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1997 DIGILAW 203 (HP)

CHUHA RAM v. VAKIL SINGH

1997-05-22

A.K.GOEL

body1997
JUDGMENT Arun Kumar Goel, J.: This is defendants appeal filed against the judgment and decree passed by Sh. K.C.Sood, District Judge, Kangra Division at Dharamshala. By means of impugned judgment in civil Appeal No. 165 of 1986 dated 21-4-1989, the appeal filed No.l83of 1987 by the plaintiffs has been allowed and consequently, their suit for possession has been decreed by setting aside the judgment and decree of Sub Judge 1st Class, Nurpur District Kangra, whereby plaintiffs suit was dismissed. Parties in this appeal arc being referred to as plaintiffs and defendant as were arrayed before the trial court 2. A suit for possession was filed by the plaintiffs on the basis of title, as according to them an area measuring 6 kanal out of Khasra No.336 which was converted into Khasra No. 1074 during settlement, was in their ownership and possession aiongwith other co-owners. The total area of Khasra No.336 is 28 kanal 2 marla which is situated in Tika Matholi Mauza Madoli, Tehsil Nurpur District Kangra. It was further pleaded by the plaintiffs that as per Jamabandi for the year 1971-72, the suit land has been shown in the ownership and possession of the plaintiffs. But during the settlement operation in the month of June/July, 1982, defendant is stated to have encroached upon an area measuring 6 kanal out of the aforesaid Khasra number. As such the necessity of filing the suit against the said defendant. Julfi Ram and Kalu Ram were arrayed as defendants No.2 and 3 who died during the pendency of the suit in the trial court and their legal representatives were added as 2(a) to 2(f) of Julfi Ram and 3(A) to 3(e) of Kalu, who are respondents No.6 to 16 in the present appeal. The interest of these respondents-defendants is identical to that of the plaintiff, because they could not join as plaintiffs so have been arrayed as proforma defendants in the suit. 3. This suit was contested and resisted by defendant No. 1 Chuha Ram, who pleaded that the suit was not maintainable, the court had no jurisdiction as also the plaintiffs have no cause of action to file the suit. Tenancy was claimed by defendant No. l over the suit land and in this background, it was further pleaded that after commencement of H.P. Tenancy and Land Reforms Act, he has become owner of the suit land. Tenancy was claimed by defendant No. l over the suit land and in this background, it was further pleaded that after commencement of H.P. Tenancy and Land Reforms Act, he has become owner of the suit land. In this view of the matter, plea of his being an cncroachee over the suit land was denied. Parties went to trial on the following issues: 1. Whether the suit is not maintainable ? OPD. 2. Whether the plaintiffs are estopped from filing the suit by their act and conduct? OPD 3. Whether the plaintiffs have a cause of action ? OPP 4. Whether the civil court hat jurisdiction to try the suit ? OPP 5. Whether the plaintiffs were in possession of the suit land as alleged ?OPP 6. Whether the defendant No. 1 encroached upon the suit land at the time of settlement, as alleged ? OPP 7. Whether the defendant No. 1 was a tenant of the suit land and had become its owner as alleged ? OPD 8. Relief. Trial court found Issues No. 1,2,3,5 and 6 in the negative, where Issues No.4 and 7 were found in the affirmative and consequently under Issue No.8, no relief was given. Suit of the plaintiffs was dismissed and no relief was granted to them. 4. The aforesaid findings recorded by the trial Court dismissing the suit of the plaintiffs were questioned by the latter before the lower appellate court and by means of judgment and decree impugned in the present appeal, the suit of the plaintiffs was decreed by reversing the judgment and decree of the trial court. It is in these circumstances that the present appeal came to be filed by the defendant No. 1. 5. Shri Bhupender Gupta, learned counsel for the defendant has fairly stated that so far the title of the plaintiffs and other defendants is concerned, it is not in dispute. However, it was pointed out by Shri Bhupender Gupta that plaintiffs have purchased the share of Hari Singh DW-2, who had supported the plea of tenancy of the defendant over the suit land. That in support of his plea of tenancy being there in favour of the defendant over the suit land, reference was made to the statements of DW-3 Basawa Ram and DW-5 Santokh Singh. That in support of his plea of tenancy being there in favour of the defendant over the suit land, reference was made to the statements of DW-3 Basawa Ram and DW-5 Santokh Singh. Reference was also made to the statement of DW-4 Karam Chand, who was signatory to a compromise Ex.DW-4/A produced by the defendant. It was also urged in support of this appeal by Shri Bhupender Gupta that unless it was shown by specific evidence as to which part of KhasraNo.336 (old) and 1074 (new) measuring 6 kanal had been encroached upon by the defendant, no decree could be passed in favour of the plaintiffs and in this view of the matter, it was urged by Shri Bhupender Gupta with vehemence that the appeal deserves to be allowed and thereby setting aside the impugned judgment and decree and consequently restoring the decree passed by the trial court. 6. On the other hand, Shri Rupesh Kumar, learned counsel appearing on behalf of the plaintiffs has urged that in this case, for the first time entry came in favour of defendant showing him to be tenant over an area of 6 kanal in Ex.P-2 Parcha Jamindari. U was further urged on behalf of the plaintiffs that in the year 1971-7, 2 vide Ex.Pl entire khasra number measuring 28 kanal 2 marla was shown to be in possession end cultivation of the owners which included DW-2 Hari Singh, from whom plaintiffs have purchased his share Prior to this, in the year 1966-67 vide Ex.P-3 the entry of owners being in possession is shown. In Khasra Gridwari from Kharif 1974 to Rabi 1978 owners are shown to be in possession as n evident from Ex.P-4 This position remained the same as is evident from Kharif 1978 to Rabi 1981. For the first time, in Ex.P7 entry in favour of the defendant came to be recorded in field book. Thus the sole question that needs to be considered is as to what weight is to be attached to the statements of DWs 2,3 as well as to the entry showing the defendant to be in possession of the suit land which admittedly has come into existence during the settlement operation. 7. When the entry during settlement in favour of the respondents came into existence in settlement, what was the basis for the same, there is no evidence on record produced by the defendant. 7. When the entry during settlement in favour of the respondents came into existence in settlement, what was the basis for the same, there is no evidence on record produced by the defendant. Although he has gone on record to say that he was a tenant over the suit land and had been paying Gala Batai (rent) to the landlord for the last 30 years. To whom the rent had been paid specifically had not been spelt out, except this bald statement there is no evidence produced by the defendant. - In this view of the matter, the oral evidence produced by the defendant in support of his plea of tenancy does not inspire confidence and in no case rebuts the presumption of correctness attached to the revenue entries. That being so, the plea raised on behalf of the defendant regarding his tenancy over the suit land is hereby rejected. 8. Another reason for not accepting the plea of tenancy in favour of the defendant over the suit land is that so far as the statement of DW-2 is concerned, it cannot be accepted on its face value simply because he has stated that he was a sitting tenant over the suit land when he sold the same to the plaintiffs. This statement of DW-2 is belied from the revenue entries contained in Ex.Pl jamabandi for the year 1971-72 regarding the suit land, Ex.P-4 copy of Khasra Girdwari from Kharif 1974 to Rabi 1978, Ex.P5 copy of khasra girdwari from Kharif 1978 to Rabi 1981. The entire land has been shown to be Banjar Kadim (barren land). What was the output of the land is suit of which rent was being paid by the defendant has not been spelt out either by him or by DW-2 who has stepped into the witness box to support the case of the defendant. So far as the change being recorded in the settlement, defendant has not led any evidence to show whether it was with the consent of the plaintiffs or it was under the orders of competent revenue officer that entry was ordered to be changed in accordance with the provisions of H.P. Land Revenue Act. Mere entry by itself will not confer any right. Mere entry by itself will not confer any right. This court is not hesitant in holding that the entry when came to be changed showing the defendant to be the tenant over the suit land was made either un-auhorisedlyor mistakenly and there being no lawful material to justify such an entry showing the change, no benefit can be derived by the defendant from such entry. Hari Singh DW-2 may have numerous reasons to support the case of the defendant. One such glaring reason can be that he has sold the land and he has washed off his hands from it. In case what he has stated in his statement showing tenancy in favour of the defendant was correct, then in the ordinary course of things, he would have got the revenue record corrected during the time he was owner of the land in question. Instead of doing so, he dold his share of the land in favour of the plaintiffs and then came forward to support the case of the defendant. This seems to be an act of over doing on his part. Besides this, it has come in the column of remarks in Ex.Pl Jamabandi for the year 1971-72 that Hari Singh has sold his entire share in the suit land in favour of Vakil Singh, Chuni Lal, Sadhu Ram, Harbans Lal and Baldev Singh. 9. As already observed the presumption of correctness attached to the revenue entry is not rebutted either by the defendant or by the statement of his witnesses. Further reason for not accepting the plea of tenancy, on the basis cither of the evidence of DW-1 Chuha Ram orDW-2 Hari Singh (predecessor - in - interest of the plaintiffs) is that essential ingredient of tenancy is payment of rent in whatsoever form it may be. There is no evidence as to what was the rent settled and/or much less what was being actually paid by the defendant. Prior to 23-10-1981, admittedly land is recorded to be Banjar Kadim that too in clutivating possession of the owners. What was the basis for such change is not made out either from oral evidence or from the documentary evidence produced by the parties on the record. 10. Prior to 23-10-1981, admittedly land is recorded to be Banjar Kadim that too in clutivating possession of the owners. What was the basis for such change is not made out either from oral evidence or from the documentary evidence produced by the parties on the record. 10. To be fair to Shri Bhupender Gupta, it may appropriate to refer to Ex.DW-4/A, which is a written compromise entered into between the parties wherein it has been stated that the criminal dispute which is going on would be with the intervention of certain respectable on the terms that the possession of the land which is with Chuha Ram, and the plaintiffs wanted to take back the same, the same would not be taken back by the plaintiffs, save and except in accordance with law. This is signed by Mehar Chand, Bir Singh uncle of Tilak Raj, Chuha Ram father of Tilak Raj, Sadhu Ram son of Gorkh Ram, Harbans Lai plaintiff, Bladev Singh and other respectables. This writing was given to S.H.O. Indora. There is firstly no date given on it and secondly it has been stated that the plaintiffs would take action for taking back the possession in accordance with law through court. It does not show that either the plaintiffs have admitted the defendants tenancy over the suit land or had conceded his claim in that behalf. 11. On the other hand it clearly goes to show that the plaintiffs were trying to take back the possession which resulted in some criminal case before the police and with the intervention of certain persons, it was agreed that the plaintiffs should not take possession except through process of court which appears to have been undertaken by them by filing the suit in question. It is not the case of defendant that Ex. PW4/A had come into existence after the filing of the suit, there is no such evidence. Once it is held that there is no tenancy established from evidence on record in favour of the defendant in respect of the suit land and the entry showing him to be so, having come into existence without any authority of law, the plaintiffs were well within their rights as well as were also properly advised to file a suit for possession which was right course. So far as the benefit of entry which came into existence in favour of the defendant is concerned, in the absence of there being any material having been produced by the defendant as to how it came to be in existence, no benefit can be derived by the defendant there from. In support of this proposition of law, reference can usefully be made to the judgment of the Honble Apex Court in case Durga (deceased) & Ors. v. MilkiRam & Ors., 1969 P.L.J. 105. In this view of the matter, from whatever angle the case of the appellant may be viewed, it can safely be held that the defendant has failed to establish tenancy over the suit land. 12. So far the plea of the defendant that in the absence of the parties, the plaintiffs cannot claim decree for possession of 6 kanal of land, suffice it to say that this argument on behalf of the defendant goes both ways. Defendants own case is that out of khasra No.336(old) and Khasra No. 1074 (new) he is a ten ant over the land measuring 6 kanal, there cannot be any other better person than the plaintiffs to identify the land in question, as such this pica deserves to be negatived and is rejected accordingly. 13. No other point has been urged. 14. As a result of the aforesaid discussion, it is clear that there is no merit in. this appeal, which is accordingly dismissed with costs quantified at Rs.1300/-.