SUMMER NATH v. UMESH KUMAR — 1999 DIGILAW 185 (HP)

JUDGMENT M. R. Verma, J.: This appeal has been preferred by the appellant-defendant (here-in-after referred to as the defendant) against the judgment and decree dated 10.9.1993 passed by the learned Additional District Judge (I), Kangra at Dharamshala whereby the judgment and decree dated 12.6.1991 passed by the learned Sub Judge 1st Class, Kangra dismissing the suit of the plaintiffs-respondents (here-in-after referred to as the plaintiffs) for declaration and permanent injunction, has been set-aside and the suit has been decreed. 2. Brief facts leading to the presentation of the appeal are that the plaintiffs instituted a suit for declaration to the effect that they are owner in possession of land comprising Khata No. 77 min, khatauni No. 237, khasra Nos. 3198, 3199, 3200 measuring 0-03-71 hectares situate at Mahal Nagrota Khas, Teh. and District Kangra (here in-after referred to as ‘the suit land) and the entries in the column of possession in favour of defender are only paper entries and thus deserves to the rectified by making the ethics regarding possession in favour of the plaintiffs in the revenue records and for permanent injunction restraining the defendants from interfering with the possession of the plaintiffs over the suit land. 3. Case of the plaintiffs as made out in the plaint is that the plaintiffs are in peaceful and continuous possession of the suit land and are enjoying usufructs thereof, however, the entries in the revenue record in the name of he Megh Raj who had never been in possession of the suit land are incorrect. Said Megh Raj has died and his son the defendant on the strength of the wrong and fictitious entries is threatening to enter upon the suit land in order to dis-possess the plaintiffs whereas he has no right or title over the suit land. He was asked many times by the plaintiffs hot to interfere with the suit land and get the revenue entries corrected in favour of the plaintiffs but of no avail. Hence the suit. 4. He was asked many times by the plaintiffs hot to interfere with the suit land and get the revenue entries corrected in favour of the plaintiffs but of no avail. Hence the suit. 4. The defendant contested the claim of the plaintiff and filed a written statement wherein the preliminary objections have been taken to the effect that the suit is not within time, the plaintiffs have no cause of action or locus standi to file the present suit; the act, conduct and acquisance of the plaintiff is a bar to the suit; that the suit does not lie in the present from as the defendant is in actual physical possession of the suit land; that the suit has not been properly valued for the purposes of court fees and jurisdiction; that the suit is bad for non- joinder of necessary and proper parties and that the suit is barred under Section 11 of the C.P.C. in view of the dismissal of a suit between the same parties and with respect to the same land. On merits it has been denied that the plaintiffs are in possession of the suit land. It is claimed that the entry regarding ownership of the suit land in favour of the plaintiffs infact is wrong, baseless collusive and is inoperative, imaginary and made behind the back and without notice to the defendant. It is further averred that the defendant is the owner in possession of the suit land because the predecessor-in-interest of the plaintiffs had exchanged the suit land with the land of the predecessor-in-interest of the defendant entered in khata No. 16 min, Khatuni No. 34, Khasra No. 272(old) area 0-4 marlas situate in Mohal Nagrota khas as specified in the jamabandi for the year 1965-66 and the entry about the exchange was made in khana kasht. It is further claimed that the said exchange was done as per requirement and convenience of the parties to the exchange and since the exchange which took place more than 20 years before, earlier the predecessor-in-interest of the defendant and thereafter the defendant is in possession of the suit land as owner by virtue of such exchange. It is further claimed that the said exchange was done as per requirement and convenience of the parties to the exchange and since the exchange which took place more than 20 years before, earlier the predecessor-in-interest of the defendant and thereafter the defendant is in possession of the suit land as owner by virtue of such exchange. It is farther claimed that in case the exchange is not proved the possession of the predecessor-in-interest of the defendant and defendant over the suit land for more than 20 years prior to the institution of the suit has ripened into title by way of adverse possession and thus the defendant has become owner of the suit land by adverse possession. The claim of the plaintiffs thus has been denied. 5. Plaintiffs filed replication wherein 4he grounds of defence taken in the written statement by the defendant were denied and the claim made in the plaint was re-affirmed. 6. On the pleadings of the parties the trial court framed the following issues:- "1. Whether the plaintiffs are the owners in possession of the suit land; ?OPP. ; 2. Whether the revenue entries are wrong and are liable to be corrected ?OPP. 3. Whether the plaintiffs are entitled to the relief of injunction as prayed for ? OPP. 4. Whether the suit is within time ? OPP. 5. Whether there had been any exchange of land between the predeces-sor-in-interest of parties ? OPD. 6. Whether the entries in the column of ownership in the name of the plaintiffs are wrong, as alleged (OPD). 7. Whether the suit is barried under Section 11 CPC ? OPD. 8. Whether the plaintiffs have got no cause of action and locus-standi %o sue ? OPD. 9. Whether the act, conduct and acquiescence of the plaintiffs is a bar to the present suit? OPD 10. Whether the suit does not lie in the present form ? OPD. 10.a. Whether the defendant has become owner of the suit land by way of adverse possession, as alleged ? OPD. 11. Relief" 7. Vide judgment dated 12.6.1991 the trial court decided Issues Nos. 1 to 4 against the plaintiffs, issue No. 7 was decided against the defendant and issues 5,6,8 to 10 and 10-a were decided in favour of the defendant and equently the suit was dismissed. 8. OPD. 11. Relief" 7. Vide judgment dated 12.6.1991 the trial court decided Issues Nos. 1 to 4 against the plaintiffs, issue No. 7 was decided against the defendant and issues 5,6,8 to 10 and 10-a were decided in favour of the defendant and equently the suit was dismissed. 8. Feeling aggrieved, plaintiffs preferred an appeal against the judgment arid decree passed by the learned trial Judge which came to be heard by the learned Additional District Judge (1), Kangra at Dharmshala who vide the impugned judgment set-aside the judgment and decree passed by the learned trial Judge and decreed the suit of the plaintiffs. 9. Feeling aggrieved by the judgment and decree of the 1st appellate Court the defendant has preferred the present appeal. 10. I have heard the learned counsel for the parties and have gone through the records. 11. This appeal has been admitted for hearing on the following substantial questions of law:- "1. Whether the presumption of truth attached to the Jamabandi for 1965-66, 1978-79 and 1981-82 Ex.D-3, D-7 and D-5 and D-l was rebutted and an inference that the plaintiff is in possession could be drawn in the facts and circumstances of the case ? 2. Whether in the facts and circumstances of the case an inference that there was no exchange of land could be drawn, particularly the Jamabandi entries D-l to D-5 and the suit for injunction was maintainable?" 12. There cannot be any dispute about die proposition of law that presumption of truth is attached to the entries in the revenue records. However, such presumption is rebutable and can be rebutted by cogent, trustworthy and reliable evidence. In the case in hand the land in suit has been shown in the cultivating possession of Megh Raj admittedly father of the defendant since 1965-66, vide copies of jamabandies for the year 1965-66 and 1981-82 respectively Exts.D-5 and D-2 and copy of Misal Haquiyat 1978-79 Ex.D-3. The continuity of these entries as such since 1965-66 is not disputed. It is their, correctness which has been disputed for the plaintiffs. The presumption of truth undoubtedly is attached to these entries and their correctness is further supported by the statements of DW-1 Sumar Nath defendant who, after the death of his father Megh Raj claims to be in possession of the suit land, and DW-2 Changar Ram. 13.. It is their, correctness which has been disputed for the plaintiffs. The presumption of truth undoubtedly is attached to these entries and their correctness is further supported by the statements of DW-1 Sumar Nath defendant who, after the death of his father Megh Raj claims to be in possession of the suit land, and DW-2 Changar Ram. 13.. To prove that the aforesaid entries are incorrect and the suit land is in the cultivating possession of the plaintiffs the plaintiffs have examined P W-1 Dinesh and PW-2 Harish Kumar. PW-1 Dinesh one of the plaintiffs in his examination-in-chief has stated that the benefit of the mango trees grown on the land in suit is taken by the defendant. Though he makes immediate improvement by stating that such benefit is drawn by the plaintiffs, the admission that the defendant takes benefit of the mango tree despite subsequent contradiction thereof is of vital importance for appreciation of" his statement. He has feigned ignorance in his cross-examination, about the receipt of Parcha Jamidari and khatauni during settlement in the concerned village but admits that he did not object to the entries made in the records at the time of settlement. It is not disputed that at the time of settlement the areas are demarcated and entries are made after notice to and enquiries from the land owners and cultivators. Any party aggrieved by any demarcation or entry has a right to object. It is in this context that the witness admits having not objected to the entries. He has further admitted that khasra girdwari is conducted at the spot and entries are made as per the spot position. These admissions thus weakens the statement of the witness to the effect that contrary to the entries in the revenue records, the plaintiffs are in possession of the land in suit. 14. So far as the statement of PW-2 Harish Kumar is concerned it is of no use and consequence. Though in his examination-in-chief he stated that the land in suit is in possession of the plaintiffs but his cross examination reveals that in fact he has not even seen the suit land. The description of the owners of the land adjoining the suit land as given by him does not tally with the description as given by PW-1 Dinesh. He has further stated that wheat, maize and paddy are grown on the suit land. The description of the owners of the land adjoining the suit land as given by him does not tally with the description as given by PW-1 Dinesh. He has further stated that wheat, maize and paddy are grown on the suit land. However, there is no dispute and-it is admitted even by PW-1 Dinesh that the suit land is in the shape of orchard and Mango, pipal, bambo trees and shrulus are growing on it. The statement of this witness is therefore totally unreliable. 15. As seen above the statements of the two witnesses, examined by the plaintiffs to prove that they are in possession of the land in suit are unreliable and not trustworthy, and are therefore incapable of rebutting the presumption f of truth attached to the entries in the revenue records vide Exs.D-2, D-3 and j D-5 and the oral evidence led by the defendant. The evidence on record thus j proves that the defendant is in possession of the suit land. The contrary findings recorded by the learned Additional District Judge on this count are a result of misreading of the evidence on record and thus unsustainable and those re-corded by the learned trial Judge deserves to be restored. 16. The next question which arises for determination is as to whether the defendant is in possession of the land is suit by way of exchange. The learned counsel for the defendant has contended that the land in suit which bore old khasra numbers 365 and 373 measuring 0-18 marlas was exchanged by the predecessor-in- interest of the plaintiffs, namely, Gopal Dass with the land bearing old khasra No. 272 measuring 0-4 marlas owned by the predecessor-in-interest of the defendant, namely, Megh Raj as is evident from the entries in the copies of jamabandies Exs.D-4 and D-5. None who might have witnessed the transaction of the said exchange has been examined. Plaintiffs have denied the exchange. In the absence of any other material and reliable evidence on the record one has to fall back on the entries in the revenue records to find out the circumstances under which the predecessor-in-interest of the defendant came to possess the land in suit. The entries in the jamabandies Exs.D-4 and D-5 reveal that Gopal Dass and Megh Raj respectively the predecessors-in-interests of the plaintiffs and defendant exchanged the cultivation of the suit land and the land comprising old khasra Nos. The entries in the jamabandies Exs.D-4 and D-5 reveal that Gopal Dass and Megh Raj respectively the predecessors-in-interests of the plaintiffs and defendant exchanged the cultivation of the suit land and the land comprising old khasra Nos. 272 (new khasra No. 2879). However, the exchange was to the extent of cultivating possession and the records do not reveal that it was exchange of ownership. The relevant entries in Exs.D-4 and D-5 refers to the exchange as "Baevaj Tabadala Kashat" and the entries in the respective jamabandies show the exchange of cultivatry possession alone leaving the ownership of the respective lands undisturbed.. Had it been a case of ex-change of ownership, mutation ought to have followed and the entries in the column of ownership would have also been changed. 17. The defendant thus having been found in possession of the suit land by virtue of exchange of cultivatory possession as aforesaid, the suit of the plaintiffs for correction of entries regarding possession of suit land and for injunction restraining the defendant from interfering with the suit land is not competent and maintable. 18. As a result the appeal succeeds and is allowed. The impugned judgment and decree are set-aside and the suit is dismissed with costs throughout.