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1991 DIGILAW 11 (HP)

HARBANS SINGH v. KARAM CHAND

1991-01-10

D.P.SOOD

body1991
JUDGMENT D. P. Sood. J.—This Regular Second Appeal under section 100 (old) of the Civil Procedure Code read with section 41 of the Punjab Courts Act, has been directed against the judgment and decree, dated November 25, 1981 of the then learned Additional District Judge, Kangra Division at Dharamshala, whereby the trial Courts judgment directing the suit of the plaintiffs to be dismissed, was upheld. 2. The plaintiffs are the appellants and the respondents were tire defendants in the trial Court. Both the parties have been referred to hereinabove as plaintiffs’ and defendants. The bone of contention between the parties is the suit land contained in Khata Khatauni No. 62/127, Khasra No. 638/466 min measuring 15 Kanals 18 Marias (part-1) and Khata Khatauni No. 62/129 Khasra No 638/466 measuring 3 Kanals, besides, Kbasra No 559 measuring 17 Kanals 8 Marias (part-II), as per Jamabandi for the year 1968-69, situate in Tika Bari Tehsil Nurpur, District Kangra. Both the defendants were admittedly the tenants of the suit land. The plaintiffs have filed the instant suit for declaration and issuance of permanent prohibitory injunction against the defendants on the basis of title and possession of the suit land. The plaintiffs alleged that defendant No. 1 voluntarily relinquished the possession of the suit land, contained in Part-I, in October, 1969, whereas defendant No. 2 relinquished his tenancy rights in their favour in April, 1970. Thus, as per the plaintiffs, they continued to be in cultivating possession of the suit land since the said dates It is then alleged that due to the enforcement of H. P Tenancy and Land Reforms Act, the defendants on the instigation of some interested persons, started claiming their tenancy rights in the suit land and started interfering in their peaceful possession- Further allegation is that despite requests, both the defendants did not desist from doing so which circumstances ultimately culminated into the filing of the instant civil suit. 3. The contest putforth by both the defendants in their written statement is that they never relinquished their tenancy rights in favour of the plaintiff* ; that the latter, in connivance with the Halqua Patwari, got the entries effected in the Revenue record in their favour and manoeuvred the story of voluntary relinquishment with a view to dislodge the defendants from actual self cultivating possession of the suit land. Both the defendants also raised preliminary objections with respect to the maintainability of the suit, estoppel and mis-joinder of parties and causes of action. 4. The trial Court, on the pleadings of the parties, framed the following issues : 1. Whether the plaintiffs are entitled to the relief of injunction as prayed for ? OPP. 2. Whether the plaintiffs are owners in possession of the suit land ? OPP. 3. Whether the defendants are in possession of the suit land as tenants ? OPD 4. Whether the defendant No. 1 relinquished his tenancy rights in favour of the plaintiffs as prayed for ? OPP 5. Whether the present suit is maintainable in the present form? OPP. 6. Whether the plaintiffs are estopped from filing the present suit by their act and conduct? OPD. 7. Whether the suit is bad for mis-joinder of parties and causes of action ? OPD. 8. Relief 5. The trial Court decided issues Nos. 1 to 3 in favour of the defendants and against the plaintiffs Under issue No. 4, it held that defendants never relinquished the tenancy rights in favour of the plaintiffs and decided the said issue against the plaintiffs. Under issue No 5, the lower Court held that the suit for grant of permanent injunction was not maintainable and the plaintiffs were held to be out of possession. Issue No. 6 was not pressed and, as such, was decided accordingly. Cumulatively considering the findings, the trial Court dismissed the suit. The lower appellate Court upheld the findings of the trial Court under Issues Nos. 4 and 5 regarding which submissions were putforth before it by the plaintiffs and ultimately, upheld the decision of the trial Court directing the dismissal of the suit. 6. The sole point urged by the learned Counsel for the plaintiffs, now appellants, is that both the Courts failed to give credence to the latest entries in the Revenue record to that of the earlier entries to which presumption of truth attaches. It is pointed out that the entries pertaining to the suit land for the period from 10-10-1969 to 24-4-1973 contained in Ext. P-2 and Ext P-3 respectively with respect to Part-I and Part-II of the suit land favour the plaintiffs possession. Further it is pointed out that the basis of the said entries in the Khasra Girdawari is the reports dated H-4-1970 and 10-10-1969 respectively which are Ext. P-2 and Ext P-3 respectively with respect to Part-I and Part-II of the suit land favour the plaintiffs possession. Further it is pointed out that the basis of the said entries in the Khasra Girdawari is the reports dated H-4-1970 and 10-10-1969 respectively which are Ext. Po and Ext. P-6 on record The learned Counsel has vehemently urged that the said factum of relinquishment of the tenancy rights of both the defendants is also supported by the oral evidence adduced by them Thus, according to him, both the Courts below have mis-appreciated the evidence and mis-interpretted the law in concluding that both the defendants had not relinquished their tenancy rights in favour of the plaintiffs. 7. I am unable to agree with the contention of the learned Counsel for the plaintiffs, now appellants, in view of the fact that both the Courts below have rightly held that the question of relinquishment of tenancy rights which is, indeed, a mixed question of law and facts and as a result thereof, no interference is called for. 8. It is well settled that where the earlier revenue 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 ordinarily would be in favour of the later entries, yet that presumption is rebottable one and it would be deemed to have been rebutted by the fact that the alterations in the later 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 effected 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 at any earlier stage. 9. Judging the entries in the instant case with the touchstone of the abovesaid instructions, it is amply clear that there is no reference of alleged relinquishment of tenancy rights in the reports Exts. P-5 and P-6 respectively Further, the said reports are very much conspicuous that at the time when the same were recorded, the defendants, who admittedly were the tenants, were not present. Thus, this documentary evidence, so recorded by the Halqua Patwari showing change in cultivation at the material time, is insignificant and, in fact, does not in any way comply with the instructions referred to above In other words, the change effected in the revenue record vis-a-vis the suit land in the instant case is an unauthorized one. That is to say, the change has been effected without any material produced by the plaintiffs. The onus of proof of the relinquishment in legal parlance was upon the plaintiffs, which they have failed to establish by any cogent, convincing and consistent evidence on record. 10. The abovesaid inferences also find support from the oral evidence adduced by the plaintiffs. Except Harbans Singh, one of the plaintiffs appearing as PW 1, none of their witnesses has supported the factum of voluntary relinquishment of the alleged tenancy rights by the defendants. 10. The abovesaid inferences also find support from the oral evidence adduced by the plaintiffs. Except Harbans Singh, one of the plaintiffs appearing as PW 1, none of their witnesses has supported the factum of voluntary relinquishment of the alleged tenancy rights by the defendants. Even the sole testimony made by P W I is of general nature and it does not indicate whether either of the defendants had notified his intention verbally or in writing to the plaintiffs (body of landlords) or any one of them on or before the 15th day of January, 1969 or 15th day of January, 1970 to relinquish their respective tenancy rights at the end of the agricultural year then current as is envisaged under sub-section (1) of section 36 of the Punjab Tenancy Act, 1987, which was applicable to the parties at the material time Even otherwise, PWs 2 and 3, namely, Mahant Singh and Des Raj have not been able to prove the alleged relinquishment inasmuch as PW 2 stated on oath that he saw the defendants in self cultivation of the suit land for the last five or six years and when the plaintiffs started cultivating the land, the dispute arose in between the parties. Rather, in cross- examination, he admitted that he did not go to spot at the material time, but he was working in the machine of the plaintiffs. PW 3, Des Raj has made a very casual statement that the plaintiffs were in possession of the suit land for the last eight or nine years. His statement was recorded on 3-5-1979. He in his deposition has not even stated a single word in support of the alleged relinquishment of the tenancy rights by the defendants. As such, the oral evidence adduced by the plaintiffs, is also insignificant. 11. Thus, from whatsoever angle the facts and circumstances of the instant case are viewed, the view taken by both the Courts below appears to be sound. Accordingly, no interference is called for in the instant appeal. 12. In view of the above, the appeal is dismissed with costs. Impugned judgment and decree are up-held Decree sheet be prepared and file be consigned. Appeal dismissed.