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Himachal Pradesh High Court · body

1981 DIGILAW 43 (HP)

JAI CBAND v. BASAKHN

1981-08-06

H.S.THAKUR

body1981
JUDGMENT H. S. Thakur, J.—-This is an appeal against the decree and judgment I passed by the learned Additional District Judge, Kangra at Dharamsala, dated I 12th March, 1980, whereby, on an appeal filed by Shri Jai Chand, appellant, I the decree and judgment passed by the trial court were modified to the extent I that the suit of the appellant to the extent of the land comprised in Khasra I No. 374 was decreed whereas the suit regarding the remaining land was I dismissed. 2. Aggrieved by the said judgment and decree passed by the learned lower appellate court, the appellants have filed this second appeal. 3. The facts relevant to the case may be briefly stated. The suit was filed by Shri Jai Chand appellant against the respondents Nos. 1 and 2, whereas the appellant No. 2 in this Court was impleaded as a proforma-respondent being a co-owner of the land in dispute. The learned trial court dismissed the suit of the appellants holding that the appellants were not in possession of the land in suit and accordingly a suit for declaration and injunction was not maintainable. The decree and judgment passed by the trial court was assailed by preferring an appeal in the lower appellate court. The lower appellate court on the concession of the contesting-defendants (respondent Nos. 1 and 2) decreed the suit of the appellants to the extent that Khasra No. 374 being Tikka- abadi land, the appellants were in possession thereof and as such they were entitled to the decree. The appellants have now assailed the decree and judgment of the learned lower appellate court in respect of half share in Khasra Nos. 371, 77 and 376. It is contended by the learned counsel for the appellants that the learned lower appellate court has mis-understood and misread the evidence, especially the documentary evidence and has wrongly come to the conclusion that the respondents were the tenants of the land in question It is further contended that Ex. D-l, which is a document prepared during the settlement operations by the Patwari and is not verified by the revenue officers and also does not form a part of Record-of-Fights could not be relied upon. It is further contended that the only entry in favour of the defendants in the revenue record is as contained in Ex. D-l, which is a document prepared during the settlement operations by the Patwari and is not verified by the revenue officers and also does not form a part of Record-of-Fights could not be relied upon. It is further contended that the only entry in favour of the defendants in the revenue record is as contained in Ex. D-l. It is also argued that this document has got no evidentiary value and at the most is relevant under Section 35 of the Evidence Act. Immediately thereafter during settlement operations missal- haquiat was prepared, a copy whereof is Ex. P. 2. A missal-haquiat is also prepared during settlement operation and carries a presumption of truth as attached to an entry in a jamabandi. It is also contended that the respondents have not been able to establish that they were settled as tenants on the land in dispute. No. receipt in token of the payment of rent has been produced. On the contrary, there are entries in the missal-haquiat as also in the previous jamabandi pertaining to the land in dispute which show that the respondents have not been in possession of the land in dispute. 4. A preliminary objection has been raised on behalf of the respondents by Shri K. D. Sud that this Court in a second appeal under Section 100, C. P. C. would not disturb the findings of fact arrived at by the courts, below unless the conclusion is perverse or based on no evidence. He has contended that there is evidence on record, besides Ex D. !, of the witnesses who have deposed that the land in dispute is being cultivated by the respondents for the last about 40 years. According to him, there is also evidence to show that the rent bad been paid by the respondents to Shri Bbolu, who is a co-owner of the land. He has referred to a decision in V Ramachmdra Ayyar and another v. Ramachandra Chettiar and another, [AIR 1963 SC 302]. According to him, there is also evidence to show that the rent bad been paid by the respondents to Shri Bbolu, who is a co-owner of the land. He has referred to a decision in V Ramachmdra Ayyar and another v. Ramachandra Chettiar and another, [AIR 1963 SC 302]. He has laid emphasis on the observations of the Supreme Court in this judgment that if a finding of fact has been recorded by the first appellate court without any evidence, that finding cm be successfully challenged in second appeal, because a finding of fact which is not supported by any evidence can be questioned under Section 100 and in that connection, it may be said that the decree proceeding on such a finding discloses a substantial defect or error in procedure. This, however, does not mean that wherever the High Court thinks that the evidence accepted by the lower appellate court could not have been reasonably accepted, the High Court would be justified in interfering with the decision of the lower appellate court. All that it means is that it should be a case where the evidence, which is accepted by the lower appellate court, no reasonable person could have accepted and that really amounts to saying that there is no evidence at all. He has also referred to another decision of the Supreme Court in Kshitish Chandev Bose v. Commissioner of Ranchi, f 1981 Vol-II Supreme Court Cases 103J. In this judgment also the view taken by the Supreme Court in V. Ramachandra Ayyars case (supra) has been affirmed and it has been observed that it is settled law that the High Court has no jurisdiction to entertain second appeal on the ground of erroneous finding of fact. It is further observed that as the two courts approached the evidence from a correct perspective and gave a concurrent finding of fact, the High Court had no jurisdiction to interfere with the said finding. On the basis of the above principles of law laid down by the Supreme Court, it is contended by the learned counsel that the matter in hand is not a case in which no evidence is available on record. There is oral evidence of the witnesses accompanied by the documentary evidence as reflected in Ex. D. 1. It is further contended that even if Ex. There is oral evidence of the witnesses accompanied by the documentary evidence as reflected in Ex. D. 1. It is further contended that even if Ex. D. I be treated as not a part of the Record-of-Rights, al! the same it is relevant under Section 35 of the Evidence Act as this document is prepared by a revenue official in the discharge of his official duties. On this basis, it is contended that this Court has no jurisdiction to set aside the finding of fact arrive at by the lower appellate court. 5. It may be noticed that in this case the trial court has held that the respondents are not the tenants of the land though they are in possession thereof and, on that account, the suit of the appellants was dismissed. 6. I have perused the judgment of the learned lower appellate court. The lower appellate court has correctly pointed out in its judgment that presumption of truth is attached to the entries in revenue record, under Section 44 of the Punjab Land Revenue Act and entries in the subsequent record have to be preferred as compared to the previous record. It is also pointed out by the lower appellate court that no presumption of truth is attached to the entries other than those made in the Record-of-Rights, like jamabandis. The lower appellate court has further observed that in the face of regular jamabandi as ultimately drawn up, no reliance can be placed on the contents of the interim draft, preceding the jamabandi. It is not disputed that the entry as reflected in Ex. D. 1 parcha-khatauni is in the form of an interim draft preceding missal-haquiat. The question which, however, survives for consideration in this case is whether the lower appellate court while appreciating the evidence on record in applied the principles as indicated in its judgment. It cannot be disputed that according to the entry as reflected in the jamabandi pertaining to the year 1962-63 Ex. P. 2 in respect of the land in question, Shri Bholu Ram, one of the co-sharers, has been shown in exclusive possession of Khasra Nos. 376 and 377, whereas the land comprised in Khasra No. 371 is shown in the possession of all the co-owners. In the missal-haquiat pre pared during the settlement operations as also in the jamabandi for the year 1972-73 Ex. 376 and 377, whereas the land comprised in Khasra No. 371 is shown in the possession of all the co-owners. In the missal-haquiat pre pared during the settlement operations as also in the jamabandi for the year 1972-73 Ex. P. 7, the entries as reflected in the jamabandi for the year ]962-63 have been repeated. Except for Ex. D. 1, the respondent have not been shown in possession of any part of the land in suit. In this document, Shri Basakhu-respondent has been shown in possession of Khasra No. 377 min, 376 min, and 371. The column of rent is blank and it is not shown whether any rent is payable for the cultivation of the said land. It is the case of the respondents that they are cultivating the area in dispute for the last more than 40 years. To great surprise, the respondents are not entered in possession of any part of the land for all this long period. In case they had been in the continuous possession of the land for such a long time, it was normally expected that entry to that effect was made in the revenue record. It may be noticed that presently a tenant has acquired valuable rights in his capacity as such. It was not so about 40 years back. At that time, it could not be expected that a tenant would be acquiring such valuable rights as he has acquired now. The inescapable conclusion is that in the absence of such an entry, it cannot be believed that the respondents had been cultivating this land for the last about 40 years. No receipt in token of payment of rent has been produced. The witnesses who have been produced in support of the case of the respondents are D. W. 1 Pratap Singh, D. W. 2 Larju Ram, D. W. 3 Achhru Ram, D. W. 4 Cbamaru and Basakhu respondent himself. Though they have stated that they had seen respondent Basakhu cultivating the land but they have not been able to say as to what rent he has paying and when he paid the rent. D. W. 3 has oily stated that he saw the respondent paying rent to Bholu Ram, one of the co-owners, about 20 years back. Such like evidence cannot rebut the entries in the revenue record. 7. D. W. 3 has oily stated that he saw the respondent paying rent to Bholu Ram, one of the co-owners, about 20 years back. Such like evidence cannot rebut the entries in the revenue record. 7. It is also contended by the learned counsel for the respondents that even if the respondents are not the tenants of the land in dispute, they are in possession of the same. That being the position, it is argued that the suit filed by the appellants cannot be sustained as it is simply a suit for declaration and injunction. It has been already observed earlier above that the respondents though claiming possession for the last about 40 years over the land, are not shown in possession thereof for all this long period and it was for the first time during settlement operations that the entry as reflected in Ex. D. 1 was made. It may be noticed that this entry was not made in the missal-haquiat which was prepared after proper verification having been made by a revenue officer. As such, the entry in Ex. D. 1 is of no significance. Accordingly, in the face of the entries in the jamabandis and missal-haquiat, it cannot be believed that the respondents are in possession of the land. As such, the contention of the learned counsel has to be rejected. 8. There can be no dispute about the principle as laid down by the Supreme Court that the High Court in a second appeal would not normally interfere with the findings of the courts below. In the instant case, however, though the lower appellate court correctly observed that presumption of truth is attached to the entries in the Record-of-Rights, it did not take into consideration the principle of the appreciation of evidence that such entries have to be rebutted by plausible evidence. The chain circumstances, that the respondents were at no time shown in possession of any part of the land in dispute in the Record-of-Rights, no receipts in token of payment of rent were produced, other co-owners of the land did not at any time agree to the settlement of the respondents as tenants of the land, show that the plea of the respondents of their being tenants of the land or in possession thereof is only a device to defeat the claim of the appellants. It is also in evidence that on a part of land there is a house constructed by Harbans Lal co-owner. It may be pointed out that even Ex D. 1 does not show that the respondents were the tenants of the land. In Haman Singh v. The Resident Magistrate, Gohana, [PLR 1965 page 161] Mr. Justice H. R. Khanna (as His Lordship then was) observed that in deciding whether a person is a tenant one has not to look to the entries in the column of cultivation in jamabandi because that column only given the name of the person in occupation irrespective of the capacity in which he is occupying the land. On the contrary one should look to the column which goes to show as to whither 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. A similar view was taken by the Punjab and Haryana High Court in Tariok, Singh v. Harnam Singh, [1974 Punjab Law Journal 396]. In this judgment it is further observed that where there is a direct conflict in the entries in the copies of the Khasra Girdawaris with the copies of Jamabandis and the Patwari who prepared the Khasra Girdawari was not produced, the entries shown in the jamabandi are to be believed. In the present case, a copy of Ex. D. 1, no doubt was tendered in evidence but it was not proved by the revenue official who prepared that document. On this account also, the evidentiary value of this document becomes all the more meaningless. As such, I am of the view that the finding of the learned lower appellate court that the respondents are the tenants of the land cannot be sustained, being basically unreasonable. 9. For the foregoing reasons, the appeal is allowed and the decree and judgment passed by the lower appellate court is set, aside with no order as to costs. Appeal allowed.