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1997 DIGILAW 188 (HP)

SAROJ BALA v. ROSHAN LAL

1997-05-19

R.L.KHURANA

body1997
JUDGMENT R.L. Khurana, J.—The abovenoted regular second appeal at the instance of the defendants and the cross-objections at the instance of the plaintiffs against the judgment and decree dated 30-6-1988 of the learned District Judge, Una, modifying the judgment and decree dated 9-9-1983 of the learned Sub-Judge 1st Class (II), Una, are being disposed of by this single judgment, 2. The subject-matter of dispute between the parties is the land measuring 28 kanals 4 marlas being 1/2 share in the land measuring 56 kanals 9 marlas, comprising of old khasra Nos. 1013 to 1019, corresponding to new khasra Nos. 1135 and 1157 of village Bharolian Khurd, Tehsil and District, Una This land has been specifically described in the plaint and hereinafter is being referred to as the land in dispute, 3. The plaintiffs claim themselves to be in possession of the land in dispute as non-occupancy tenants under the defendants. Since the defendants are alleged to have denied their tenancy and that they have started interfering with the possession of the plaintiffs, a suit for declaration and injunction was filed by them. 4. Initially, State of Himachal Pradesh was also impleaded as a party. However, subsequently the name of State of Himachal Pradesh came to be deleted from the array of defendants, 5. The defendants, while resisting the suit, denied the possession of the plaintiffs over the land in dispute they asserted their own possession as owners. Be it stated that while defendant Saroj Bala (successor-in-interest of original defendant Maqsudan Singh) is the owner of land comprising khasra No. 1155. The defendant Dhan Devi is the owner of land comprising of khasra No. 1157. 6. The learned Sub-Judge, while dismissing the suit of the plaintiffs, vide judgment and decree dated 9 9-1983, held that the plaintiffs are not the tenants qua the land in dispute Defendants were found to be in possession thereof as owners. 7. The learned District Judge, on an appeal having been carried before him, set aside the judgment and decree of the learned Sub-Judge and granted a decree to the extent of 1/2 share in the land in dispute that is, 1/4th share in the entire land, measuring 56 kanals 9 marlas by declaring them to be the tenants under the defendants to that extent. Both the parties feeling aggrieved by and being dis satisfied with the judgment and decree dated 30 6-1988 of the learned District Judge have come up before this court by way of second appeal and cross-objections, 8. I have heard the learned Counsel for the parties and have also gone through the record of the case. Admittedly, the land in dispute, now comprising of khasra Nos. 1155 and 1157 has been carved out of the land comprising of old khasra Nos. 1013 to 1019, during the course of consolidation proceedings The pre-consolidation revenue record produced by the plaintiffs consists of Ex. P 5 (jamabandi for the year 1960-61), Ex P-6 (jamabandi for the year 1970-71) and Ex. P-8 (khasra Girdawari for the period kharif 1973 to Rabi 1978). 9. In Ex. P-5, the land in dispute is recorded under the ownership of Sarvshri Dev Raj and others (including the predecessor-in interest of the defendants). In the column No 5 of cultivation, the relevant entry reads : “KASHT MALKAN NISAF BASHARAKAT RAJA RAM VALD MUNSHI VALD NIHALA NISAF GAIR MAROOSI” 10. A plain reading of the said entry means that owners were in self-cultivatory possession to the extent of half share and in partnership with Raja Ram, father of plaintiffs, to the extent of remaining half Similar entries appear in Ex P-6 and Ex. P-8. The Halqa Patwari, it appears during the course of harvest inspection of Rabi 1977 found disputed possession qua the land in dispute. He accordingly made a report in his daily diary qua this fact. Ex. P-7 is the copy of such report dated 12-4-1977. 11. It appears that by that time the consolidation proceedings were in progress. The Consolidation Officer, on the basis of the report, Ex. P-7, of the Halqa Patwari ordered the correction of the revenue entries in favour of defendants, whereby they came to be recorded in possession of the land in dispute as owners. The plaintiffs appear to have filed a revision before the Director, Consolidation of Holdings, who after setting aside the order of the Consolidation Officer remanded the case to him for decision afresh, after holding a proper enquiry The Consolidation Officer, after holding a fresh enquiry, vide his order dated 26-4-1982 Ex. D-2/2, found the defendants to be in possession of the land in dispute. D-2/2, found the defendants to be in possession of the land in dispute. He accordingly held that the entries stood correctly changed in favour of the owners, that is, the defendants. 12. The plaintiffs assailed the said order, Ex, D-2/2 of the Consolidation Officer, by way of an appeal before the Settlement Officer, Consolidation of Holdings. Such appeal was dismissed as not maintainable, on 6-7-1982, vide order Ex, D-3/3, Ex D-2/1 is the copy of jamabandi for the year 1979-80. pertaining to the land in dispute prepared after consolidation, wherein the land in dispute comprising of khasra No. 1155 is recorded under the possession of Maqsudan Singh, the predecessor-in-interest of defendant Saroj Bala, as owner, while land comprising of khasra No. 1157 is recorded under possession of Smt, Dhan Devi, defendant, as owner Admittedly, since after 1979-80, the defendants are being shown as in possession of the land in dispute, as owners. 13. It is significant to note that the pre-consolidation revenue entries in favour of the plaintiffs and/or their father stood changed and corrected in pursuance of the order Ex. D-2/2 of the Consolidation Officer. Such order was passed after proper enquiry and after due opportunity to the plaintiffs such order, though was subject to revision under section 54 of the H.P. Holdings (Consolidation and Prevention of Fragmentation) Act, 1971, no revision was filed by the plaintiffs. Only an appeal was preferred before t ae Settlement Officer, Consolidation of Holding which WP dismissed vide Ex. D-3/3, as being not maintainable. 14. The order, Ex. D-2/2 of the Consolidation Officer has not been challenged in this suit Therefore, the revenue entries having been, changed and corrected in pursuance of a valid order of the Consolidation Officer, a presumption of truth would be attached to the record of rights prepared after consolidation, wherein the defendants have been recorded in possession of the land in dispute as owners thereof. The change of revenue entries made in favour of the defendants cannot be said to be unauthorised. 15. Even otherwise, the pre-consolidation entries in favour of the father of the plaintiffs recording him to be in possession of the land in dispute in partnership with the owners will not confer a right of tenancy on him. The change of revenue entries made in favour of the defendants cannot be said to be unauthorised. 15. Even otherwise, the pre-consolidation entries in favour of the father of the plaintiffs recording him to be in possession of the land in dispute in partnership with the owners will not confer a right of tenancy on him. The ratio in R.S.A. No. 8 of 1987, Lekh Raj and others v. Khushala and others, decided on 13-5-1987, on which reliance has been placed by the learned District Judge has no application to the facts of the case. In the said case the relevant entry in the column of cultivation reading "KHUD KASHT MAQBOOZA BASHARAT KUSHALA WALAD MUNSHI, KEERU, DAULAT RAM PISIAN PARTAPU WALAD SARDA BA H1SSA BARABAR GAIR MARUSIAN" was never interpreted to mean that the persons holding the land were tenants. The learned Judge, while holding the persons in possession, as tenants primarily relied upon the entries in the column of rent wherein a fixed rent of Rs 30 per annum was mentioned as payable. The facts of the present case are different. No fixed rent was payable by the plaintiffs and/or their father. The pure and simple conclusion deducible in the present case on the basis of relevant entry in the column of cultivation in Exs P-5, P-6 and P-8 is that Raja Ram, the father or the plaintiffs was cultivating the land in partnership with the owners. He was not the tenant under the owners. 16. Resultantly, the appeal filed by the defendants is allowed, while the cross-objections of the plaintiffs are dismissed; The impugned judgment and decree dated 30-6-1988 of the learned District Judge are set aside and that of the learned Sub-Judge are restored. The parties are, however, left to bear their own costs. Appeal allowed. -