Himachal Pradesh High Court
Surat Ram vs Sudama Ram (Deceased) Through Lrs And ... on 21 September, 2023
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 45 of 2007 .
Reserved on: 31.08.2023
Date of Decision: 21.09.2023
Surat Ram ...Appellant.
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Versus
Sudama Ram (deceased) through LRs and another rt ...Respondents Coram Hon'ble Mr. Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 Yes.
For the Appellant : Mr. Romesh Verma, Sr. Advocate, with Mr. Sumit Sharma, Advocate.
For the Respondents : Mr. R.K. Bawa, Sr. Advocate, with Mr. Ajay Kumar, Advocate for LRs of deceased respondent No.1.
Mr. Navlesh Verma, Additional Advocate General and Mr. Prashant Sen and Ms. Avni Kochhar, Deputy Advocates General, for Respondent No. 2.
Rakesh Kainthla, Judge The present appeal is directed against the judgment & decree dated 28.10.2006, passed by the learned Additional 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 21/09/2023 20:35:39 :::CIS 2District Judge, Fast Track Court, Shimla, vide which the appeal filed by the appellant (defendant before the learned Trial Court) .
was dismissed and the judgment and decree passed by the learned Civil Judge (Junior Division), Theog was upheld. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).
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2. Briefly stated, the facts giving rise to the present rt appeal are that the plaintiff filed a civil suit before the learned Trial Court for seeking a permanent prohibitory injunction for restraining the defendant from interfering with the land bearing Khasra Nos. 86, 88, 110 and 126, measuring 04 bighas 19 biswas situated in Chak Shatenya, Tehsil and District Shimla, H.P. (hereinafter referred to as the suit land). A decree of possession was also sought, in the alternative, in case defendant no. 1 was found in possession of the suit land. It was pleaded that Surju Ram was in possession of the suit land as mortgagee for many years. He died issueless. The plaintiff is the son of Surju Ram's brother. He inherited the estate of Surju Ram. Mutation of inheritance was also sanctioned in his favour. Defendant No. 1 filed an appeal against the mutation of inheritance before the Collector (Settlement), Shimla, which was accepted. Defendant ::: Downloaded on - 21/09/2023 20:35:39 :::CIS 3 No. 1 has no right, title or interest in the suit land but he is recorded in possession in the revenue record. Defendant No. 1 .
never remained in possession of the suit land. He is threatening to interfere with the possession of the plaintiff based on the revenue entries. He was requested not to do so, but in vain;
hence the suit was filed to seek the relief mentioned above.
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3. The suit was opposed by the defendant by filing a rt written statement, taking preliminary objections regarding lack of maintainability, jurisdiction & cause of action, the suit being bad for non-joinder of necessary parties and the plaintiff being estopped from challenging the tenancy created by Surju Ram in favour of defendant no. 1. The contents of the plaint were denied on merits. It was admitted that Surju Ram died issueless. It was asserted that Surju Ram was the mortgagee of the suit land for many years. He had adopted Mast Ram during his lifetime. Sons of Mast Ram and heirs of the brother of Shobu are the necessary parties to the suit and the suit is not maintainable in their absence. Defendant No. 1 filed an appeal against the order of learned AC-2nd Grade (Settlement) who had deleted his name from the column of possession. The appeal was allowed and the order was set aside. The revenue entries in favour of defendant ::: Downloaded on - 21/09/2023 20:35:39 :::CIS 4 no. 1 as a tenant of the suit land are correct. Defendant No. 1 is in possession of the suit land. His possession was also detected .
during the settlement. It was asserted in the alternative that possession of defendant no. 1 is open, continuous and hostile.
The suit was filed without any basis; hence, it was prayed that the same be dismissed.
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4. A replication denying the contents of the written rt statement and affirming those of the plaint was filed.
5. The learned Trial Court framed the following issues on 22.5.2022:-
1. Whether the revenue entries showing defendant No.1 in possession of the suit land are liable to be declared as alleged? OPP.
2. If Issue No.1 is proved in affirmative, whether the plaintiff is entitled to the relief of permanent prohibitory injunction as prayed? OPP.
3. Whether the plaintiff in the alternative is entitled to the relief of possession as alleged? OPP.
4. Whether this Court has got no jurisdiction to try the present suit? OPD-1.
5. Whether the plaintiff is stopped by his act or conduct from filing the instant suit? OPD-1.
6. Whether the suit is bad for non-joinder of necessary parties, if so who are the necessary parties? OPD-1.
7. In case the defendant is not found to be a tenant over the suit land, whether he could be held to have ::: Downloaded on - 21/09/2023 20:35:39 :::CIS 5 perfected his title qua the suit land by way of adverse possession as alleged? OPD-1.
8. Relief.
.
6. The parties were called upon to produce the evidence.
The plaintiff examined himself (PW-1). The defendant examined himself as (DW-1) and Balak Ram (DW-2). The plaintiff examined Basant Lal (PW-2) and Ram Saran (PW-2) in rebuttal.
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7. The Learned Trial Court held that Surju was in rt possession of the suit land as a mortgagee. Defendant No. 1 was recorded in the column of possession as a non-occupancy tenant in the Jamabandi for the years 1999--2000. There is no explanation for incorporating his name; hence, the entry in favour of defendant no. 1 could not be relied upon. Defendant No.1 failed to prove the terms of his induction and the payment of rent. Defendant No. 1 was taking advantage of the wrong entries. Hence, the Learned Trial Court answered issues no. 1 and 2 in the affirmative, issue no. 3 as redundant, the rest of the issues in the negative and decreed the suit of the plaintiff.
8. Being aggrieved from the judgment and decree passed by the learned Trial Court, the defendant filed an appeal, which was decided by the learned Additional District Judge, Fast ::: Downloaded on - 21/09/2023 20:35:39 :::CIS 6 Track Court, Shimla. Learned First Appellate Court held that the column of rent in the Jamabandi did not show the rent being .
paid by defendant no. 1 to Surju. Pleadings were silent relating to the conditions of inducting defendant no. 1 as a tenant. There is a practice of recording the person to be a non-occupancy tenant and the entry will not help defendant no. 1 in the absence of the of evidence regarding the tenancy. The plea of adverse possession was contrary to the plea of tenancy and it was not clear against rt whom the plea of adverse possession was made. Hence, the appeal was dismissed. However, the judgment and decree passed by the learned Trial Court was modified and the decree of possession was passed in favour of the plaintiff.
9. Being aggrieved from the judgments and decrees passed by the learned Courts below, the defendant filed the present appeal asserting that the learned Courts below erred in not properly appreciating the pleadings and the evidence. Civil Court has no jurisdiction to hear and entertain the present suit, as the status of the tenant was required to be decided by the Land Reforms Officer. Learned Courts below erred in disbelieving the plea of tenancy. Jamabandi was attested in the presence of parties and later entries were preferable to the ::: Downloaded on - 21/09/2023 20:35:39 :::CIS 7 earlier entry. Surju did not dispute the entry during his lifetime and it was not permissible for the plaintiff to dispute these .
entries after the death of Surju. Learned Settlement Collector had also found defendant no. 1 to be the tenant. He became the owner after the commencement of the H.P. Tenancy and Land Reforms Act. Sudama filed a civil suit against the legal of representatives of Mast Ram and learned Civil Judge, Theog held that the plaintiff was not the successor of Surju. The appeal rt against the judgment and decree was also dismissed. No issue regarding the adoption of Mast Ram was framed by the learned Trial Court. Therefore, it was prayed that the present appeal be allowed and the judgments and decrees passed by learned Courts below be set aside.
10. An application for additional issue was also filed along with an appeal.
11. The appeal was admitted on the following substantial questions of law on 30.5.2007:-
1. Whether presumption of correctness is attached to the later entries in revenue record and since entries of possession as a tenant are coming in favour of late Dhiru defendant No.1, continuously till the date of filing of suit in the jamabandi Ex.PA for the year ::: Downloaded on - 21/09/2023 20:35:39 :::CIS 8 1990-91 therefore, claim of the defendant that he was inducted as a tenant stand proved?
2. Whether the findings as recorded on the point of .
correctness or otherwise of revenue entries by the courts below are wrong because entries in jamabandi for the year 1960-61 vide Ext. D-3, have been made on the basis of order for attestation of jamabandi during the course of proceedings for attestation of Jamabandi, therefore, a wrong view has been taken of that there was not a lawful order in this regards?
3. Whether defendant No.1 late Sh. Dhuri being recorded continuously as a Gair Marusi over suit land since rt 1960-61 vide jamabandi Ext.D-3, till date of filing of the suit, therefore, presumption of correctness is attached to the later entries and therefore, the deceased Dhiru Ram was a tenant having been inducted by the Mortgagee Sh. Surju?
4. Whether deceased Sh. Surju, the original mortgagee under whom Sh. Dhuri Ram was recorded as a tenant in the year 1960-61 having not challenged entries in the revenue record regarding the status of Sh. Dhuri Ram, as a tenant, therefore, he as well as his successors are estopped by their own admissions, correctness of revenue entries?
5. Whether the Courts below having failed to take into consideration the order of collector settlement dated 1.6.2000 as per Ext.D-6 and the fact that respondent had not challenged this order, therefore, the same is binding upon the parties?
12. I have heard Mr. Romesh Verma, learned Senior Counsel, assisted by Mr. Sumit Sharma, Advocate, learned counsel for the appellant-plaintiff, Mr R.K. Bawa, learned Senior ::: Downloaded on - 21/09/2023 20:35:39 :::CIS 9 Counsel assisted by Mr. Ajay Kumar, Advocate, learned counsel for legal heirs of respondent no. 1 and Mr. Navlesh Verma, .
learned Additional Advocate General, for respondent no. 2.
13. Mr. Romesh Verma, learned Senior Counsel submitted that the learned Courts below erred in decreeing the suit. It was duly proved that defendant no. 1 was inducted as a of tenant by Surju during his lifetime. Surju did not challenge the rt entries during his lifetime and it is not permissible for the plaintiff to challenge those entries. Defendant No. 1 became the owner on the commencement of the H.P. Tenancy and Land Reforms Act. The plaintiff had filed an earlier suit against the legal heirs of Mast Ram, in which a specific issue was framed regarding the status of Mast Ram and he was held to be the adopted son of Surju. An application has been filed for bringing on record the judgments and decrees passed by the learned Trial Court and Appellate Court in the previous litigation. The evidence is essential for the just decision of the case, hence he prayed that the present application be allowed and the additional evidence be taken on record. Thereafter, the appeal be allowed and the judgments and decrees passed by learned Courts below be set aside.
::: Downloaded on - 21/09/2023 20:35:39 :::CIS 1014. Mr. R.K. Bawa, learned Senior Counsel for the plaintiff supported the judgments and decrees passed by learned .
Courts below and submitted that no interference is required with the same.
15. Mr. Navlesh Verma, learned Additional Advocate General submitted that the plea of adverse possession has not of been proved and the appeal be dismissed.
16. rt I have given considerable thought to the rival submissions at the bar and have gone through the records carefully.
CMP No. 76 of 200717. Before adverting to the substantial questions of law framed by this Court, it is necessary to dispose of the application for leading additional evidence. It has been asserted that respondent Sudama Ram filed a civil suit No. 161/1 of 1997, titled Sudama Ram vs. Mast Ram on 28.8.1997, which was dismissed by learned Civil Judge, Theog on 12.1.2001. The appeal was dismissed by the learned First Appellate Court on 4.7.2005.
Learned Civil Judge, Theog held that Mast Ram was the adopted son of Surju and Sudama Ram had not succeeded to the estate of ::: Downloaded on - 21/09/2023 20:35:39 :::CIS 11 Surju. The judgments and decrees are relevant. No prejudice would be caused to the other side by allowing the application.
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Hence, it was prayed that this application be allowed and the judgments and decrees be taken on record.
18. No reply was filed to the present application.
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19. A perusal of the judgment passed by learned Civil Judge, Theog shows that issue no. 5 (a) was framed "whether rt Mast Ram was adopted by Surju, if so, its effect." The answer to this issue was returned in the negative. It was held in para-14 of the judgment that Mast Ram was recorded as the son of Surju but it was not sufficient to prove the adoption. The statements of the witnesses examined to prove the adoption was hearsay.
No custom was pleaded and the defendants had failed to prove that Mast Ram was adopted by Surju.
20. Learned First Appellate Court also held in para-17 that learned Trial Court had correctly held in para-15 that Mast Ram was residing with Surju and Surju had gifted his property to Mast Ram during his lifetime. However, no finding was recorded regarding the adoption of Mast Ram. The appeal was ultimately dismissed.
::: Downloaded on - 21/09/2023 20:35:39 :::CIS 1221. Thus the premise of the application for leading additional evidence that learned Courts had held in the previous .
litigation that Surju had adopted Mast Ram is incorrect. Learned Trial Court had categorically held that adoption was not proved and this finding was not upset in appeal by the learned First Appellate Court. Hence, the additional evidence will not be of relevant in the present case and the same cannot be admitted.
Consequently, the present application fails and the same is rt dismissed.
Substantial Questions of Law No. 1 to 5:
22. All these substantial questions of law are interconnected and are being taken up together for convenience.
23. Both the learned Courts below proceeded on the basis that there was no explanation for the change of entry in favour of defendant no. 1. Hence, the entries had to be ignored. The copy of jamabandi for the year 1952-53 (Ex.D-5) shows that the State is recorded to be the owner, whereas Surju was recorded to be the mortgagee in possession. The copy of jamabandi for the year 1955-56 (Ex.D-4) mentions the State as a mortgagor and Surju as a Mortgagee. In the copy of jamabandi for the years ::: Downloaded on - 21/09/2023 20:35:39 :::CIS 13 1960-61 (Ex.D-3), the State is recorded to be the owner and Surju is recorded to be the mortgagee. Dhuri is recorded to be a .
non-occupancy tenant under the mortgagee. Learned First Appellate Court had correctly held that it is a practice of the revenue authorities to record the person in possession as mortgagee and the Court should look to the column of rent to of determine the tenancy. It was laid down by this Court in Telu Ram Versus Hari Kumar ILR 1975 HP 464 that it is a usual practice rt of the revenue authorities to record a person in possession as a non-occupancy tenant. It was observed:
"Mere entry as a non-occupancy tenant does not entitle a person to claim the right of the tenancy because it is a usual practice that whenever a person is found in possession whether legal or illegal of any land that the revenue officers invariably make such an entry."
24. A similar view was taken in Bhagat Ram v. Brahma Nand, 2010 SCC OnLine HP 116, wherein it was observed:-
"In Maman Singh v. The Resident Magistrate, Gohana and others, 1965. Vol. LXVII, PLR 161, The Punjab High Court held that the question whether a person is a tenant or not has to be decided not by looking at the column of cultivation of the Jamabandi because that column only relates to the name of the person in occupation irrespective of the capacity in which he is occupying the land. It was held that tenancy must be determined with reference to the entry made in the column of rent. In Rulhu Ram v. Than Singh and others, 1966, Vol.LXVIII, PLR 866 held that the revenue entries when they find a ::: Downloaded on - 21/09/2023 20:35:39 :::CIS 14 person in possession normally enter his name as a tenant irrespective of the fact whether he is a tenant or not. It was held that non-payment of rent negative the existence .
of relationship of landlord and tenant.
In Sh. Tarlok Singh v. Sh. Harnam Singh and another, 1974, PLJ 396, it was held that to determine whether a person is a tenant over the land, the entries in the column of cultivation and column of rent have to be read together. It was also held that no presumption of truth is attached to the Khasra Girdawaries."
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25. This position was reiterated in Mandir Thakurdwara vs. Raj Kumar, 2020 (1) Him. L.R. 547, wherein it was held:-
rt "17. In question No.2, both parties have cited a number of judgments in support of their contentions. Before adverting to the facts, the law cited by learned counsel may be considered. Learned counsel for the appellant relies upon the decision of the Lahore High Court in Girdhari Ram and others vs. Qasim and others, AIR 1936 Lahore 461, holding:-
"... I am aware of the fact that it is the practice of revenue authorities in this province to record a person, who is in possession of land without any ostensible title thereto, in the column of cultivator describing him as a tenant-at-will, and that sometimes a remark is added mentioning the grounds on which the person in possession claims to be in possession. No presumption of tenancy necessarily arises in such cases, but in the present case there is something more than that." (p.462)
18. In Relhu Ram vs. Than Singh and others, 1966 (LXVIII) P.L.R.866 again the Court holds:-
"5. Mr. Nehra then sought to contend that the defendants had established on the present record that they were the tenants of the land in dispute. Again on this matter, there is a concurrent decision ::: Downloaded on - 21/09/2023 20:35:39 :::CIS 15 on a question of fact by the courts below which is binding on me in the second appeal. Moreover, there is no evidence that any rent was being paid by .
the defendants to the plaintiffs. As a matter of fact, the entry is that they are paying no rent because of the assertion of ownership. Therefore, the documentary evidence clearly shows that the entry that the tenants are non-occupancy tenants is clearly erroneous. It is well known that the revenue authorities when they find a person in possession of of the land without any right normally record him as a tenant irrespective of the fact whether he is a tenant or not. Non-payment of rent negatives existence of a relationship of landlord and tenant. This was so rt held in Kanwar A. Ahmed Khan v. The Union of India, (1954)56 P.L.R.468:-
"The relationship of landlord and tenant comes into existence as the result of an agreement, express or implied. It may be implied from the acts and conduct of the parties which indicate that the landlord intended to divest himself of the possession of the premises and that the tenant intended to assume possession thereof. One of the most important circumstances from which this inference may be drawn is the payment of rent, for although rent is not essential, it is a normal incident of tenancy, and the fact that a person in possession of the premises paid rent to the owner thereof indicates to an extent at least that the relationship of landlord and tenant exists between the parties. On the other hand, the fact that no rent was paid would lead one to a contrary conclusion and negative the existence of such relationship." (pp.868-869)
19. In Maman Singh vs. The Resident Magistrate, Gohana and others, 1965(LXVII) P.L.R. 161, the Court holds:-::: Downloaded on - 21/09/2023 20:35:39 :::CIS 16
"5. ... ... ... ... ... ... ... ... ... It is well-settled that in deciding whether a person is a tenant, we have not to look to the entries in the column of cultivation in .
the jamabandi because that column only gives the name of the person in occupation, irrespective of the capacity in which he is occupying the land. On the contrary, we have to look to the column of rent because it is the entries in that column which go to show as to whether the person is occupying the land as a tenant, and if so, on how much rent, or of whether he is occupying the land in any other capacity. See Ghulam Murtaza v.Nagina, A.I.R.1930 Lah.991, Puran v.Kure, 57 P.L.R.,57 and Sher v.Phuman Ram, 1942 P.L.R. 497. .... ... ... ... ... ... ..."
rt (p.163)
20. To similar effect is the judgment of the Punjab High Court in Shri Tarlok Singh vs.Shri Harnam Singh and Another, 1974 P.L.J. 396, holding that the non-payment of rent negatives the existence of the relationship of landlord and tenant, the entries in cultivation column and in the rent column are to be read together in order to ascertain the rights of the parties, entries in Khasra Girdawari do not attach presumption of truth and in case of any conflict in the entries in the copies of Khasra Girdawari with the copies of Jamabandi, the Patwari has to be examined for explaining the discrepancy. Similar is the decision in Ajmer Singh and Another vs. Surjit Singh and others, 1992 PLJ 311, holding that a person reflected in cultivating possession of the suit land in the revenue record without mentioning any rent being paid does not establish the relationship of landlord and tenant. In fact, the Court held:-
"7. ... ... ... ... ... ... ... Non-payment of rent negatives the existence of a relationship of landlord and tenant. Thus, the case set up by the first appellate Court that the defendants were in permissive possession cannot be sustained either on facts or in law."::: Downloaded on - 21/09/2023 20:35:39 :::CIS 17
21. The last case relied upon by the appellant is Kanshi Ram and Others vs. Rawat Singh and Others, 1 972 P.L.J. 580. The Court holds:-
.
"2. ... ... ... ... ... ... ... It was nobody's case that these vendees were setting up any adverse possession or hostile title. The vendees were not claiming any better rights than those of tenants and they had actually paid a substantial amount to the owner in acknowledgement of his superior title or right of ownership in the land. The simple fact that the of column of rent does not mention any lagan or rent would not imply that we can force on these persons who have been described as muzaras ghair maurusi the superior title or the ownership rights that they rt had never claimed. The expression "muzaras ghair maurusi" has to be given its ordinary meaning unless the entries in the column of rent were found to be inconsistent with the meaning to be assigned to the entries in the column of occupation. All the rulings cited before me by the counsel for the plaintiff- pre-emptor are on altogether different facts. In Maman Singh v. The Resident Magistrate, Gohana and others, 1965 P.L.R. 161, Rulhu Ram v.Than Singh and others, 1966 P.L.R. 866 and Annamalai Goundan v.Venkatasami Naidu and others, A.I.R. 1959 Madras 354, the person who was in possession and who was described as a tenant-
at-will in the column of cultivation was claiming better rights and could show entries in the column of rent in support of his plea of prescriptive title or better rights and could show entries in the column of rent in support of his plea of prescriptive title or better rights in the land. The entries in the column of rent in our case do not suggest that the person in possession was anything over and above a tenant- at-will as described in the column of cultivation and the person in possession does not claim any rights which could be described as hostile to the ::: Downloaded on - 21/09/2023 20:35:39 :::CIS 18 true owner. The words 'muzaras' or 'ghair maurusi' or 'tenant-at-will' in the column of cultivation have, therefore, to be given their .
ordinary meaning and there is nothing in the entries in the column of rent to suggest that this description of the person in possession was incorrect. In fact, the person in possession does not claim to have any better rights than that of a tenant-at-will. The Courts are not entitled to make out a case for the parties which had not at all been of pleaded by them. ... ... .."
26. Therefore, the mere entry of a non-occupancy tenant is not sufficient to determine the tenancy and the court has to rt look to the column of rent to determine whether the tenancy existed or not.
27. It was laid down by this Court in Prem Dass and others Vs. Jagdish 1997 (2) SLJ 984 that, the oral evidence is not sufficient to determine the tenancy and the court should see the column of rent. It was observed:-
"13. In order to determine whether the plaintiffs are occupying the land in question under the defendant as tenants or not, the oral evidence led by the parties in this respect just cannot be appreciated.
14. No doubt, the tenancy comes on the surface on account of a bilateral contract between the parties, but the entries forming record-of-rights cannot be ignored in the absence of any agreement or contract. It is always the rent, column in the Jamabandi which determines the status of the tenant. In the present case, the plaintiffs are recorded as tenants in the year 1969 and immediately ::: Downloaded on - 21/09/2023 20:35:39 :::CIS 19 thereafter the settlement operations were carried out. It is too well known that while preparing the. Settlement records, a lot of care has to be taken and the entries which .
finally come to be recorded are arrived at after a thorough probe and enquiry. The acts done by the staff engaged in the progress are to be accepted as authentic unless the contrary is shown by the party laying a change to it. Even' minute inquiry affecting the right, title or interest of every person as owner, tenant, possessor)" rights, occupancy rights, hereditary rights and Sham-lat rights of are recorded. The record forming regular settlement besides being based on full enquiry, is also based on a survey of entries immediately preceding for a number of years i.e. up to the last settlement arrived at."
rt
28. A similar view was taken by the Punjab & Haryana High Court in Tarlok Singh Vs. Harnam Singh 1974 PLJ 396, wherein it was held:-
"[6] In Maman Singh v. The Resident Magistrate and others,1965 CurLJ 37, it is held :
"It is well-settled that in deciding whether a person is a tenant, we have not to look to the entries in the column of cultivation in the Jamabandi because that column only gives the name of the person in occupation, irrespective of the capacity in which he is occupying the land. On the contrary, we have to look to the column of rent because it is the entries in that column which go to show as to whether the person is occupying the land as a tenant, and, if so, on how much rent, or whether he is occupying the land in any other capacity."
To the same effect was the law laid down in Kanwar A. Ahmed Khan and another v. The Union of India and another, 1954 56 PunLR 468. To determine whether a person is a tenant over the land, we have to read the entries in the column of cultivation and also of ::: Downloaded on - 21/09/2023 20:35:39 :::CIS 20 column of rent together. In the instant case in Exhibits D-1 and D-2, Harnam Singh is not recorded paying any rent to the plaintiff-appellant .
and consequently, he cannot be said to be a tenant under him. Therefore, these entries in Exhibits D-1 and D-2 do not help him.
[7] Reliance was also placed on behalf of the defendant on copies of the Khasra Girdawaris from Exhibits D-3 to D-7 pertaining to Kharsa Nos. 237/175/50 and 238/175/50 and copies of Khasra Girdawaris Exhibits D-8 and D-11 of pertaining to Khasra No. 237/175/50. The land in dispute bears Khasra Nos. 237/175 and 238/175 and consequently these copies of the Khasra Girdawaris Exhibits D-3 to D- 11 do not pertain to these fields and hence cannot be rt looked at. Exhibits D-3 and D-8 are copies of the Khasra Girdawaris of Khasra Nos. 238/175/50 and 237/175/50 respectively for the harvest Kharif 1950 to Rabi 1954. No entry in Exhibits D-3 and D-8 is there in the ownership column of this land. Upto Kharif 1951, Harnam Singh is recorded as a tenant of these fields under one Walaiti Ram Patadar and this entry continues up to Rabi 1954. The same is the entry in Exhibits D-4 and D-9 up to Rabi 1961. In these copies, Harnam Singh is recorded as a tenant under the Patadar. There is a direct conflict in the entries in the copies of the Khasra Girdawaris Exhibits D-2 to D-
11 with the copies of Jamabandi Exhibits P-4 and P-5 discussed above. It is well-settled law that no presumption of truth attaches to entries in Khasra Girdawari but it is a document prepared by a Patwari in the discharge of his official duty and is relevant under Section 35 of the Evidence Act. The Patwari who prepared these Khasra Girdawaris for all these years has not been produced for reasons best known to the defendant. The Patwari who prepared these copies of Khasra Girdawaris was also not examined to prove whether these copies were correct in accordance with the original Khasra Girdawaris. If these copies of Khasra Girdawaris were correct, then entries in accordance with the same would ::: Downloaded on - 21/09/2023 20:35:39 :::CIS 21 have been made in the copies of the Jamabandi whose copies are Exhibits D-1 land D-2. In Rulhu Ram v. Than Singh and others, 1966 68 PunLR 866, it was held that the .
revenue authorities when they find a person in possession of the land without any right normally record him as a tenant irrespective of the fact whether he is a tenant or not. Non-payment of rent negatives existence of a relationship of landlord and tenant. In Kanwar A. Ahmed Khan's case it was held:-
"The relationship of landlord and tenant comes of into existence as the result of an agreement, express or implied. It may be implied from the facts and conduct of the parties which indicate that the landlord intended to divest himself of the rt possession of the premises and that the tenant intended to assume possession thereof. One of the most important circumstances from which this inference may be drawn is the payment of rent, for although rent is not essential, it is a normal incident of tenancy, and the fact that a person in possession of the premises paid rent to the owner thereof indicates to an extent at least that the relationship of landlord and tenant exists between the parties. On the other hand, the fact that no rent was paid would lead one to a contrary conclusion and negative the existence of such relationship."
In the instant case neither any agreement nor any writing about the direct tenancy of the land in suit of the plaintiff has been produced by Harnam Singh, defendant No. 2. It is not stated as to what rent in cash or kind he had been paying. His bald statement to the contrary has no value and was rightly rejected by the trial Court. For all these reasons it is held that the appellate court misread these documents and wrongly decided that Harnam Singh, the defendant was a direct tenant of Khasra Nos. 237/175 and 238/175 in a suit under the plaintiff. As a result the decision of the lower ::: Downloaded on - 21/09/2023 20:35:39 :::CIS 22 appellate Court on issue Nos. 1 and 2, is reversed and that of the trial court is restored."
29. Therefore, learned Courts below had rightly held that .
mere entry in the column of possession is not sufficient to confer the status of tenant upon a person and the payment of the rent is to be established by the person claiming tenancy. The of column of rent is silent regarding the rent being paid by defendant no. 1 to Surju or the State. Thus, the revenue record rt does not establish the tenancy.
30. Learned Courts below had rightly noticed that entries were changed for the first time in the year 1960-61 and there was no explanation for the change. It was laid down by Punjab Haryana High Court in Amal Kumar vs. Bhupender Singh, 1976 PLJ 26 that before effecting the change in the revenue entries, the person who is likely to be affected by the change should be informed of the proposed change and proof of such notification has to be placed on record. It was held:
"The Financial Commissioner has prescribed the mode for effecting changes in the existing Khasra Girdawaris. According to the instructions, it is the duty of the Patwari before making any change in the existing entry at the time of harvest inspection, to notify in writing the person or persons likely to be adversely affected by such a change of the entries and retain on record proof of the ::: Downloaded on - 21/09/2023 20:35:39 :::CIS 23 notifications. Further, the changes so made should be attested by the Lambardar or the Panch of the village. It is further stated in the instructions that entries made in .
violation of the said instructions shall be treated null and void at the time of attestation of the Jamabadi or an earlier stage. Under Section 11 of the Punjab Land Revenue Act, 1887, the Financial Commissioner had the general power of superintendence and control over all Revenue Officers and in that capacity, he had a right to issue such instructions. In this view, I am supported by a of decision of this Court in S. Mohan Singh V. The Financial Commissioner, Revenue, Punjab and others 1967 PunLR 377, wherein it has been observed that the standing orders can be issued because of the general power of rt superintendence granted to the Financial Commissioners under Section 11 of the Land Revenue Act. These instructions have been issued to put a curb on the unrestricted owners of the Patwaris to manipulate the Khasra Girdawaris in the way they desired. It was the duty of the Patwari before changing the Khasra Girdawari and making an entry in favour of the appellants to have informed the landowners so that they could come and contest the new entry, which was to be made by him if they so desired."
31. This judgment was followed in Parmanand vs. Sucha Singh 1997(1) PLJ 474, wherein it was held:
"As per para 9.9. of the Punjab Land Records Manual, a duty has been imposed upon the revenue authorities to notify the proposed change to adversely affected parties. In case no notice has been issued, such a change in entry cannot bind the affected person. This matter came up for consideration in the case reported as Ram Sarup v. Balwant Sing and Ors., 1991 P.L.J. 278, and the Court relied upon para No. 9.9. of the Punjab Land Records Manual held it is incumbent upon the concerned revenue ::: Downloaded on - 21/09/2023 20:35:39 :::CIS 24 authorities to inform the affected person before effecting any change in the revenue entries."
32. This question was considered by this Court in .
Harbans Singh vs. 1991(2) Shim. L. C.222 and it was held:
8. It is well settled that where the earlier revenue entries were changed in the later revenue entries the change was effected without any mutation and there was no order of the Revenue Authorities showing how the change was of made, although the presumption ordinarily would be in favour of the later entries, yet that presumption is rebuttable one and it would be deemed to have been rebutted by the fact that the alterations in the later rt entries are found to have been made unauthorisedly or mistakenly, there being no material to justify the change of entries. This is what which has been found to have been done in the instant case while the entries recording the plaintiffs to be the owners in possession of the suit land have been recorded in the later Khasra Girdawari In fact, the Financial Commissioner has prescribed the mode for effecting changes in the existing Khasra Girdawaries.
According to the instructions, it is the duty of the Patwari before making any change in the existing entry at the time of harvest inspection, to notify in writing the person or persons likely to be adversely affected by such a change of the entries and retain on record proof of the notifications Further, the changes so made, should be attested by the Lumberdar or the Panch of the village. It is further stated in the instructions that entries made in violation of the said instructions shall be treated null and void at the time of attestation of the Jamabandi or an earlier stage.
33. This position was reiterated in Lal Chand & Ors. Vs. Pala 1999(2) Cur. L.J. (HP) 415 and it was held:
::: Downloaded on - 21/09/2023 20:35:39 :::CIS 2523. It may not be out of place to mention here that there is a legal presumption of truth attached to the latest entries in the record of rights but this presumption is a .
rebuttable one. In the present case in the latest record rights, as discussed above, Pala has been recorded in actual occupation of the suit land as a tenant. His simple case, as pleaded, has been that about 40 years back when Prem Singh, father of the plaintiff and proforma defendants No. 2 and 3 died he was inducted as a tenant by the land owners. This only reflected that prior to the of death of Prem Singh he, that is Prem Singh was in actual occupation of the suit land which fact is otherwise reflected from the entries in the record of rights, referred to above. There is no dispute to the proposition that the rt late entries in the record of rights to which legal presumption of truth is attached, were the result of the change made in Kharif 1979 pertaining to the suit land. In case this change made in Kharif 1979 in favour of Pala defendant is held to be legal one definitely the later entries made on the basis of the same would be held to be legal one. In case this change is not held to be legal and the change made in Kharif 1979 is avoided, the later entries in favour of Pala defendant shall automatically fall. There is again no dispute to this proposition.
24. At this stage the definition of the tenant as given in the Himachal Pradesh Tenancy and Land Reforms Act, 1972 can be referred which would be essential to appreciate the case of the parties in this particular regard especially that of Pala defendant. The tenant has been defined under Section 2(17) of the aforesaid Act :
"2(17) "tenant" means a person who holds land under a land owner, and is. or but for a contract to the contrary would be liable to pay rent for that land to that land-owner and includes -
(i) a subtenant; and ::: Downloaded on - 21/09/2023 20:35:39 :::CIS 26
(ii) the predecessors or successors in interest of tenants or a sub-tenant, as the case may be, but it does not include -
.
(a).......................
(b)................"
25. Taking into consideration the aforesaid definition a party claiming the status of a tenant has not only to prove the alleged agreement of tenancy but also to plea the same. In the present case, there does not appear to be any of dispute that during the "lifetime of Prem Singh, he was occupying the suit land and that too as a tenant, as has been held by the Civil Court. It is correct that the civil court's decree might not be binding on the present rt defendant as he was not a party to that litigation but so far as the landowners were concerned, the matter between Prem Singh and his successors and them was final.
26. The entries were changed in the name of Pala defendant vide E\.DW3/A referred to earlier There is nothing in this document that the present plaintiff and defendants No.2 and 3 were present when this entry was changed. There is nothing on record to suggest even remotely that any enquiry was conducted by the Patwari before making this entry and in that enquiry, the present plaintiff and proforma defendants No.2 and 3 were associated. This report is silent that Pala was inducted as a tenant on payment of rent by the land owners. There is no evidence that before recording this entry in October 1979 the earlier tenants who were recorded in this record of rights were evicted in accordance with law or they had relinquished their tenancy rights. Thus, at the very face of it so far as the documents are concerned, which have been discussed above, the change in an entry in the name of Pala defendant was made without any authority and against law and procedure in this behalf. In case this entry is ignored, the subsequent entries made in favour of Pala automatically lose their legal entity."
::: Downloaded on - 21/09/2023 20:35:39 :::CIS 2734. A similar view was taken in the case of Prem Dass (supra), wherein it was held as under:-
.
"16. It is really surprising to find that the entries came to be changed at the time of preparation of the Girdawari in Kharif 1974 and that too without any inquiry and without following a set procedure which is required for a change. There was no order or direction passed by any competent authority in this respect and the change came to be of recorded in a clandestine manner completely washing away the entries forming record-of-rights i.e. "Missal Haquiat Bandobast Jadeed". It is, of course, true that the entries appearing in the record after the change record rt the plaintiffs to be the owners in possession of the suit land, but that by no reason adds any strength to the rights of the defendant. The moment the change made in favour of the defendant is doubted in its correctness, subsequent change based on wrong entries cannot be of any avail to the defendant."
35. Learned Courts below had rightly pointed out that defendant no. 1 had not pleaded the particulars of the tenancy.
He did not state in the written statement regarding the date of induction or the terms under which he was inducted. Defendant no. 1 died during the pendency of the proceedings. Surat Ram, his legal representative (DW-1) stated in his affidavit that Dhuri used to cultivate the suit land as a tenant and pay the land revenue. Surju was not in possession. He stated in his cross-
examination that he did not know the khasra number of the land. It consists of Ghasni and field, however, he did not know ::: Downloaded on - 21/09/2023 20:35:39 :::CIS 28 the area of the Ghasni or the field. Surju had relinquished the land in favour of defendant no. 1, 45-46 years ago, however, he .
could not tell his age at that time. The land was given on tenancy and a document was prepared.
36. Learned Courts below had rightly held that the document creating tenancy was the best proof but it was not of produced. Balak Ram (DW-2) stated in his cross-examination rt that he was not aware who had given the land to Dhuri or that the suit land was mortgaged with Surju. This witness had deposed earlier in many cases but he did not remember their number. He admitted that he had also deposed in the earlier case titled Maan Singh Vs. Devi Ram.
37. The testimony of this witness does not establish the tenancy, as he could not say who had given the land to Dhuri. He admitted that he had appeared in many cases as a witness and thus his credibility is suspect; therefore, there is no infirmity in the findings recorded by learned Courts below that the tenancy was not proved even by the oral evidence.
38. No evidence was led to show that Surju was aware of the tenancy during his lifetime. It was asserted that jamabandi is ::: Downloaded on - 21/09/2023 20:35:39 :::CIS 29 attested in the presence of the public implying that it was also attested in the presence of Surju. However, as already noticed, .
no evidence has been brought on record to show that Surju was informed about the change in the entry. Surat Ram (DW-1) and Balak Ram (DW-2) have not stated in their statements that entry was ever recorded in the presence of Surju; therefore the of plea that Surju had not challenged the entry during his lifetime and his legal representatives cannot challenge the entry after his rt death cannot be accepted.
39. Learned Settlement Collector passed an order (Ex.D-
6) on 1.6.2000 holding that the name of Dhuri was deleted at the time of attestation of mutation No. 9 regarding the succession of Surju. Columns No. 2 to 7 should have been recorded as per the latest jamabandi wherein the name of State was missing in Column No. 4. The entry of possession was not recorded in Column No. 5 which led to an inference that the name of Dhuri was deleted. The attestation of mutation regarding the inheritance will not affect the status of the tenant; hence the appeal was partly allowed and it was ordered that the columns be reflected as per jamabandi.
::: Downloaded on - 21/09/2023 20:35:39 :::CIS 3040. It was submitted that the learned Settlement Collector had found Dhuri to be a tenant and the Civil Court .
should not have interfered with that finding. This submission is not acceptable. The order clearly shows that the mutation was attested regarding the inheritance but the entries recorded in the latest jamabandi were not reflected in the other columns;
of therefore, a direction was passed to reflect the entries as per Jamabandi. The order shows that there was a clerical error in rt repeating the entries; hence there was no adjudication of the status of Dhuri and no advantage can be derived from the order.
41. No other point was urged.
42. Thus, the learned Courts below had correctly appreciated the evidence. They had correctly held that the entries in the subsequent jamabandis could not be relied upon when there was no basis for the change and there was no evidence of the knowledge of Surju regarding the entry therefore, his legal representatives could not have been debarred from changing the entry. Hence, all the substantial questions of law are answered accordingly.
::: Downloaded on - 21/09/2023 20:35:39 :::CIS 31Final order
43. In view of the above, the present appeal fails and the .
same is dismissed.
44. Pending application(s), if any, also stand(s) disposed of.
of (Rakesh Kainthla) Judge 21st September, 2023 rt (Chander) ::: Downloaded on - 21/09/2023 20:35:39 :::CIS