Himachal Pradesh High Court
Smt. Tulsa Devi (Deceased) Through Her ... vs Sh. Kamal Kant And Another on 4 September, 2023
THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
RSA No.233 of 2004
Reserved on: 04.08.2023
Decided on: 04.09.2023
.
Smt. Tulsa Devi (deceased) through her LRs & others.
......Appellants
versus
Sh. Kamal Kant and another ......Respondents
of
Coram:
The Hon'ble Mr. Justice Rakesh Kainthla, J.
rt Whether approved for reporting?1 Yes.
For the appellants: Name of appellant no. 1 Tulsa Devi stands deleted vide order dated 08.07.2015 Mr. Bhupender Gupta, Senior Advocate with Mr. Janesh Gupta, Advocate, for appellants no .2(a) to 2(d) 3(a) to 3(e), and 4 to 7.
For the respondents: Mr. N.K. Thakur, Senior Advocate with Ms. Ritu Singh, Advocate, for respondent no. 1.
Respondent no. 2 is ex parte vide order dated 19.12.2016.
Rakesh Kainthla, Judge:
The present appeal is directed against the 1 Whether the reporters of Local Papers may be allowed to see the judgement?::: Downloaded on - 06/09/2023 21:29:58 :::CIS 2
judgment and decree dated 01.03.2004, passed by learned District Judge, Una, District Una (HP) in Civil Appeal No. 74/2000, vide which the appeal filed by the respondents .
(defendants before learned trial court) was allowed and judgment and decree passed by learned Senior Sub Judge, Una, District Una (HP) in Civil Suit No.68 of 1987, dated 30.03.2000, was set aside. (For the sake of convenience, of the parties shall be referred to in the same manner, as they were arrayed before the learned trial court).
rt
2. Briefly stated, the facts giving rise to the present appeal are that the plaintiff filed a civil suit before the learned Trial Court for seeking a declaration that the plaintiff is in possession as a tenant and has become the owner of the land comprised in Khewat No. 508 min, Khatauni No. 763 min, Khasra Nos. R.33/1(4-0), R 2/1(6-2), R 10/1 (1-1) measuring 11 Kanals 3 Marlas and Khewat No. 508 min, Khatauni No. 763 min, Khasra Nos. R39/13/2(3-
12) measuring 3 Kanals 12 Marlas, as per jamabandi for the year 1983-84, situated in Village Ispur, Teh. & Distt. Una (hereinafter referred to as 'suit land') after the ::: Downloaded on - 06/09/2023 21:29:58 :::CIS 3 commencement of the H.P. Tenancy and Land Reforms Act, the change of entries in the Khasra Girdawari and subsequent entries in the jamabandi are illegal, null, void .
and without jurisdiction. A consequential relief of permanent prohibitory injunction restraining the defendants from interfering in the possession of the plaintiffs by taking forcible possession of the suit land was of also sought. It was pleaded that the plaintiff is in possession of the suit land as a tenant on the payment of rt rent for more than 30 years under the defendants including their predecessor-in-interest. The Plaintiff was never ejected nor did he abandon or relinquish his tenancy rights.
The suit land was allotted to the plaintiff in lieu of the tenancy land. The defendants got wrong entries incorporated through Kanungoo in Kharif 1973 as Khud Kasht (self cultivation) illegally behind the back of the plaintiff without any notice to him. The change of entries in Khasra Girdawari and subsequent entries in the jamabandis are illegal, void and contrary to the law. The plaintiff became owner on the commencement of the H.P. ::: Downloaded on - 06/09/2023 21:29:58 :::CIS 4 Tenancy and Land Reforms Act. The defendants started interfering with the possession of the plaintiff after the change of entries. The plaintiff requested the defendants .
not to do so, but in vain. Hence, the suit was filed to seek relief, as mentioned above.
3. The suit was contested by filing a written of statement taking preliminary objections regarding lack of maintainability, the bar of limitation and the plaintiff rt being estopped by his act and conduct from filing the suit.
The contents of the plaint were denied on merits. It was asserted that the plaintiff was never inducted as a tenant by the defendants or their predecessor-in-interest. The Consolidation Authorities wrongly prepared the Misal Haqiat in the name of the plaintiff based on wrong entries recorded in Khasra Girdawari of Kharif 1964. This entry was recorded without jurisdiction. Hence, it was prayed that the suit be dismissed.
4. The plaintiff filed an application under Order 1 Rule 10 CPC for impleading the Ispur Cooperative ::: Downloaded on - 06/09/2023 21:29:58 :::CIS 5 Agricultural Service Society, which was allowed on 22.06.1992 and Ispur Cooperative Agricultural Service Society was impleaded as defendant no. 2.
.
5. Defendant No. 2 filed a written statement taking preliminary objections regarding lack of maintainability, plaintiffs being estopped from filing the present suit by his of act and conduct and the suit being barred by Section 53 of the Transfer and Properties Act. The contents of the plaint rt were denied on merits. It was asserted that defendant no. 2 is a bonafide purchaser of 10 Marlas of land for a consideration of ₹ 10,000/- vide Sale Deed dated 04.12.1990 without any notice. Defendant No.1 was in possession since time immemorial and the plaintiff never occupied the suit land; hence, it was prayed that the suit be dismissed.
6. Separate replications denying the contents of the written statements and affirming those of the plaint were filed.
7. Learned Trial Court framed the following issues ::: Downloaded on - 06/09/2023 21:29:58 :::CIS 6 on 07.03.1988 and additional issues on 12.01.1993:-
1. Whether the plaintiff was a non-
occupancy tenant in possession of the suit lad is now owner in possession .
thereof? OPP
2. Whether the plaintiff is entitled to the relief of permanent injunction?OPP
3. Whether the suit is within time? OPP
4. Whether the suit is not maintainable in of the present form? OPD.
5. Whether the plaintiff is estopped to rt institute this suit by his act and conduct?
OPD.
5. A Whether this Court has no jurisdiction to try the present suit? OPD.
5. B Whether the suit is barred under Section 53 of the Transfer of Property Act, as alleged, if so, its effect? OPD.
5. C Whether defendant No.2 is a bonafide purchaser for consideration as alleged, if not its effect? OPD
6. Relief.
8. The plaintiff examined himself (PW-1), Luddar (PW-2), Sohan Lal (PW-3), Kapil Dev (PW-4) and G.S. Dayal (PW-5). Defendant No. 1 Kamal Kant examined himself (DW-1), Kapil Dev (DW-2), Paras Ram (DW-3), ::: Downloaded on - 06/09/2023 21:29:58 :::CIS 7 Ramji Dass (DW-4), Roshandin (DW-5), Ram Krishn (Pradhan of defendant no. 2-Society) (DW-6).
9. Learned Trial Court vide judgment and decree .
dated 31.12.1994 held that the Civil Court had no jurisdiction to hear and entertain the present suit. This order was set aside by learned District Judge, Una on of 17.12.1999 and the matter was remanded back to learned Trial Court for fresh decision after hearing the parties.
10. rt Learned Trial Court held that the land was recorded in the ownership of Shiv Ram and in the possession of Maiya as a non-occupancy tenant in the year 1963-64. This entry was changed to the name of Kartara as a non-occupancy tenant in the year 1964-65. This change was entered in the Roj Namcha on 20.10.1964 and the entry was duly signed by Karam Chand Lamberdar. The entry was again changed to the name of Shiv Ram as Khud Kasht in the year 1974. However, Shiv Ram had expired on 14.11.1970 and the entry could not have been changed in his name in the year 1974. The entry in the name of Shiv Ram ::: Downloaded on - 06/09/2023 21:29:58 :::CIS 8 was not as per the H.P. Land Record Manual. There was a dispute regarding the status of a tenant and the jurisdiction of the Civil Court was not barred. The plea of defendant no.
.
2 that it was a bonafide purchaser for consideration was not accepted, as the Sale Deed was executed during the pendency of the suit. Hence, the learned Trial Court answered issues no. 1 to 3 in the affirmative, the rest of the of issues in negative and decreed the suit of the plaintiff.
11. rt Being aggrieved from the judgment and decree passed by the learned Trial Court, an appeal was filed before learned District Judge, Una. An application for additional evidence was also filed, which was allowed and a copy of the death certificate was taken on record. Learned District Judge held that the entry of tenancy in favour of Kartara was not incorporated as per the law. The copy of Roj Namcha was not brought on record to show the manner of change of entry. It was not proved that change was recorded in the presence of Shiv Ram, which was necessary.
The plea of the plaintiff that he was paying rent till 1989, was not believable as a tenant is not supposed to pay rent ::: Downloaded on - 06/09/2023 21:29:58 :::CIS 9 after the conferment of proprietary rights. The date of induction was not established and the oral evidence in support of the same was not satisfactory. The death .
certificate showed that Shiv Ram had died on 29.01.1975.
Learned Trial Court had wrongly held that Shiv Ram had died on 14.10.1970. The provisions of the H.P. Tenancy and Land Reforms Act had not come into operation on the date of of change of entry and the proprietary rights could not have been conferred upon the plaintiff. Hence, the appeal rt was allowed, and the judgment and decree passed by the learned Trial Court were set aside.
12. Being aggrieved and dissatisfied with the judgment and decree passed by the learned Trial Court, the present appeal is filed asserting that the learned First Appellate Court erred in setting aside the judgment and decree passed by the learned Trial Court. The original record of death was not produced and the learned Trial Court could not have relied upon the copy of the death certificate to upset the findings of the learned Trial Court.
There was no basis for the entry made in favour of Shiv ::: Downloaded on - 06/09/2023 21:29:58 :::CIS 10 Ram. Shiv Ram never challenged the revenue entry in favour of Kartara. The presumption of truth is attached to the entries in the revenue record and the learned First .
Appellate Court had no jurisdiction to question these entries. Learned First Appellate Court misunderstood the provisions of the Punjab Land Security and Land Tenure Act as well as the H.P. Land Revenue Act. The provisions of of the H.P. Land Record Manual were misapplied. No proper procedure was followed while changing the entry in the rt name of Shiv Ram. Therefore, it was prayed that the present appeal be allowed and judgment and decree passed by the learned Trial Court be set aside.
13. The appeal was admitted on the following substantive substantial questions of law:-
1. Whether the Lower Appellate Court has misapplied the provisions of Panjab Land Security and Land Tenures Act, HP Land Revenue Act, and HP Land Records Manual to hold that the entry of tenancy in favour of Shri Kartara was not in accordance with the law, are not such findings erroneous and perverse?::: Downloaded on - 06/09/2023 21:29:58 :::CIS 11
2. Whether the Lower Appellate Court has put wrong reliance on Exhibits DX, DW-
2/A to DW-2/C, which were not proved in accordance with law and were held admissible per se by misconstruing the .
provisions of the Evidence Act?
14. I have heard Mr Bhupender Gupta, learned Senior Counsel, assisted by Mr. Janesh Gupta, learned counsel for the appellants no. 2(a) to 2(d), 3(a) to 3(e) and 4 of to 7 and Mr. N.K. Thakur, learned Senior Counsel assisted by Ms. Ritu Singh, learned counsel, for respondent No.1.
rt
15. Mr. Bhupender Gupta, learned Senior Counsel submitted that the learned Appellate Court erred in relying upon the documents produced by the defendants. These were not proved as per law. The death certificate was merely exhibited and was not proved by examining its author. Learned First Appellate Court erred in holding that the entry of tenancy in favour of Kartara was not as per the law. Shiv Ram never challenged these entries during his lifetime. These were corroborated by the entries made during consolidation; therefore, he has prayed that the present appeal be allowed and judgment and decree passed ::: Downloaded on - 06/09/2023 21:29:58 :::CIS 12 by the learned First Appellate Court be set aside while that of the learned Trial Court be restored.
16. Mr. N.K. Thakur, learned Senior Counsel for the .
respondents/defendants supported the judgment and decree passed by the learned First Appellate Court and submitted that no interference is required with the same.
of He further submitted that entry in favour of Kartara was not made as per the provisions of the H.P. Land Record rt Manual and learned First Appellate Court had rightly noticed the infirmity in the procedure adopted for incorporation of the entry. Hence, he has prayed that the appeal be dismissed.
17. I have given considerable thought to the rival submissions at the bar and have gone through the records carefully.
Substantial Question of Law No.1:-
18. Learned First Appellate Court relied upon the judgment of Punjab and Haryana High Court in Amal Kumar vs. Bhupender Singh, 1976 PLJ 26 to hold that the ::: Downloaded on - 06/09/2023 21:29:58 :::CIS 13 person who is likely to be affected by the change in the entry, is to be notified of the proposed change and the proof of such notification has to be placed on record. The .
Punjab and Haryana High Court held in this judgment as under:
"The Financial Commissioner has prescribed the mode for effecting changes in the existing of Khasra Girdawaris. According to the instructions, it is the duty of the Patwari before making any change in the existing entry at the rt time of harvest inspection, to notify in writing the person or persons likely to be adversely affected by such a change of the entries and retain on record proof of the notifications. Further, the changes so made should be attested by the Lambardar or the Panch of the village. It is further stated in the instructions that entries made in violation of the said instructions shall be treated null and void at the time of attestation of the Jamabadi or at an earlier stage. Under Section 11 of the Punjab Land Revenue Act, 1887, the Financial Commissioner had the general power of superintendence and control over all Revenue Officers and in that capacity, he has got a right to issue such instructions. In this view, I am supported by a decision of this Court in S. Mohan Singh V. The Financial Commissioner, Revenue, Punjab and others 1967 PunLR 377, wherein it has been observed that the standing orders can be issued ::: Downloaded on - 06/09/2023 21:29:58 :::CIS 14 because of the general power of superintendence granted to the Financial Commissioners under Section 11 of the Land Revenue Act. These instructions have been issued to put a curb on the unrestricted owners .
of the Patwaris to manipulate the Khasra Girdawaris in the way they desired. It was the duty of the Patwari before changing the Khasra Girdawari and making an entry in favour of the appellants to have informed the landowners so that they could come and contest the new entry, of which was to be made by him if they so desired."
19. This judgment was followed in Parmanand vs. rt Sucha Singh 1997(1) PLJ 474, wherein it was held:
"As per para 9.9. of the Punjab Land Records Manual, a duty has been imposed upon the revenue authorities to notify the proposed change to adversely affected parties. In case no notice has been issued, such a change in entry cannot bind the affected person. This matter came up for consideration in the case reported as Ram Sarup v. Balwant Sing and Ors., 1991 P.L.J. 278, and the Court relied upon para No. 9.9. of the Punjab Land Records Manual held it is incumbent upon the concerned revenue authorities to inform the affected person before effecting any change in the revenue entries."
20. This question was considered by this Court in Harbans Singh vs. 1991(2) Shim. L. C.222 and it was held:
::: Downloaded on - 06/09/2023 21:29:58 :::CIS 158. It is well settled that where the earlier revenue entries were changed in the later revenue entries the change was effected without any mutation and there was no order of the Revenue Authorities showing how the change .
was made, although the presumption ordinarily would be in favour of the later entries, yet that presumption is rebuttable one and it would be deemed to have been rebutted by the fact that the alterations in the later entries are found to have been made unauthorisedly or mistakenly, of there being no material to justify the change of entries. This is what which has been found to have been done in the instant case while the rt entries recording the plaintiffs to be the owners in possession of the suit land have been recorded in the later Khasra Girdawari In fact, the Financial Commissioner has prescribed the mode for effecting changes in the existing Khasra Girdawaries. According to the instructions, it is the duty of the Patwari before making any change in the existing entry at the time of harvest inspection, to notify in writing the person or persons likely to be adversely effected by such a change of the entries and retain on record proof of the notifications Further, the changes so made, should be attested by the Lumberdar or the Panch of the village. It is further stated in the instructions that entries made in violation of the said instructions shall be treated null and void at the time of attestation of the Jamabandi or at an earlier stage.
21. This position was reiterated in Lal Chand & Ors.
::: Downloaded on - 06/09/2023 21:29:58 :::CIS 16Vs. Pala 1999(2) Cur. L.J. (HP) 415 and it was held:
23. It may not be out of place to mention here that there is a legal presumption of truth attached to the latest entries in the record of .
rights but this presumption is a rebuttable one. In the present case in the latest record rights, as discussed above, Pala has been recorded in actual occupation of the suit land as a tenant. His simple case, as pleaded, has been that about 40 years back when Prem Singh, father of the of plaintiff and proforma defendants No. 2 and 3 died he was inducted as a tenant by the land owners. This only reflected that prior to the rt death of Prem Singh he, that is Prem Singh was in actual occupation of the suit land which fact is otherwise reflected from the entries in the record of rights, referred to above. There is no dispute to the proposition that the late entries in the record of rights to which legal presumption of truth is attached, were the result of the change made in Kharif 1979 pertaining to the suit land. In case this change made in Kharif 1979 in favour of Pala defendant is held to be legal one definitely the later entries made on the basis of the same would be held to be legal one. In case this change is not held to be legal and the change made in Kharif 1979 is avoided, the later entries in favour of Pala defendant shall automatically fall. There is again no dispute to this proposition.
24. At this stage the definition of the tenant as given in the Himachal Pradesh Tenancy and Land Reforms Act, 1972 can be referred which ::: Downloaded on - 06/09/2023 21:29:58 :::CIS 17 would be essential to appreciate the case of the parties in this particular regard especially that of Pala defendant. The tenant has been defined under Section 2(17) of the aforesaid Act :
"2(17) "tenant" means a person who holds .
land under a land owner, and is. or but for a contract to the contrary would be liable to pay rent for that land to that land-
owner and includes -
(i) a subtenant; and
(ii) the predecessors or successors in of interest of tenants or a sub-tenant, as the case may be, but it does not include -
rt (a).......................
(b)................"
25. Taking into consideration the aforesaid definition a party claiming the status of a tenant has not only to prove the alleged agreement of tenancy but also to plea the same. In the present case, there does not appear to be any dispute that during the "lifetime of Prem Singh, he was occupying the suit land and that too as a tenant, as has been held by the Civil Court. It is correct that the civil court's decree might not be binding on the present defendant as he was not a party to that litigation but so far as the landowners were concerned, the matter between Prem Singh and his successors and them was final.
26. The entries were changed in the name of Pala defendant vide E\.DW3/A, referred to earlier There is nothing in this document that the present plaintiff and defendants No.2 and 3 ::: Downloaded on - 06/09/2023 21:29:58 :::CIS 18 were present when this entry was changed. There is nothing on record to suggest even remotely that any enquiry was conducted by the Patwari before making this entry and in that enquiry, the present plaintiff and proforma .
defendants No.2 and 3 were associated. This report is silent that Pala was inducted as a tenant on payment of rent by the land owners.
There is no evidence that before recording this entry in October 1979 the earlier tenants who were recorded in this record of rights were of evicted in accordance with law or they had relinquished their tenancy rights. Thus, at the very face of it so far as the documents are rt concerned, which have been discussed above, the change in an entry in the name of Pala defendant was made without any authority and against law and procedure in this behalf. In case this entry is ignored, the subsequent entries made in favour of Pala automatically lose their legal entity.
22. Thus, it is apparent from the perusal of the judgments of the Punjab High Court as well as this Court that the person likely to be affected by the change is required to be notified before effecting the change in the revenue entry and if such notification was not issued, the entry is to be ignored.
23. Plaintiff produced a copy of Rojnamcha (Ext.
::: Downloaded on - 06/09/2023 21:29:58 :::CIS 19PW-5/A), in which, it was mentioned that the difference in cultivation was found on certain Khasra numbers including khasra no. 6185 during the Girdawari. It is stated to be .
signed by Kartara and Lambardar; however, it does not contain any signature or mention the presence of Shiv Ram, who was recorded to be the owner as per Khasra Girdawari (Ext. PW-5/B).
of
24. This Khasra No. 6185 was changed into Khasra rt Nos. 33/1, 2/1, 10/1, and 39/13/2 total measuring 14-15 during the consolidation as per Misal Haquiat (Ext.P-7).
Therefore, the learned First Appellate Court had rightly held that the entries in the name of Kartara were not changed as per procedure laid down in the H.P. Land Record Manual and thus, such entries were not binding upon the owner. The instructions were issued by the Financial Commissioner under the H.P. Land Revenue Act and there is no misconstruction of the instructions issued under the H.P. Land Revenue Act contained in the H.P. Land Record Manual to hold that the change was not as per law.
::: Downloaded on - 06/09/2023 21:29:58 :::CIS 2025. Learned First Appellate Court had rightly held that the evidence in support of tenancy was not satisfactory. Plaintiff had not asserted in the plaint on .
which date, he was inducted as a tenant, by whom he was inducted as a tenant and what rent was being paid by him.
He simply stated in Para-1 of the plaint that he was in possession as a tenant at will and had been paying rent for of more than 30 years. When appeared in the Court as PW-1, he stated that 14 Kanal was given to him on the payment of rt half produce by Kamal Kant and Shiv Ram about 24-25 years ago. Maiya was cultivating the land before him.
Kamal or his father used to take the half share of the produce from him. Shiv Ram died during the consolidation and thereafter, Kamal and his mother used to take the share of the produce. He stated in his cross-examination that he used to pay the share to Shiv Ram till his death, but he could not say for how long the share was being paid to the wife of Shiv Ram. The share was handed over in the presence of Rania and Ram Chand, who had died. The last payment was made in April 1989 in presence of Luddar and ::: Downloaded on - 06/09/2023 21:29:58 :::CIS 21 Lal ji. However, no receipts were taken.
26. Luddar (PW-2) stated that he had seen the possession of the plaintiff before consolidation. Maiya was .
a tenant before the plaintiff. He never stated that the defendant or his father was in his possession. He specifically stated that the plaintiff had never paid the of share of the produce in his presence.
27. The cross-examination of this witness falsifies rt the version of the plaintiff that he had paid the share of the produce to the defendant in presence of Luddar.
28. Hence, the learned First Appellate Court has rightly held that evidence regarding payment of the rent was highly unsatisfactory and insufficient to establish tenancy.
29. Sohan Lal (PW-3) stated that he had seen the plaintiff in possession since the age of his discretion. He admitted that he belongs to the community of the plaintiff.
The testimony of this witness does not establish the payment of rent. He belongs to the community of the ::: Downloaded on - 06/09/2023 21:29:58 :::CIS 22 plaintiff and cannot be called to be an independent person.
Hence, his testimony is not sufficient to rebut the version of correctness attached to the revenue record.
.
30. It was submitted that the learned First Appellate Court erred in holding that the provisions of the Punjab Security of Land Tenure Act and not the H.P. Tenancy Land of Reforms Act applied to the present case. Learned First Appellate Court had rightly pointed out that the provisions rt of the H.P. Tenancy and Land Reforms Act came into force on 21.02.1974 when the Act was published in Rajpatra. H.P. Tenancy and Land Reforms Rules, 1975 came into force on 3.10.1975. However, the entry was changed in favour of Shiv Ram and the provisions of the Punjab Security of Land Tenures Act were applicable at that time. There is no infirmity in this finding recorded by learned First Appellate Court. Hence, this substantial question of law is answered accordingly.
Substantial Question of Law No.2:-
31. The defendants relied upon the copy of ::: Downloaded on - 06/09/2023 21:29:58 :::CIS 23 Rojnamcha Wakyat dated 8.10.1973 (Ext.DW-2/C), 9.10.1973 (Ext. PW-2/A), and Partal Girdawri dated 16.10.1973 (Ext.DW-2/B). These documents were proved by .
Kapil Devi, Patwari (DW-2), who had brought the original record. He stated that the documents were correct as per the original record maintained by him. He admitted in his cross-examination that he could not identify the name of of Patwari, who had recorded the entry. He volunteered to say that he could identify the writing of Hira Ram Patwari, who rt had signed the same. He stated in his cross-examination that pages were lying blank in the revenue record brought by him and he could not provide any explanation for the same. However, that will not make any difference. The 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:
::: Downloaded on - 06/09/2023 21:29:58 :::CIS 2413. 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 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 of public documents- (1) documents forming the acts or records of the acts-
rt (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.
16. Section 168 of the H.P. Land Revenue Act (hereafter referred to as 'the Act) empowers the Financial Commissioner, inter alia, to make ::: Downloaded on - 06/09/2023 21:29:58 :::CIS 25 rules consistent with the Act for:
(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, statistics and accounts necessary to be kept, made or complied in revenue offices, or submitted to any authority; and of
(iii) generally for carrying out the purposes of this Act.
The rules so made by the Financial rt 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 ::: Downloaded on - 06/09/2023 21:29:58 :::CIS 26 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 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 of inspection of records and grant of certified extracts thereof by the Patwari and permits him to supply copies of extracts from the diary rt (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 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 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 ::: Downloaded on - 06/09/2023 21:29:58 :::CIS 27 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 certified copy on of 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 rt 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 not and should not have been read in evidence by the Courts below.
32. 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:-
"....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 in this regard. The entry was made in the original roznamcha by an official concerned in the ::: Downloaded on - 06/09/2023 21:29:58 :::CIS 28 course of the performance of his official duties and is admissible under Section 35 of the Indian Evidence Act. The learned lower 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."
33. Paras Ram (DW-3) had attested the entry. He stated that he verified the Girdawari on 16.10.1973. He had of recorded the entry (Ext. DW-2/B) as per spot verification.
There is nothing in his cross-examination to show that he rt was making an incorrect statement. It was suggested to him that there was no paging and pagers were of different sizes. However, he has given a valid explanation that the Register is prepared by Patwari himself. Thus, the discrepancy in the size of the pages was duly explained by him.
34. A perusal of this entry shows that the name of Kartara son of Rala was mentioned in it; hence, the entry was made in the presence of the person, who was likely to be affected by the change and there was compliance with the provisions of H.P. Land Record Manual. Learned First ::: Downloaded on - 06/09/2023 21:29:58 :::CIS 29 Appellate Court had rightly relied upon the same. Hence, this substantial question of law is answered accordingly.
Final Order:
.
35. In view of the above, there is no infirmity in the judgment and decree passed by the learned First Appellate Court and no interference is required for the same. The of appeal fails and is dismissed accordingly.
Pending application(s), if any, also stands rt disposed of.
( Rakesh Kainthla ) Judge September 04, 2023 (reena) ::: Downloaded on - 06/09/2023 21:29:58 :::CIS