Himachal Pradesh High Court
Kartara vs Smt.Sinno Devi & Others on 4 November, 2016
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
RSA No.75 of 2007
.
Judgment Reserved on: 09.09.2016
Date of decision: 04.11.2016
Kartara ....Appellant
Versus
Smt.Sinno Devi & Others ....Respondents
Coram
of
The Hon'ble Mr.Justice Sandeep Sharma, Judge.
Whether approved for reporting ?1 Yes.
For the Appellant:
rt Mr.Ajay Sharma, Advocate,
For the Respondents: Mr.N.K. Thakur, Senior Advocate with
Ms.Jamuna, Advocate.
Sandeep Sharma,J.
Instant Regular Second Appeal filed under Section 100 of the Code of Civil procedure, is directed against the judgment and decree dated 29.11.2006, passed by learned Additional District Judge, Fast Track Court Una, District Una, H.P., reversing the judgment and decree dated 20.9.2000, passed by learned Sub Judge Court No.II, Una, in Civil Suit No.215/1990.
2. The brief facts of the case, as emerged from the plaint, are that the appellant-plaintiff filed suit for declaration to 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes.
::: Downloaded on - 15/04/2017 21:30:27 :::HCHP 2the effect that the land measuring 2 kanal 10 marlas bearing khewat No.929, 480 min, khatauni No.851, 789, bearing .
khasra Nos. 3198(7511/3208 old), 3203 (9206/3207 old), situated in village Haroli, Sub-Tehsil Haroli, District Una, HP., as per Missal Hakiat for the year, 1986-87 is in possession of the plaintiff as tenant under the owners on of payment of rent since the time of his ancestors and the entry changed in favour of defendants showing them as tenants over the suit land are illegal, unauthorized, null and void and rt without any order of competent authority and have no binding effect on the rights of the plaintiff with a consequential relief of permanent injunction restraining the defendants from interfering in any manner in the peaceful possession of the plaintiff in the suit land. Plaintiff averred in the plaint that he is in possession of the suit land as tenant on payment of rent since the time of his ancestors and he never surrendered the possession of the suit land. The plaintiff averred in the plaint that he came in possession over khasra No. 3188, 3190 alongwith the suit land and he became owner of the land by operation of the H.P. Tenancy and Land Reforms Act and Khasra Nos., 3191, 3202 is also in his tenancy alongwith the suit land. Plaintiff further averred ::: Downloaded on - 15/04/2017 21:30:27 :::HCHP 3 that he or his predecessor were never dispossessed or evicted by the competent Authority from the suit land and the .
defendants never came in possession over the suit land and the alleged entry changed during the consolidation in the year, 1986-87 is without any basis, null and void and have been procured behind the back of the plaintiff. Plaintiff of further averred that the defendants were never inducted as tenants over the suit land either by the plaintiff or anybody else and the plaintiff never relinquished the tenancy rights rt over the suit land. Plaintiff also averred that the defendants are very headstrong persons and on the basis of wrong entry of their names in revenue record have now started illegal threats of interference and changing the nature of the suit land by raising construction over the same and also dispossess the plaintiff from the suit land for the last one week. The plaintiff requested the defendants many times to desist from their illegal acts and to admit the claim of the plaintiff, but they are evading from the same.
3. Defendants by way of filing written statement raised various preliminary objections qua locus-standi, cause of action, suit bad for mis-joinder and non-joinder of necessary party, civil court has no jurisdiction to try the ::: Downloaded on - 15/04/2017 21:30:27 :::HCHP 4 present suit and maintainability. On merits, defendants averred that the plaintiff or his predecessor-in-interest was .
neither inducted as tenant nor he is in possession of the suit land in any capacity and has no concern with the same.
Defendants averred that defendants No.1 and 2 are in physical possession over the suit land as tenant at will of under the owners for the last more than 25 year and they are having their abadi over the suit land in the shape of shops and part of the suit land bearing khasra No. 3203 is under rt H.P.PWD Road. Defendants further averred that the plaintiff and his predecessor were never in possession of the suit land in any capacity, so question of dis-possessing or their eviction does not arise. However, the entries in the name of the plaintiff and his predecessor-in-interest as tenant-at-will were wrong, illegal, unauthorized and against the factual possession at the spot, which were duly corrected by the Revenue agency after due verification of the suit land as per the spot situation. Defendants further averred that the plaintiff has no right, title or any interest, whatsoever, over the suit land. In the aforesaid background, the defendants prayed for the dismissal of the suit.
::: Downloaded on - 15/04/2017 21:30:27 :::HCHP 54. By way of replication, plaintiff while denying the allegations made in the written statement, re-affirmed and .
reasserted the stand taken in the plaint.
5. Learned trial Court on the basis of aforesaid pleadings, framed the following issues:-
"1. Whether the plaintiff has been coming in possession of the suit land as tenant-at-will as alleged? OPP.
of
2. Whether plaintiff is entitled to the relief of injunction prayed for? OPP rt
3. Whether the suit is not maintainable on the grounds mentioned in para No.1 of the preliminary objection?
OPD.
4. Whether plaintiff has got no cause of action to file this suit? OPD.
5. Whether civil court has no jurisdiction to try this suit? OPD
6. Whether suit is bad for non-joinder and mis-joinder of necessary parties? OPD.
7. Relief."
6. The learned trial Court on the basis of the evidence adduced on record by the respective parties, decided issues No.1 and 2 in favour of the plaintiff and issues No.3 to 6 were decided against the defendants.
7. Feeling aggrieved and dissatisfied with the impugned judgment and decree dated 20.9.2000, passed by ::: Downloaded on - 15/04/2017 21:30:27 :::HCHP 6 learned trial Court, respondents/defendants filed an appeal in the Court of learned Additional District Judge, Fast Track .
Court, Una, H.P. i.e. Civil Appeal No.169/2000 RBT No.216/04/2000, however fact remains that learned Additional District Judge, Fast Track Court, Una vide judgment and decree dated 29.11.2006 accepted the appeal of preferred by the respondents-defendants and quashed and set-aside the judgment and decree, dated 22.9.2000, passed by learned trial Court. In the aforesaid background, present rt appellant-plaintiff being aggrieved and dis-satisfied with the impugned judgment and decree, passed by learned lower Appellate Court, has approached this Court by way of instant Regular Second Appeal, praying therein for quashing and setting-aside the judgment and decree dated 29.11.2006, passed by learned lower Appellate Court.
8. This Regular Second Appeal was admitted on the following substantial questions of law No. 2 and 3:-
"(1) Whether the learned first appellate court below misread and misappreciated the documentary and oral evidence more specifically Ex.P-5 and D-5 thereby vitiating the impugned judgment and decree?
(2) Whether change of revenue entry being contrary to para 9.8 of H.P. Land Record Manual in law is void abinitio and could not have been looked into in favour of party, learned first appellate court below ::: Downloaded on - 15/04/2017 21:30:27 :::HCHP 7 having heavily relied upon the same to non-suit the plaintiff in impugned judgment and decree thereby vitiating the same?"
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9. Mr. Ajay Sharma, Advocate, representing the appellant-plaintiff vehemently argued that the judgment passed by the learned first appellate Court is not sustainable in the eye of law as the same is not based upon the correct of appreciation of the evidence adduced on record by the parties, rather, same is based upon the conjectures and rt surmises and as such, same deserves to be quashed ad set-
aside. Mr. Sharma, further contended that learned first appellate Court has erred in not appreciating the well settled provisions of law applicable, pleadings of the parties and evidence adduced by them in its right perspective, as a result of which, great prejudice has been caused to the present appellant-plaintiff. As per Mr. Sharma, close scrutiny of the revenue record made available on record by the parties, clearly suggests that predecessor-in-interest of the plaintiff i.e. Melu, was tenant at will over the suit land and after his death, plaintiff entered into his shoes and was reflected/shown as "Gair Maurusi" on payment of rent in revenue record. With a view to substantiate his aforesaid argument, Mr. Sharma also invited attention of this Court to ::: Downloaded on - 15/04/2017 21:30:27 :::HCHP 8 the oral evidence adduced on record by the plaintiff to demonstrate that the plaintiff witnesses unequivocally stated .
before the learned trial Court that after the death of Sh. Melu i.e. father of the plaintiff, plaintiff is in possession of the suit land as "Gair Maurusi" on payment of rent, and as such, judgment passed by the first appellate Court deserves to be of set-aside being contrary to facts as well as law on record. Mr. Sharma, forcefully contended that learned first appellate Court miserably failed to take note of the fact that change as rt ordered in Rabi 1979 in Ext.D5 was made at the back of the plaintiff and as such, same could not be relied upon by the court below, especially, in view of para 9.8 of HP Land Record Manual, wherein specific procedure has been provided for change of revenue entry. Mr. Sharma, strenuously argued that revenue record, as available on record, clearly suggests that the defendants stood entered vide Ext.D5 as "Gair Maurusi Doem" and "Gair Murusi Doem" either could have been inducted by the plaintiff or by original owner. Neither defendants themselves nor any witness adduced by them in their defence uttered a word that who inducted them as "Gair Maurusi tenant". He also stated that neither original owners were produced nor agreement etc., if any, was placed ::: Downloaded on - 15/04/2017 21:30:27 :::HCHP 9 on record by the defendants to suggest that they were inducted as "Gair Maurusi Doem" as reflected in Ext.D5.
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Mr. Sharma, further contended that no receipt of payment of rent has been adduced on record by the defendants to prove that they were inducted as "Gair Maurusi tenant", rather close scrutiny of revenue record suggests that defendants of procured entry qua the "Gair Maurusi Doem" at the back of the plaintiff without there being any order of competent authority and as such, same were rightly held void-abinitio rt by the trial Court. Moreover, careful perusal of the evidence available on record suggests that the plaintiff by way of leading cogent and convincing evidence was able to prove that he is coming in possession as tenant and entry in the name of defendants is procured at the back of the plaintiff and as such, same deserves to be declared null and void. Mr.Ajay Sharma vehemently argued that the latest revenue entries showing the defendants in possession are wrong and illegal and any change made without resorting to the procedure as prescribed in clause 9.8 supra, is not binding upon the plaintiff and as such, same were rightly rejected by the trial Court below while decreeing the suit of the plaintiff.
::: Downloaded on - 15/04/2017 21:30:27 :::HCHP 1010. In this regard, reliance is placed on judgments passed by this Court as well as other High Courts:-
.
1. Kanshi Ram v. Nikka Ram, 1988, SLJ, 264.
2. Tulsa Singh V. Agya Ram and others, 1994(2) Sim.L.C. 434 and 1995 (10) SLJ 428.
3. Lal Chand and Ors. v. Pala, 1998 (2) SLJ 1526.
4. Satya Devi v. Raghubir Singh and Others, 1998(1) SLJ, 263.
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5. Chanda v. Ram Chander, Punjab & Haryana High Court, 1980, 561."
11. rt Per contra, Mr. N.K. Thakur, Senior Advocate, duly assisted by Ms. Jamuna, Advocate, supported the judgment passed by the learned first appellate Court. Mr. Thakur, contended that bare perusal of the impugned judgment passed by the appellate Court clearly suggests that the same is based upon the correct appreciation of evidence available on record by the respective parties and it calls for no interference, whatsoever, of this Court and as such, present appeal deserves to be dismissed. While referring to the judgment passed by the learned first appellate Court, Mr. Thakur, strenuously argued that learned first appellate Court has dealt with each and every aspect of the matter very meticulously and there is no scope of interference whatsoever, of this Court in the findings returned by the first ::: Downloaded on - 15/04/2017 21:30:27 :::HCHP 11 appellate Court, which are based upon the correct appreciation of facts as well as law. Mr. Thakur, also invited .
attention of this Court to the judgment passed by the learned trial Court to demonstrate that learned trial Court mis-
directed itself while deciding the actual controversy at hand.
As per Mr. Thakur, bare perusal of the plaint filed by the of plaintiff itself suggests that plaintiff was not able to prove its case by way of leading cogent and convincing evidence. With a view to substantiate his aforesaid argument, he invited rt attention of this Court to the statements of witnesses adduced on record by the plaintiff to demonstrate that bare perusal of the depositions made by the plaintiff witnesses nowhere proves the case of the plaintiff, rather all the witnesses proved the case of defendants that he is in possession over the suit land and he has constructed 6-7 shops over the same. Mr. Thakur, made this Court to travel through the depositions made by the plaintiff witnesses to specifically point out that plaintiff witnesses admitted that there are shops constructed over the suit land, whereas plaintiff in his plaint never claimed that shops, if any, ever exist upon the suit land. Mr. Thakur, contended that bare perusal of the written statement filed by the defendants ::: Downloaded on - 15/04/2017 21:30:27 :::HCHP 12 clearly suggests that stand of defendant from day one has been that he was inducted as tenant about 20-25 years back .
by the original owners and he has already constructed 6-7 shops over the suit land. Apart from this, defendant by way of leading cogent and convincing evidence successfully proved on record that abadi exists over the suit land because all the of defendant witnesses as well as plaintiff witnesses specifically stated /admitted while making depositions before the Court below that shops as well as PWD road exist over the suit rt land. Mr. Thakur, strenuously argued that during consolidation proceedings, entries were got changed illegally by the defendants rather, plaintiff claimed himself to have acquired the status of owner with the conferment of proprietary rights of the H.P. Tenancy & Land Reforms Act.
Mr. Thakur further added that if for the sake of argument, it is presumed that no procedure in terms of aforesaid para 9.8 was followed by authorities concerned, remedy, if any, for the plaintiff to get the revenue entries corrected was somewhere else not by way of civil suit.
12. I have heard learned counsel for the parties and carefully gone through the record.
::: Downloaded on - 15/04/2017 21:30:27 :::HCHP 1313. Now this Court would be making an attempt to explore the answer to aforesaid substantial questions of law .
framed by this Court at the time of admission of appeal by looking into evidence adduced on record by the parties to the lis. Perusal of documents Ext.P1 to 10 though suggests that the predecessor-in-interest of the plaintiff was entered as of "Gair Maurasi Deom" over the suit land but latest revenue entries prepared after year 1979 reflects defendants No.1 and 2 to 4 in possession of the suit land as "Gair Maurasi rt Doem" on payment of rent while late Sh. Melu i.e. predecessor-in-interest of the plaintiff, has been shown as "Gair Maurasi Abal".
14. Careful perusal of the judgments, as have been referred herein above, clearly provides that presumption of truth is attached to the latest revenue entry but same is rebuttable in case there is evidence to suggest that latest entry was not recorded in accordance with the procedure prescribed under Clause 9.8 of the H.P. Land Records Manual. However, this Court after carefully going through the pleadings, especially plaint filed by the plaintiff, is of the view that learned trial Court, while allowing the suit of the plaintiff, mis-directed itself because close scrutiny of plaint, ::: Downloaded on - 15/04/2017 21:30:28 :::HCHP 14 as perused by this Court, clearly suggests that plaintiff claimed himself to be in possession of the suit land as tenant-
.
at-will and sought permanent injunction restraining the defendants from interfering in his peaceful possession but interestingly, while proving the contents of the plaint neither plaintiff himself nor any of witnesses produced by him stated of qua the possession, if any, of the plaintiff over the suit land, rather all the PWs admitted the factum of the shops having been constructed on the suit land as claimed by the rt defendants in the written statement. Moreover, plaintiff himself admitted that entries are coming in favour of the defendants after year, 1979; meaning thereby that the plaintiff was fully aware of the fact that the entries, if any, were changed in the year, 1979, whereas present suit admittedly was filed in the year, 1990 i.e. after 11 years.
Interestingly, there is no explanation either in the plaint or in the depositions having been made on behalf of the plaintiff before the trial Court that what prevented him from filing appropriate proceedings in accordance with law for correction of revenue entries, which, as per him, were allegedly changed in favour of the defendants without following due procedure as has been referred herein above.
::: Downloaded on - 15/04/2017 21:30:28 :::HCHP 1515. During the proceedings of the case, this Court had an occasion to peruse the entire evidence led on record by the .
parties. Revenue Record available on record itself suggests that suit land comprising of khasra No. 3198 is measuring 0- 18 marlas, out of which 0.16 marlas is abadi and 0-2 marlas is vacant land. It clearly reflects from the revenue record that of major portion of the suit land is in the shape of abadi, wherein defendants have been shown in the possession.
Similarly, khasra No. 3202 is measuring one kanal 12 rt marlas, out of which one kanal is Banjar Jadid and 0-12 marlsa is "Gair Mumkin Sarak" i.e. road. Perusal of record, as discussed herein above, clearly corroborates the version put forth on behalf of the defendants in the written statement or witnesses adduced by them that they have constructed abadi over the suit land in the shape of shop and there exits one road of Himachal Pradesh Public Works Department (for short 'HPPWD').
16. Plaintiff, with a view to prove its case, examined himself as PW-1 and stated that suit land is measuring 2 kanals 12 marlas and the real owner of the suit land is Sheela etc. He further stated that after that Melu, his father became non-occupancy-tenant. He further stated that after ::: Downloaded on - 15/04/2017 21:30:28 :::HCHP 16 the death of Melu, he has come into possession of the suit land. He specifically stated that he never surrendered the .
possession of the land and no one else cultivated the suit land. Though he stated that batai is being paid tothe owners, but he nowhere stated to whom he paid batai. He also stated that at no point of time Patwari informed him regarding of entries made in favour of defendants showing them non-
occupancy tenants over the suit land, rather, he came to know about the same in the year 1989.
rt But in his cross-
examination he admitted that suit land is in the shape of two Khasra Numbers, i.e. one, 1 kanal 12 marlas and another, 0-18 marlas and both the Khasra Numbers are abutting to each other. He further stated in his cross-examination that the land was taken on batai from Natha Mal prior to 1947.
However, he admitted that no writing was executed to this effect and batai was paid till 1971. He also admitted that there is no receipt. However, he denied the suggestion put to him that they never remained in possession of the suit land and never cultivated the same. He also denied that suit land remained in possession of the defendants and shops, which are existing on Khasra No.398, belong to the defendants.
However, he categorically admitted that shops are existing on ::: Downloaded on - 15/04/2017 21:30:28 :::HCHP 17 the spot. He also admitted that shops have been rented out by Gurbachan Singh and Rattan Singh. He also admitted .
that there is road on Khasra No.3203, however, he denied that remaining part of Khasra No.3203 is in possession of the defendants. He also admitted that he never objected regarding Girdawari before the Consolidation Officer because of he did not know about the wrong entries.
17. Similarly, PW-2 Mohinder Singh, Patwari, stated that Khasra Girdawari of Khasra No.9206/3207 was changed rt on 24.3.1979 in the names of Gurbachan Singh and Rattan Chand sons of Partapa and similarly Khasra Girdawari of Khasra No.7511/3208 was also changed in the name of Gurbachan Singh. However, he stated that he can not tell whether this change was being made by any order or not because there is no mentioning with regard to the same on the record. He also stated that there is no order of any Court regarding this change in Rapat Roznamcha and the presence of Kartara is not recorded in Rapat Roznamcha dated 24.3.1979. In his cross-examination, he admitted that Girdawari is first made by the Kanoongo after conducting inquiry, thereafter the same is confirmed by the Tehsildar.
::: Downloaded on - 15/04/2017 21:30:28 :::HCHP 1818. PW-3 Sarwan Singh also deposed that the parties are known to him and he has seen the suit land and the .
plaintiffs are in possession of the suit land since long from the time of their father. But in his cross-examination he admitted that shops of Gurbachan Singh are in his own number and are not abutting the road. He denied that the of defendants are in possession of the suit land and their shops are existing for the last 30 years.
19. PW-4 Kaka Ram also stated that parties are rt known to him and he has seen the suit land which is in possession of Kartara i.e. plaintiff from the time of ancestors.
However, in his cross-examination, he admitted that some of the suit land is vacant and on some part, 6-7 shops have been constructed abutting the road which is in occupation of the shop-keepers. He further stated that he does not know who has given the shops on rent. In his cross-examination, he expressed his inability to state that who is owner of the shops. Conjoint reading of the statements of aforesaid plaintiff witnesses clearly establishes on record that there is no cultivation on the suit land. Rather, there exist 5-6 shops and one road, which has been constructed by 'HPPWD'.
::: Downloaded on - 15/04/2017 21:30:28 :::HCHP 1920. On the other hand, if the written statement of defendants is perused in its entirety, it clearly emerge from .
the same that they claimed that there exists abadi and shops over the suit land and one road of PWD passes through the same. Defendants specifically denied the contention put forth on behalf of the plaintiff that suit land is cultivable of land.
21. DW-1 Satnam Singh specifically stated before the Court that suit land is 2½ kanals, which is in possession of rt the defendants since 30-35 years. He also stated that their shops exist on the suit land and a part of it is vacant and on some part there is road constructed by HPPWD. He also stated that they are tenants over the suit land. DW-1 also denied that suit land ever remained in possession of the plaintiff and they have no concern with the same. He also stated that revenue entries in the name of plaintiff were wrong and they neither remained in possession nor used to pay batai to the owners. In cross-examination, he expressed his inability to tell the measurement of each Khasra number of the suit land. However, he stated that their abadi is about 50 meters away from the suit land. He was also unable to tell whether any notice was given to the plaintiff regarding ::: Downloaded on - 15/04/2017 21:30:28 :::HCHP 20 change in the entries in their names. However, he further stated that shops were constructed 35-40 years ago.
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However, in cross-examination he denied that the shops belong to the plaintiff and had been constructed by him.
22. DW-2 Mulaba Singh also deposed that parties are known to him and he has seen the suit land measuring 2½ of kanals. He specifically stated that suit land is coming in defendants' possession for the last 40 years and Gurbachan Singh and Rattan Chand have constructed shops on the suit rt land. He also stated that plaintiff never remained in possession of the suit land. However, in his cross-
examination, he stated that there are shops towards the eastern side of the suit land which belong to Jullahas and Jats. He further stated that earlier, the suit land was owned by Shiva and after that Rattna. He denied that the shops belong to Kartara and he is coming in possession since the time of his ancestors. He also denied that defendants never remained in possession of the suit land and the plaintiff is coming in possession of the suit land as non-occupancy-
tenant since the time of his ancestors.
23. DW-3 Kushal Singh also deposed that he is co-
sharer of the suit land, which is 2½ kanals and is in ::: Downloaded on - 15/04/2017 21:30:28 :::HCHP 21 possession of Gurbachan Singh and Rattan Chand. He also stated that Gurbachan Singh and Rattan Chand had expired .
and now their sons are in possession. He also stated that he is witnessing the possession of the defendants since 35 years and the defendants have constructed shops on the suit land.
He also stated that defendants are in possession of the suit of land as tenants and now they have become owners under the Act. He categorically stated that the shops are existing for the last 30 years. In cross-examination, he stated that the rt suit land was owned by him, Sheela Devi and Nathu Ram etc. It has also come in his statement that the consolidation was completed in their village in 1986-87 and settlement was conducted in 1997-98. He stated that correct record has been prepared by the consolidation staff as per the spot.
Gurbachan, Rattan Chand and Partapa have taken this land for cultivation before he gained consciousness. He stated that the entries are coming in favour of the defendants for the last 30 years, prior to 1970 and the defendants used to pay 1/4th share to the owners.
24. DW-4 Surjit Singh prepared the site plan Ex.DW-
4/A. In his cross-examination, he stated that while preparing site plan, he has not seen the revenue papers. He ::: Downloaded on - 15/04/2017 21:30:28 :::HCHP 22 admitted that he prepared the site plan as per instructions of his client.
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25. Careful perusal of aforesaid evidence led on record by the defendants clearly suggests that defendants were able to prove on record that suit land, description whereof has been given hereinabove, is in their possession and they have of constructed shops over the same. It also emerges from their depositions, referred hereinabove, that on a part of the suit land there exists a road constructed by PWD.
rt All these defence witnesses have categorically denied the possession, if any, of the plaintiff. Rather they in unequivocally terms stated before the Court that they have seen defendants in possession of the land. More importantly, DW-3 Kushal Singh, who claimed himself to be co-sharer of the suit land, categorically stated that the suit land was owned by him, Sheela Devi and Nathu Ram, etc., which clearly corroborates the version put forth by the plaintiff. He himself stated before the Court that original owner of the land was Sheela Devi. DW-3, while claiming himself to be co-owner alongwith Sheela Devi and Nathu Ram, categorically stated that shops exist over the suit land for the last 30 years. He also stated that consolidation was completed in their village in 1986-87 ::: Downloaded on - 15/04/2017 21:30:28 :::HCHP 23 and settlement was conducted in 1997-98, which admission on his part corroborates the revenue record placed on record .
by the defendants, which suggests that entries were changed during consolidation and correction, if any, was carried out by consolidation staff as per spot. He specifically stated that the defendants used to pay 1/4th share to the original of owners. Conjoint reading of aforesaid witnesses of both the parties clearly suggests that land is not under cultivation, as claimed by the plaintiff, rather there exists shops as well as rt road on the suit land as have been admitted by the plaintiff himself and witnesses adduced by him on record also. It is not understood as to how, on the basis of evidence as has been discussed in detail, learned trial Court came to conclusion that plaintiff was able to prove that he has been coming in possession of the suit land as tenant-at-will.
Similarly, it is not understood that how learned trial Court came to conclusion that plaintiff is entitled to relief of injunction when it stands duly proved on record that possession, if any, over the suit land is of defendants, who have constructed their shops over the suit land. Moreover, cross-examination conducted upon DW-1, nowhere suggests that plaintiff at any point of time ever put suggestion to him ::: Downloaded on - 15/04/2017 21:30:28 :::HCHP 24 that he is not tenant-at-will over the land or he has never raised shops over the suit land. Though plaintiff stated that .
alongwith Sheela, Mansho Devi was also owner, but admittedly neither original writing nor receipt were placed on record by the plaintiff to prove on record that they were inducted as "Gair Maurusi Tenant" over the suit land by of the original owner, as named above. Whereas, defendants, while citing DW-3 Kushal Singh, were able to prove on record that they were inducted as tenants.
rt Kushal Singh, who claimed himself to be co-sharer, successfully proved on record that defendants were inducted as a tenants over the suit land by the original owner. Once Kushal Singh himself stated that defendants are in possession of the suit land as tenants and now they have become owners under the Act, findings returned by the learned trial Court that defendants were not able to produce on record by leading cogent evidence to demonstrate that they were inducted as tenants by the original owners does not appears to be correct on its face value.
26. In view of detailed discussion made hereinabove, this Court is unable to accept the findings recorded by the learned trial Court below that the plaintiff is in possession of ::: Downloaded on - 15/04/2017 21:30:28 :::HCHP 25 the suit land and being so the change of entries in favour of defendants from Rabi, 1979, during consolidation, was .
wrongly made in favour of the defendants. Rather, this Court, after perusing the entire evidence led on record, is fully convinced and satisfied that learned first appellate Court rightly came to the conclusion that change of entries in of favour of defendants from Rabi, 1979 during consolidation was rightly made by the revenue officials as per factual position at the spot because prior to change there were only rt paper entries in the revenue record in favour of plaintiff, which did not create any right in his favour. This Court, while exploring answer to substantial question of law, as referred above, also perused Ex.P-5 and Ex.D-5. Ex.P-5 is the copy of Misalhaquiat Istemal for the year 1986-87, wherein name of plaintiff has been entered as "Gair Maurusi Doem". But, in the column of area and category of land, it has been specifically recorded over Khasra Nos.3188, 3190, there is "Gair Mumkin Abadi" and "PWD Road", which itself belies the stand taken by the plaintiff that they are cultivating the suit land. Similarly, if this Ex.P-5 is perused juxtaposing Ex.P-1, i.e. Misalhaquiat Istemal for the year 1986-87, Mohal Haroli, the defendants have been recorded as ::: Downloaded on - 15/04/2017 21:30:28 :::HCHP 26 "Gair Maurusi Soem". Similarly, if Ex.D-1, copy of Jamabandi placed on record by the defendants, is seen, that .
also pertains to the the year 1986-87 for Mauza Haroli, which also suggests that names of defendants stand recorded in the column of cultivation and possession as "Gair Maurusi Deom". Similarly, perusal of Ex.D-5 also reflects the names of of defendants in the column of cultivation and rent for the year 1978-79 and moreover in Ex.P-6 names of Smt.Sheela Devi, Manso Devi have been shown as owners.
rt Whereas, name of plaintiff Kartara son of Melu has been shown as "Gair Maurusi" in Ex.P-7, Khasra Girdawari for the year 1978-79, qua Khasra No.3207, but name of the owner has been reflected as Smt.Thakri widow of Shri Sant Ram.
27. After perusing the aforesaid documents, as indicated in substantial question of law, this Court is unable to accept the contention put forth on behalf of plaintiff that learned first appellate Court below misread and mis-
appreciated the documentary and oral evidence, more particularly Ex.P-5 and Ex.D-1, while coming to the conclusion that entries in favour of defendants from Rabi, 1979 was rightly made by revenue official as per factual ::: Downloaded on - 15/04/2017 21:30:28 :::HCHP 27 position on spot. Hence, substantial question of law is answered accordingly.
.
28. It is well settled that presumption of correctness is attached to the latest revenue entries and whenever there is conflict, it is the latest entry which would prevail. Where the earlier revenue entries were changed in the later revenue of entries and the change was effected without there being any order of the revenue authorities showing how the change was made, the presumption would be in favour of the later entries rt but that presumption was a rebuttable one and it would stand rebutted by the fact that the alteration in the later entries was made unauthorisedly or mistakenly, there being no material to justify the change of entries.
29. In this regard reliance is placed on Durga (deceased) and Otheers vs. Milkhi Ram and Others, 1969 P.L.J. (SC), 105, wherein the Hon'ble Apex Court has held as under:
"3. Relying on Shri Raja Durga Singh of Solan v.
Tholu (1963) 2 S.C.R. 693, 700 = 1962 P.L.J. 88), it was urged before the High Court, as before us, that the lower appellate court had wrongly relied on the earlier revenue entries placing the burden on the defendants, whose names appeared in the later entries, to rebut the presumption. This Court observed in that case as follows:::: Downloaded on - 15/04/2017 21:30:28 :::HCHP 28
"It was urged before us that there are prior entries which are in conflict with those on which the learned District Judge has relied. It is sufficient to say that where there is such a conflict, it is the later entry which must .
prevail. Indeed from the language of Section 44 itself it follows that where a new entry is substituted for an old one it is that new entry which will take the place of the old one and will be entitled to the presumption of correctness until and unless it is established to be wrong or substituted by another entry."
Grover j.,observed as follows:
"It is clear from the pedigree-table set out in its of judgment that Mathar Mal had three sons Jiwan, Amin Chand and Relu. Durga and Sidhu are the descendants of Jiwan whereas the plaintiff and defendant No. 3 are the descendants of Amin Chand and Relu. Now, in rt the entries prior to 1929-1930 each one of the descendants of the three sons of Mathar Mal had been shown to have 1/3rd share and without any mutation the entries were changed in 1929-30. Admittedly there is no order of the revenue authorities showing how the change was made. Thus although the presumption would be in favour of the latter entries but that presumption was a rebuttable one and it would stand rebutted by the fact that the alteration in the entries in 1929-30 was made unauthorisedly or mistakenly, there being no material to justify the change of entries."
Grover, J. distinguished Shri Raja Durga Singh of Solan v. Tholu (1963) 2 S.C.R. 693, 700 = 1962 P.L.J.88) thus:
"There is nothing to indicate that in the case decided by their Lordships such was the position. More-over, the decision in that case proceeded largely on the finding of fact arrived at by the District Judge on a consideration of the evidence being not open to interference in second appeal. The finding in the present case of the lower appellate Court is also based on evidence from which it has been inferred that the later entries are not the correct ones."::: Downloaded on - 15/04/2017 21:30:28 :::HCHP 29
30. In the instant case, admittedly, later entries are in favour of defendants and presumption of correctness is .
attached to the same because plaintiff nowhere succeeded to prove them to be wrong. Apart from above, plaintiff in the instant case woefully failed to prove his tenancy, consent of owners and payment of rent and as such it can be safely of concluded that plaintiff was unable to prove that he was inducted as tenant over the suit land by the original owners.
Since plaintiff failed to prove his tenancy over the suit land, rt there is no point in relying upon the entries made in his favour prior to 1979, which were admittedly paper entries and nothing more than that. Judgments, as have been relied upon by the learned counsel representing the plaintiff, as have been noted above, may not be of any help in the present case, especially in view of the failure on the part of the plaintiff to prove his tenancy over the suit land and as such same are not being referred herein.
31. At this stage, it may be observed that learned first appellate Court, while accepting the appeal of defendants, has not solely relied upon the entries made in the revenue record in favour of defendants, rather plaintiff was non-
suited on account of his failure to prove his tenancy over the ::: Downloaded on - 15/04/2017 21:30:28 :::HCHP 30 suit land and as such there is no force in the contention put forth on behalf of the counsel representing the plaintiff that .
change of revenue entries being contrary to para 9.8 of the H.P. Land Records Manual could not have been looked into in favour of the parties. Therefore, the question is answered accordingly.
of
32. Consequently, in view of the aforesaid detailed discussion, this Court sees no illegality and infirmity in the judgment passed by learned first appellate Court and as such rt same deserves to be upheld. Hence, present appeal fails and the same is, accordingly dismissed.
33. Interim direction, if any, is vacated. All miscellaneous applications are disposed of.
November 4, 2016 (Sandeep Sharma)
(aks) Judge
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