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2014 DIGILAW 478 (HP)

Karam Chand v. Paras Ram

2014-04-28

TARLOK SINGH CHAUHAN

body2014
JUDGMENT Tarlok Singh Chauhan, Judge The defendants are the appellants and have come up in appeal against concurrent findings recorded against them by the learned Courts below. 2. The facts as necessary for the adjudication of the case are that the respondents/plaintiffs alongwith some other co-sharers alleged themselves to be the owners in possession of the landed property comprised in Khata/Khatauni No. 1 min, Khasra Nos. 23, 31, 47 and 48 kitas 4 measuring 22 bighas 3 biswas situated in Mauja Dhaula Kalan, Pargana Lachdang, Tehsil Kasauli, District Solan, H.P. as per jamabandi the year 1986-87. It was pleaded that the defendants/appellants have no right, title or interest in and over the land. It was pleaded that the defendants are mischievous persons who used to cause damage to crop and grass on the suit land by way of letting loose their cattle and also cutting grass behind the back of the plaintiffs and other co-sharers wrongly, illegally and without the consent of the plaintiffs or any other co- sharers. The defendants were requested number of times not to cause interference or damage to the crop or grass and the plants standing on the suit land. The defendants are giving threats to cause interference and cause damage to the crops belonging to the plaintiffs standing on the suit land. On dated 20.8.92 the defendants cut grass in the suit land forcibly and also caused damage to the crop and grass by their cattle as they let- loose them with the intention to cause damage and interference in the physical possession of the plaintiffs. The defendants were requested to desist from such activities but the defendants gave threats to cause damage and caused interference in future. It was further pleaded that in case the defendants were not restrained from their illegal acts in that case the plaintiffs would suffer irreparable loss for which money compensation would not be an adequate relief and prayer for the decree of the suit was sought before the learned trial Court. 3. The defendants filed the written statement raising preliminary objections that the suit is not maintainable in the present form and as such is liable to be dismissed and the plaintiffs have suppressed material facts with a malafide intention to misguide the court and as such the plaintiffs are not entitled for the relief of injunction. 3. The defendants filed the written statement raising preliminary objections that the suit is not maintainable in the present form and as such is liable to be dismissed and the plaintiffs have suppressed material facts with a malafide intention to misguide the court and as such the plaintiffs are not entitled for the relief of injunction. The plaintiffs were estopped from filing the present suit by their acts, conduct, deeds, acquiescence and knowledge and the suit is bad for mis-joinder and non- joinder of necessary parties. It was pleaded that the plaintiffs are not co- sharers in possession of the suit land comprised in khasra No. 31 measuring 2-4 bighas. It was further pleaded that the defendants moved an application for correction of revenue entries qua the said khasra number before the Assistant Collector, Kasauli and only after the filing of the said application the plaintiffs filed the suit with malafide intention to obstruct the process of correction of revenue entries. It was further pleaded that perusal of revenue record pertaining to year 1961-62 showed that Phool Chand the predecessor-in-interest of the defendants was in possession of the land comprised in khasra No. 31 .Subsequently the revenue entries of khasra No. 31 had been changed illegally and as such the revenue entries were wrong and the defendants were owners in possession of the land comprised in Khasra No. 31. It was further pleaded that the plaintiffs are not in possession of the suit land and there is no question of dispossessing them from khasra No. 31. As far as the remaining khasra numbers are concerned, the defendants have never interfered in the same nor they have any intention to do so and prayed for dismissal of the suit. 4. On the pleadings of the parties, the learned trial Court on 7.10.1993 framed the following issues: 1.Whether the plaintiffs are co-sharers in possession of the suit land as alleged? OPP2.Whether the plaintiffs are entitled to the relief of prohibitory injunction as prayed? OPP 3. Whether the suit is not maintainable as alleged? OPD 4.Whether the plaintiffs are estopped from filing the present suit as alleged? OPD 5. Whether the suit is bad for mis-joinder and non-joinder of parties as alleged? OPD 6.Whether the revenue entries regarding the suit land are wrong and illegal as alleged? OPD 7.Relief. 5. OPP 3. Whether the suit is not maintainable as alleged? OPD 4.Whether the plaintiffs are estopped from filing the present suit as alleged? OPD 5. Whether the suit is bad for mis-joinder and non-joinder of parties as alleged? OPD 6.Whether the revenue entries regarding the suit land are wrong and illegal as alleged? OPD 7.Relief. 5. The learned trial Court vide judgment and decree dated 26.5.2001 decreed the suit of the plaintiffs. The appeal filed by the defendants/appellants resulted in dismissal and this is how the defendants are before this Court by way of the present regular second appeal. 6. On 18.6.2002 this Court was pleased to admit the appeal on the following substantial questions of law: 1.Whether both the courts below in a highly illegal, erroneous and perverse manner decreed the suit of the plaintiff- respondents by putting reliance on revenue entries, which were not proved to be lawfully substituted when the earlier entries depicted the predecessor-in-interest of the defendant- appellants to be in possession of the disputed land?2.Whether the lower Appellate Court has wrongly put reliance on Section 114 (g) of the Evidence Act in raising adverse inference against the defendants-appellants in not producing Patwari, Field Kanungo and the Tehsildar to prove the entries in the revenue records to be wrong? 7.I have heard Mr. Bhupender Gupta, Senior Advocate, assisted by Mr. Janesh Gupta, Advocate, learned counsel for the appellants and Mr. G.D.Verma, Senior Advocate assisted by Mr. B.C.Verma, Advocate, learned counsel for the respondents and have also gone through the records carefully. 8.Since both the aforesaid substantial questions of law are inter-related and inter-connected, therefore, I proceed to answer the same by way of common reasoning. 9.At the outset, it may be pointed out that though the decree has been sought by the plaintiff of khasra Nos. 23, 31, 47 and 48, however, the dispute is restricted and limited to khasra No. 31. The learned trial Court after reproducing the statements of the witnesses examined by the respective parties, assigned the following reasons for holding the plaintiff to be in possession of khasra No. 31 in paragraphs 17 and 18 of its judgment: “17. The Ld.counsel for the defendants contended that the predecessors-in-interest of the defendants were “gair maurusi” in possession of the land comprised in Khasra No. 31 but there is no such plea taken by the defendants in their written statement regarding the tenancy. The Ld.counsel for the defendants contended that the predecessors-in-interest of the defendants were “gair maurusi” in possession of the land comprised in Khasra No. 31 but there is no such plea taken by the defendants in their written statement regarding the tenancy. The only dispute is regarding khasra No. 31. Meaning thereby the ownership and possession of the plaintiff over the other khasra No. has not been denied and disputed. PW-1 Paras Ram has given the version that they have no relations and concerned with Chanano and denied the possession of the defendants over the suit land i.e. khasra No. 31. Although PW-2 has stated that he has not gone to the suit land for the last 40 years but he has stated that this land was mortgaged with his predecessors-in-interest by the plaintiff and which was redeemed in the year 1957-58. PW-3 has also deposed about the ownership and possession of the plaintiffs over the suit land. DW-1 has deposed that they are owner in possession of the Khasra No. 31 and the plaintiffs have nothing to do with this land. She has not deposed that how the entries qua the possession of Phool Chand came into existence in the revenue record. She has deposed that they were not the tenant in the suit land. She has also not deposed that her predecessors-in-interest were the tenant over the suit land comprised in khasra No. 31. In the cross-examination she has deposed that perhaps this land was purchased by her predecessors-in-interest but there is no such record on the file. It has come in the evidence that this land was mortgaged with Moti Ram and others by the predecessors-in-interest of the plaintiffs. The DW-1 has also admitted that she or her predecessors-in­interest never paid the batai to the plaintiffs. So the contention of the Ld. counsel for the defendant is not getting force. As the contention of the Ld. counsel for the defendant is not in consonance with the pleadings of the defendant. DW-2 has also deposed about the document Ex.D-1 which is compromise. He has stated that he does not know who are in possession of the land comprised in Khasra No. 31 and some time he deposed that defendants were in possession of the same. So his statement is not favourable about the possession of the defendant. DW-2 has also deposed about the document Ex.D-1 which is compromise. He has stated that he does not know who are in possession of the land comprised in Khasra No. 31 and some time he deposed that defendants were in possession of the same. So his statement is not favourable about the possession of the defendant. DW-3 has also admitted that Chanano, Bija Ram and his father never paid any batai to the plaintiffs. DW-4 and DW-5 has deposed that defendants are in possession of the khasra No. 31 but the oral evidence cannot change the revenue entries which have been placed on record by the plaintiffs as well as by the defendants. 18. The jamabandi Ex.P-2 for the year 1966-67 is showing the suit land Khasra No. 31 in possession of Shonkiya and Khiali Ram. Ex.P­3, jamabandi for the year 1975-76, Ex.P-5 jamabandi for the year 1980- 81, Ex.P-6 jamabandi for the year 1086-87, Ex.P-7 jamabandi for the year 1991-92 are supporting the plea of the plaintiff qua the ownership and possession as the entries in these jamabandis are showing the plaintiffs and earlier to them their predecessors-in-interest owner in possession over the khasra No. 31. The plaintiff has also placed on record the copy of mutation Ex.P-8 vide which the suit land was mortgaged for the sum of Rs.600/-(six hundred). This fact is not in dispute that the land was mortgaged and thereafter got redeemed by the predecessors-in-interest of the plaintiff. The only dispute is regarding the khasra No. 31. Nor the plea of tenancy have been taken by the defendants. So it is for the defendants to prove that how and in which capacity they came into existence in the revenue record with regard to the khasra No. 31. There is nothing on the record placed by the defendants which could show that the predecessors-in-interest of the defendants are owner in possession over the suit land. The defendant has placed on record jamabandi for the year 1949-50 in which the predecessors-in-interest of the defendant namely Phoolu has been shown as “Gair Moursie” tenant. The jamabandi for the year 1953-54 Ex.PD is showing Phoolu as Gair Moursie and same in the revenue entries Ex.PF and PG, Ex.PH, Ex.PJ. The defendant has placed on record jamabandi for the year 1949-50 in which the predecessors-in-interest of the defendant namely Phoolu has been shown as “Gair Moursie” tenant. The jamabandi for the year 1953-54 Ex.PD is showing Phoolu as Gair Moursie and same in the revenue entries Ex.PF and PG, Ex.PH, Ex.PJ. But the plea which has been taken by the defendants regarding the owner in possession over the khasra No.31 is not getting force keeping in view the revenue record placed on the file by the defendants. As the defendants have not stated that how they become owner in possession of the khasra No.3 1. On the other hand, the revenue record which has been placed on record by the plaintiff is proving the fact that plaintiffs are owner in possession over the khasra No. 31. Hence issue No.1 answered in affirmative in favour of the plaintiffs and against the defendants. It is held that plaintiffs are co-sharers in possession of the suit land.” 10.When the matter came up in appeal, the learned lower Appellate Court affirmed the judgment and decree of the learned trial Court and the reasons recorded by the learned lower appellate Court are as under: :”24. The contention of learned counsel for the appellants that the appellants are in possession of the suit land is also rejected being devoid of any force because DW-2 Shri Paras Ram has specifically stated when he appeared in the witness box that he does not know who is in possession of Khasra No. 31. He has specifically stated that in document Mark D-1 khasra number was not mentioned. He has stated that khasra No. 31 was not cultivated by any party in his presence at any point of time. Similarly DW-3 Shri Hari Chand has specifically stated that the suit land was not demarcated in his presence at any point of time. DW-4 Shri Kyali Ram has also stated that the suit land was not demarcated in his presence at any point of time. DW-4 Shri Mohan Lal has stated when he appeared in the witness box that suit ladn was not demarcated in his presence and he has stated that Lajwanti is his sister. DW-5 is not an independent eye witness. DW-4 Shri Kyali Ram has also stated that the suit land was not demarcated in his presence at any point of time. DW-4 Shri Mohan Lal has stated when he appeared in the witness box that suit ladn was not demarcated in his presence and he has stated that Lajwanti is his sister. DW-5 is not an independent eye witness. DW-5 is related to Smt. Lajwanti and I am of the view that testimony of DW-1,DW-2, DW-3 and DW-4 and DW-5, DW-6 are not sufficient to hold that the appellants- defendants are owner in possession of the suit land. On the contrary, PW-1 Shri Paras Ram has specifically stated that plaintiffs-respondents are owners in possession of the suit land. PW-2 Shri Amar Singh has also specifically stated that respondents-plaintiffs are in possession of the suit land. He has specifically stated that the suit land was mortgaged with the ancestors of PW-2 and the same was redeemed by the plaintiffs-respondents by way of the process of law. The appellants did not adduce any positive, cogent and reliable evidence on record that PW-2 Shri Amar Singh has hostile animus against the appellants prior to filing of the suit or after filing of the suit. No positive, cogent and reliable reasons have been assigned by the appellants in order to dis-believe the testimony of PW-2 Shri Amar Singh. The testimony of Amar Singh, PW-2 inspire confidence of the Court. Similarly PW-3 Shri Raj Kumar has specifically stated that his land adjoins to the suit land and has specifically stated that the plaintiffs-respondents are owner in possession of the suit land. He has specifically stated that the appellants-defendants did not remain in possession of the suit land at any point of time. The appellants did not adduce any positive, cogent and reliable evidence on record in order to prove that PW-3 has hostile animus against the appellants prior to filing of the suit and after filing of the suit. The testimony of PW-3 also inspire confidence of the suit. In the jamabandis for the years 66-67 Ex.P-2, 71-72 Ex.P-3, 75-76 Ex.P-4, jamabandi 1980-81 Ex.P-5, Ex.P-6 86-87, 1991-92 Ex.P-7 the respondents-plaintiffs have been recorded in the ownership and possession of the suit land and their ancestors also recorded as owner in possession of the suit land. The testimony of PW-3 also inspire confidence of the suit. In the jamabandis for the years 66-67 Ex.P-2, 71-72 Ex.P-3, 75-76 Ex.P-4, jamabandi 1980-81 Ex.P-5, Ex.P-6 86-87, 1991-92 Ex.P-7 the respondents-plaintiffs have been recorded in the ownership and possession of the suit land and their ancestors also recorded as owner in possession of the suit land. The entries of jamabandi have been prepared by the public official while discharging their official duties and are relevant fact under Section 35 of the Indian Evidence Act. Section 35 of the Indian Evidence Act is quoted in toto as under: “Section 35 Relevancy of entry in public record, made in performance of duty: An entry in any public or other official record stating a fact in issue of relevant fact and made by a public servant in the discharge of official duty or by any other person in performance of duty specially enjoined by the law of the country in such book, register or record is kept is itself a relevant fact.” The possession of the appellants-defendants has not been recorded in the jamabandi entries and appellants-defendants did not examine the Patwari and Field Kanungo and Tehsildar in order to prove that the revenue entries qua the ownership and possession are against the factual position on the spot. The adverse inference has been drawn against the appellants for non-examination of Patwari, Field Kanungo and Tehsildar who have recorded and attested the jamabandi entries. Section 114 (g) of the Indian Evidence Act is quoted in toto as under: “The evidence which could be and is not produced would if produced be unfavourable to the person who withholds it.” The appellants did not adduce any positive, cogent and reliable evidence on record in order to rebut the revenue entries of ownership and cultivation possession. Hence, I hold that the appellants failed to prove that entries regarding the suit land are wrong and illegal.” 11.I have intentionally referred to the findings recorded by the learned Courts below because they have not at all cared to discuss the entire documentary evidence available on record. The learned courts below cannot be permitted to indulge in selective reading of the evidence so as to justify their reasoning given in support of its conclusions. The learned courts below cannot be permitted to indulge in selective reading of the evidence so as to justify their reasoning given in support of its conclusions. This Court has repeatedly held that first appeal is a valuable right of the parties and unless restricted by law, the whole case therein is open for rehearing both on questions of fact and law. The judgment of the first Appellate Court must, therefore, reflect its conscious application of mind and record findings supported by reasons on all the issues raised in the appeal. It is the duty of the learned first Appellate Court to deal with all issues and evidence led by the parties before recording such findings. The appeals have to be decided strictly in accordance with law laid down by the Hon’ble Supreme Court in Santosh Hazari vs. Purushottam Tiwa ri (deceased) by LRS (2001) 3 SCC 179 wherein the Hon’ble Supreme Court has held as under: “15. A perusal of the judgment of the trial Court shows that it has extensively dealt with the oral and documentary evidence adduced by the parties for deciding the issues on which the parties went to trial. It also found that in support of his plea of adverse possession on the disputed land, the defendant did not produce any documentary evidence while the oral evidence adduced by the defendant was conflicting in nature and hence unworthy of reliance. The first appellate court has, in a very cryptic manner, reversed the finding on question of possession and dispossession as alleged by the plaintiff as also on the question of adverse possession as pleaded by the defendant. The appellate Court has jurisdiction to reverse or affirm the findings of the trial Court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate Court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions putforth, and pressed by the parties for decision of the appellate Court. The task of an appellate court affirming the findings of the trial Court is an easier one. The judgment of the appellate Court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions putforth, and pressed by the parties for decision of the appellate Court. The task of an appellate court affirming the findings of the trial Court is an easier one. The appellate court agreeing with the view of the trial court need not restate the effect of the evidence or reiterate the reasons given by the trial court; expression of general agreement with reasons given by the court, decision of which is under appeal, would ordinarily suffice (See Girijanandini Devi v.Bijendra Narain Choudhary, AIR 1967 SC 1124 . We would, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the appellate court for shirking the duty cast on it. While writing a judgment of reversal the appellate court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial court must weigh with the appellate court, more so when the findings are based on oral evidence recorded by the same Presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the appellate court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate court is entitled to interfere with the finding of fact. (See Madhusudan Das v. Narayanibai (1983) 1 SCC 35 ). The rule is – and it is nothing more than a rule of practice – that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge’s notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lie, the appellate court should not interfere with the finding of the trial Judge on a question of fact. (See Sarju Pershad Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh, AIR 1951 SC 120 ). Secondly, while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate Court had discharged the duty expected of it. We need only remind the first appellate courts of the additional obligation cast on them by the scheme of the present Section 100 substituted in the Code. The first appellate Court continues, as before, to be a final court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first appellate court is also a final court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate court even on questions of law unless such question of law be a substantial one.” 12.It is borne out from the record that prior to 1966-67, the possession of the defendants was duly found recorded in the revenue record. For this purpose, reliance can conveniently be placed on Ex.DC which is jamabandi for the year 1949-50 wherein the predecessors-in­interest of the defendants/appellants have been shown in possession of the suit land as tenants. Similarly, in Ex.DD, which is copy of jamabandi for the year 1953-54, the same entry has been repeated. However, in column No.9 relating to the land revenue it has been stated ‘Bashara Malkan Salana Kabja Tasovar Malkiat’, meaning that “the person in possession considers himself to be the owner”. Similar entries are found in the jamabandi for the year 1957-58 Ex.DF and Ex.DH, which is copy of jamabandi for the year 1961-62. It is only in Ex. P-2, which is copy of jamabandi for the year 1966-67 that predecessors-in-interest of the respondents have been shown as owners in possession of the suit property. Surprisingly there is no entry in the remarks column as to how the change in these revenue entries took place. It is only in Ex. P-2, which is copy of jamabandi for the year 1966-67 that predecessors-in-interest of the respondents have been shown as owners in possession of the suit property. Surprisingly there is no entry in the remarks column as to how the change in these revenue entries took place. In the subsequent jamabandi Ex.P-3 for the year 1971-72 the entries as appearing in jamabandi Ex.P-2 are repeated. 13.Since the suit was for injunction, it was incumbent upon the learned Courts below to have concentrated more on the question of possession rather than on the question of title. The perusal of paragraph 18 of the judgment passed by the learned trial Court (which has been reproduced hereinabove) would show that though reference has been made to Ex.DC jamabandi for the year 1949-50 and Ex.DD, jamabandi for the year 1953-54. However, these documents have been conveniently brushed aside by the learned trial Court only on the ground that the entries therein were in conflict with the plea taken by the defendants regarding they being owners in possession of the suit land. While a perusal of paragraph 24 of the judgment passed by the learned lower Appellate Court, as reproduced hereinabove, would show that the learned lower Appellate Court has conveniently made a reference to the revenue records of subsequent years i.e. jamabandis after the year 1966-67 wherein admittedly the plaintiffs/respondents have been shown to be owner in possession of the suit land without caring to make reference to the jamabandis of the earlier years which admittedly were on record by way of Exts. DC, DD, DF and DH, respectively. 14. It is settled law that the plaintiffs have to stand their own legs. Any defect or lacuna in the defence case cannot support the plaintiffs leg to stand, rather the plaintiffs must prove the case to the satisfaction of the Court for getting a decree in their favour. The plaintiffs cannot be permitted to take advantage of the weakness in the defence. 15. Confronted with this situation, Mr. G.D.Verma, Senior Advocate, learned counsel for the respondents would contend that the earlier entries in the revenue record stood automatically rebutted in view of the defence taken by the defendants/appellants in their written statement to the effect that they were owners in possession of the land. Once the defendants/appellants failed to prove their ownership, the plea of possession automatically falls. G.D.Verma, Senior Advocate, learned counsel for the respondents would contend that the earlier entries in the revenue record stood automatically rebutted in view of the defence taken by the defendants/appellants in their written statement to the effect that they were owners in possession of the land. Once the defendants/appellants failed to prove their ownership, the plea of possession automatically falls. 16.I am unable to accept such contention. It is settled law that possession is a question of fact, therefore, it was incumbent upon the plaintiffs to have prove their possession by leading cogent and reliable evidence to this effect particularly in the teeth of the earlier revenue entries Exts. DC, DD, DF and DH wherein admittedly the predecessors­in-interest of the defendants had been shown in possession though in the capacity of tenant. Mr. G.D.Verma, learned Senior Advocate would then contend that the specific case setout by the defendants in their written statement was to the effect that they were the owners in possession of the land and, therefore, having failed to prove their ownership, they cannot be permitted to take up any other plea which is contrary to the pleadings. For this purpose, he has referred to the judgment of Punjab and Haryana High Court in Ram Narain Singh vs. Smt. Gurinder Kaur and another 1997 (2) S.L.J. 993 wherein it has been held as under: “9. For brevity sake, it may be mentioned that ex parte decree was passed on 20.10.1972. Issue No. 1 has been decided in favour of the applicant. As per Article 123 of the Limitation Act, 1963, application for setting aside the ex parte decree could be made within 30 days from the date of the knowledge of the decree. It is the specific case of the applicant in both the applications dated 7.6.73 which was dismissed on 24.9.1973 and in the application dated 24.9.73 that he came to know about the institution of the suit and execution of the decree on 4.5.73 when the Patwari Halqa went to the suit land in order to deliver the possession to the decree holder. In these circumstances, the period of limitation of 30 days would run from 4.5.73 and not from any subsequent date as argued by Shri Jain before this Court. In these circumstances, the period of limitation of 30 days would run from 4.5.73 and not from any subsequent date as argued by Shri Jain before this Court. The learned counsel for the petitioner submitted that his client came to know about the decree on 28.5.73/31.5.73 when his client obtained the copies of roznamcha and when he inspected the file of the main case. This submission of Shri Jain cannot be accepted in view of the categorical averments made by the applicant on two occasions while giving two applications under Order 9 Rule 13 C.P.C. Even the oral statement of the applicant which is against the pleadings cannot be looked into on account of the settled law that no amount of evidence can be weighed which is beyond the pleadings of the parties. This Court has the occasion to have a glance to both original applications dated 7.6.73 and 24.9.73. In fact, application dated 7.6.73 was typed out on 4.6.73 as it would be evident from seeing the date, which was typed as 4.6.73. This date 4.6.73 has been corrected with hand so as to be read as 7.6.73. This clearly suggests that even on 4.6.73. The petitioner was aware that the ex parte decree has been obtained by the decree holder against him on 22.10.1972. It is a settled law that each day of the limitation is to be explained. However, if any law is required on this point, 1973 P.L.J. 611, Charanjit Singh v. The Sub Divisional Officer, is an authority which can be read with advantage. It has been held in this situation that if the period of limitation expires each day’s delay has to be explained. The application could be filed under Order 9 Rule 13 C.P.C. according to Article 123 of the Limitation Act on 4.6.73. In the first application dated 7.6.73 there is no averments why the application was filed after two days’ delay on 7.6.1973. Even in the supporting affidavit attached with that application no sufficient cause has been shown. In fact, the petitioner had prepared himself to file the application on 4.6.1973 yet he did not bother that in case he did not file the application on that day, he would be loosing a very valuable right. Even in the supporting affidavit attached with that application no sufficient cause has been shown. In fact, the petitioner had prepared himself to file the application on 4.6.1973 yet he did not bother that in case he did not file the application on that day, he would be loosing a very valuable right. When a litigant is negligent and is not bothered about his rights, for such a litigant the law cannot come to the rescue because law always helps vigilant litigant and not otherwise. The application dated 7.6.1973 continued up to 24.9.1973. At no point of time the applicant thought proper to make an application before the Court for the amendment. He allowed this application to be dismissed on 24.9.1973 by filing a fresh one. Even if, it is assumed for the sake of argument that the 2nd application under Order 9 Rule 13 C.P.C. was in continuation of the first one yet the petitioner has to explain when he could not file the first application within the statutory period of 30 days which must be calculated w.e.f. 4.5.1973.” He has also placed reliance in Bachhaj Nahar v. Nilima Mandal and others AIR 2009 SC 1103 wherein it has been held as under: “9. The object and purpose of pleadings and issues is to ensure that the litigants come to trial with all issues clearly defined and to prevent cases being expanded or grounds being shifted during trial. Its object is also to ensure that each side is fully alive to the questions that are likely to be raised or considered so that they may have an opportunity of placing the relevant evidence appropriate to the issues before the court for its consideration. This Court has repeatedly held that the pleadings are meant to give to each side intimation of the case of the other so that it may be met, to enable courts to determine what is really at issue between the parties, and to prevent any deviation from the course which litigation on particular causes must take.” “12. This Court has repeatedly held that the pleadings are meant to give to each side intimation of the case of the other so that it may be met, to enable courts to determine what is really at issue between the parties, and to prevent any deviation from the course which litigation on particular causes must take.” “12. It is thus clear that a case not specifically pleaded can be considered by the court only where the pleadings in substance, though not in specific terms, contains the necessary averments to make out a particular case and the issues framed also generally cover the question involved and the parties proceed on the basis that such case was at issue and had led evidence thereon. As the very requirements indicate, this should be only in exceptional cases where the court is fully satisfied that the pleadings and issues generally cover the case subsequently put forward and that the parties being conscious of the issue, had led evidence on such issue. But where the court is not satisfied that such case was at issue, the question of resorting to the exception to the general rule does not arise. The principles laid down in Bhagwati Prasad and Ram Sarup Gupta (supra) referred to above and several other decisions of this Court following the same cannot be construed as diluting the well settled principle that without pleadings and issues, evidence cannot be considered to make out a new case which is not pleaded. Another aspect to be noticed, is that the court can consider such a case not specifically pleaded, only when one of the parties raises the same at the stage of arguments by contending that the pleadings and issues are sufficient to make out a particular case and that the parties proceeded on that basis and had led evidence on that case. Where neither party puts forth such a contention, the court cannot obviously make out such a case not pleaded, suo moto.” 17.There is no quarrel with the proposition of law as laid down in these judgments. However, the fact remains that this Court is not taking into consideration any evidence which is contrary to the pleaded case of the defendants. Nonetheless the plaintiffs cannot be absolved of the onus of proving their possession over the suit land. However, the fact remains that this Court is not taking into consideration any evidence which is contrary to the pleaded case of the defendants. Nonetheless the plaintiffs cannot be absolved of the onus of proving their possession over the suit land. 18.Learned counsel for the respondents would then contend that no new plea could be taken by the appellants before the High Court and for this purpose, referred to the judgment C. Mackertich v. Steuart & Co., Ltd. AIR 1970 SC 839 wherein it has been held as under: “3. In support of these appeals it was submitted on behalf of the appellant that the High Court was in error in holding that the tenancy was for manufacturing purpose and that six months’ notice terminable with a year of tenancy was required. It was said that the onus of proving that the tenancy was for manufacturing purpose was upon the defendant and as that point was not raised in the written statement the High Court should not have allowed the respondent to raise the question. In our opinion there is substance in this argument. But we shall assume in favour of the respondent that such an objection could have taken by it even without a specific plea in the written statement. Even upon that assumption we are of opinion that there is no evidence in the case to support the finding of the High Court that the purpose of the lease was dominantly for manufacturing purpose. Exhibit W is the Memorandum and Articles of Association. The objects of the company are given in paragraphs 3 and 4 and are to the following effect: “(3) To carry on the business of motor-cab, motor-car, motor-omnibus, motor-boat and motor-van proprietors, motor- engineers, manufacturers, builders, painters, decorators, and repairers of motor cars, cabs, omnibuses, vans and other vehicles of every description so constructed as to progress whether on land or water or in the air. (4) To carry on the business of harness-makers and wheel wrights, mechanical engineers and manufacturers of and dealers in lamps, whips, rugs, leather goods, India-rubber goods, wheels, springs, axles, upholsterings, India-rubber tyres and all component parts of any carriage or vehicle and other articles used in the manufacture or fitting up of the above mentioned or any similar articles, and manufacturers or factors of or dealers in all products or substances which may be used in or in connection with the said business or any of them or in which it may be considered advantageous to deal.” It cannot be said from these paragraphs that the object of the company was dominantly manufacturing purpose. The High Court has in this connection referred to the evidence of Mr. J. N. Ghose, the Managing Director of the defendant company. In reply to question 235 the witness said that the company had business as “Automobile engineers, coach builders, refrigerators, motor, mechanical engineer, body builders and the like and that business is continuing”. In answer to question No. 247 the witness said that the company had agency to deal in Austin cars. It is true that in the registered lease deed Ex. L and L (1) there is the description of the lessee as coach-builder. But it is obvious that the defendant company cannot claim to be holding under the registered lease deed Ex. L and L (I) and so the purpose mentioned in the lease deed cannot be taken into consideration. In our opinion neither the evidence of Mr. J. N. Ghose nor the statement in Ex. W, Memorandum and Articles of Association, can be taken as sufficient evidence to prove that the purpose of the lease was exclusively or even dominantly for a manufacturing purpose. It follows, therefore, that the High Court was in error in holding that the dominant purpose of the lease was manufacture and so 15 days’ notice ending with the month of each tenancy must be held to be insufficient.” 19.Again there is no quarrel to the preposition of law as setout in the aforesaid judgment, but from the records, I do not find that any new plea is sought to be raised by the defendants/appellants. Even otherwise as observed earlier this Court has confined itself to the pleaded case of the parties and the evidence led in support thereof. 20.Mr. Even otherwise as observed earlier this Court has confined itself to the pleaded case of the parties and the evidence led in support thereof. 20.Mr. G.D.Verma, learned counsel for the respondents then argued that the question of possession was a pure question of fact and merely because a contrary view was possible would not give this Court justification to interfere with the concurrent findings of fact and in support of such proposition, he placed reliance in Babu Ram alias Durga Prasad v. Indra Pal Singh (dead) by L.Rs AIR 1998 SC 3021 wherein it has been held as under: “15. Novation under Section 62 of the Contract Act requires a clear plea, issue and evidence. Such a question cannot be raised or accepted under Section 100, CPC for the first time in Second Appeal. There was no such issue in the Courts below and the defendant’s evidence was contrary to such a theory.” He has further placed reliance in Karnataka Board of Wakf v. Anjuman­E-Ismail Madris-Un-Niswan AIR 1999 SC 3067 wherein it has been held as under: 17. In the narration of facts of this case in the paragraphs hereinabove, we have referred to minimal facts of the case only to show that the question involved in the suit as well as in the appeal was a pure question of fact. The recitals in the documents produced by the plaintiff itself established on their face the facts necessary to settle the question in dispute, without even having to interpret the contents of the documents. The two courts below have correctly understood the same. In the instant case, if the learned Judge of the High Court felt that there was a need for examining the evidence to find out whether the findings of the lower Courts were either perverse or not borne out of records then we would have expected him to refer to and discuss the evidence in detail, pointing out the fatal error committed by the Courts below in their finding of fact. In the instant case, the High Court after quoting extensively from certain judgments of this Court and without pointing out how the ratio of those judgment applied to the facts of the present case, reversed the concurrent finding which, in our opinion, was wholly unwarranted. In the instant case, the High Court after quoting extensively from certain judgments of this Court and without pointing out how the ratio of those judgment applied to the facts of the present case, reversed the concurrent finding which, in our opinion, was wholly unwarranted. The trial Court noted the specific admissions made by PW 1 during the course of his cross-examination which clearly negatived the case of the plaintiff/appellant. It also came to the conclusion that the evidence of PW 1 with reference to lack of opportunity given to the plaintiff was “clearly false”. The first appellate Court during the course of its judgment held that the plaintiff at the first appellate stage had filed a fabricated affidavit in support of its application under Order 41, Rule 27, CPC for additional evidence, and directed that steps should be taken to impound the affidavit in question and to keep the affidavit in safe custody for further action in the matter against the concerned persons. If really the High Court had applied its mind to the facts of the case, as understood by the two lower Courts, then certainly it should have commented upon the above circumstances relied upon by the lower Courts. All these facts noted above give us an impression that the High Court has interfered with the concurrent findings of the two Courts below in a routine and casual manner by substituting its subjective satisfaction in the place of the lower Courts. 18. For the reasons stated above, this appeal succeeds and the judgment and decree of the High Court under appeal is set aside, and the judgment and decree of the trial Court in OS No. 5/75 as affirmed by the first appellate Court is restored. The appeal is, accordingly, allowed with costs.” 21.Again there can be no doubt with the proposition as canvassed by Mr. Verma, however the fact here again nonetheless remains that it is incumbent upon the plaintiffs to prove their possession over the suit land. 22.Lastly, learned counsel for the respondents would place reliance upon the judgment of this Court in Ram Parkash v. Geeta Devi and others 1999 (1) S.L.J. 16 to canvass that presumption of truth was attached to the revenue entries and where there is a conflict, it is later entry that must prevail. 22.Lastly, learned counsel for the respondents would place reliance upon the judgment of this Court in Ram Parkash v. Geeta Devi and others 1999 (1) S.L.J. 16 to canvass that presumption of truth was attached to the revenue entries and where there is a conflict, it is later entry that must prevail. No doubt, in Raja Durga Singh of Solan vs. Tholu and others AIR 1963, S.C. 361, the Hon’ble Supreme Court held as follows: “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.” However, the aforesaid judgment in Raja Durga Singh (supra) was subsequently explained by the Hon’ble Supreme Court in Durga (deceased) and others vs. Milkhi Ram and others, 1969 PLJ, 105 in the following terms: “ 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 “ In fact both these judgments find mention and have been discussed in Ram Parkash case (supra). 23. From the record, I find that there is neither any order of the revenue officer showing how the change was effected nor any order of correction passed by a competent authority. Therefore, the conclusion which can be conveniently drawn in such circumstances is that alteration in the later entries had been made unauthorisedly or mistakably, there being no material to justify the change of such entry. Accordingly, the presumption of truth attached to such entries under Section 45 of the H.P. Tenancy and Land Reforms Act stands rebutted. Therefore, the conclusion which can be conveniently drawn in such circumstances is that alteration in the later entries had been made unauthorisedly or mistakably, there being no material to justify the change of such entry. Accordingly, the presumption of truth attached to such entries under Section 45 of the H.P. Tenancy and Land Reforms Act stands rebutted. 24.Similar proposition of law has been dealt with and considered by this Court in Kashi Ram vs. Harbhajan Singh Bhajji AIR 2002 Himachal Pradesh 154 wherein it has been held as under: “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 in force 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. 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 1978-79, 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. 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 hereinbelow:- “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 S. 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.....” 25.To the same effect is the judgment passed by this Court in State of Himachal Pradesh and others vs. Ajay Vij and others 2011 (1) Shim. L.C. 452. 26.In view of the facts and circumstances of this case and 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 learned Courts below have erroneously and illegally placed reliance on the entries of possession of the plaintiffs appearing in the later jamabandi, when admittedly there was no explanation as to how such entries regarding their possession came to be recorded in the later jamabandi. Even the oral evidence led by the plaintiffs does not establish as to how and when the plaintiffs came in possession of the suit land. In fact no cogent or reliable evidence has been led by the plaintiffs to establish and prove their plea of possession. Lastly the reliance placed by the learned lower Appellate Court on Section 114 (g) of the Evidence Act for raising an adverse inference against defendants/appellants for not having produced the Patwari, Field Kanungo and Tehsildar to prove the entries in the revenue records to be wrong was infact totally misplaced in view of the detailed discussion above. Lastly the reliance placed by the learned lower Appellate Court on Section 114 (g) of the Evidence Act for raising an adverse inference against defendants/appellants for not having produced the Patwari, Field Kanungo and Tehsildar to prove the entries in the revenue records to be wrong was infact totally misplaced in view of the detailed discussion above. It was in fact incumbent upon the plaintiffs/respondents to prove on record how the entries in the revenue record more particularly those relating to possession had come to be altered and changed in their favour when admittedly the revenue entries consistently from 1949 onwards uptil the preparation of the jamabandi for the year 1966-67 (Ex.P-2) were in favour of the defendants/appellants. 27.Accordingly, both the substantial questions of law are answered in favour of the defendants/appellants. Consequently, in view of my findings recorded hereinabove, I find merit in the appeal and the same is allowed and resultantly, the judgments and decrees passed by the learned Courts below are ordered to be set-aside, leaving the parties to bear their own costs.