JUDGMENT : Rajiv Sharma, J. This Regular Second Appeal is directed against the judgment and decree dated 28.9.2002 rendered by the District Judge, Hamirpur in Civil Appeal No. 77 of 1993. 2. “Key facts” necessary for the adjudication of this appeal are that the appellants-plaintiffs (herein after referred to as ‘plaintiffs’ for convenience sake) instituted a suit for possession against the respondents-defendants (hereinafter referred to as the “defendants” for convenience sake). It is submitted that the land entered in Khata No.67, Khatauni Nos. 194 to 199, Khasra Nos.2, 27, 43, 50, 68, 21, 79, 80, 49, 25, 26, 24, 3, 4, 5 and 39 kitas 16 measuring 123K-16M is entered in Jamabandi for the year 1978-79 in Tikka Amroh, Tappa Mewa, Tehsil Bhoranj, District Hamirpur as owned jointly by the parties, plaintiffs and their predecessors-in-interest 1/3rd share and defendants and their predecessors-in-interest 2/3rd share. The consolidation took place in the area in the year 1985-86. New khatas were carved out of the land owned by the parties measuring 123 K-16 M. The suit land was given Khata No.62, khatauni Nos. 72 and 73, Khasra Nos. 27, 32, 37, 47, 51, 63, 64, 68, 70, 77, 81, 87, 199, 316, 334, 339, 345, 402, 404, 405, 413, 611, 888, 1220, 1294, 1313, 1480, 1481, 1788, 1262, 1263, 1266 and 1678 Kitas 33, as per the list attached, measuring 75K-3M. The settlement has also taken place in village Amroh during the year 1868-1869 and at that time, suit land denoted by Khasra Nos. 760, 763, 781, 782, 783, 784, 794, 295, 800, 801 and 802 measuring 122K-13M was shown in two shares, i.e. Smt. Jhato alias Chandnoo widow of Salahi – one share, Mana son of Bahadur one share, Bhuri Singh son of Hukmi one share, Dhari son of Biru one share, i.e. ½ share in all denoted by khata No.10 of 1868-69 and Kundan and Bahadur alias Dalia sons of Baju one share and Jai Singh son of Ghethal one share in the remaining half share, denoted by khata No. 13 of 1868-69, meaning thereby that the predecessor-in-interest of defendants had one share in the entire land, i.e. half of it, whereas the branch of the plaintiffs, another half share each in the suit land in khata No. 13 of that year.
Both branches i.e. Kesroo of plaintiffs and Khushla of defendants, were recorded joint owners in possession of the suit land till consolidation took place in the year 1985-86. In the year 1890-91 settlement operation took place in the Tikka. It was only a summary settlement. No demarcation was carried out on the spot. However, while preparing the record i.e. Jamabandi Istemal Tikka Amroh khariff 46 to 47 equivalent to 1889 to 1892 due to inadvertent mistake the branch of Smt. Chandnoo @ Jhato, Mana, Narain and Mutsaddi, Dhari son of Biru, having 1/4th Share each being owners of khata No. 17 were entered as cosharers to the extent of 2/3rd instead of half, whereas the branch of Kundan, Dalia sons of Baju half share, Jai Singh son of Ghethal half share of khata No. 20, i.e. 1/3rd instead of half share, as was being reflected in the revenue record prior to it. As a matter of fact, both the branches of Khushala and Kesroo had half share in the suit land. The same mistake was repeated in the year 1892-1893. The mistake could not come to the notice of anyone irrespective of both the branches came in possession of the suit land in equal shares each and the khata remained joint. In the subsequent jamabandis and also in the settlement having taken place during the year 1910-11, 1913-14, the khata of the land in the year 1868 till 1892-93 came to be recorded measuring 123 K-16 M instead of 122 K -13 M in joint possession of the parties. The parties were not aware of such change by way of mistake as 2/3rd and 1/3rd. Hence such position continued to be reflected in the Jamabandis from 1922-23 till 1979-80. The plaintiffs came to know during the consolidation pertaining to the year 1985-86, i.e. in November-December 1986 that less land was going to be given to them, i.e. equal to 1/3rd share irrespective of the fact that they were in possession of half share. Defendants were given the land to the extent of 2/3rd share irrespective of the fact that they were entitled to half share. 3. Suit was contested by the defendants. According to the defendants, the entries of the suit land in the revenue record were admitted to be correct.
Defendants were given the land to the extent of 2/3rd share irrespective of the fact that they were entitled to half share. 3. Suit was contested by the defendants. According to the defendants, the entries of the suit land in the revenue record were admitted to be correct. The suit land has rightly been shown in the possession of the plaintiffs to the extent of 1/3rd share whereas that of the defendants to the extent of 2/3rd share. It is denied that the settlement, which took place in the year 1892-93, was summary and not a regular settlement. The suit land was in possession of the defendants in the beginning and was also rightly recorded in the revenue record. 4. Replication was filed by the plaintiffs. Issues were framed by the learned Sub Judge 1st Class (2), Hamirpur on 17.5.1991. He decreed the suit on 13.5.1993 and decree of possession was passed in favour of the plaintiffs. Defendants filed an appeal against the judgment and decree dated 13.5.1993 before the District Judge, Hamirpur. He allowed the same on 28.9.2002. Hence the present Regular Second Appeal. It was admitted on 1.4.2003 on the following substantial questions of law: “(1). Whether the findings recorded by the learned District Judge are vitiated on account of misreading of pleadings of the parties as well as oral and documentary evidence on record? (2). Whether the presumption of correctness as attached to revenue record i.e. Shajra Nasab Ext. P-9 and Ext. P-11 for the year 1913-14 and 1868-69 has been ignored unlawfully by the learned District Judge on the basis of which the parties have ½ share each in the suit land and this fact is further supported by payment and this fact is further supported by payment of land revenue by the parties to the extent of ½ share each? 5. Mr. G.D. Verma, learned Senior Advocate has supported the judgment and decree dated 13.5.1993. He has also contended that the 1st Appellate Court has not correctly appreciated the revenue record. Mr. K.D. Sood, learned Senior Advocate has supported the judgment and decree dated 28.9.2002. 6. I have heard the learned counsel for the parties and have gone through the records carefully. 7. Since both the substantial questions of law are interlinked and interconnected the same are taken up together for determination to avoid repetition of discussion of evidence.
Mr. K.D. Sood, learned Senior Advocate has supported the judgment and decree dated 28.9.2002. 6. I have heard the learned counsel for the parties and have gone through the records carefully. 7. Since both the substantial questions of law are interlinked and interconnected the same are taken up together for determination to avoid repetition of discussion of evidence. PW-1 Bakshi Ram has supported the case set out in the plaint. PW-2 Bansi Ram has deposed that plaintiffs were given less land as compared to their shares in the settlement which took place in the year 1986. However, he has admitted that defendants were having more land as compared to the plaintiffs in the joint khata. PW-3 Nathu Ram, Patwari has deposed that during his posting in the Copying Agency, Deputy Commissioner, Hamirpur, he has prepared the copy of khewat for the year 1968-69 Ext. P-2. Ex.P-2 and Ext. D-3 are same and similar. He has also admitted that the land which has been entered into khewat finds mention in Ext.D-3. However, voluntarily stated that he has given the full details of the land in Ext.P-2. He has also admitted that whatever entries were there in the khewat, the copy thereof has to be prepared, as per the same. 8. DW-1 Kamaljeet Singh inspection Moharrar, DC Office, Hamirpur has produced the record. DW-2 Shakti Chand has deposed that out of the suit land, two shares were with the defendants whereas one share was with the plaintiffs. The defendants were cutting grass from the portion of the suit land since the day when he attained the age of senses. He has stated in his cross-examination that whatever land was in possession of the plaintiffs in the year 1868, even today also, the same was in their possession. The khata, however, was stated to be joint. 9. DW-3 Shankar Dass has also stated that out of the suit land, one share was with the plaintiffs, whereas two shares were with the defendants. DW-4 Jaishi Ram Kanoongo has produced the record pertaining to khata No. 18 and the copy thereof is Ext. P-2 produced by the plaintiffs. According to him, Ext. P-2 was not as per the record as the copy of khata Nos. 10 and 13. Ext. Ex. P-2 and Ex. P-3 were stated to be correct.
DW-4 Jaishi Ram Kanoongo has produced the record pertaining to khata No. 18 and the copy thereof is Ext. P-2 produced by the plaintiffs. According to him, Ext. P-2 was not as per the record as the copy of khata Nos. 10 and 13. Ext. Ex. P-2 and Ex. P-3 were stated to be correct. As per his further version in khata No. 13, Kundan and Bahadur sons of Mana and Jai Singh son of Ghethal have been shown co-sharers whereas Jai Singh one share and Mana Ram also one share and in Ext. D-2, one share of Mishru and Bagu was not recorded. 10. According to the evidence discussed hereinabove, there were two branches, i.e. Kesaroo and Khushala since 1868. The main dispute revolves around the entries in the revenue record qua the suit land, i.e. allegedly changed from the ratio of ½: ½ to 1/3:2/3 during the summary settlement having taken place in the year 1890-91. The plaintiffs have not produced any tangible evidence to prove that the settlement during 1890-91 was summary settlement and not regular. No person from the revenue department has been examined to prove that the settlement which took place during 1890-91 was summary. According to the plaintiffs, a mistake was committed in the year 1890 but the present suit was filed in the year 1989, i.e. after a lapse of more than 100 years. It cannot be believed that the plaintiffs were not aware of the revenue entries till 1989. The earlier settlements have taken place in the years 1910-11, 1913-14, 1922-23, 1934- 35 and 1978-79. The entries were also recorded in the subsequent jamabandis. 11. The plaintiffs are the successors of Kesroo and the defendants are the successors of Khushala. Learned First Appellate Court has rightly come to the conclusion after appraisal of the revenue record that the area in possession of the defendants was 102 K- 12 M and plaintiffs 76 K-3 M even in the year 1868. 12. PW-3 Nathu Ram has failed to explain that the parties were in possession of the land in equal shares and that the entries were changed in the year 1890-91. He has admitted in his cross-examination that the entries in Ext.D-3 are similar as in Ext. D-2. He has also admitted that whatever the entries were in Ext.P-2 the same finds mention in Ext. D-3. Ext.
He has admitted in his cross-examination that the entries in Ext.D-3 are similar as in Ext. D-2. He has also admitted that whatever the entries were in Ext.P-2 the same finds mention in Ext. D-3. Ext. D-3 as a matter of fact was the Jamabandi for the year 1868 pertaining to the suit land in which defendants’ predecessor-in-interest Jhato etc. have been shown as owner in possession of one share and one share of the land entered in Khasra No. 10 whereas that of the plaintiffs one share, i.e. with respect to the land entered in Khasra No. 13. Thus, defendants and their predecessor-in-interest were in possession of two shares and the plaintiffs were in possession of one share. The plaintiffs have not brought on record any evidence to prove that they were in possession of half share in the year 1868-69 in Jamabandi for the year 1890-91, Ext P-3, Missal Hakiyat for the year 1892-93 Ext. P-4, Missal Hakiyat Bandobast jadid for the year 1910-11, Ext. P-6, jamabandies for the year 1913-14, Ext. P-14 for the year 1918-19, Ext. P-15, Misal Hakiyat Bandobast jadid for the year 1913-14, Ext. P-16, Jamabandis for the year 1922-23 Ext. P-7, 1934-35 Ex.P-8, 1978-79 Ex.P-17, 1968-69 to 1972-73 Ex.P-18 and as per the entries in Ex.P-13 jamabandi for the year 1890-92, share of the predecessor-in-interest of the defendants has been shown two shares whereas the predecessor-in-interest of plaintiffs one share. DW-4 Jaisi Ram, Kanungo has deposed that the entry Ex.P-2 were not correct, as per the original record. There exist longstanding entries in favour of the defendants and their predecessor-in-interest. They are in possession of land to the extent of 2/3rd share. Presumption of truth is attached to the Jamabandi though rebuttable. Longstanding entries since 1890-91 have not been rebutted by bringing on record any tangible evidence by the plaintiffs. 13. Now, so far as Ex.P-9 and P-10 are concerned, nothing can be made out from the perusal of these entries that the suit land to the extent of half share was recorded in the share of plaintiffs. However, Sajra Nasab Ex.D-4 produced by the defendants revealed that it was not only Khushala, predecessor-in-interest of the defendants and Kesroo, predecessor-in-interest of the plaintiffs, but one Achhru was also having one share in the land alongwith S/Sh. Khushala and Kesroo.
However, Sajra Nasab Ex.D-4 produced by the defendants revealed that it was not only Khushala, predecessor-in-interest of the defendants and Kesroo, predecessor-in-interest of the plaintiffs, but one Achhru was also having one share in the land alongwith S/Sh. Khushala and Kesroo. Thus, it cannot be said that there were only two shares of the suit land and out of which one share was with the plaintiffs and their predecessor-in-interest whereas another share with the defendants and their predecessor-in-interest. 14. Plaintiffs have based their suit on the basis of entry in the Jamabandi for the year 1868-69 and the suit was barred by limitation. It cannot be believed that they did not know about the entries pertaining to year 1890-91 till 1985-86. 15. The first appellate court has correctly appreciated the oral as well as documentary evidence, including Ex.P-9 and P-10 and there is no need to interfere with the well reasoned judgment and decree passed by the first appellate court. 16. Both the substantial questions of law are answered accordingly. 17. In view of the analysis and discussion made hereinabove, there is no merit in the present appeal and the same is dismissed. Pending application(s), if any, also stands disposed of. There shall, however, be no order as to costs.