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2014 DIGILAW 576 (HP)

Jaswant Singh v. Sant Nirankari Mandal

2014-05-14

TARLOK SINGH CHAUHAN

body2014
JUDGMENT : - Tarlok Singh Chauhan, Judge. The defendants, who are the appellants, before this Court have filed this Regular Second Appeal against the judgment and decree dated 16.04.2002 passed by learned District Judge, Una, in Civil Appeal No.21 of 1997 whereby he reversed the judgment and decree dated 31.12.1996 passed by learned Sub Judge Ist Class, Court No.2, Una, in Civil Suit No.96 of 1989 and the suit of the plaintiff/respondent herein was decreed for the alternative relief of possession of the suit land on the basis of title. 2. The plaintiff Dev Raj (since deceased) had filed a suit for declaration to the effect that he is owner in possession of the suit land measuring 1 Kanal 14 Marlas, bearing Khewat No.622, Khatauni No.849, Khasra Nos. 2947/474 (1-4) and 2948/474 measuring 0-10 Marlas and 0-10 Marlas bearing Khewat No. 163min, Khatauni No.250, Khasra No.475, total 2 Kanals 4 Marlas, situate in Village Arniala, Tehsil and District Una (hereinafter referred to as the suit land). It was averred that the entries in the names of the defendants as tenant-at-will in the column of cultivation of the suit land are wrong, incorrect, void unauthorized and ineffective and not binding on the rights of the plaintiff. It was also averred that the plaintiff Dev Raj was the brother-in-law (Sala) of the deceased defendant Amar Singh, who had appointed Amar Singh (defendants’ father) as his General Power of Attorney vide registered General Power of Attorney dated 21.05.1942 to manage the property of the plaintiff and the said General Power of Attorney has not been cancelled so far. It was further pleaded that defendants’ father Amar Singh being clever and influential person and with the connivance of the Patwari Halqua and revenue staff got changed the entries of suit land on his name in the column of cultivation as tenant-at-will and without any notice to the plaintiff. It was also alleged that the entries of the suit land in favour of the defendant as ‘Kabiz’ vide Misal No.320/88 dated 07.11.1988 of Settlement Naib Tehsildar, Una, are illegal, unauthorized and the same are not binding on the plaintiff. The plaintiff had averred that if the defendant is found in possession of the suit land that is on behalf of plaintiff under the said General Power of Attorney deed. The plaintiff had averred that if the defendant is found in possession of the suit land that is on behalf of plaintiff under the said General Power of Attorney deed. The plaintiff further alleged that the defendant under the garb of wrong entries started interfering in the peaceful possession of the plaintiff over the suit land and the plaintiff had come to know about these wrong entries about six months back. The plaintiff had prayed for permanent injunction as a consequential relief restraining the defendants from interfering in any manner in the peaceful possession of the plaintiff over the suit land and in the alternative for possession. 3. The defendants contested the suit by filing written statement wherein they have denied the contents of the plaint and specifically pleaded that previously the plaintiff and others were the owners of the suit land and the father of the defendants was in possession as tenant-at-will for the last 35 year s with a liability to pay rent, but the said liability to pay rent was exempted on account of relationship under the contract between the plaintiff and father of the defendants. It was pleaded that the plaintiff was never in possession of the suit land which was previously 3 Kanals 2 Marlas in area comprised in Khasra No.460 and after the consolidation proceedings in the village during 1965-66, the land was repartitioned and suit land comprised in Khasra Nos. 475 and 474 was allotted to the plaintiff. It was further averred that father of the defendants continued to be in possession as tenant-at-will under the plaintiff and besides this land the father of the defendants had been in possession of other land under the other landlords, who are relatives of the plaintiff as a tenant-at-will under the same condition. After the death of father of the defendants, the defendants succeeded all right, title and interest and being the tenant-at-will, proprietary rights under the H.P. Tenancy and Land Reforms Act have been conferred upon them after the appointed day i.e. 03.10.1975. After the death of father of the defendants, the defendants succeeded all right, title and interest and being the tenant-at-will, proprietary rights under the H.P. Tenancy and Land Reforms Act have been conferred upon them after the appointed day i.e. 03.10.1975. The defendants had alleged that they have no knowledge regarding the appointment of their father as General Power of Attorney of the plaintiff and the same was never acted upon and denied the execution of the same for want of knowledge It was also alleged that if the father of the defendants as well as the defendants are not proved to be tenant-at-will as well as owners, even then in the alternative, the defendants and their father have become owners by way of adverse possession of the suit land for more than 12 years as their possession in the alternative is hostile to the knowledge of plaintiff. 4. The plaintiff filed replication and reiterated and reaffirmed the contents of the plaint and specifically pleaded that defendants’ father was never inducted as tenant over the suit land. 5. On the pleadings of the parties, the following issues were frame d by the learned trial Court on 23.08.1990:- 1. Whether the plaintiff is owner in possession of suit land as alleged? OPP 2. Whether the revenue entries contrary to the plaintiff interest to the suit land are illegal, null and void? OPP 3. Whether a valid power of attorney dated 21.5.1942 was executed in favour of defendant No.1 as alleged? OPP 4. Whether the defendants being tenant-at-will of plaintiff have become owners by operation of law as alleged? OPD 5. Whether the plaintiff is estopped by his act and conduct to file the instant suit? OPD 6. Whether the plaintiff has no cause of action as alleged? OPD 7. Whether the suit is not properly valued for the purposes of court fee as alleged? OPD 8. If issue No.4 is not proved in affirmative, whether the defendants have become owners of the suit land by way of adverse possession as alleged? OPD 9. Relief. 6. OPD 6. Whether the plaintiff has no cause of action as alleged? OPD 7. Whether the suit is not properly valued for the purposes of court fee as alleged? OPD 8. If issue No.4 is not proved in affirmative, whether the defendants have become owners of the suit land by way of adverse possession as alleged? OPD 9. Relief. 6. After recording and evaluating the evidence adduced by the parties, the learned trial Court on 31.12.1996 dismissed the suit filed by the plaintiff Aggrieved by the judgment and decree passed by the learned trial Court, the plaintiff preferred an appeal before the learned lower appellate Court, who vide his judgment and decree dated 16.04.2002 accepted the appeal thereby setting aside the judgment and decree dated 31.12.1996 passed by the learned trial Court and decreed the suit filed by the plaintiff for possession of the suit land. 7. It is this judgment and decree which are under challenge before this Court. On 19.07.2002, this Court admitted the appeal on the following substantial questions of law:- 1. Whether the judgment of the Distt. Judge is perverse, based on misconstruction of oral and documentary evidence and ignoring the presumption attached to the revenue records particularly jamabandies for the year 1958, 1959 till 1984-85 and the presumption attached in Section 104(4) of the HP Tenancy and Land Reforms Act? 2. Whether the Civil Court has jurisdiction to try the suit in view of the provisions of HP Tenancy and Land Reforms Act and the provisions of HP Holdings (Consolidation and Prevention of Fragmentation) Act, 1971? Questions No.1 and 2. 8. Since substantial questions of law No.1 and 2 are interconnected and interlinked, therefore, I proceed to deal with the same by common reasoning. 9. I have heard learned counsel for the parties and gone through the records of the case. It is strenuously argued by learned counsel for the defendants-appellants that the learned trial Court has recorded clear and cogent findings for dismi ssing the suit of the plaintiff while the learned lower appellate Court proceeded only on the basis of surmises and conjectures to decree the suit of the plaintiff. 10. It is strenuously argued by learned counsel for the defendants-appellants that the learned trial Court has recorded clear and cogent findings for dismi ssing the suit of the plaintiff while the learned lower appellate Court proceeded only on the basis of surmises and conjectures to decree the suit of the plaintiff. 10. On the other hand, the main contention of the plaintiff/respondent is that the defendants or their predecessor-in-interest are not tenant-at-will over the suit land as Amar Singh was duly appointed as General Power of Attorney by the deceased plaintiff in the year 1942 and the said attorney remained in existence till the death of said Amar Singh. Therefore, the possession of the predecessor-in-interest of the defendants over the suit land was essentially on behalf of the plaintiff as his duly constituted attorney. It is borne out from the record that the Power of Attorney Ex.P-1 was executed by the deceased plaintiff Dev Raj in the year 1942 while he was working as Patwari in Pakistan and was, therefore, unable to look after his property in India. 11. From the records, it is seen that the defendant was reflected as a tenant (Gair-Mourusi) in the jamabandi Ex.D-1 for the year 1958-59 and the same entries were repeated in Ex.D-2 which is jamabandi for the year 1968-69, Ex.D-3 jamabandi for the year 196869, Ex.D-4 jamabandi for the year 1977-78. However, in the ‘Misal Haqiyat’ for the year 1987-88, the defendant is only shown in possession of the suit land instead of showing him a tenant over the same. Even the earlier entries where the defendant has been shown as the tenant in the column of rent, it is recorded “Bila-Lagan-Ba-Wajah-Rishtedari”. 12. It is admitted case of the parties that the plaintiff and the defendant were relatives. Therefore, the question is required to be determined as to whether the defendant was the tenant, who was not paying rent on account of his relationship or this entry was made casually in the revenue records The defendants-appellants in this background contended that they had examined the co-owner of the land Hans Raj (DW-3), who has stated that he was a co-owner along with Amar Singh prior to the consolidation proceedings. He has further stated that all the co-owners had infact inducted Amar Singh as “Gair Mourusi” tenant and he had resumed the land by filing LR-V form to the extent of half share in the tenancy of Amar Singh. He has further stated that Amar Singh was cultivating this land for the last 35 years, though in his cross-examination he has admitted that he had litigation pending with the plaintiff Dev Raj. 13. The learned counsel for the appellants has argued that despite the name of the defendant appearing as a tenant in the revenue record for umpteen number of years, the plaintiff despite his being a Patwari took no steps to have the record rectified which clearly establishes that the defendant was infact a tenant over the suit land. For this purpose, he has placed reliance upon Balak Ram versus Kedar Nath (deceased) through his L.R.s Joginder Paul and others 1994 (4) S.L.J. 3002 wherein it has been held as under:- “23. Entry of the name of the defendants as tenants under the plaintiff in the column of possession in the revenue records, which were prepared during consolidation of holding operation is a strong piece of circumstance, which goes against the plaintiff that at appropriate stage, no steps were taken by him for having the record rectified. Had the intention been to merge their tenancy rights with the ownership right, there is no manner of doubt that the plaintiff ought to have been brought it to the notice of the consolidation authorities. No challenge has been made to the entries made in the revenue records during consolidation, by which the name of the defendants has been continued to be shown as tenants under Bidar and thereafter under the plaintiff transferee from Bidar It the filing of the suit when he moved an application on 26th June, 1972 before the Assistant Collector 2nd Grade for getting deleted the names of the defendants from the revenue record. The Assistant Collector 2nd Grade instead of ordering the deletion of the names of the defendants directed that instead of rent as has been reflected in the 9th column of the jamabandi it should be shown that the occupation of the defendants is unauthorized one (Billa Lagan Bawaja Kabza Nazayas), for which reference be made to copy of the order dated 26th June, 1973 Ex.P-12 passed by the Assistant Collector 2nd Grade. After lapse of about 1-1/2 years, the plaintiff preferred the suit. Strangely enough the plaintiff in the suit did not challenge the entries in the revenue record, which recorded the possession of the defendants as tenants under him.” 14. The learned counsel for the appellants has further contended that the tenant automatically became the owner on the appointed day i.e. 03.10.1975 after coming into force the operation of H.P. Tenancy and Land Reforms Act and, therefore, the jurisdiction of the Civil Court was barred in terms of the Full Bench judgment of this Court in Chuhniya Devi versus Jindu Ram 1991 (1) S.L.C. 223 which in turn has been followed in a subsequent judgment of this Court in Kala Devi and others versus Sat Pal and others 2011 (1) Shim. LC 336, wherein it has been held as under:- “9. Coming to the evidence led by the parties, the plaintiff had proved on record Ext. P-3, copy of the jamabandi for the year 1965-66, Ext.P-4 jamabandi for the year 1973-74, Ext.P-5 copy of Khasra Girdavari from Kharif 1985 to Ravi 1989, Ext.P-1 copy of jamabandi for the year 1981-82 and Ext.P-2 copy of Khasra Girdavari from Kharif 1982 to Ravi 1988, which showed that the land in suit was entered in the ownership of the defendants and plaintiff and one Rama were shown in possession of the suit land as tenants. Thus, plaintiff had taken up the plea that on the basis of these entries, on coming into operation the H.P. Tenancy and Land Reforms Act, from the appointed day i.e. 3.10.1975, the plaintiff had become owner of the suit land and the conferment of the proprietary rights was automatic. According to the provisions of Section 104 of the H.P. Tenancy and Land Reforms Act, 1972, the plaintiff was to be conferred with the proprietary rights and this conferment was automatic. The plaintiff pleaded that he has become owner by operation of law and the defendants in their written statement took up a specific plea that the mutation under Section 104 of the H.P. Tenancy and Land Reforms Act was entered in favour of the plaintiff but it was rejected by the Assistant Collector 1st Grade on 9.2.1984. Thus, the defendants admitted that the proprietary rights were conferred upon the plaintiff under Section 104 of the H.P. Tenancy and Land Reforms Act. Thus, the defendants admitted that the proprietary rights were conferred upon the plaintiff under Section 104 of the H.P. Tenancy and Land Reforms Act. Once the proprietary rights had been conferred upon the plaintiff under these provisions, the jurisdiction of the Civil Court was barred to look into the question of conferment of proprietary rights according to the Full Bench decision of this Court in Chuhniya Devi v. Jindu Ram, 1991 (1) Shim.L.C. 223 . This question was not considered by the Courts below since the copy of the mutation entered was not placed on the record by both the parties. However, the defendants admitted that such a mutation was entered into, but it was pleaded that the same was rejected by the Assistant Collector 1st Grade on 9.2.1984. Once the defendants admitted the factum of conferment of proprietary rights, it was for them to have proved that it was rejected by the Assistant Collector 1st Grade on 9.2.1984 as pleaded by them, but the said document never saw the light of the day and there is nothing on the record to show that any such order was passed by the Assistant Collector 1st Grade canceling the mutation entered in favour of the plaintiff.” 15. To similar effect is the judgment in Shamsher Singh and others versus Roshan Lal and others 2011 (1) Shim. LC 570, “9. The point involved in the appeal is very short. The perusal of the plaint indicates that the appellants have specifically challenged the mutation No.1266 dated 15.6.1981 conferring ownership rights in favour of respondents No.1 to 4 which has been placed on record by appellants/plaintiffs as Ex.P-6 and by defendants as Ex.D-17. The conferment of proprietary rights under Section 104 of the H.P. Tenancy and Land Reforms Act cannot be assailed in civil suit as per Chuhniya Devi supra unless the parameters laid down in Chuhniya Devi are otherwise satisfied. In the plaint there is no averment that statutory authority has not followed mandatory procedure for conferring proprietary rights while attesting mutation. In these circumstances, no fault can be found with the findings returned by the two courts below that the civil court has no jurisdiction to try the suit. Similarly the direction for return of plaint by the learned District Judge is also correct. The civil court has no jurisdiction to try the suit. In these circumstances, no fault can be found with the findings returned by the two courts below that the civil court has no jurisdiction to try the suit. Similarly the direction for return of plaint by the learned District Judge is also correct. The civil court has no jurisdiction to try the suit. In case, the appellants opt to file appropriate proceedings before statutory authority under the H.P. Tenancy and Land Reforms Act regarding their grievance then such authority shall decide the same in accordance with law un-influenced by any findings given by learned District Judge and learned Senior Sub Judge on all issues except the issue of jurisdiction. There is no merit in the appeal. The substantial question of law is decided against the appellant.” 16. On the question of jurisdiction, the learned counsel for the appellants has further placed reliance upon the judgment delivered by this Court in Brij Bihari Lal versus Smt. Sarvi Devi and others 2011 (3) Him.L.R. 1515, wherein it has been held as under:- “15. It is clear from the above decision that the question of proprietary rights could be looked into by the Civil Court in case there were specific allegations that statutory authorities envisaged by that act had not acted in conformity with the fundamental principles of judicial complied with. There were no allegations made in the plaint in this regard and though the suit was filed on 13.4.1971 and decided on 8.9.1976, appeal was filed on 26.5.1981 and decided on 21.9.2000 and by that time this judgment had already been passed by the Hon'ble Full Bench on 21.9.1990. The plaintiff could have withdra wn the suit and filed it afresh on the lines of the directions given in the above Paras under which the challenge could be led to the order of the Compensation Officer which was never done, though the parties continued to contest the suit, which was ultimately decided on 8.9.1976 and before that it must be clear to both the parties that such law has been laid down by the court.” 17. The learned counsel for the appellants has thereafter contended that there is no explanation whatsoever as to on what basis the revenue entries which otherwise had been consistently appearing in his favour earlier showing him as a tenant and thereafter as occupant, all of a sudden, obliterated his name from the revenue records. The learned counsel for the appellants has thereafter contended that there is no explanation whatsoever as to on what basis the revenue entries which otherwise had been consistently appearing in his favour earlier showing him as a tenant and thereafter as occupant, all of a sudden, obliterated his name from the revenue records. There is neither any order passed by the competent authority or Revenue Officer to this effect. Infact, according to him, there is no explanation how the change was effected in the revenue records. He has further contended that the defendant was not even heard before effecting change in the revenue record. As a matter of fact, no notice whatsoever had been served prior to the change effected in the revenue records. 18. Insofar as the change in the revenue entries is concerned, the learned counsel for the defendants-appellants has relied upon State of Himachal Pradesh and another versus Budhia and another 2012(1) Him. L.R. 175, wherein it has been held as under:- “14. Mr. R.P. Singh has argued that the suit was not within material on record to establish that the plaintiffs were heard or issued any notice before these entries were changed. According to the plaintiffs, cause of action has arisen for the first time in the year 1998 when the forest officials visited the spot and threatened to dispossess them. The plaintiffs had issued notice, under section 80 of the Code of Civil Procedure. The suit has been instituted within a period of three years after the cause of action had arisen in favour of the plaintiffs. The defendants have changed the ownership and nature of the suit land without hearing the plaintiffs from “obad doam” to “banjar kadim”.” 19. On the other hand, the learned counsel for the respondent-plaintiff has argued that leaving all questions aside, once the defendant himself relies upon the earlier revenue entries wherein in the column of rent, admittedly, it has been recorded as “Bila-Lagan-Ba-Wajah-Rishtedari”, then it was incumbent upon the defendant to prove on record that the defendant was a tenant because the entries aforesaid indicate that no rent was payable or being paid by the defendant on account of relationship. According to learned counsel for the respondent-plaintiff, there is no evidence of any contract between the parties regarding the payment or non-payment of rent and its adjustment otherwise. According to learned counsel for the respondent-plaintiff, there is no evidence of any contract between the parties regarding the payment or non-payment of rent and its adjustment otherwise. The payment of rent was necessary to create relationship of landlord and tenant. The learned counsel for the respondent-plaintiff has further contended that the payment of rent is a necessary ingredient in determining the relationship of landlord and tenant, though it is a different matter that the payment of rent can be in kind or cash or it can be subject-matter of the contract which may provide otherwise. In support of his arguments, the learned counsel for the respondent plaintiff has relied Shri Jasmer Singh Bhatti The Punjab State and others 1989 PLJ 288 wherein it has been held as under:- “8. The appointed day as defined u/s 3(1) of the Punjab Land Reforms Act, 1972 is the 24th of January, 1971. U/s 3(16) of this Act, the tenant has the meaning assigned to it in the Punjab Tenancy Act, and includes a sub-tenant and self-cultivating lessee but shall not include a present holder as defined in clause (f) of section 2 of the East Punjab Displaced Persons Land Re-settlement Act, 1949. The tenant is defined under the Punjab Tenancy Act as a person who holds the land under another person, and is, or but for special contract would be, liable to pay rent for that land to that other person; but it does not include- (a) an inferior landowner, or (b) a mortgagee of the rights of a landowner, or (c) a person to whom a holding has been transferred or an estate or holding has been let in farm, under the Punjab Land Revenue Act, 1887 for the recovery of an arrear of land revenue or of a sum recoverable as such an arrear; or (d) a person who takes from the Government a lease of unoccupied land for the purpose of subletting it. Present –holder as per the aforesaid Act means a person who is in occupation of the land allotted or leased to an allottee or lessee, as the case may be. Present –holder as per the aforesaid Act means a person who is in occupation of the land allotted or leased to an allottee or lessee, as the case may be. Since in the revenue record Shmt.Angoori Devi has been mentioned as the owner, and in the cultivation column, the name of Jasmer Singh, petitioner, is recorded, further entries in the column of lagaan are to be taken into consideration to determine as to whether Jasmer Singh is a tenant of Shmt. Angoori Devi or not. It is admitted that the entry under the column of lagaan is as under:- “Bila lagaan Basharah Malkan Bawajah Rishtedari”. This entry at the outset indicates that no rent is payable by the petitioner. There is no evidence of any contract between Shmt. Angoori Devi and Jasmer Singh, petitioner, regarding payment or non-payment of rent or its that where an entry with respect to payment of rent in the revenue record was blank, it would be taken that no rent was being paid. Payment of rent was necessary to create relationship of landlord and tenant. Learned counsel for the respondent has argued that from the entry of the like nature, it should be presumed that in the absence of any contract the person in occupation of the land would be liable to pay rent to the owner although on account of relationship no rent was being paid and a person in possession of the land on account of relationship would be deemed to be a tenant. I am afraid this contention cannot be accepted. As already noticed, the payment of rent is a necessary ingredient to determine the relationship of landlord and tenant. The payment of rent can be in kind or in cash, or it can be the subject-matter of a contract to the otherwise. Since in the present case, as already noticed, there is no evidence of contract regarding payment of rent or its adjustment and no rent is mentioned in the revenue record being payable, the petitioner Jasmer Singh could not be held to be a tenant of Shmt. Angoori Devi.” 20. Since in the present case, as already noticed, there is no evidence of contract regarding payment of rent or its adjustment and no rent is mentioned in the revenue record being payable, the petitioner Jasmer Singh could not be held to be a tenant of Shmt. Angoori Devi.” 20. The learned counsel for the respondent-plaintiff has further relied upon the judgment in Neti and another versus Ram Kishan and others 1991 PLJ 134 wherein it has been held as under:- “6.The sole question which arises for decision is whether the defendants were in possession of the suit land as tenants. The relationship of landlord and tenant comes into existence as a result of an agreement, express or implied. It may be implied from the acts and conduct of the parties which indicate that the landlord intended to divest himself of the possession of the land and that the tenant intended to assume possession thereof. One of the most important circumstances from which this inference can be drawn is the payment of rent, for although rent is not an essential, it is a normal incident of tenancy and the fact that a person in possession of the land paid rent to the owner thereof landlord and tenant exists between the parties. On the other hand, the fact that no rent was paid would lead one to a contrary conclusion and negative the existence of such relationship. The only evidence produced on record by the defendants is Jamabandi for the year 1966-67 (Ex.D.1). Col. No.9 of the Jamabandi Ex.D.1 relates to rent and it is blank. The other evidence produced on record by the defendants is Khasra Girdawaris of the year 1967 till Rabi 1976 (Exhibit D.2). Exhibit D.2 also does not reveal that the defendants were paying rent to the landowner. In Jamabandi for the year 1971-72 (Ex.P.1) in the column of rent, it is stated “Bila Lagaan, Ba Vajah Apasdari”. Its English translation will be “without payment of rent on account of mutual relationship”. In the Jamabandi for the year 1963-64 Ex.D.1 the column of rent is left blank. The revenue record produced by the parties does not establish that the plaintiffs were in possession of the suit land as tenants. Non-payment of rent negatives the plea of tenancy. Its English translation will be “without payment of rent on account of mutual relationship”. In the Jamabandi for the year 1963-64 Ex.D.1 the column of rent is left blank. The revenue record produced by the parties does not establish that the plaintiffs were in possession of the suit land as tenants. Non-payment of rent negatives the plea of tenancy. There is no plea much less proof, that nonpayment of rent was because of any special contract entered into between the parties. I do not find any infirmity in the conclusions arrived at by the learned first appellate Court. The same calls for no interference.” 21. I have given my thoughtful consideration to the rival contentions raised by the learned counsel for the parties. Insofar as the question regarding jurisdiction is concerned, it would be seen from the record that nowhere during the proceedi ngs the defendants ever challenged the jurisdiction of the Civil Court to try and adjudicate the suit. Even otherwise, this is not a case where the relationship of landlord and tenant has been admitted on record. Taking into consideration the nature of controversy involved in the suit which primarily relates to title and the defence set up whereby the defendants themselves did not question the jurisdiction of the Civil Court and rather alone which would have the jurisdiction to try and adjudicate the present suit. 22. Insofar as the next question raised by Mr. Lal regarding unauthorized change in revenue entries is concerned, I find sufficient force in his argument because there is no material whatsoever available on record to show as to how the change in the revenue entries took place. As already observed, the entries found from the year s 1958-59 till 1984-85 vide Ex.D-1, Ex.D-2, Ex.D-3, Ex.D-4 and Ex.D-5 have consistently shown the defendant earlier as a tenant and thereafter simply as occupant in occupation of the land. These entries coupled with the statement of Hans Raj, who admittedly filed LR-V form on record that the defendants’ predecessor-in-interest had been conferred proprietary rights vide mutation Ex.D-9 prove on record the possession of the defendant. How these entries thereafter came to be changed is anybody’s guess. Though presumption of truth was attached to the later entry which must prevail but the same is rebuttable. 23. How these entries thereafter came to be changed is anybody’s guess. Though presumption of truth was attached to the later entry which must prevail but the same is rebuttable. 23. Though in Shri Raja Durga Singh of Solan vs. Tholu and others AIR 1963 SC 361 , it has been held that later entry in the revenue record will prevail over the earlier entries in the following manner:- “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 a 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.” 24. Yet the position of law was later clarified by the Hon’ble Supreme Court in Durga v. Milkhi Ram 1969 P.L.J. 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 wa s made unauthorizedly or mistakenly, there being no material to justify the change of entries.” 25. 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 has been made unauthorizedly or mistakenly. 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 rebutted. 26. The learned counsel for the respondent has strenuously contended that the tenancy is the creation of contract between the parties which is required to be pleaded and proved. 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 rebutted. 26. The learned counsel for the respondent has strenuously contended that the tenancy is the creation of contract between the parties which is required to be pleaded and proved. He has further contended that in terms of the definition of tenant in the H.P. Tenancy and Land Reforms Act, a tenant essentially means a person, who holds land under another person on payment of rent. He further contends that tenant in terms of the H.P. Tenancy and Land Reforms Act has been defined as under:- “(17) “tenant” means a person who holds land under a landowner, and is, or but for a contract to the contrary would be liable to pay rent for that land to that landowner, and includes (i) a sub-tenant 1[****] ; and (ii) the predecessor or successors in interest of a tenant or a sub-tenant, as the case may be ; but it does not include- (a) a 2(mere) mortgagee of the rights of landowner, or2 (b) a person to whom a holding has been transferred or an estate or holding has been let in farm under the Himachal Pradesh Land Revenue Act, 1954 (6 of 1954) or the Punjab Land Revenue Act, 1887(17 of 1887) as the case may be, for the recovery of an arrear of land revenue or of a sum recoverable as such as arrear 3(;) (c) 4[****] ” 27. The learned counsel for the respondent contends that taking into consideration this definition, it cannot be disputed that the tenancy would only come into existence if there is a bilateral agreement which may oral or documentary and in order to prove the relationship of landlord and tenant, consent of both the parties was necessary. According to the respondent, for the creation of tenancy, the payment of rent is one of the most essential ingredients which admittedly in the present case is missing. 28. I am afraid that I cannot agree with the contention raised by learned counsel for the respondent. According to the respondent, for the creation of tenancy, the payment of rent is one of the most essential ingredients which admittedly in the present case is missing. 28. I am afraid that I cannot agree with the contention raised by learned counsel for the respondent. Infact what the Punjab and Haryana High Court in the cases of Shri Jasmer Singh Bhatti and Neti and another (supra) as held is that once the element of rent was found missing, then specific evidence has to led to show as to why rent was not payable. But, these judgments nowhere say that merely on the basis of such type of entry, the relationship of landlord and tenant is not established. It is proved on record that the parties were related and, therefore, it can be assumed that because of the relationship the tenant had not been paying any rent to the landlord. Moreover, as already observed and discussed above, consistent entries in favour of the defendant are appearing in the revenue record from the year 1958-59 till 1984-85 showing him to be in possession of the suit land earlier as a tenant and thereafter as an occupant. 29. Even otherwise, all the arguments raised by the learned counsel for the respondent are required to be tested in light of the peculiar facts of the case. It is admitted case of the respondent that entries contrary to his interest had been reflected in the revenue record and yet he did not challenge the same despite he himself being a Patwari. Not only this, even during consolidation proceedings, no steps were taken to have the revenue records set-right. 30. Infact, PW-1 deceased-plaintiff had himself admitted that during consolidation proceedings, his share was separated from the shares of other co-owners Hans Raj and Har Kishan. Not only this, the defendants’ witness Hans Raj has proved on record that Amar Singh, the predecessor-in-interest, of the appellants had been inducted as “Gair Mourusi” tenant by all the co-owners, but their shares were got separated during the proceedings of consolidation of holdings and he had resumed his half share of the land from the tenant Amar Singh by filing LR-V form. The possession of the defendant is duly proved by the oral evidence led by him. 31. The possession of the defendant is duly proved by the oral evidence led by him. 31. One important circumstance which cannot be ignored is that no steps were taken by the plaintiff to cancel the Power of Attorney in favour of the defendant which was executed as far as back in the year 1942. Incase there had been misuse of Power of Attorney, nothing had prevented the plaintiff from canceling this Power of Attorney. Once it is admitted fact that the plaintiff and defendant were related, then there is reason to doubt or disbelieve that the defendant might not have been paying rent on account of relationship. There is no reason to view this entry with suspicion, particularly, when no material has come on record to rebut this entry. The substantial questions of law, as framed, are answered accordingly. 32. Resultantly, the present appeal succeeds and is allowed. The judgment and decree dated 16.04.2002 passed by learned District Judge, Una, in Civil Appeal No.21 of 1997 whereby he reversed the judgment and decree dated 31.12.1996 passed by learned Sub Judge Ist Class, Court No.2, Una, in Civil Suit No.96 of 1989, are set aside. Consequently, the suit filed by the plaintiff-respondent is ordered to be dismissed, leaving the parties to bear their own costs.