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2003 DIGILAW 327 (HP)

SURESH CHAND v. GURDAS RAM

2003-11-11

R.L.KHURANA

body2003
JUDGMENT R.L. Khurana, J.—This regular second appeal at the instance of the defendants have been preferred against the judgment and decree dated 27.4.1994 of the learned Additional District Judge, Una, reversing the judgment and decree dated 30.11.1989 of the learned Sub-Judge 1st Class (II), Una. 2. Respondents No. 1 to 8, hereinafter referred to as the plaintiffs filed a suit for declaration to the effect that they are the owners and in possession of the land measuring 12 kanals comprised in khewat No. 283 min. Khatoni No. 508 min and khasra Nos. 20/8 and 20/9 of village Jakhera, Tehsil and District Una, (specifically described in the plaint and herein after referred to as the land in dispute) and that the entries showing the defendants to be in possession thereof as owners are wrong and not binding on the rights of the plaintiffs. By way of a consequential relief, permanent injunction was sought for restraining the defendants from interfering with the possession of the plaintiffs over the land in dispute. In the alternative, the plaintiffs prayed for possession in the event, they were not found to be in possession thereof. 3. The case set up by the plaintiffs is that they and their predecessor in interest have been coming in possession of the land in dispute as non-occupancy tenants and have become the owners thereof by operation of law on the coming into force of the H.P. Tenancy and Land Reforms Act. The defendants, who are strong and influenced persons, in connivance with the revenue field staff have got themselves recorded as in possession of the land in dispute and on the basis of such wrong entries in their favour, they have started interfering with the possession of the plaintiffs. 4. The defendants while resisting the suit vide their brief and cryptic written statement dated 2.2.1988 after having simply denied the averments made in various paras of the plaint, pleaded that they are in possession of the land in dispute as owners thereof and that the suit filed by the plaintiffs is not within time. 5. The learned trial court, on the pleadings of the parties, framed the following issues:— 1. Whether the plaintiffs were non occupancy tenants in possession of the suit land and now owners as alleged? OPP. 2. Whether the plaintiffs are entitled to the relief of permanent injunction? OPP. 3. Whether the suit is within time? OPP. 5. The learned trial court, on the pleadings of the parties, framed the following issues:— 1. Whether the plaintiffs were non occupancy tenants in possession of the suit land and now owners as alleged? OPP. 2. Whether the plaintiffs are entitled to the relief of permanent injunction? OPP. 3. Whether the suit is within time? OPP. 4. Relief. 6. Issues No. 1 and 2 were found against the plaintiffs by the learned trial court. In view of findings recorded under issues No. 1 and 2, the learned trial court held issue No. 3 to have become redundant. Consequent upon such findings, the suit of the plaintiffs was dismissed by the learned trial court vide judgment and decree dated 30.11.1989. 7. In appeal preferred by the plaintiffs, the learned Additional District Judge after setting aside the findings of the learned trial court vide the impugned judgment and decree granted the decree for declaration and injunction in favour of the plaintiffs. The learned District Judge came to the conclusion that the plaintiffs are in possession of the land in dispute as non-occupancy tenants. The defendants were restrained by way of a permanent injunction from interfering with the possession of the plaintiffs over the land in dispute. 8. The present second appeal at the instance of the defendants, though came to be admitted for hearing on 26.7.1994, no substantial questions of law as envisaged under Section 100(4), Code of Civil Procedure, was formulated. Therefore, at the very outset, the parties were heard to find out if any substantial question(s) of law is/are involved in the present appeal. 9. In the grounds of appeal the following substantial questions of law were stated by the defendants:— (1) When the report of Rojnamcha Patwari and jamabandi are placed on the record depicting the authorised changed entry in the revenue record, can the earlier entries appearing in the revenue record have the precedence over the later entries? (2) Whether suit of a person not in possession can be held to be within limitation by holding that the entries in the record are not authorisedly changed? Is it incumbent for the court to go into the factum of possession by clear cut findings? (3) Whether the judgment and decree passed by the learned Lower Appellate Court is vitiated due to misreading of documentary evidence on the record particularly Ex. Dl, D2 and P5? 10. Is it incumbent for the court to go into the factum of possession by clear cut findings? (3) Whether the judgment and decree passed by the learned Lower Appellate Court is vitiated due to misreading of documentary evidence on the record particularly Ex. Dl, D2 and P5? 10. Admittedly the revenue entries till kharif 1972 record the defendants and their predecessors in interest as owners of the land in dispute and the plaintiffs and their predecessor in interest to be in possession thereof as non-occupancy tenants on payment of half of the agricultural produce as rent. Ex. P2 and P3 are the copies of jamabandies for the year 1959-60 and 1971-72 respectively depicting the abovesaid position. The entries in favour of the plaintiffs showing them to be in possession as non occupancy tenants came to be changed in Rabi 1973 and as a result of such change, the defendants have come to be recorded as in possession of the land in dispute as owners. Ex. P4 is the copy of khasra Girdawari for the period kharif 1972 to Rabi 1974. A perusal of the same shows that possession of plaintiffs is recorded as non-occupancy tenants till kharif 1972 and from Rabi 1973 the defendants are recorded to be in possession. The entries as to possession since Rabi 1973 are shown to have been changed in favour of the defendants on the basis of some document/writing dated 1.4.1973. Section 45 of the H.P. Land Revenue Act attaches a legal presumption of truth to the entries in the record of rights. Such Section provides:— "Any entry made in the record of rights in accordance with law for the time being in force, or a periodical in accordance with the provisions of this chapter and the rules thereunder, shall be presumed to be true until the contrary is proved or a new entry is lawfully substituted therefor." 11. There is no denying that the earlier revenue entries as per record of rights (Ex. P3) till 1971-72 were in favour of the plaintiffs showing them to be in possession of the land in dispute as non-occupancy tenants. Subsequent revenue entries since Rabi 1973 till date are in favour of the defendants showing them to be in possession as owners of the land in dispute. 12. P3) till 1971-72 were in favour of the plaintiffs showing them to be in possession of the land in dispute as non-occupancy tenants. Subsequent revenue entries since Rabi 1973 till date are in favour of the defendants showing them to be in possession as owners of the land in dispute. 12. Relying upon the provisions contained in Section 45 of the H.P. Land Revenue Act (quoted above) it was contended by the learned counsel for the defendants that presumption of truth is attached to the later revenue entries which are in favour of the defendants and as such the learned first appellate court has gravely erred in relying upon the earlier revenue entries by completely ignoring the documentary evidence comprising of Ex. Dl and D2 which evidence that the entries in favour of the defendants were lawfully changed. 13. Undisputedly, when there is variance between earlier and the later entries, presumption of truth is attached to the later entries till such presumption is rebutted. 14. The provisions contained in Section 45, H.P. Land Revenue Act are similar to the provisions of Section 44 of the Punjab Land Revenue Act the Honble Supreme Court in Raja Durga Singh of Solan v. Tholu and others, 1962 PLJ 88 (SC), has held that these provisions give a presumptive value to the entries in the revenue record and where there is a conflict, it is the later entry which must prevail. It was further held that from the language of the Section itself it follows that where a new entry is substituted from old entry it is that new entry which will take the place of the old one and will be entitled to presumption of correctness until and unless it is established to be wrong or substituted by another entry. 15. 15. Again, while dealing with the similar provisions contained in Section 44, Punjab Land Revenue Act, the Honble Supreme Court in Durga (deceased) and others v. Milkhi Ram and others, 1969 PLJ 105 (SC), observed:— "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 presumption (under Section 44 of the Punjab Land Revenue Act) would be in favour of the later entries, but that presumption was a rebuttable one and it would stand rebutted by the fact that alteration in the later entries was made unauthorisedly or mistakenly, there being no material to justify the change of entries."(Emphasis supplied) 16. To the similar effect it has been held by this Court in Chaudhary Sada Ram and others v. Chaudhary Amarnath, ILR 1984 H.P 509, land in Jahlu Ram v. Major Lai Singh, 1998(1) Shim. L.C. 343. 17. In the present case, as stated above, the revenue entries till Kharif 1972 (as per jamabandi) Ex. P3 for the year 1971-72) were in favour of the plaintiffs showing them to he in possession of the land in dispute non-occupancy tenants. Such revenue entries as per Ex. P4 came to be changed in favour of defendants with effect from Rabi 1973 on the basis of some alleged writing dated 1.4.1973. 18. Be it stated that the said writing dated 1.4.1973 has not seen the light of the day. The same was never produced. It was the primary evidence to show as to how the revenue entries were changed. Neither any mutation nor any order of the revenue authorities authorising the change has been placed on record. In the absence of the alleged writing dated 1.4.1973 or the mutation or order of some competent revenue authority, the revenue entries changed in favour of defendants with effect from Rabi 1973 would be termed as unauthorised and the presumption of truth attached thereto would stand rebutted and reliance would have to be placed on the earlier revenue entries in favour of the plaintiffs. The learned first appellate court, therefore, has rightly placed reliance on such earlier revenue entries while holding the plaintiffs to be in possession of the land in dispute as non-occupancy tenants. 19. Ex. The learned first appellate court, therefore, has rightly placed reliance on such earlier revenue entries while holding the plaintiffs to be in possession of the land in dispute as non-occupancy tenants. 19. Ex. Dl, on which much reliance is sought to be placed on behalf of the defendants, is a copy of the daily diary entry dated 6.4.1973 made by the Patwari Halqua recording the fact that entries qua the land in dispute were changed. It is significant to note that Ex. Dl is not the basis on which the revenue entries were changed in favour of the defendants with effect from Rabi 1973. As pointed out earlier, the basis on which entries were so changed is alleged to be a writing dated 1.4.1973, which writing has not seen the light of the day. 20. Ex. D-2 is the copy of Khasra Girdawari for the period Kharif 9172 to Rabi 1974 which is similar to Ex. P4, discussed above. Ex. D-2 also records that entries were changed in favour of the defendants on the basis of a writing dated 1.4.1973. 21. It is not the case of the defendants either in the pleadings or in evidence that the earlier revenue entries in favour of the plaintiffs and/ or their predecessors in interest were wrong. Therefore, once such entries are taken as correct, the plaintiffs would be deemed to have been coming in possession of the land in dispute as non-occupancy tenants. The onus was thus on the defendants to show either that the tenancy was relinquished by the plaintiffs or that the plaintiffs were ejected from the land in dispute by process of law. 22. Defendant Leelawati while appearing as DW1 did not deny the possession of the plaintiffs and/or their predecessors in interest over the land in dispute. She has just pleaded ignorance to such fact. 23. On the basis of evidence coming on record, the learned first appellate court has rightly held the plaintiffs to be in possession of the land in dispute as non-occupancy tenants. There is no misreading of any oral or documentary evidence. Since the plaintiffs are in possession, the suit has been rightly held to be within time. 24. For the foregoing reasons the questions posed in the grounds of appeal do not arise in the present case. Nor any other substantial question of law arises. 25. There is no misreading of any oral or documentary evidence. Since the plaintiffs are in possession, the suit has been rightly held to be within time. 24. For the foregoing reasons the questions posed in the grounds of appeal do not arise in the present case. Nor any other substantial question of law arises. 25. A contention was raised on behalf of the defendants that since the appeal was admitted for hearing by this Court on 26.7.1994 and at that time no substantial question of law as required under Section 100(4), Code of Civil Procedure, was formulated, which was the duty of the Court, the present appeal cannot be dismissed now by holding that no substantial question of law arises. The Court has to formulate the substantial question and decide the appeal on the basis of such question. 26. I do not find any force in the contention of the learned counsel for the defendants. Section 100, Code of Civil Procedure, provides:— "(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. (2) An appealmay lie under this section from an appellate decree passed ex parte. (3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. (4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question: Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question.” 27. A bare reading of the provisions contained in sub-section (5) above shows that even where a substantial question of law had been formulated at the time of admission of the appeal, the Court at the time of final hearing can hold that such substantial question of law does not arise in the case. If after formulating a substantial question of law at the time of admission, the Court at the time of final hearing can come to the conclusion that no such substantial question of law was involved, the Court can certainly hold that no substantial question of law arises in the case even where no substantial question was formulated in view of the specific mandate of Section 100 read with Section 101, Code of Civil Procedure that a second appeal shall be heard only on a substantial question of law and on no other ground. 28. Resultantly, the present appeal fails and the same is dismissed leaving the parties to bear their own costs. Appeal dismissed.