Punjab-Haryana High Court
Joginder Singh And Anr. vs Jaswant Singh on 6 October, 1999
Equivalent citations: (2000)124PLR247
Author: M.L. Singhal
Bench: M.L. Singhal
JUDGMENT M.L. Singhal, J.
1. Sri Ram (since deceased) represented by his sons/LRs named Joginder Singh, and Jitender Singh have knocked the door of this court through this regular second appeal whereby they have assailed the judgment and decree dated 18.5.98 passed by Additional District Judge, Rewari whereby he dismissed their appeal and maintained the judgment and decree dated 3.8.94 of Senior Subordinate Judge, Rewari decreeing the respondent plaintiff Jaswant Singh's suit for possession through pre-emption of the sale of land (in suit) on payment of Rs. 85,500/- minus Rs. 15,500/- already deposited by him as Zare panjam.
2. Jaswant Singh, Plaintiff (respondent herein) instituted suit for possession through pre-emption against Sri Ram and Krishan Lal and others (Krishan Lal and others were given up in trial court on 24.1.92) with regard to land measuring 21 kanal 2 marla on the allegations that he has been in possession of this land since long as tenant under Krishan Lal etc. vendors and that he was in possession of this land as tenant as on 26.5.90 i.e. when this land was sold by Krishan Lal etc. to Sri Ram vide registered sale deed dated 26.5.90 for a sum of Rs. 40,000/- though in the sale deed Rs. 70,000/- was entered,as sale consideration fictitiously. Market value of the land was also not more than Rs. 40,000/-
3. In the sale deed, the sale money was inflatedly shown at as Rs. 70,000/- with a view to ward off the claim of the possible pre-emptor, plaintiff Jaswant Singh's claim to pre-empt the sale on the basis of his being in possession as tenant all through. It was alleged that Sri Ram was a total stranger to the land having no right to lay claim on the land vis-a-vis him (Jaswant Singh-Plaintiff). He prayed to pre-empt the sale of the land effected by Krishan Lal etc. in favour of Sri Ram on payment of Rs. 40,000/- or whatever was adjudged as its market value by the court at the date of sale.
4. Sri Ram defendant contested the suit of the plaintiff. It was denied that the plaintiff had ever been in possession of this land as tenant. In fact, the defendant (vendee) had been cultivating the land in suit as tenant and as such the plaintiff had no superior light to pre-empt the sale. Revenue record showing the plaintiff to be tenant is wrong. Suit was bad for partial pre-emption. Suit was barred by time. It was urged that the land was purchased by him for a sum of Rs. 70,000/- which was genuinely paid by him to the vendee. It was denied triat he had paid only Rs. 40,000/- for the land in suit or that Rs. 30,000/- had been entered in the sale deed inflatedly with a view to ward off the possible pre-emptor. In fact Rs. 30,000/- had been paid as advance. Rs. 70,000/- was the market value of the land in suit and this is what was paid,to the defendant vendee by him.
5. On the pleadings of the parties, the following issues were framed by the learned trial court:-
1. Whether the plaintiff has a superior right of pre-emption? OPP
2. Whether the sale consideration of Rs. 70,000/- was fixed or actually paid ? OPP
3. If issue No. 2 is not proved, what was the market value of the land in dispute on the date of sale? OPP
4. Whether the plaintiff has no right to sue? OPD
5. Whether the plaintiff is estopped by his act and conduct from filing the present suit? OPD
6. Whether the suit is bad for partial pre-emption? OPD
7. Whether the suit is beyond the period of limitation? OPD
8. Whether the plaintiff has no cause of action? OPD
9. Whether in case of decree in favour of the plaintiff, the defendant No. 1 is entitled to the stamps and registration charges, if so, to what amount? OPD
10. Relief.
6. Plaintiffs suit for possession through pre-emption was decreed by Senior Subordinate Judge, Rewari vide order dated 3.8.94 against Sri Ram defendant/vendee on payment of Rs. 85,500/- minus 1/5th as zare panjam already deposited by him in view of his finding, that the plaintiff had superior right to pre-empt the sale because of his being tenant in possession of the land under the vendors since before the date of sale, at the date of sale, during the pendency of the suit, and thereafter also to date. It was found that land in suit was sold genuinely for a sum of Rs. 70,000/- and this is what was paid by the vendee to the vendors and no amount was entered in the sale deed fictitiously. Rs. 70,000/- was entered in good faith in the sale deed. To this sum of Rs. 70,000/- was added the expense incurred by the vendee by way of stamp and registration of the sale deed. No argument was raised by the learned counsel for the defendant on issues 4,5,6,7 and 8 and, therefore these were found against the defendant. Aggrieved from this judgment and decree dated 3,8,94 passed by Senior Subordinate Judge, Rewari, Sri Ram went in appeal. Learned Additional District Judge, Rewari dismissed the appeal vide order dated 18.5.98. He found that the plaintiff's suit had been rightly decreed by the learned Senior Subordinate Judge for possession through pre-emption as the plaintiff had all along been in possession as tenant of the land and as such had a superior right to pre-empt the sale. Aggrieved from this judgment and decree dated 18.5.98 passed by Additional District Judge, Rewari, Sri Ram (dead) represented by his LRs/heirs named Joginder Singh and Jitender Singh have come up in further appeal to this court.
7. I have heard the learned counsel for the parties and have gone through the record.
8. In this appeal, the only question that requires determination is whether Jaswant Singh plaintiff respondent had been through been in possession of the land as tenant. Learned counsel for the appellant submitted that tenancy is a matter of contract between the parties and unless there is proof of contract of tenancy, tenancy cannot be said to have come into being. It was submitted that merely because there are entries in Khasra girdawri as to tenancy, there can be no finding as to tenancy on the basis of mere entries in Khasra girdawri. In Natha Singh and Ors. v. Rikar Singh and Anr., 1984 P.L.J. 404, it was held that no presumption of truth attaches to khasra girdawri entries. They can be looked into as a piece of evidence in proof of possession of land. Khasra girdawri entries are record of acts of a public servant performed in discharge of his official duties under section 35 of the Evidence Act. Simply on the basis of Khasra girdawri entries, it is not possible to hold that the person who is occupying land in the capacity of tenant when there is absence of positive evidence regarding creation of tenancy. It was submitted that in order to succeed on the plea of tenancy, the plaintiff-respondent should have set out in the plaint quite clearly the particulars of the contract of tenancy namely date/month and year when was the rent settled and whether rent was to paid in the form of produce or in the form of cash. It was submitted that in this case the facts necessary to set up the plea of tenancy are conspicuously lacking and if the facts necessary to set up the plea of tenancy are lacking, there should be no finding of tenancy. In Pandu Dhondi Yerudkar and Anr. v. Ananda Krishna Patil, A.I.R. 1975 Bombay 52, it was held that when a vague plea is made by the defendant contending that he is a tenant of the land, the court should hesitate to frame such an issue on such a vague plea unless the defendant is able to give particulars showing the time when the tenancy was created, the person by whom it was created and the terms on which it was created and if inspite of such particulars being asked for, the defendant is unable to furnish the same, the court should not raise an issue on a vague plea that he, the defendant is a tenant of any particular piece of land."
9. Jaswant Singh (plaintiff) PW1 stated that he has been in possession of this land measuring 21 kanal 2 marla as tenant ever since consolidation took place in the village on batai basis. He got this land on batai from Chela Ram. After the death of Chela Ram, he had been paying batai to Krishan Lal etc. sons of Chela Ram. He has not been ejected by any Court of law. He has been continuing in possession of the land as tenant. Sri Ram defendant (vendee) on the other hand, stated that when he purchased this land, he was in possession as tenant under Krishan Lal etc. sons of Chela Ram. He stated that Jaswant Singh Plaintiff never cultivated this land in any capacity and he came to know of Jaswant Singh's claim to possession of this land as tenant when he got notice from the Tehsildar regarding the receipt of batai from him and then he came to know that in khasra girdawri, he (Jaswant Singh) is figuring in possession as tenant.
10. In Jamabandi for the year 1986-87 Ex.P10 Jaswant Singh figures as in possession as tenant on batai basis. In khasra girdawri P11 for kharif 1987 onwards, he is figuring as in possession as tenant, in sale deed Ex.P12, there is recital that land is in possession of the tenant and that only dakhal malkhana was given to the vendee. In jamabandi Ex.P9 for 1991-92, Jaswant Singh figures as in possession as tenant on batai basis. In Khasra girdawri Ex.P8 for kharif 1982 onwards Jaswant Singh figures as in possession as tenant. In jamabandi 1962-63 Ex.P7, Jaswant Singh figures as in possession as tenant under Chela Ram on batai basis. In jamabandi for the year 1966-67, he figures as in possession as tenant on batai basis under Chela Ram. In jamabandi for the year 1971 -72, he figures as in possession as tenant on batai basis under Krishan Lal etc. sons of Chela Ram. In jamabandi for the year 1976-77, he figures as in possession under Krishan Lal etc. as tenant on batai basis. In Jamabandi for the year 1981-82 Ex.P3, he figures as in possession as tenant on batai basis under Krishan Lal etc. In Khasra girdawri Ex.P1, he figures as in possession as tenant under Krishan Lal etc. in Rabi 1991. Jawant Singh is thus figuring as in possession as tenant paying batai for the last so many years in the revenue record. He figures as tenant 1/5 share of the produce.
11. Learned counsel for the appellant submitted that there is no evidence that Jaswant Singh ever paid batai to Krishan Lal etc. or he ever paid batai to their father Chela Ram. Learned counsel for the appellants submitted that prior to 22.9.56 i.e. when the inheritance of Chela Ram took place, Chela Ram was figuring as Khudkasht on 22.9.56 when mutation No. 410 was entered in the name of his sons Krishan Lal etc., Krishan Lai etc. were recorded as Khudkasht. Sri Ram was shown as in possession but after erasure of the word "khudkasht". It was submitted by the learned counsel for the respondent that no value should be attached to Sri Ram having been shown in the column meant for "kashtkar" when there is no basis disclosed for his being shown as such. Suffice it to say, how could Sri Ram be viewed as kashtkar when, ever since 1962-63, Jaswant Singh has been continuing in possession as tenant on batai basis.
12. Learned counsel for the appellants submitted that no value can be attached to jamabandi for the year 1962-63 when Chela Ram was shown as owner whereas he had died in the year 1956. Suffice it to say, Chela Ram was shown as owner in jamabandi for the year 1962-63 because mutation No. 410 was not incorporated in the jamabandi. Learned counsel for the appellants submitted that in mutation No. 410, Chela Ram is shown owner while Sri Ram is shown as tenant. After the death of Chela Ram, mutation was entered in the name of Krishan Lai etc. in the column of kashtkar Sri Ram figured. It was submitted that when Sri Ram was figuring as in possession during the lifetime of Chela Ram and after the death of Chela Ram under Krishan Lal etc. sons of Chela Ram, it was for Jaswant Singh to have shown how he came to be shown as in possession in displacement of the entry showing Sri Ram to be in possession. Suffice it to say, no value can be attached to such a distant entry when after this entry there is a long string of entries showing Jaswant Singh to be in possession as tenant on batai basis. Value could have been attached to entries in Ex.DA if there had been no entry earlier of "khudkasht" and after eraser, that of Sri Rani in the column of kashtakar prior to jamabandi for the year 1962-63, some revenue entries must have been prepared after the death of Chela Ram till the preparation of jamabandi for the year 1962-63. Sri Ram could have produced that revenue record. In that event, Jaswant Singh could have been called upon to show how he came to be shown as in possession as tenant in displacement of Sri Ram. In mutation Ex.D8 which relates to the inheritance of Chela Ram, the column of kashtkar is shown as vacant. Jaswant Singh PW1 stated that he has been in possession of this land since consolidation. He got this land on batai/patta from Chela Ram. After the death of Chela Ram he had been paying batai to his sons Krishan Lal etc. He had been paying batai for both the crops but never got receipt. Actual payment of batai is not necessary to be proved by the tenant but what he is required to prove is that there had been agreement to pay rent. It may be in the form of produce or cash.
13. It was submitted that to determine whether a person is a tenant of that land, the entries in the column of cultivation and also in the column of rent, have to be read together. Non payment of rent would negative the existence of relationship of landlord and tenant. No presumption of truth attaches to khasra girdawri but it is a document prepared by a patwari in the discharge of his official duties and is relevant under section 35 of the Evidence Act. It is true that no presumption or truth attaches to khasra girdawri entries but it is equally true that they are not a waste paper. They are prepared by a patwari in the discharge of his official duties and therefore, they cannot be viewed as mere waste paper. If there are entries in successive jamabandis showing one as tenant of the other on payment of batai, the presumption has to be raised that he is a tenant. Actual payment of rent by the tenant is not necessary. What is necessary is that there should have been an agreement by the tenant to pay rent. Jamabandi entries are evidence of such contract of tenancy.
14. Faced with this position, learned counsel for the appellants submitted that presumption of correctness attaching to jamabandi entries is rebuttable if in the earlier revenue entries, Sri Ram was figuring but in the later revenue entries, Jaswant Singh is figuring when no basis is coming forth how this change in the later revenue entries, presumption of correctness would go. In Durga (deceased) and Ors. v. Milki Ram and Ors., 1969 P.L.J. 105, Hon'ble Supreme Court observed that where the earlier entries were changed in the later revenue entries and the change was effected without any mutation and there was no order of the revenue authorities showing how the change was made, although the presumption under section 44 of the Punjab Land Revenue Act would be in favour of the later entries but that presumption was a rebuttable one and it would stand rebutted by the fact that the alteration in the later revenue entries was made unauthorisedly or mistakenly, there being no material to justify the change of entries.
15. In this case, the entries appearing in the long string of jamabandis showing Jaswant Singh as tenant paying batai cannot be ignored particularly when in mutation No. 174/410, entries showing Sri Ram to be in possession was dubious. Learned counsel for the appellants submitted that this land was earlier in possession of the custodian being cultivated by the Harijan Society as shown in khasra girdawri Ex.D2 and if that was so, it lay upon Jaswant Singh to show how he came in possession in displacement of the possession of Harijan Society. It was also submitted that in khasra girdawri Ex.D2, Sri Ram figured as in possession on payment of 1/3rd of batai but it was in early sixties when Sri Ram was in possession. Sri Ram never figured as in possession in khasra girdawri after early 60s. There is a big question mark how Sri Ram allowed Jaswant Singh to be shown in possession right since the preparation of the jamabandi for the year 1962-63 and onwards. Later revenue entries have to be preferred over the earlier revenue entries. Numerous entries in the revenue record do not at all support the case of Sri Ram. It is only prior to jamabandi for the year 1962-63 that Sri Ram figured as in possession. In jamabandi for the year 1962-63 and onwards Jaswant Singh figures as in possession as tenant without any break. Why Sri Ram did not take any step to have the jamabandi entries corrected. It was held in Umrao and Anr. v. Sardar, 1978 P.L.J. 117 that if there had been any mischief committed by any petty revenue official in the making of a fictitious entry, the same can be got rectified and if there was failure to obtain rectification, they must suffer by the presumption of truth attaching to the entry in jamabandi. In this case Sri Ram must suffer by the presumption of truth attaching to entry in jamabandis for the year 1962-93 and onwards.
16. In this case both the courts below have concurrently found in favour of Jaswant Singh being in possession of the land as tenant paying batai and this finding of fact arrived at by them is based on appreciation of evidence. Appreciation of evidence by them cannot be said to be unreasonable or unjust. It was held in Bruce v. Silva Raj and Ors., 1987 (Suppl.) Supreme Court Cases 161 that it is not open to the High Court in the exercise of jurisdiction under section 100 of the Code of Civil Procedure to enter into reappreciation of evidence and interfere with the findings of facts arrived at by the two courts below. In this case, there is ample evidence to sustain the finding that Jaswant Singh, is in possession of the land as tenant and has superior right of pre-emption to pre-empt the sale on that score.
17. For the reasons given above, I am of the opinion that this appeal fails and accordingly the same is dismissed with costs. Counsel fee, Rs. 5,000/-.