairu Ram vs. .
Prem Chand Latest HLJ 2004(1) 663 (HPHC)and held as under:
22. It was next contended on behalf of the defendant that even if Art. 113 is applied, the suit having been filed beyond three years of the order of mutation would be barred by time.
of
23. There is no merit in the contention, it is well settled that mutation does not confer title. A cause of action would accrue to the plaintiffs only when there is an invasion of or a threat to his rights and title. The order of rt mutation, even otherwise, having been passed by an authority having no jurisdiction was a nullity and capable of being ignored.
24. In Ghulam Mohammad Khan and others Vs. Samundar Khan and others [1936 Lahore 37] dealing with a suit filed under Section 45, Punjab Revenue Act, 1887, which provision is para material to Section 46 of the HP. Land Revenue Act, 1953, it has been held that to such suits Article 120, Limitation Act, 1908 (corresponding to Article 113, Limitation Act, 1963) applies and the terminus a quo in such cases is when the cause of action accrues and that reading Article 120, Limitation Act 1908 with Section 45, Punjab Land Revenue Act, 1887, the cause of action would accrue when the plaintiff feels aggrieved.
25. It has been held in Kewal Krishan Purl and another vs. The State of Punjab and others [1977 P&H 347] that the right to sue will accrue only where there is an unequivocal threat to infringe the right of the plaintiff.
26. Taking into consideration the averments in the plaint as to the threat to infringe the rights of the plaintiff, the suit is well within time under Article 113, Limitation Act, 1963.::: Downloaded on - 16/09/2023 20:35:48 :::CIS 46
38. It was laid down by the Hon'ble Supreme Court in Daya Singh v. Gurdev Singh, (2010) 2 SCC 194 : (2010) 1 SCC (Civ) .
379: 2010 SCC OnLine SC 136 that the period of limitation starts running when the actual right is infringed. It was observed (at page 198 of SCC):
14. In support of the contention that the suit was filed within the period of limitation, the learned Senior of Counsel appearing for the appellant-plaintiffs before us submitted that there could be no right to sue until there is an accrual of the right asserted in the suit and its rt infringement or at least a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted. In support of this contention, the learned Senior Counsel strongly relied on a decision of the Privy Council in Bolo v. Koklan [(1929-30) 57 IA 325: AIR 1930 PC 270]. In this decision, Their Lordships of the Privy Council observed as follows: (IA p. 331) "... There can be no 'right to sue' until there is an accrual of the right asserted in the suit and its infringement, or at least a clear and unequivocal threat to infringe that right, by the defendant against whom the suit is instituted."
15. A similar view was reiterated in C. Mohammad Yunus v. Syed Unnissa AIR 1961 SC 808 in which this Court observed: (AIR p. 810, para 7) "7. ... The period of six years prescribed by Article 120 has to be computed from the date when the right to sue accrues and there could be no right to sue until there is an accrual of the right asserted in the suit and its infringement or at least a clear and unequivocal threat to infringe that right."
In C. Mohammad Yunus [AIR 1961 SC 808], this Court held that the cause of action for the purposes of Article 58 of the Act accrues only when the right asserted in the suit is ::: Downloaded on - 16/09/2023 20:35:48 :::CIS 47 infringed or there is at least a clear and unequivocal threat to infringe that right. Therefore, the mere existence of an adverse entry in the revenue records cannot give rise to a cause of action.
.
16. Keeping these principles in mind, let us consider the admitted facts of the case. In Para 16 of the plaint, it has been clearly averred that the right to sue accrued when such right was infringed by the defendants about a week back when the plaintiffs had for the first time come to know about the wrong entries in the record-of-rights and when the defendants had refused to admit the claim of of the plaintiffs. Admittedly, the suit was filed on 21-8- 1990. According to the averments made by the plaintiffs in their plaint, as noted hereinabove, if this statement is accepted, the question of holding that the suit was barred rt by limitation could not arise at all. Accordingly, we are of the view that the right to sue accrued when a clear and unequivocal threat to infringe that right by the defendants when they refused to admit the claim of the appellants i.e. only seven days before the filing of the suit. Therefore, we are of the view that within three years from the date of infringement, as noted in Para 16 of the plaint, the suit was filed. Therefore, the suit, which was filed for declaration on 21-8-1990, in our view, cannot be held to be barred by limitation.
39. Thus, the learned Trial Court had erred in holding that the suit was barred by limitation. The learned First Appellate Court was required to displace this finding by giving a reason, which was not done. Hence, this substantial question of law is answered accordingly.
::: Downloaded on - 16/09/2023 20:35:48 :::CIS 48Substantial Question of Law No.6:-
40. Learned First Appellate Court held that the defendant .
did not appear in the witness box and examined his Power of Attorney. The non-examination of the defendant will lead to an adverse inference.
41. It was laid down by the Hon'ble Supreme Court in of Rattan Dev v. Pasam Devi, (2002) 7 SCC 441: 2002 SCC OnLine SC 868, that the non-appearance of the party will become rt insignificant when there is other evidence on record. It was observed:-
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 undoubtable. 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.
::: Downloaded on - 16/09/2023 20:35:48 :::CIS 4942. It was laid down by Hon'ble Karnataka High Court in Gangawa v. Arjunsa, 2001 SCC OnLine Kar 51 = AIR 2001 Karnataka .
231 that a party need not 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:
of "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 forth his case should prove the material facts set up. A rt 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 necessary to be testified by the party in person, in such a situation, however, 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 testified is a matter that is to be tested in the course of the cross- examination."
43. This position was reiterated in Janki Vashdeo Bhojwani v. Indusind Bank Ltd., (2005) 2 SCC 217: 2004 SCC OnLine SC 1538and it was held that the power of attorney cannot appears ::: Downloaded on - 16/09/2023 20:35:48 :::CIS 50 in those cases, where the principal has personal knowledge. It was observed:
.
"13. Order 3 Rules 1 and 2 CPC empower the holder of power of attorney to "act" on behalf of the principal. In our view the word "acts" employed in Order 3 Rules 1 and 2 CPC confines only to respect of "acts" done by the power-of-attorney holder in exercise of power granted by the instrument. The term "acts" would not include deposing in place and instead of the principal. In other of words, if the power-of-attorney holder has rendered some "acts" in pursuance of 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 rt principal and not by him. Similarly, he cannot depose for the principal in respect of the matter of which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined."
44. The present case was based on the revenue record and the sale deed. Learned First Appellate Court has not shown that any fact was within the exclusive knowledge of the defendant for which his appearance is necessary. Learned First Appellate Court held that the statement of Vijay Kumar that the defendant is an owner in possession of the suit land cannot be relied upon. However, the learned First Appellate Court ignored that the revenue record and sale deeds were available on record to establish this fact. Hence, the claim of the defendant could not have been rejected on the ground that General Power of ::: Downloaded on - 16/09/2023 20:35:48 :::CIS 51 Attorney was examined and the defendant did not appear in the witness box. This substantial question of law is answered .
accordingly.
Final Order:
45. In view of the above, the present appeal is allowed.
The judgment and decree passed by the learned First Appellate of Court are set aside while those of the learned trial Court are restored. rt Pending miscellaneous applications, if any, shall also stand disposed of.
(Rakesh Kainthla) Judge 16th September, 2023 (pathania) ::: Downloaded on - 16/09/2023 20:35:48 :::CIS