Himachal Pradesh High Court
Babu Ram vs Gigu And Ors. on 19 March, 1957
Equivalent citations: AIR1957HP67
JUDGMENT Ramabhadran, J.
1. This is a defendant's second appeal arising out of a suit for the possession of 38 bighas and 17 biswas of land situated in village Makri, Pargana Kot Kehloor, district Bilaspur. The plaintiffs' case was that the land in suit had been in the occupation of one Mt. Ram Devi, widow of Gobindu. She died on 22nd Phagun, 2007 B. After her death, defendants 1 to 8 took forcible possession of the land, although under Section 59 oi the Punjab Tenancy Act, as applied to Himachal Pradesh, the plaintiffs, as well as pro forma defendants 9 and 10, succeeded to the occupancy rights thereof. Consequently, the plaintiffs prayed that they be put in possession of the land in suit as occupancy tenants.
2. The suit was resisted by defendants 1 to 8 on various grounds. Inter alia, it was contended that the plaintiffs and the pro forma defendants were not related to Mt. Ram Devi. It was also denied that the common ancestor, if any, of Gobindu and the plaintiffs, had ever, occupied the land in suit. It was, accordingly, urged that the occupancy rights had been extinguished. Another defence taken was that the land in suit had been mortgaged with the defendants 1 to 8 and, therefore, their possession could not be disturbed.
3. The trial Court (Subordinate Judge, Bilaspur) held that one Johri was the common ancestor of Gobindu, no one side, and the plaintiffs and the pro forma defendants, on the other. He, however, came to the conclusion that the land in suit had never been in the occupation of Johri. That learned Judge further held that the defendants 1 to 8 had no mortgagee rights. He, however, non-suited the plaintiffs, in view of his finding that Johri had not been in possession of the suit lands.
4. The plaintiffs went, up in appeal to the learned District Judge of Bilaspur. That learned Judge granted the plaintiffs a decree for possession holding, firstly, that Johri had been in possession of the suit lands and, secondly, that the defendants 1 to 8 had no mortgagee rights. In disposing of that appeal, the learned District Judge also made an order partly allowing certain cross-objections filed by the defendants-respondents. Babu Ram, defendant, has now come up in second appeal.
5. Arguments of the learned counsel for the parties were heard on the 11th and 13th instant. The competency of the second appeal was not questioned. The market value of the land in suit (which measures 38 bighas and 17 biswas) will be over Rs. 250/-, which is the minimum valuation, necessary to give the right of second appeal--the District Judge having reversed the trial Court's decree--vide paragraph 32(1) (b) (i), Himachal Pradesh (Courts) Order.
6. Coming to the merits of the appeal, I am constrained to remark that the learned District Judge has gone out of his way to set aside the well-reasoned judgment of the Subordinate Judge. I may also point out that the learned District Judge has erred in entertaining the cross-objections preferred by the defendants.
The decree of the Subordinate Judge was altogether in favour of the defendants and, there fore, it was not open to them to file cross-objections against the finding on any issue, which had been decided against them. In Mt. Lachmi v. Anant Ram, AIR 1956 Him. Pra. 68 (A), I had occasion to point out:
"Under Order 41, Rule 22, a cross-objection could be filed only on a ground, which could have been taken by way of appeal. Where the decree of the trial Court is in favour of the defendant there is no question of his filing an appeal against it and hence he cannot file cross-objections against the finding on any issue."
7. From a perusal of the pedigree-tables, P. 4 and P. 5, the relationship between the plaintiffs and Gobindu, husband of Mt. Ram Devi, stands clearly established. Johri was, obviously, the common ancestor of Gobindu, on one side, and the plaintiffs and the pro forma defendants, on the other. The material point for determination is whether the plaintiffs have succeeded in proving that Johri had occupied the land in suit.
8. There is no direct evidence to support John's possession. Reliasce was placed by the plaintiffs on three Fards Tanqi Haqua Muzarian, Ex. P. 7, 8 and 12 as well as certain extracts from the revenue records of the first Settlement and the subsequent Jamabandis Ex. (P. 1, 2, 3 and 13). The sheet-anchor of the plaintiffs case was an entry made at the first Settlement, Ex. P.. 1, showing that the land in suit was found in possession of Finja, son of Johri (vide Ex. P. 1 and Fard, Ex. P. 8). Moti, another son of Johri, was found in possession of 50 bighas and 5 biswas of land (vide Fard Ex. P. 7), while Kapura and his brothers (grandsons of Johri and sons of Kahna, S/o Johri) were found in possession of 55 bighas and' 16 biswas.
The learned trial Judge was requested by the plaintiffs to presume that, under the circumstances, the land in suit must have been in the possession of Johri, father of Finja. Reliance was placed by the plaintiffs on the decision, reported in Ganda Singh v. Jawand Singh, AIR 1939 Lah. 171 (B). The learned Subordinate Judge, however, declined to make such a presumption. In the course of his judgment, he has pointed out that the areas in the possession of the three sons of Johri were not identical. The trial Court has also made a reference to Khushi Ram v. Jagdip Singh, AIR 1952, Punjab 307 (C), as well as to an earlier ruling of that High Court, reported in Bhagwan Das v. Shamsher Singh, AIR 1918 Lah 135(D). In the result, the Subordinate Judge came to the conclusion that John's possession has not been established and, consequently, the plaintiffs were non-suited.
9. In reversing the decision of the trial Court, the learned District Judge has relied, principally, on AIR 1939 Lahore 171 (B), which, in his opinion, was on all fours with the facts of the present case. Learned counsel for the appellant has rightly pointed out that the facts of the present case can be easily distinguished from those of AIR 1939 Lahore 171 (B). There, the facts were that in 1852 A. D. one Kharak Singh was recorded as occupancy tenant of 8 kanals 2 marlas of land situated in Gurdaspur district. Abdul Rashid, J., held that it could be fairly presumed that Anokha, father of Kharak Singh, must have occupied the land for the purposes of Section 59, Punjab Tenancy Act.
In coming to that conclusion, the learned Judge followed Paltu v. Muhammed Husain, 62 Pun. Re 1882 (E) and Sobha Singh v. Nahd Singh, 56 Pun Re 1906 (F). As Mr. Anand for the appellant rightly pointed out, there were no complications in that case i.e., there was nothing to show whether Kharak Singh had any brothers and if so whether the areas in their possession were dissimilar. In the case before me, however, as already shown, the areas in possession of the three brothers are quite dissimilar. In AIR 1952 Punjab 307 (C), a Division Bench of the Punjab High Court indicated that :
"Where at the time of the first settlement the sons of the common ancestor are shown as owners or occupancy tenants of land in ancestral shares, there is a presumption that the common ancestor was also the owner or occupancy tenant, but this presumption is rebutted where there was in existence a third son who was not entered with his two brothers as enjoying occupancy rights, and where in the first entries which were made at the time of the first settlement the three brothers were shown as tenants-at-will."
The learned District Judge has made no reference to this decision although Mr. Anand contended that the same was cited before him. My attention was also invited to the decision, reported in Tara Singh v. Hazara Singh, 56 Punj L. R. 98 (G). There, the facts were that one Pardhana was shown as occupancy tenant in the settlement of 1852 A.D. His four brothers were not shown as occupying the land. Under those circumstances, Kapur, J., held that no presumption could be raised that Pardhana's father had occupied the land. It would further appear that the judgment of Abdul Rashid, J., reported in AIR 1939 Lah 171 (B), was cited before His Lordship. Kapur, J., felt that the facts of the case before him were not covered by the principle laid down in AIR 1939 Lah 171 (B). His Lordship remarked that :
"But there are two circumstances which negative any such presumption (1) that at the first settlement the other brothers of Pardhana were not shown as occupancy tenants of this land or even as occupants of this land, and (2) that both Pardhana and Fateh Singh in 1865 stated that they had been in cultivating possession of the respective areas of land for a period of 50 years.'' On the same analogy, I may point out that in the present case firstly the areas in the possession of the three sons of Johri at the time of first Settlement were dissimilar; secondly, the periods of cultivation of the three brothers, as recorded in the Fards Ex. P. 7, 8 and 12 were also dissimilar and, thirdly, the three brothers had separate houses within their respective holdings. In AIR 1918 Lah 135 (D), Shadi Lal, J., had occasion to remark that :
"Where on the death of an occupancy tenant, his collaterals claim to succeed to the tenancy, the onus lies on them to establish affirmatively that the common ancestor occupied the land. In such a case, conjecture cannot be accepted as a substitute for proof."
These observations could apply very well to the decision of the learned District Judge. The decision, reported in Sher Dil v. Shah Nawaz, AIR 1937 Lah 141 (H) relied upon by the learned District Judge--is not applicable here and for the following reason. In the above case Gul Baz, whose rights were identical with those of his brother, Mir Baz, was a occupancy tenant, in the year 1842 A.D. Forty years later, his name still appeared as occupancy tenant.
Under those circumstances, Agha Haider, J., felt that a presumption arose that the land had been acquired by Gul Baz and Mir Baz from their father, Mustajab. Here, as already, shown, the areas in the possession of Johri's three sons were vastly dissimilar. It seems to me that the District Judge has not appreciated the conditions under which a presumption could be raised in a case like this. I am further compelled to remark that he has hot discussed the later authorities, e.g 56 Pun L. R. 98 (G), where AIR 1939 Lah 171 (B) has been distinguished.
10. While on the subject of presumptions, I may point out, in the words of Lord Hailsham. (Hailsham, Volume 13 page 627) "The nature of a presumption of law is that the Court treats as established some fact of which no evidence has been given, and when rebuttable, it can have no weight capable of being put in the balance against opposing evidence which is believed. It does not follow that such a presumption may be rebutted in every case by any evidence however slight. The rebutting evidence is to be considered on its merits; its credibility is neither increased nor diminished by the existence of the presumption; but if it is believed, the presumption is displaced. Where, however, two rebuttable presumptions of inconsistent character arise, they neutralise each other, and the matter must be decided on the evidence actually adduced."
11. I may also refer to Thiruvenkatacharlu v. Altoo Sahib, AIR 1925 Mad 511 (I), where a learned Judge of that High Court observed that:
"Presumptions are not made at random. Some connection must be shown to exist between the fact proving and the fact to be proved, which warrants an inference from the one to the other when the two are brought into proximity."
In Kansi Ram v. Jai Ram, AIR 1956 Him. Pra. 4 (J), I had occasion to point out that :
"The words 'may presume' in Section 114 leave it to the Court to make or not to make the presumption, according to the circumstances of the case."
Thus, no rule of the thumb can be laid down. It is also highly significant--as was pointed out by appellant's learned counsel--that Nikka and Moru, sons of Kahna, though alive and parties to the suit, did not have the courage to enter the witness-box and support the case of the plaintiffs. I may refer to Kura v. Jag Ram, AIR 1954 S.C. 269 (K), where their Lordships of the Supreme Court were pleased to observe as follows :
"The burden of proof is on the plaintiff and to establish the ancestral character of land it is not sufficient to show that the name of the common ancestor from whom the parties are descended was mentioned in the revenue pedigree. It should also be proved that the descendants of that common ancestor held the land in ancestral Shares and that the land occupied, at the time of the dispute/by the proprietors thereof had devolved upon them by inheritance.''
12. For reasons stated above, I am of the opinion that the possession of Johri, the common ancestor, over the land in suit was not at all satisfactorily established. Mr. Anand for the appellant urged that the Courts below have erred in holding that the defendants 1 to 8 were not mortgagees of the land in suit. In my opinion, however, it is not necessary to go into this question, in view of my earlier finding that John's possession had not been proved. If the possession of the common ancestor was not established, it follows that the suit was bound to fail.
ORDER
13. I allow the second appeal, set aside the decision of the District Judge dated 16-1-1954 in Appeal No. 50/13 of 1953 and restore that of the Subordinate Judge, Bilaspur, D/-8-8-1953 in suit No. 150 of 1952. In other words, the suit will stand dismissed. The appellant will get his costs here and in the Courts below, from the plaintiffs-respondents,