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2014 DIGILAW 345 (HP)

Kaushalya Devi v. Sito Devi

2014-04-04

TARLOK SINGH CHAUHAN

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JUDGMENT : - Tarlok Singh Chauhan, J. This Regular Second Appeal under Section 100 of the Code of Procedure has been preferred by the plaintiffs/appellants against judgment and decree dated 28.2.2001 passed by learned Addl. District Judge, Una in Civil Appeal No.110/2000/95 whereby he reversed the judgment and decree dated 19.12.1994 passed by learned Sub Judge Ist Class, Una in Case No.122/1989. 2. The suit was originally filed by Smt. Parsini Devi, the predecessor-in-interest of the present appellants for declaration to the effect that she was in possession of the land measuring 7 kanals 11 marlas comprised in khewat No.262 min, Khatauni No.529 min, khasra Nos.1545 ( 2-17), 1549 ( 4-14) as entered in Missal Hakiat for the year 1985-86, situate in village Nangal Kalan, Tehsil and District una as tenant and thereafter as owner because of under H.P. Tenancy and Land Reforms Act. It was averred that the entries in the name of Amian the predecessor-in-interest of the contesting defendants as possession are wrong and illegal. It was averred that the defendants/respondents on the basis of wrong entries had been threatening to interfere with her possession over the suit land. Neither the defendants No.1 to 12 nor their predecessor-in-interest Amian ever remained in possession over the suit land as they were never inducted as a tenant. Thus, the suit for declaration and injunction. 3. The defendants/respondents contested the suit on the ground that they had been coming in possession of the suit land as tenant on payment of annual rent of Rs.30/-. They had been conferred proprietary rights under the H.P. Tenancy and Land Reforms Act. They denied the claim of the plaintiffs/appellants and prayed for dismissal of the suit. 4. The plaintiffs/appellants filed the replication to the written statements converting the contents of the written statements and reasserting those of the plaint. The learned trial Court on 20.8.1993 had framed the following issues:- 1. Whether the plaintiff is coming in possession of the suit land firstly as tenant and now as owner in view of H.P. Tenancy and Land Reforms Act, as alleged? OPP 2. Whether the plaintiff is entitled to the relief of injunction prayed for? OPP 3. Whether the suit is bad for non-joinder of necessary parties? OPD No.1 to 12, 4. Whether the suit is not maintainable in the present form? OPD 1 to 12 5. OPP 2. Whether the plaintiff is entitled to the relief of injunction prayed for? OPP 3. Whether the suit is bad for non-joinder of necessary parties? OPD No.1 to 12, 4. Whether the suit is not maintainable in the present form? OPD 1 to 12 5. Whether this court has no jurisdiction to try the present suit? OPD 1 to 12. 6. Whether the suit of the plaintiff is collusive with that of defendants No.13 to 26, as alleged? OPD 1 to 12. 7. Whether the defendants No.2 to 12 are entitled to special costs? OPD 1 to 12. 8. Relief. After recording the evidence, the learned trial Court decreed the suit of the plaintiffs/appellants. Aggrieved by the judgment and decree passed by the learned trial Court, the defendants/respondents preferred an appeal before learned lower appellate Court who vide its judgment and decree dated 26.2.2001 has set aside the judgment and decree and accepted the appeal. It is against this judgment and decree, the plaintiffs/appellants have come in appeal before this Court. 5. This Court on 29.6.2001 admitted the appeal on following substantial question of law:- “Whether the learned first appellate court is legally correct to attach presumption of truth to the entries in the revenue record which were so entered in favour of the defendants/respondents without having established on the record that the plaintiffs/appellants have either surrendered their tenancy rights or some proper order was ever passed for their ejection, from the competent court?” 6. I have heard Mr. Subhash Sharma, Advocate, on behalf of the appellants and Mr. Ajay Sharma, Advocate on behalf of the contesting respondents and have also gone through the records of the case. 7. This is a classical case based on the presumption of truth to be attached to revenue entries. The learned trial Court came to the conclusion that the latest revenue entries which are in favour of the defendants/respondents are incorrect as these had been recorded without any basis. The para-8 of the judgment of learned trial Court reads as under :- “It is evident from the above discussion that the latest Revenue entries which are in favour of the defendants are incorrect as these had been recorded without any basis. On the other hand, old entries which are showing the suit land in possession of the plaintiff are accepted as correct. On the other hand, old entries which are showing the suit land in possession of the plaintiff are accepted as correct. Hence, the plaintiff is held to be in possession of the suit land as tenant and became its owner by virtue of the H.P. Tenancy and Land Reforms Act. Defendants have no right to interfere with the possession of the plaintiff over the suit land in any manner whatsoever. Hence, both these issues are answered in favour of the plaintiffs and against the defendants.” 8. While on the other hand on the same material and facts the learned lower appellate Court came to the following conclusion:- “12. From the aforesaid documentary evidence it stands abundantly prayed that the suit land is coming in possession of Amian, the predecessor-in-interest of defendants No.1 to 12 right from 1962-63 whereas the name of Smt. Parsinni existed in the revenue documents prior upto 1953-54. The name of Amian was repeated during the current settlement operation which took place in 1985-86. This shows that he was found in actual physical possession of the suit land even in 1985-86. Under H.P. Land Revenue Act entries in new record are to be given preference over the entries in the old record. This being the legal position it has to be presumed that the entries in favour of Amian since 1962-63 upto date are correct and the entries which existed in favour of Smt. Parsinni prior to that get over ridden by the new entries. That Amian came in possession somewhere prior to 1962-63 as a non-occupancy tenant is the only legal inference that can be drawn on the basis of the documents on record. This presumption is no doubt rebutable in nature but the burden to rebut this presumption lies on the person who alleges the entries in the new record to be wrong. In the case in hand the burden to prove that the entries in favour of Amian are wrong is upon the plaintiffs. But the plaintiffs have not discharged this onus. They have led no evidence except the bald statement of Bimla’s Mukhtiar Rakha Ram PW-1. The witnesses from the locality could have been produced in the witness box by the plaintiffs to rebut the entries made in the revenue record prepared later in time in favour of Amian. But the plaintiffs have not discharged this onus. They have led no evidence except the bald statement of Bimla’s Mukhtiar Rakha Ram PW-1. The witnesses from the locality could have been produced in the witness box by the plaintiffs to rebut the entries made in the revenue record prepared later in time in favour of Amian. The plaintiffs have also not shown much less than proving that the entries made in favour of Amian were made illegally or without any order of the competent revenue officer. Since the burden of proving the new entries to be wrong was upon the plaintiffs, they could have done so by producing the record of the revenue authorities prior to 1962-63 when the entries were made in favour of Amian. But they have failed to requisition any such record and have also failed to produce oral evidence to that effect. 13. Thus it has to be presumed that the entries made in favour of Amian being later in time are to be given preference over the entries which existed in favour of Smt. Parsinni prior to that. 9. In Shri Raja Durga Singh of Solan vs. Tholu and others AIR 1963 SC 361 , wherein in has been held that:- “It is sufficient to say that where there is such a conflict, it is the later entry which must prevail. Indeed from the language of S. 44 itself it follows that where new entry is substituted for an old one it is the new entry which will take the place of the old one and will be entitled to the presumption of correctness until and unless it is established to be wrong or substituted by another entry.” 10. Indeed from the language of S. 44 itself it follows that where new entry is substituted for an old one it is the new entry which will take the place of the old one and will be entitled to the presumption of correctness until and unless it is established to be wrong or substituted by another entry.” 10. At this stage, it would be apt to quote the celebrated decision of the Hon’ble Supreme Court in Durga v. Milkhi Ram 1969 PLJ 105, wherein it has been held that :- ".......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, held, although the 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 the alteration in the later entries was made unauthorisedly or mistakably, there being no material to justify the change of entries........." 11. From the record, I find that there is neither any order of the revenue authorities showing how the change has been effected, nor any order of mutation ordering correction, therefore, the conclusion which can be drawn is that the alteration in the later entries have been made unauthorisedly or mistakably. There being no material to justify the change of such entries, accordingly, the presumption attached to such entries under Section 45 of the H.P. Tenancy and Land Reforms Act stands reverted. Similar preposition of law has been considered by this Court in Kanshi Ram vs. Harbhajan Singh Bhajji, AIR 2002 HP 154 , wherein this Court has held:- 13. At the time of hearing it was not disputed on behalf of the parties that change in the record of rights as well as periodical record is permissible, provided, if is carried out in accordance with the provisions of H. P. Land Revenue Act as well as H.P. Land Records Manual, 1954, (this case pertains to the period when this land Record Manual was inforce in the Mahasu District where this land was situate). 14. Though, learned counsel for the defendant persisted with vehemence that even translation Ex. PW-4/K (supra) was an order passed by the competent Revenue Officer under law. 14. Though, learned counsel for the defendant persisted with vehemence that even translation Ex. PW-4/K (supra) was an order passed by the competent Revenue Officer under law. She was unable to explain and satisfy the Court as to how this order came to be passed and under what authority of law. To be fair to her it may also be observed that she did not dispute that this order on its reading appears to have been passed in the absence of the plaintiff. This otherwise what emanates from Ex. PW-4/K. 15. Therefore, in the absence of any admission on the part of the plaintiff conceding the possession of the plaintiff so as to enable the Revenue Authorities to change the entries on its basis; or in the absence of any legal order from either a Revenue or Civil Court, presumption of truth attached to the entries contained in Ex. PW-1/E is not available to the defendant. Though Ms. Mehta submitted that the presumption is still available. To the specific query of the Court as to how the entries were changed as observed hereinabove for the first time in the year 1978-1979, no explanation could be given by her. In these circumstances, how the matter needs to be looked into, is no more res integra. In view of the decision of the Supreme Court in Durga v. Milkhi Ram 1969 PLJ 105. What was observed in this case and squarely covers the present case is extracted herein below :- ".......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, held, although the 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 the alteration in the later entries was made unauthorisedly or mistakably, there being no material to justify the change of entries........." 12. In view of the facts and circumstances of the case as also taking into consideration the law laid down by the Hon’ble Supreme Court in Durga vs. Milkhi Ram case (supra), it can be safely concluded that the judgment passed by the learned lower appellate Court is absolutely erroneous and contrary to the settle legal preposition while the learned trial Court has rightly observed that the latest revenue entries which are in favour of the defendants are incorrect as these had been recorded without any basis. 13. Mr. Ajay Sharma, Advocate learned counsel for the respondents has contended that in fact the plaintiffs/ appellants or their predecessor in interest (original plaintiff) would not be considered to be the tenants in view of Section 59 of the Punjab Tenancy Act, which reads as follows:- “S. 59. Succession to right of occupancy.- (1) When a tenant having a right of occupancy in any land dies, the right shall devolve- (a) On his male lineal descendants, if any, in the male line of decent; and (b) failing such descendants, on his widow, if any, until she dies or remarries or abandons the land or is under the provisions of this Act ejected therefrom; and [(c) failing such descendants and widow, or his widowed mother, if any, until she dies or re-marries or abandons the land or is under the provisions of this Act ejected therefrom ;} [(d) failing such descendants and widow or widowed mother, or, if the deceased tenant left a widow or widowed mother, then when her interest terminates under clause (b) or (c) of this sub-section, on his male collateral relatives in the male line of descent from the common ancestor of the deceased tenant and those relatives] : Provided, with respect to clause [d] of this sub-section, that the common ancestor occupied the land. [Explanation. [Explanation. For the purpose of clause [d] land obtained in exchange by the deceased tenant or any of his predecessors-in-interest in pursuance of the provisions of sub-section (1) of section 58-A shall be deemed to have been occupied by the common ancestor if the land given for it in exchange was occupied by him.] (2) As among descendants and collateral relatives claiming under sub-section (1), the right shall, subject to the provisions of that sub-section, devolve as it were land left by the deceased in village in which the land subject to the right is situate. (3) When the widow of a deceased tenant succeeds to a right of occupancy, she shall not transfer the right by sale, gift or mortgage or by sub-lease for a term exceeding one year. (4) If the deceased tenant has left no such persons as are mentioned in sub-section (1) on whom his right of occupancy may devolve under that sub-section, the right shall be extinguished. Learned counsel has fairly stated that this plea was not raised before the learned trial Court neither in the pleadings nor there is any issue to this effect but being a pure question of law, it is open for determination. 14. It is settled law that the other party cannot be taken by surprise. In my considered opinion interpretation of Section 59 of the Punjab Tenancy Act would though be pure question of law, however, its applicability in the given facts and circumstances would be mixed question of law and fact. Therefore, the respondents at this stage cannot be permitted to raise this plea. 15. The question of law is accordingly answered in favour of the plaintiffs/appellants. Accordingly, the present appeal is allowed and the judgment and decree passed by the learned lower appellate Court is ordered to be set aside while judgment and decree passed by the learned trial Court is upheld and confirmed, leaving the parties, to bear their own costs.