Punjab-Haryana High Court
Om Parkash And Anr. vs Ramji Lal And Ors. on 8 December, 2005
Equivalent citations: (2006)142PLR862, AIR 2006 (NOC) 838 (P&H) = (2006) 1 REC CIV R 754(P&H)
JUDGMENT M.M. Kumar, J.
1. This is defendant appeal filed under Section 100 of the code of Civil Procedure, 1908 (for brevity 'the Code'), challenging the view taken by learned Lower Appellate Court in its judgment and decree dated 6.10.2005. It has been held that the suit of the plaintiff-respondents, for possession by way of pre-emption deserves to be decreed partially as he has been found to be a tenant in possession on the land to the extent of 4 kanal 11 marlas, out of the total land of 8 kanals 0 marlas. The trial Court has non-suited the plaintiff-respondent by concluding that there was abrupt change in the jamabandi for the year 1997-98 (Ex.D5) in favour of the plaintiff-respondent, which was liable to be ignored and presumption of continuity of possession was raised in favour of the defendant-appellants. However, the learned Lower Appellate Court has allowed an application under Order 41 Rule 27 of the Code to adduce additional evidence. Accordingly, a copy of the entry in daily diary register No. 316 dated 4.4.1984 (Ex.P6) and copies of khasra girdwari for the year 1983-84 to 1987-88 (Ex.P7) were allowed to be brought on record. On the aforementioned basis the learned Lower Appellate Court has recorded the finding by accepting the explanation for change of entry in the jamabandi and the same reads as under:-
18. From the bare perusal of rojnamcha entry No. 316 dated 4.4.1984 Ex.P6 and copy of khasra girdwari for the year 1983-84 to 1987-88 Ex.P7, it reveals that change in the name of plaintiff was made on 4.4.1984 as per rapat rojnamcha entry No. 316 dated 4.4.1986 Ex.P6. So, the entry in Jamabandi for the year 1987-88 Ex.D5 is on the basis of rapat rojnamcha entry No. 316 dated 4.4.1984 Ex.P6 and the khasra girdwari for the years 1983-84 to 1987-88 Ex.P7 and once the plaintiff succeeded in proving change of possession in jamabandi for the year 1987-88 Ex.P5 on the basis of rapat rojnamcha entry No. 316 dated 4.4.1984 Ex.P6 and khasra girdwari for the year 1983-84 to 1987-88 Ex.P7. the plaintiff succeeded in proving that plaintiff came in possession of the suit land in the year 1984 as tenant on payment of 1/3rd share of produce. The defendants failed to prove that when did their father Gopi Ram came in possession of the suit land after 4.4.1984 and rapat rojnamcha entry No. 316 dated 4.4.1984 Ex.P6. Hence, I have no hesitation in concluding that from the statements of PW-1 Sheo Narain and PW-2 Sada Nand and the documents relied upon by the plaintiffs Ex.P1 to Ex. P7, plaintiff succeeded in proving that he has been coming-in possession of the land measuring 4 kanals 11 marlas comprised in Khewat No. 800 Khata No. 1543, rect. No. 330, killa No. 8/2(1-11) and 13 min (3-0) out of entire suit land measuring 8 kanals 0 marlas, as tenant on payment of I/3rd share of produce under Vidya Devi etc. The defendants failed to prove possession of their father Gopi Ram after 4.4.1984 on this part of the suit land. Hence, the plaintiff has a preferential right to pre-empt 4 kanals 11 marlas of land out of 8 kanals 0 marlas out of the suit land to that of vendee-defendants. So, findings, of the learned Lower court under issue No. 1 are reversed partly to the extent of 4 kanals 11 marlas of above land and partly affirmed regarding remaining suit land.
2. It is appropriate to mention that with regard to sale consideration of Rs. 55000/-, the findings recorded by the trial Court were affirmed holding that the land in dispute was sold to defendant-appellants. Having heard the learned Counsel, I am of the considered view that the findings recorded by the learned Lower Appellate Court in para No. 18 of its judgment (supra) are based on correct appreciation of evidence and do not call for interference by this Court. It has been proved that the plaintiff-respondent has been in possession of the land measuring 4 kanals 11 marlas comprised in specific khasra numbers, as tenant, on payment of 1/3rd share of produce under Vidya Devi, the vendor. It has also been correctly found that the defendant-appellants have failed to prove possession of their father Gopi Ram after 4.4.1984 in respect of the suit land. As a consequence, the suit of the plaintiff-respondent has been partly decreed, for possession through pre-emption of land measuring 4 kanals 11 marlas comprised in specific khasra numbers. The plaintiff-respondent is under an obligation to pay proportionate sale consideration out of the entire sale price of Rs. 55000/- and proportionate stamp and registration charges less 1/5th amount (Jare Panjim), which have already been deposited by him. Therefore, I find that no question of law would arise which require determination by this Court.
3. The judgments of the Supreme Court in the cases of Durga (deceased) and Ors. v. Milkhi Ram and Ors. 1969 P.L.J. 105 and Mansu v. Shandi Ram 1996 P.L.J. 215 would not require any detailed consideration because both the judgments proceed on the basis of presumption raised by illustration appended to Section 114 of the Evidence Act, 1872 read with Section 44 of the Punjab Land Revenue Act, 1887. The aforementioned presumption is not unrebuttable or a conclusive proof of the existence of a fact concerning possession. The aforementioned presumption are in fact rebuttable and the perusal of para No. 16 of the judgment of the learned Lower Appellate Court would show that the father of the defendant-appellants Gopi Ram remained in possession of suit-land up to Rabi 1984 and thereafter the plaintiff-respondent came in possession. Change reflected in the jamabandi for the year 1987-88 (Ex.D5) has been correctly explained by entry No. 316 in rojnamcha dated 4.4.1984 (Ex.P6), copy of khasra girdwaris for the year 1983-84 to 1987-88 (Ex.P7), which show that the change was made by incorporating the name of the plaintiff-respondent on 4.4.1984, as per rapat rojnamcha and, therefore, the entry in the jamabandi for the year 1987-88 (Ex.D5) is based on rapat rojnamacha entry No. 316 dated 4.4.1984 (Ex.P6) and khasra girdwari entries for the year 1983-84 to 1987-8 (Ex.P7) and the plaintiff-respondent has been able to prove his possession of the suit land as tenant in the year 1984. There is nothing in the aforementioned judgments, which may result in defeating the rights of the plaintiff-respondent. In para 3 of the judgment in the case of Durga (deceased) and others (supra), it has in fact been observed that the presumption raised under Section 44 of the Punjab Land Revenue Act, 1887 was a rebuttable presumption and it would stand rebutted if any contrary material is produced on the record. Such material in the form of additional evidence has been placed on record as Ex.P6 and Ex.P7. Therefore, the aforementioned judgments do not advance the case of the defendant-appellants in any manner whatsoever.
For the reasons aforementioned, this appeal fails and the same is dismissed.