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2003 DIGILAW 559 (PNJ)

Jarnail Singh v. Maro

2003-04-22

M.M.KUMAR

body2003
JUDGMENT M.M. Kumar, J. - This is defendants appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity the Code) challenging the judgment and decree dated 3.2.2003 passed by the Addl. District Judge, Muktsar holding that plaintiff-respondent is entitled to permanent injunction restraining the defendant-appellant from interfering in her peaceful possession and from dispossessing her forcibly. The only question which arises for the consideration in this appeal is whether under Section 44 of the Punjab Land Revenue Act, 1887 (for brevity the Act) the entries made in the record of rights would be presumed to be correct ? The learned trial Court had ignored the entries in the revenue record as contained in jamabandies and khasra girdwaris Ex. P.1 to P.6 and came to the conclusion that defendant- appellant must be held to be in possession on the basis of the sale deeds executed in his favour on 2.2.1995 and 24.9.1996 Exs. D.1 and D.2. However, the Addl. District Judge found that such entries cannot be ignored because the presumption of truth is attached to such entries. 2. Briefly the case set up by the plaintiff-respondent is that the suit land situated at village Shaib Chand, Tehsil Girdderbaha was originally in possession of her husband Joginder Singh who was this owner. The aforementioned land as inherited by her and her children after the death of her husband. However, the defendant-appellant took the plea that the he had purchased the same alongwith some other land from the original owner vide two sale deeds dated 2.2.1995 and 24.9.1996 Ex.D.1 and D.2 respectively. He also claimed possession of the suit land on the basis of the recitals in the sale deed. He examined the scribe of the sale deed namely Mohan Lal Arora and Mukand Lal Baghal as DW 3 and DW 4, and the attesting witnesses of both the sale deeds. Shri Kartar Singh, Lambardar DW 5 have also been examined. Plaintiff-respondent has produced on record the entries made in khasra girdawaris for the years 1995 to 2000 as Ex. P.2 to Ex.P.5. The entries of jamabandi have also been produced on record as P1 P6. It is in these circumstances that the ld. Addl. Shri Kartar Singh, Lambardar DW 5 have also been examined. Plaintiff-respondent has produced on record the entries made in khasra girdawaris for the years 1995 to 2000 as Ex. P.2 to Ex.P.5. The entries of jamabandi have also been produced on record as P1 P6. It is in these circumstances that the ld. Addl. District Judge concluded that the entries in the revenue record must be extended to the plaintiff-respondent and held as under : "But to my mind the learned trial Court while holding so have not referred to the revenue entries as contained in the jamabandies and khasra girdawaris produced on record as Ex.P.1 to P.6. In Jamabadi for the year 1992-93 as well as for the year 1992-93 as well as for the year 1997-98, copies Ex.P.1 to Ex.P.6 the disputed khasra number has been shown to be in exclusive possession of Joginder Singh as co-sharer. Same position is depicted in the entries made in khasra girdawari from the year 1995 to 2000, copies of which have been produced on record Ex.P2 to Ex.P5. It may be clarified that entries in jamabandi fall within the zone of record of rights and a presumption of truth is attached thereto whereas entries in khasra girdawaris do not fall within the description of record of rights but they constitute a relevant fact under Section 85 of the Evidence Act, since these are recorded by a public servant in discharge of his official duty. These entries can very well be used for determining the possession of a party over the disputed khasra numbers. The entries in this revenue record as discussed above show that the husband of the appellant was in possession of the land in dispute as co-sharer. There is nothing on record to suggest that vendors of the respondents were in possession of the disputed khasra number. Admittedly, they executed the sale deeds in question in his favour vide which he is stated to have purchased the disputed khasra number how they could deliver possession of the same to him. In view of this reference to delivery of possession made in the sale deed in question on record that husband of the appellant was in possession over the disputed khasra number as per the entries in the revenue record, on his death the appellant and her children had inherited the same. In view of this reference to delivery of possession made in the sale deed in question on record that husband of the appellant was in possession over the disputed khasra number as per the entries in the revenue record, on his death the appellant and her children had inherited the same. The contention that these entries are false is without any basis. The respondent has miserably failed to rebut the correctness of the revenue entries. In these circumstances, it is held that learned trial Court had committed a grave error in holding the respondent to be in possession over the land in dispute while actually the appellant is proved to have inherited the possession of the land in dispute from her husband as a co-sharer. She being in possession has cause of action to claim injunction against any trespasser and is entitled to relief of injunction as prayed for." 3. Shri I.S. Brar, learned counsel for the defendant-appellant has argued that the sale deeds Ex.D.1 and D.2 dated 2.2.1995 and 24.9.1996 clearly demonstrate that defendant-appellant is owner of the suit land. He has further maintained that no injunction can be issued against the true owner and therefore, the findings recorded by the Addl. District Judge are liable to be set aside. 4. After hearing the learned counsel, I do not feel persuaded to take a view different than the one taken by the learned Addl. District Judge because Section 44 of the Act provides that entries made in the record of rights must be presumed to be true until the contrary is proved. Section 44 of the Act reads as under : "44. Presumption in favour of entries in records of rights and annual records. - An entry made in a record of rights in accordance with the law for the time being in force or in an annual record in accordance with the provisions of this chapter and rules thereunder shall be presumed to be true until the contrary is proved or a new entry is lawfully substituted therefor." A perusal of the afore-mentioned Section shows that entries for the years 1992-93 and 1997-98 made in the jamabandies Ex.P.1 and P.6 highlight the exclusive possession of Joginder Singh as a co-sharer i.e. predecessor in interest of the plaintiff-respondent. During the intervening period i.e. 2.2.1995 and 24.9.1996 sale deeds Ex.D.1 and D.2 have been got executed by the defendant-appellant. During the intervening period i.e. 2.2.1995 and 24.9.1996 sale deeds Ex.D.1 and D.2 have been got executed by the defendant-appellant. No evidence has been produced showing the possession of the vendor of the defendant-appellant. On the contrary the entries in Ex.P.1 and P.6 in the jamabandies for the years 1992-93 and 1997-98 are in favour of plaintiff-respondents. The provisions of Section 44 of the Act are mandatory in character. The same came for confederation of the Supreme Court in the case of Chhotte Khan and others v. Mal Khan and others, AIR 1954 SC 575. The views of their Lordships on this issue read as under : "By Section 44 of the Punjab Land Revenue Act an entry made in the record of rights or in an annual record shall be presumed to be true until the contrary is proved. That entries in the Jamabandies fall within the purview of the record of rights under Section 31 of the Act admits of no doubt. Section 16 of the old Act (XXIII of 1871) laid down that entries in the record of rights made or authenticated at a regular Settlement shall be presumed to be true...." Similar views have been by the Supreme Court in the case of Durga v. Milkhi Ram, 1969 PLJ 105. In the present case, no material has been placed on record by defendant- appellant to show that possession of the plaintiff-respondent is not in accordance with law or the entries in record of rights suffer from any legal infirmity. Unless contrary is proved by the defendant-appellant the presumption of truth attached to the entries made in the revenue record would continue to operate. There is no room to interfere in the conclusion arrived at the ld. Addl. District Judge. The suit has been rightly decreed granting permanent injunction to the plaintiff-respondent. The appeal is, therefore, without merit and is thus liable to be dismissed. For the reasons recorded above, this appeal fails and the same is dismissed. Appeal dismissed.