Himachal Pradesh High Court
Lal Singh And Others vs State Of Himachal Pradesh And Another on 28 September, 2023
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 55 of 2023 .
Reserved on: 04.09.2023
Date of Decision: 28.09.2023
Lal Singh and others ...Appellants
of
Versus
State of Himachal Pradesh and another ...Respondents
Coram
rt
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes. For the Appellants: Mr. Sudhir Thakur, Senior Advocate with Mr. Karun Negi, Advocate.
For the Respondents: Mr. Navlesh Verma, Additional Advocate General.
Rakesh Kainthla, Judge The present appeal is directed against the judgment and decree dated 2.12.2022, passed by learned Additional District Judge-II, Solan, vide which the appeal filed by appellants (plaintiffs before learned Trial Court) was dismissed and the judgment and decree dated 11.09.2018, passed by learned Civil 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 28/09/2023 20:36:03 :::CIS 2Judge (Court No.2), Solan was upheld. (Parties shall hereinafter referred to in the similar manner in which they were arrayed .
before ld. Trial court for convenience).
2. Briefly stated, the facts giving rise to the present appeal are that the plaintiffs filed a civil suit before the learned Trial Court, seeking a declaration that the plaintiffs being estate of holders are owners in possession of the land comprised in rt Khata/Khatauni No. 13 min/15, Khasra Nos. 1782, 89/83, 85, measuring 48-05-00 bighas, situated at Mohal Laghech, Tehsil and District Solan, vide Mutation No.410, (hereinafter referred to as the suit land) and the vesting of the suit land in the State of H.P. is wrong, illegal, null and void and not binding on the rights of the plaintiffs. A decree of permanent prohibitory injunction for restraining the defendants from dispossessing the plaintiffs from the suit land, damaging it in any manner whatsoever or interfering with the possession of the plaintiffs was also sought.
It was pleaded that the predecessors-in-interest of the plaintiffs were estate holders of Mohal Laghech. They were recorded owners in possession of the suit land and were paying the land revenue to the extent of their shares in Shamlat land. The ::: Downloaded on - 28/09/2023 20:36:03 :::CIS 3 revenue entries showing the estate holders in occupation of the suit land in the years 1974-75 and the suit land having vested in .
the State of H.P. are bad. No notice was served upon the estate holders as required under the H.P. Village Common Land Vesting and Utilization) Act, 1974, (hereinafter referred to as 'the Act'). No opportunity for a hearing was given to the estate holders. The of vestment in favour of the State of H.P. is wrong, null and void and not binding upon the rights, title and interest of the rt plaintiffs. The plaintiffs continued to be in cultivating possession. The defendants have no right over the suit land. The defendants are interfering with the suit land; hence, the suit was filed to seek reliefs mentioned above.
3. The suit was opposed by filing a written statement taking preliminary objections regarding lack of maintainability, locus-standi, cause of action and jurisdiction, the suit being bad for non-joinder/mis-joinder of parties, and the suit being barred by limitation. The contents of the plaint were denied on merits. It was asserted that the suit land is recorded as Charand.
It never remained in the individual cultivation of the plaintiffs or their predecessors. No land revenue was paid by the plaintiffs ::: Downloaded on - 28/09/2023 20:36:03 :::CIS 4 to the State of H.P. regarding the suit land. The suit land had rightly vested in the State of H.P. after the enforcement of the .
Act. The mutation was attested after following due process. The name of the State Government was rightly recorded as the owner. The jurisdiction of the Civil Court is barred to grant any declaration regarding the vestment; therefore, it was prayed of that the suit be dismissed.
4. rt A replication denying the contents of the written statement and affirming those of the plaint was filed.
5. Learned Trial Court framed the following issues on 27.02.2015: -
1. Whether the plaintiffs are liable to be declared as owners in possession of land comprised in Khata/Khatauni No.13 min/15, Khasra No.17, 82, 89/83, 85, Kitas-4, measuring 48-05-00 bighas, situated in Mohal Laghech, Tehsil and District Solan?
OPP.
2. Whether the mutation No.410 of vestment in favour of State of H.P. is liable to be declared as wrong and illegal, null and void, as alleged? OPP.
3. Whether the suit of the plaintiffs is not maintainable in its present form, as alleged? OPD.
4. Whether the plaintiffs have no locus standi to file and maintain the present suit, as alleged? OPD.::: Downloaded on - 28/09/2023 20:36:03 :::CIS 5
5. Whether the suit of the plaintiffs is bad for non-
joinder and mis-joinder of necessary parties, as alleged? OPD.
.
6. Whether the suit of the plaintiffs is time-barred, as alleged? OPD.
7. Whether the jurisdiction of this Court is barred under Section 171(2) of H.P. Land Revenue Act, 1954 and Section 10 of the H.P. Village Common Land Vesting and Utilization Act of 1974, as alleged? OPD.
of
8. Relief.
6. The parties were called upon to produce the evidence rt and plaintiff no.1 Lal Singh examined himself (PW-1). The defendant examined Rajinder Kumar, Patwari (DW-1).
7. The learned Trial Court held that the suit land was recorded in the ownership as Shamlat-Deh-Hasab-Rasab-Jare-
Khewat. The nature of the suit land was recorded as Charand.
The suit land vested in the State vide Mutation No. 410. The plaintiffs claimed to be in cultivating possession much before 1950; however, the names of the plaintiffs were not shown in any of the revenue records. The plaintiffs did not claim that the suit land was ever partitioned amongst the co-sharers or it was transferred by way of gift, sale and exchange or the plaintiffs had raised residential houses or cowsheds over the same.
::: Downloaded on - 28/09/2023 20:36:03 :::CIS 6Plaintiffs failed to prove their possession and they were not entitled to the relief of injunction. Hence, the learned Trial Court .
answered issues no.3 and 4 in affirmative, the rest of the issues in negative and dismissed the suit filed by the plaintiffs.
8. Being aggrieved from the judgment and decree passed by the the learned Trial Court, the plaintiffs filed an of appeal which was decided by learned Additional District Judge-
rt II, Solan. Learned First Appellate Court held that the version of the plaintiffs that they were in cultivating possession much before the year 1950 was not corroborated by the revenue entries. The nature of the suit land was shown as Charand in the revenue record and it never remained in individual cultivation of the land owner. Mutation No.410 was attested after following due process of law.No receipt of the payment of the land revenue was produced on record. The jurisdiction of the Civil Court to go into the question of vestment is barred. There was no infirmity in the judgment and decree passed by the learned Trial Court;
therefore, the appeal was dismissed.
9. Being aggrieved from the judgments and decrees passed by the learned Courts below, the present appeal has been ::: Downloaded on - 28/09/2023 20:36:03 :::CIS 7 filed asserting that the learned Courts below failed to properly appreciate the material placed before them. No notice, as .
required under the law was issued to the proprietary body and in absence thereof the land could not be said to have been vested in the State of H.P. There was a specific entry regarding the land revenue in the revenue papers and the learned Courts below did of not notice the same. The land was wrongly mutated in favour of the State of H.P. without complying with the provisions of the rt Act. The plaintiffs were the estate holders and were entitled to the land. The plaintiffs came to know of the entries in favour of the State when they collected the revenue papers. The evidence led by the defendants was not satisfactory and the learned Courts below erred in relying upon the same. Therefore, it was prayed that the present appeal be allowed and the judgments and decrees passed by learned Courts below be set-aside.
10. The following substantial questions of law are proposed in the memorandum of appeal:
1. Whether the finding of the 1st Appellate Court below is perverse, unjust, illegal and is the result of non- appreciation of evidence on record?
2. That when it is clear that while sanctioning mutation no. 410 dated 29.08.1975 no notice as per Rule 9 of ::: Downloaded on - 28/09/2023 20:36:03 :::CIS 8 H.P. Village Common Land Vesting and Utilization Rules 1975 were issued, which is further endorsed by the revenue record prepared thereafter showing .
possession of Estate of Holder, whether it is appropriate to the Ld. Lower Court below to held the vestment to be legal and valid in accordance with the provisions of HP Village Common Land Vesting and Utilization Act and Rules?
3. That once the court below failed to appreciate the of statement of witnesses and cross-examination of defendants to the fact that the estate holder/plaintiffs are in possession of suit land and no notice as per record is issued to the estate holder as rt per Rule 9 of H.P. Village Common Land Vesting and Utilization Rules 1975, whether it was appropriate for the Ld. Courts below to dismiss the plea of declaration and passing of the judgment and decree which is not sustainable in the eyes of the law?
4. That once the plaintiffs have never been dispossessed from the suit land in accordance with law, whether it was appropriate to the Ld. Lower Courts below not to pass a decree of permanent prohibitory injunction in favour of the plaintiff?
5. That whether the judgment and decree passed by the Ld. First Appellate Court in Civil Appeal No. 26 ADJ-
II/13 of 2019 is legal and justifiable in the eyes of law?
6. That once there are wrong appreciation facts and law by the court below in dismissing the suit of the plaintiffs whether by the judgment & decree passed by the Courts below in Civil Appeal No. 26 ADJ-II/13 of 2019 and Civil Suit No. 15/1 of 2014/13 are legal & valid?
::: Downloaded on - 28/09/2023 20:36:03 :::CIS 911. I have heard Mr Sudhir Thakur, learned Senior Counsel, assisted by Mr Karun Negi, Advocate, for the .
appellants-plaintiffs and Mr. Navlesh Verma, learned Additional Advocate General for the respondents-State.
12. Mr. Sudhir Thakur, learned Senior Counsel submitted that the learned Courts below erred in dismissing the suit. It was of not proved that the notice was served upon the estate holders as rt per the law. Hence, the order of vestment is bad. Learned Courts below did not notice this aspect of the case; hence he prayed that the present appeal be allowed and the judgments and decrees passed by learned Courts below be set-aside.
13. Mr. Navlesh Verma, learned Additional Advocate General for the respondents-State submitted that the jurisdiction of the Civil Court to determine the question of vestment is barred. The learned Courts below have concurrently found that the plaintiffs are out of possession, and they were rightly not granted the relief of injunction; hence, he prayed that the appeal be dismissed.
::: Downloaded on - 28/09/2023 20:36:03 :::CIS 1014. 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:
15. The plaintiffs have filed the civil suit seeking a of declaration that Mutation No.410 of vestment in favour of the State of H.P. is wrong, illegal, null and void.It was laid down by rt this Court in Dalip Singh and others Vs. State of H.P. and others 1992 (1) Shim. LC 320 that the jurisdiction of the Civil Court to hear and entertain the dispute arising out of the H.P. Village Common Land (Vesting and Utilization) Act is barred under Section 10. It was observed.
"14. The learned Assistant Advocate General by placing reliance upon two judgments of the Supreme Court in Ram Singh and others v, Gram Panchayat Mehai Kalan and others, (1986) 4 SCC 364 and Babu Ram and others v. Gram Sabha Buhavi and another, AIR 1988 SC 1085 has contended that there is an absolute bar for a civil court to entertain and decide the suit of the nature as is contemplated in section 10 of Himachal Act. In both the cited cases, the Supreme Court was considering the question of the bar of jurisdiction of civil court as contained in the Punjab Act, as amended by the Haryana Act 2 of 1981 and Punjab Village Common Lands (Regulation) Act (Amendment) 1976 respectively where there is an express bar of jurisdiction of the civil court to entertain and adjudicate upon any question whether any land or other immovable ::: Downloaded on - 28/09/2023 20:36:03 :::CIS 11 property is or is not shamlat deh or land or other immovable property vests or does not vest in Panchayat or with respect to any matter which a Tevenue court or .
officer is empowered or authorised to determine By comparison of the provisions of Himachal Act with the Punjab Act, as amended by Haryana and Punjab Acts, it would be seen that there is no express exclusion of jurisdiction of civil court but what can be inferred is that there is an implied bar only with respect to orders made by the Collector or State Government or by any officer of authorised by it in this behalf. Applying the first proposition, as laid down in Dhulabhai's case (supra), section 10 gives finality to an order made by the Collector or the State. The order deciding a dispute raised before rt the Collector by Rule 9 of the rules is one of the orders contemplated in section 10 to which finality is attached.
Rule 10 read with the provision of section 12 provides for the procedure to be followed by the Collector in deciding the disputes raised before him. Section 9 of the Act provides for an appeal from an order passed by the Collector under the Act. Provisions of Himachal Act came up for consideration before a Full Bench of this Court in Gram Panchayat Khunyara v. State of Himachal Pradesh etc., ILR 1978 HP 225, wherein one of the questions decided was about the authority competent to decide a question or dispute as to whether the land had lawfully vested in the State or not It was held in para 44 of the report that it was for the Collector to settle such a dispute by resorting to the powers contained in Rule 9 of the rules. The relevant part of the judgment dealing with this aspect is extracted hereunder:-
"44. We are of the opinion that all inquiries with regard to the vesting of a particular piece of land in the State Government can be conducted by the Collector under Rule 9 quoted above. The scheme which is envisaged is that vestment contemplated by the impugned Act is immediate under section 3. Under Rule 8, Form C which prescribes the Form of ::: Downloaded on - 28/09/2023 20:36:03 :::CIS 12 Tehsil Register of Demarcation of Shamlat land, entries are required to be made in the said Register Under sub-section (5) of section 3 it is provided .
that the Collector may, by order in writing, at any time after the land has vested in the State Government, direct the landowners to deliver possession thereof within ten days from the service of the order to such person as may be specified in the order. Now, before the Collector proceeds under sub-section (5) of section 3, there is a scope of of dispute arising regarding the entry of land having been vested in the State Government Therefore, it is clear that the enquiry contemplated by Rule 9 should be started before action under sub-section rt (5) of section 3 is taken. The result, therefore, is that after vesting contemplated by section 3 of the Act is presumed to have taken place, the Collector is bound to enquire into and consider the disputes relating to this vestment This enquiry is of a summary nature and is required to be conducted by the Collector in accordance with the procedure prescribed in rules made under the Punjab Land Revenue Act, 1887. Section 9 of the impugned Act provides for an appeal against the order passed by the Collector in such an enquiry This appeal lies to the State Government. It would be only after the matter is finally settled, through appeal or otherwise, that proceedings contemplated by subsection (5) of section 3 with regard to taking of possession can be undertaken, because till then it would not be clear whether a particular piece of land has legally vested in the State Government or not
45. We may revert to the provisions of sub-section (2) of section 3, which is already referred to above.
So far as this sub-section (2) is concerned, the Collector shall have to ascertain whether a particular case falls within any of its three clauses ::: Downloaded on - 28/09/2023 20:36:03 :::CIS 13
(a), (b) and (c). It would be only thereafter that it can be ascertained whether the land which is said to be covered by the provisions of subsection (2) .
legally vests in the State Government or not. It need not be emphasised that if as a result of the enquiry, conducted by the Collector under Rule 9, it is found that a particular piece of land does not fall within the definition of the word land', as given in clause
(f) of section 3, as explained by us in this judgment, or that provisions of sub-section (2) of section 3 of apply to such land, the Collector will have to arrive at a conclusion that that land does not legally vest in the State Government.
15. The scheme of the Himachal Act, as analysed by the rt Full Bench in Gram Panchayat Khunyara's. case (supra), envisages that the enquiry contemplated by Rule 9 should be started before action under sub-section (5) of section 3 of the Himachal Act is taken and it would be only after the matter is finally settled through appeal or otherwise that proceedings contemplated by the abovementioned provisions of law with regard to taking of possession could be undertaken because till then it would not be clear whether a particular piece of land has or has not legally vested in the State Government. The Full Bench also found that the Collector was also bound to ascertain whether a particular case falls within any of the three exceptions enumerated in sub-section (I) of section 3 of Himachal Act and it would be only thereafter that it could be ascertained whether the land which is said to be covered by the provisions of sub-section (2) of section 3 of Himachal Act and it would be only thereafter that it could be ascertained whether the land which is said to be covered by the provisions of sub-section (2) of section 3 legally vests in the State or not. As observed by the Full Bench in Gram Panchayat Khunyara's case (supra) and as is apparent from the reading of the Himachal Act, there is an adequate remedy provided for what the Civil Courts would normally do in suits, namely, whether particular ::: Downloaded on - 28/09/2023 20:36:03 :::CIS 14 land has or has not vested in the State Government The Act also provides for the remedy to carry the matter in appeal against an order passed by the Collector. In these .
circumstances, it can be said that the Himachal Act gives finality to the orders passed by the Collector or the State Government and jurisdiction of the Civil Court is ousted to entertain and decide a suit of the nature but, as observed above, section 10 of the Himachal Act does not exclude those cases where it is shown that provisions of a particular Act have not been complied with or that the of Collector or the State Government has not acted in conformity with the fundamental principles of judicial procedure. The primary relief claimed by the plaintiffs with regard to declaration of their rights as owners rt cannot be gone into in view of the jurisdictional bar created under section 10 of the Act for which the appropriate forum would be the Collector as observed in Gram Panchayat Khumara's case The Civil Court's jurisdiction to entertain and decide a suit for grant of a decree for prohibitory injunction founded upon settled possession is not ousted by any of the provisions of the Act."
16. Therefore, the learned Courts below could not have granted a declaration that the land had not vested in the State of H.P.
17. Mr. Sudhir Thakur, learned Senior Counsel for the appellants has placed reliance upon the judgment of this Court in Satya Prakash Vs. State of H.P. 2010 (2) HLR 848 and submitted that such a declaration was granted by this Court and the jurisdiction is not barred. It is apparent from the facts of the ::: Downloaded on - 28/09/2023 20:36:03 :::CIS 15 cited case that this Court had concluded that the persons were recorded to be in cultivating possession of the land and their .
land was exempted under Section 3(2)(d) of the Act. In the present case, both the learned Courts below have concurrently found that the plaintiffs are not recorded to be in cultivating possession and this is duly supported by the copies of of Jamabandi, wherein an entry of only Makbooja Malkaan has been made and not the entry of possession of any person. Therefore, rt the cited judgment will not apply to the present case.
18. The names of the plaintiffs are not recorded in the columns of possession in the relevant record placed on record. It was laid down by the Hon'ble Supreme Court in Partap Singh vs. 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 upon the person, who alleges to the contrary. The burden can be discharged by leading evidence of incapable integrity. Oral 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 ::: Downloaded on - 28/09/2023 20:36:03 :::CIS 16 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 of 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 rt the civil court for correction of the entries in terms of Section 46 of the 1954 Act.
17. 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 it.
18. The relevant provisions of the Evidence Act read as under:
"35. Relevancy of entry in public record or an 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 ::: Downloaded on - 28/09/2023 20:36:03 :::CIS 17 the country in which such book, register, or record or an electronic record is kept, is itself a relevant fact.
*** .
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 of 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 rt 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 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 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. 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 ::: Downloaded on - 28/09/2023 20:36:03 :::CIS 18 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 of the opinion that the lower courts were fully justified in relying on them.
rt ***
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 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 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 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 ::: Downloaded on - 28/09/2023 20:36:03 :::CIS 19 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.
of
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 rt 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 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 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, (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 ::: Downloaded on - 28/09/2023 20:36:03 :::CIS 20 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 of 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 rt 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 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."
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 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 ::: Downloaded on - 28/09/2023 20:36:03 :::CIS 21 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 of 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 rt 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 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 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 vis-à-vis documentary evidence is at a much weaker level."
::: Downloaded on - 28/09/2023 20:36:03 :::CIS 2219. Therefore, the entries in the relevant record could only have been challenged by satisfactory evidence.
.
20. Lal Singh (PW-1) stated that the plaintiffs were in possession before 1950; however, the jamabandi of the period before 1950 was not filed. He admitted that the suit land is a Charand. He volunteered to say that it is also being cultivated. He of denied that the people had a right to graze the cattle. He rt volunteered to say that an orchard exists over the land and it is also being cultivated.
21. The entries in the revenue record show the nature of the land as Charand. The plaintiffs have not led any evidence except the self-serving statement of Lal Singh to show that an orchard exists on the suit land and is being cultivated by the land owners. He has not even specified as to which portion is being cultivated by which of the landowners or the share of the landowners. Hence, his generalised statement that the suit land is beingcultivated and the orchard exists over the suit land is not sufficient to rebut the presumption attached to the revenue record.
22. Therefore, the learned Courts below had rightly ::: Downloaded on - 28/09/2023 20:36:03 :::CIS 23 relied upon the relevant record to hold that the version of the plaintiffs that they are in possession of the suit land was not .
proved. It was laid down by the Hon'ble Supreme Court in Terene Traders vs. Rameshchandra Jamna Dass, AIR 1987 SC 1492, that where the plaintiff was not in possession of the suit premises, he is not entitled to the relief of injunction. It was observed:
of "The City Civil Court on careful consideration of the evidence came to a definite conclusion that the plaintiff-
rt respondent no. 1 was not in possession of any portion of the suit premises on the date of the institution of the suit. Even the learned single Judge has not come to a different conclusion as he observes that the plaintiff was not in 'khas' possession. There was no occasion for the High Court to have granted a temporary injunction. It is not the case that the City Civil Court acted either illegally or with material irregularity in dismissing the plaintiff's application for a temporary injunction. That being so, the High Court could not have invoked its jurisdiction under S. 115 of the Code: Hindustan Aeronautics Ltd. v. Ajit Prasad Tarway (1972) 3 SCC 195."
23. This position was reiterated in Yamuna Nagar Improvement Trust Vs. Kharaiti Lal (2005) 10 SCC 30 wherein it was observed:
"In our opinion, when the plaintiff had approached the court for a permanent injunction claiming to be the owner of the property, it was his duty to prove that he was the owner of the property, the said property remained in his possession and that the defendant had no right, title ::: Downloaded on - 28/09/2023 20:36:03 :::CIS 24 or interest therein. Since the plaintiff failed to prove his case, the suit was liable to be dismissed."
.
24. Hon'ble High Court of Karnataka has also taken the same view in Sri Aralappa vs. Sri Jagannath & others ILR 2007 (Kar) 339), wherein it was held: -
"31. Even if the plaintiff comes to Court asserting that he of is in possession and that if it is found after trial that he was not in possession on the date of the suit, even then, the suit for declaration and permanent injunction is liable rt to be dismissed as not maintainable, as no decree for permanent injunction can be granted if the plaintiff is not in possession on the date of the suit. In such circumstances, it is necessary for the plaintiff to amend the plaint before the judgment and seek relief of possession. Therefore, a suit for declaration of title and permanent injunction, by the plaintiff who is not in possession on the date of the suit, when he is able to seek further relief of recovery of possession also, omits to do so, the Court shall not make any such declaration and the suit is liable to be dismissed as not maintainable."
25. This position was reiterated in Akkamma v.
Vemavathi, 2021 SCC OnLine SC 1146: 2022 (1) CurCC(SC) 181 wherein it was held:
"15. We agree with that part of the decision of the High Court in which it has been held that possession of the suit property was not established by the plaintiffs and hence injunctive relief could not be granted."::: Downloaded on - 28/09/2023 20:36:03 :::CIS 25
26. Therefore, the plaintiffs were not entitled to the relief of injunction when they had failed to prove their .
ownership and the learned Courts below had rightly declared the same.
27. Thus, the learned Courts below had properly appreciated the evidence. There is no perversity in their of judgments. Hence, the substantial question of law does not arise rt in the present case.
Substantial Questions of Law Nos.2 and 3:
28. The question of vestment cannot be raised before the Civil Court in view of the judgment of this Court. Hence, the substantial questions of law Nos.2 and 3 do not arise.
Substantial Questions of Law Nos.4 and 5:
29. The plea of the plaintiffs that they were in possession of the suit land was rightly disbelieved by the Courts. Hence, an injunction could not have been issued in favour of the plaintiffs.
The judgment and decree passed by the learned First Appellate Court is based on the proper appreciation of facts and evidence;
hence, the substantial question of law Nos. 4 and 5 do not arise in the present case.
::: Downloaded on - 28/09/2023 20:36:03 :::CIS 26Final order:
30. In view of the above, no substantial question of law .
as proposed in the memorandum of appeal arises in the present case. Hence, the appeal cannot be admitted and is dismissed.
Pending miscellaneous application(s), if any, also stand(s) disposed of.
of
(Rakesh Kainthla)
rt Judge
29th September, 2023
(Chander)
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