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2005 DIGILAW 336 (HP)

GURPAL SINGH v. RAM RAKHA

2005-09-12

K.C.SOOD

body2005
JUDGMENT K C Sood, J. (Oral).: Appellant Gurpal Singh, who was defendant before the trial court, having loss in the trial court and first appellate Court, as in this second appeal, under Section 100 of the Code of Civil Procedure. 2. In order to appreciate the controversy few facts may be noticed: 3. One Bholu was a non-occupancy tenant of the land, subject matter of dispute. After his death he was succeeded by his three sons Dhani Ram, Ghungar and Polho. Plaintiffs Ram Rakha and Parma Nand are successor-in-interest of Ghungar. Respondents No.1 and 2 in this appeal and the defendants are successors of Dhani Ram and Polho Ram. Admittedly all the three sons Ghungar, Dhani Ram and Polho Ram succeeded tenancy rights of Polho in equal shares and were co-tenants to the extent of 1/3"1 share each. In the Jamabandi for the year 1950-51 Dhani Ram was shown to be as non-occupancy tenant to the extent of 1/3* share whereas Ghungar and Polho were shown non-occupancy tenants to the extent of 2/3rt share, in other words each one of them was non-occupancy tenant of 1/3* share. Some entries appeared in the settlement Jamabandies for the year 1961-62 and 1065-66. In the Jamabandi for the year 1970-71 (Ex.D-4) name of Ghungar the predecessor-in-interest of the plaintiff was deleted in the column of cultivation as non-occupancy tenant and the land in dispute was shown in occupation of Dhani Ram, Udho Ram sons of Beli Ram to the extent of !4 share and other half share in the name of Kashmir Singh and Gurdial Singh sons of Polho. 4. According to the plaintiffs, this unauthorized change in the revenue entries came to their knowledge after the settlement. These entries were unauthorizedly or mistakenly made by the revenue officials in connivance with the defendants. The defendants set up a case that neither the plaintiffs nor their predecessor-in-interest were non-occupancy tenants over the suit property and they (defendants) have obtained proprietary rights. This position having become settled cannot now be unsettled. 5. Both the trial court and first Appellate Court found as fact that change, in the revenue entries occurred for the first time in the Jamabandi for the year 1970-71 (Ex.D-4). This entry was made unauthorisedly, without any foundation and without any notice to the plaintiffs. This position having become settled cannot now be unsettled. 5. Both the trial court and first Appellate Court found as fact that change, in the revenue entries occurred for the first time in the Jamabandi for the year 1970-71 (Ex.D-4). This entry was made unauthorisedly, without any foundation and without any notice to the plaintiffs. This change, noticed learned first Appellate Court, took place because of a note of the Patwari recorded in the Daily Diary. 6. Malkiat Singh (PW-3) who proved the entry in the Daily Diary admitted that entry in the Daily Diary was made without any notice to the plaintiffs and this entry was not attested by Numberdar or any other person. The witness has further deposed that the Patwari was not competent to effect the change in the revenue record, even if a party was found in possession of the property other than the person whose name is reflected in the revenue record. Such chance in the revenue record can only be made by an order of a Revenue Officer or Civil Court This entry being without any foundation, unauthorized and without notice to the plaintiff is illegal, has not value and cannot be made foundation of any rights. Change in the subsequent Jamabandies. excluding the name of the plaintiffs as non-occupancy tenants are illegal and unauthorized, therefore, such entries have neither presumption of truth not can be used to claim any right on the suit property. 7. The defendant Gurpaul Singh in his cross-examination admitted that the land in dispute was in possession, as non-occupancy tenant, of Bholu who was succeeded by Bell, Ghungar and Polho and the ancestral property is still joint and has no been partitioned. He also admitted that neither the defendants nor their predecessor-in-interest ever sought or asked for deletion of the entries in favour of Ghungar in the revenue record. Kashmir Singh (DW-2) the other defence witness admitted in his cross-examination that the suit land was taken for the purpose of cultivation by Bholu the predecessor-in-interest of the parties and after the death of Bholu the tenancy rights were succeeded by Beli, Ghungar and Polho. 8. It is true that presumption of truth is attached to the latest revenue entries but such presumption is rebuttable, if change in the revenue entries is shown to be illegal or without any foundation. 9. 8. It is true that presumption of truth is attached to the latest revenue entries but such presumption is rebuttable, if change in the revenue entries is shown to be illegal or without any foundation. 9. It is now well settled that where the earlier revenue entries are changed and change is made without any order of the revenue authorities or the change is made without notice to the other party then such entries do not carry presumption of truth, as presumption attached to the latest revenue entries stand rebutted by the fact that alteration in the later entries were made unauthorizedly or mistakenly. (See Durga (deceased) and others vs Milkhi Ram and others 1969 P.L.J. 105). 10. Mr Kuthiala, learned counsel for the appellant-defendant relying upon Chuniya Devi vs Jindu Ram, 1991 (1) Sim.L.C. 223 strenuously urges that as the dispute relates to conferment of proprietary rights, therefore, the Civil Courts have no jurisdiction to adjudicate the dispute. The argument is misplaced. The exclusion of jurisdiction of the Civil Courts, as observed by the Full Bench in Chuniyas case is confined to the determination of question whether a person cultivating the land of the land owner is his tenant or not for the purposes of Chapter X of the Himachal Pradesh Tenancy and Land Reforms Act. The jurisdiction of Civil Courts is excluded if a dispute between the parties relate to status of a party as tenant. In the present case the dispute between the parties is whether wrong, erroneous and unauthorized entry in the revenue record can confer any right on the person claiming under those unauthorized revenue entries, the civil Courts in such case will undoubtedly shall have the jurisdiction to go into the question. This Court in Inder Dutt and others vs. Kala and another 1997 (1) S L J 457 took a view that if the tenancy rights are recorded in "the revenue record and the consequential proprietary rights are granted exparte, without any inquiry whatsoever and if opposite party is not aware of such entry having been made or was not given any notice before the entries were changed the Civil Courts will have jurisdiction to go in to that question. 11. Both the trial court and first Appellate Court found that entry, excluding the name of the predecessor-in-interest of the plaintiff, was unauthorized and without any legal foundation. 11. Both the trial court and first Appellate Court found that entry, excluding the name of the predecessor-in-interest of the plaintiff, was unauthorized and without any legal foundation. Therefore only consequence which shall flow is that subsequent revenue entries will not confer any right, title and interest on the defendants. The very grant of proprietary rights to the, defendants, based on unauthorized entries, is illegal and void. The impugned judgment does not suffer from any illegality 12. No substantial question of law arises in this appeal. Dismissed. No costs. CMP No. 405 of 2005 In view of the dismissal of the main appeal, this application does not survive and stands dismissed. Interim order dated 18th May, 2005 stands vacated.