Sandeep Sharma, J. This appeal has been filed by the appellants-defendants against the judgment and decree dated 30.04.2005, passed by the learned Additional District Judge, Mandi, H.P., affirming the judgment and decree dated 28.10.2003, passed by learned Civil Judge(Junior Division), Chachiot at Gohar, District Mandi, H.P., whereby the suit filed by the respondents-plaintiffs has been decreed. 2. Brief facts of the case, as emerged from the record, are that the respondents-plaintiffs (herein after referred to as the `plaintiffs’), filed a suit for declaration stating therein that the land comprised in Khata Khatauni No.11/13, Khasra Nos.29, 33, 36, 40 and 42, kittas 5, measuring 0-17-18 bighas in Mohal Mahogi/553, Pargana Ghati-Aad, Sub Tehsil Balichowki, District Mandi, H.P. has been recorded in the joint ownership of the plaintiffs, defendants and one Smt.Fagni widow of Poushu. It is averred by the plaintiffs that they have ½ share on the land, whereas defendants and Fagni have 1/4th share each over the same. It is further averred by the plaintiffs that Fagni has since been expired and her estate has been succeeded by the defendants in equal shares and in this manner the defendants have become owners to the extent of half share in the suit land. It is further averred that the defendants are shown to be in Hissadari possession to the extent of half share. It is also averred by the plaintiffs that the defendants are shown to be in possession as non-occupancy tenants qua the share of the plaintiffs, which entry is wrong, illegal and without any lawful order. It is further averred by the plaintiffs that the defendants or their predecessors-ininterest were never inducted as tenants on the suit land. It is also averred by the plaintiffs that they only came to know about the wrong revenue entries in the month of May, 2001, when the defendants disclosed this fact before A.C. Ist Grade, Tehsil Chachiot and the said partition application was dismissed by the Court on 27.6.2001, which order is illegal and inoperative in the eye of law. In the aforesaid background the plaintiffs filed a Civil Suit for declaration before the learned trial Court. 3. Defendants, by way of filing written statement, refuted the claim of the plaintiffs on the ground of maintainability, limitation, jurisdiction, locus standi, cause of action and estoppel.
In the aforesaid background the plaintiffs filed a Civil Suit for declaration before the learned trial Court. 3. Defendants, by way of filing written statement, refuted the claim of the plaintiffs on the ground of maintainability, limitation, jurisdiction, locus standi, cause of action and estoppel. On merits, it is averred by the defendants that they have became owners in possession over the suit land by operation of H.P. Tenancy and Land Reforms Act, 1972 (hereinafter referred to as the ‘Tenancy Act’) and plaintiffs have got no right, title or interest in the suit property. It is also averred by the defendants that they have inherited the share of Smt.Fagni and that their predecessors were tenants under the predecessors of the plaintiffs and by operation of law they have become owners of the share of the plaintiffs, as such, the revenue entries are correct. Defendants, while denying all other allegations, prayed for the dismissal of the suit. 4. On the pleadings of the parties, the learned trial Court framed the following issues:- “1. Whether the Revenue entries showing defendants as non-occupancy tenants are wrong and illegal, as alleged? OPP 2. If Issue No.1 is decided in affirmative, whether plaintiff is entitled to joint possession of the suit land as alleged? OPP. 3. Whether suit of the plaintiff is not maintainable as alleged? OPD 4. Whether the plaintiffs are estopped by their act and conduct to file the present suit? OPD. 5. Whether the suit of the plaintiff is barred by limitation? OPD 6. Whether this court has no jurisdiction to entertain and try the present suit? OPD. 7. Whether the plaintiff has no cause of action and locus standi to file the present suit? OPD. 8. Whether the suit of the plaintiff have not been properly valued for the purpose of Court fee and jurisdiction? OPD. 9. Relief”. 5. Learned trial Court vide judgment and decree dated 28.10.2003 decreed the suit of the plaintiffs and held that the revenue entries, showing the defendants as nonoccupancy tenants and on the basis of which they have become owners in possession to the extent of share of plaintiffs, are wrong, illegal, null and void and not binding upon the rights of the plaintiffs. Plaintiffs are also held to be in joint possession of the suit land. 6.
Plaintiffs are also held to be in joint possession of the suit land. 6. Feeling aggrieved and dissatisfied with the aforesaid judgment and decree passed by the learned trial Court, whereby suit filed by the plaintiffs was decreed, appellants-defendants filed an appeal under Section 96 of the Code of Civil Procedure (for short `CPC’) in the Court of learned Additional District Judge, Mandi, who, vide impugned judgment and decree dated 30.04.2005, dismissed the appeal preferred by the defendants by affirming the judgment and decree passed by the learned trial Court. In the aforesaid background, the present appellants-defendants filed this Regular Second Appeal before this Court, details whereof have already been given above. 7. This second appeal was admitted on the following substantial questions of law: “(1) Whether both the lower courts have misread, mis-interpreted and mis-construed the oral as well as documentary evidence of the parties especially Ex.DW1/A, DW1/D, DW1/F and the oral evidence of the parties, which has materially prejudiced the case of the appellants? 2. Whether the Civil Court has no jurisdiction where the relationship of landlord and tenant has been denied? 3. Whether the Respondents/Plaintiffs have miserably failed to rebut the presumption of truth attached to the revenue entry?” 8. I have heard learned counsel for the parties and gone through the record of the case. 9. Keeping in view the text and nature of the substantial questions of law reproduced here-in-above, this Court would be taking up all the questions together for consideration. 10. While exploring answer to the aforesaid substantial questions of law, this Court had an occasion to carefully peruse the pleadings as well as evidence adduced on record, more particularly, Ex.DW-1/A, Ex.DW-1/D, Ex.DW-1/E and Ex.DW-1/F, perusal whereof certainly not persuade this Court to accept the arguments having been made by Shri G.L. Palsra, learned counsel representing the appellants-defendants, that learned Court below, while decreeing the suit of respondents-plaintiffs, has mis-read, mis-interpreted and mis-construed oral as well as documentary evidence led on record by the respective parties. Rather, this Court, after having gone through the entire material made available on record, is of the view that both the Courts below have dealt with each and every aspect of the matter meticulously and after proper appreciation of evidence suit of plaintiffs has been decreed.
Rather, this Court, after having gone through the entire material made available on record, is of the view that both the Courts below have dealt with each and every aspect of the matter meticulously and after proper appreciation of evidence suit of plaintiffs has been decreed. Defendants, while refuting the claim put forth by the respondents-plaintiffs in the suit, heavily placed reliance upon Ex.DW- 1/A, Ex.DW-1/D, Ex.DW-1/F and Ex.DW-1/E to prove on record that after death of Shri Poushu, his share was inherited by Smt.Hima and Smt.Fagni in equal shares. Present appellants-defendants are daughters and sons of Smt.Hima daughter of Poushu. Plaintiffs-respondents claimed themselves to be recorded in joint ownership of the suit land alongwith defendants and one Smt.Fagni widow of Poushu. Plaintiffs, while claiming themselves to be owners to the extent of half share of the suit land, specifically claimed that defendants and Fagni have 1/4th share each over the land. Plaintiffs further conceded that after death of Fagni, defendants succeeded her share in equal shares and as such they became owners to the extent of ½ share of the suit land. However, plaintiffs being aggrieved with the entry recorded in the revenue record showing defendants to be in possession as non-occupancy tenants, qua the shares of the plaintiffs, filed suit in question. Whereas, defendants claimed before Courts below that they have become owners in possession of the suit land by operation of Tenancy Act and as such plaintiffs have no right, title or interest in the suit property. Defendants further claimed that they inherited the share of Smt.Fagni and their predecessors-in-interest were tenants under the predecessors-in-interest of the plaintiffs and as such by way of operation of law they have become owners of the share of the plaintiffs and as such revenue entries in their favour have rightly been recorded. It clearly emerge from the revenue record placed on record by respective parties that prior to the year 1979, name of predecessor-in-interest of plaintiffs was recorded in the revenue record as owner in possession as Hissedar alongwith predecessor-in-interest of defendants. Further perusal of Missalhaquiat Ex.DW-1/A, Jamabandi for the year 1974-75, Ex.DW-1/D and Jamabandi for the year 1974-75, Ex.PA clearly suggests that predecessor-in-interest of the plaintiffs was recorded as owner in possession qua the suit land.
Further perusal of Missalhaquiat Ex.DW-1/A, Jamabandi for the year 1974-75, Ex.DW-1/D and Jamabandi for the year 1974-75, Ex.PA clearly suggests that predecessor-in-interest of the plaintiffs was recorded as owner in possession qua the suit land. However, subsequently, on the basis of Nakal Rapat Roznamcha prepared on 18.10.1979 i.e. Ex.DW-1/E, name of defendants came to be recorded as non-occupancy tenants in Kharif 1979-80. Perusal of Ex.DW-1/E suggests that the same was prepared by the then Halqua Patwari, but neither there is any reference of statement made by owners nor there is any sign or thumb impression either of owners or tenants. Similarly, there is no mention with regard to person, if any, was present on spot when Halqua Patwari prepared aforesaid document Ex.DW-1/E, on the basis of which, defendants came to be recorded as non-occupancy tenants during Khasra Girdivari from 10.4.1976 to 1.10.1980. 11. True, it is, that change was made during Khasra Girdavari, which was effected on the basis of Nakal Rapat Roznamcha, but no evidence worth the name has been led on record by the appellants-defendants with regard to procedure adopted by the Halqua Patwari, while preparing Rapat Roznamcha Ex.DW-1/E, hence, this Court finds substantial force in the arguments having been made by Mr.Lakshay Thakur that mandatory instructions issued by the Government from time to time, while effecting change in revenue record, was not followed by the Patwari Halqua, while effecting change in the revenue record. It also emerge from the record that before effecting change in revenue record, on the basis of Nakal Rapat Roznamcha Ex.DW-1/E, no inquiry, if any, was conducted as per the instructions issued by the Government from time to time. Had Authority concerned, conducted inquiry, predecessor-in-interest of the plaintiffs would have got reasonable opportunity to present his case. 12. Apart from above, this Court is also in agreement with arguments having been made by Mr.Lakshay Thakur, learned counsel representing the respondents-plaintiffs, that Patwari had no authority in law to order correction in the revenue record and as such no reliance could be placed upon Ex.DW-1/E. (See: Tulsa Singh vs. Agya Ram and Others, AIR 1994 HP 167 ), wherein it has been specifically held that procedure/instructions from Government from time to time are required to be followed while effecting change in the revenue entry in Khasra Girdavari.
It clearly emerge from the record that the respondents-plaintiffs had filed partition proceedings against the appellants-defendants at Tehsil Chachiot in the year 1980, wherein defendants, while refuting the claim of the plaintiffs, had taken specific plea that they are in possession of the share of the plaintiffs by way of adverse possession. 13. Careful perusal of Ex.P-2 i.e. reply having been filed by the defendants to the application for partition proceedings pending before Assistant Collector Ist Grade, Thunag, Camp at Chachiot, clearly belies the stand adopted by the defendants in the present suit, wherein admittedly they claimed themselves to have been inducted as non-occupancy tenants over the suit land by the plaintiffs. In the reply, having been filed before Assistant Collector Ist Grade, defendants have specifically claimed that the plaintiffs-applicants are neither the owners nor in possession and land in dispute is in peaceful, open, continuous and hostile possession of the defendants since the time of their forefathers to the knowledge of the plaintiffs and they have acquired title by adverse possession. There is no mention, if any, of induction of their predecessor-in-interest as tenant by the predecessor-in-interest of respondents-plaintiffs. Hence this Court sees/finds no illegality and infirmity in the findings returned by the Courts below that defendants were never inducted as non-occupancy tenants qua the suit land by predecessor-in-interest of the plaintiffs. 14. Un-disputably, it is well settled that legal presumption of truth is attached to the latest entry of the revenue record of right, but such presumption of truth is rebuttable in case latest entries are found to be incorporated without any basis. 15. In the instant case, as has been discussed above, entries, as contained in Khasra Girdavari Ex.PW-3/A, came to be recorded during 10.4.1976 to 1.10.1980, reflecting therein the names of defendants as non-occupancy tenants on the basis of certified copy of Nakal Rapat Roznamcha dated 18th October, 1979. It has already been discussed/deliberated in detail hereinabove that Patwari had no authority to order for correction in revenue record, moreover, defendants were unable to prove on record that Nakal Rapat Roznamcha dated 18.10.1979 Ex.DW-1/E was entered by authorized officer that too after following procedure/instructions issued by the Government from time to time. Since defendants failed to prove latest entry recorded in their favour on the strength of Ex.DW-1/E i.e.Rapat Roznamcha dated 18.10.1979, presumption of truth, if any, attached to such entries, stood automatically rebutted. 16.
Since defendants failed to prove latest entry recorded in their favour on the strength of Ex.DW-1/E i.e.Rapat Roznamcha dated 18.10.1979, presumption of truth, if any, attached to such entries, stood automatically rebutted. 16. It remained undisputed before the Courts below that respondents-plaintiffs had filed proceedings against the defendants before Assistant Collector Ist Grade, wherein in the year 2001, defendants claimed themselves to be non-occupancy tenants qua the share of plaintiffs, while placing reliance upon Ex.PW-3/A Khasra Girdavari, wherein he came to be recorded as non-occupancy tenant on the basis of Ex.DW-1/E Nakal Rapat Roznamcha dated 18.10.1979. Since defendants specifically claimed themselves to have acquired the status of owners with the operation of the Tenancy Act, respondents-plaintiffs rightly filed a suit laying therein challenge to the entries showing defendants to be non-occupancy tenants qua the share of the plaintiffs. Hence, this Court sees no force in the arguments of Shri G.R. Palsara, learned counsel representing the appellants-defendants that Civil Court had no jurisdiction, especially when defendants had denied relationship of landlord and tenant. Plaintiffs were well within their rights to lay challenge by way of Civil Suit to the revenue entries, which admittedly came to be recorded on the basis of Ex.DW-1/E, Nakal Rapat Roznamcha, which was prepared without any authority and without associating the predecessor-in-interest of the plaintiffs. 17. Otherwise also, if for the sake of arguments, it is presumed that Ex.DW-1/E had any legal force, even then entries, as contained in Jamabandi, wherein defendants have been reflected occupying the status of “Bhasha Hra Parta Malkan”, meaning thereby that tenants are/were paying land revenue of the share of the owners to the State Government, nowhere accord the status of non-occupancy tenant to the defendants. Aforesaid status, as referred in the Jamabandi, “Bhasha Hra Parta Malkan”, reflecting the defendants to be non-occupancy tenants qua the suit land itself disqualify the defendants to enjoy the status of tenant under the plaintiffs qua the suit land because there is no entry of payment of rent by them to the plaintiffs. Entry of payment of land revenue to the State that too qua the share of owners shall not make the defendants qualified to occupy the status of tenants under the landlord qua the suit land. 18.
Entry of payment of land revenue to the State that too qua the share of owners shall not make the defendants qualified to occupy the status of tenants under the landlord qua the suit land. 18. After having gone through the pleadings as well as evidence available on record, this Court is fully satisfied that both the Courts below have very meticulously dealt with each and every aspect of the matter and there is no scope of interference, whatsoever, in the present matter. Since both the Courts below have returned concurrent findings, which otherwise appear to be based upon proper appreciation of evidence, this Court has very limited jurisdiction/scope to interfere in the matter. In this regard, it would be apt to reproduce the relevant contents of judgment rendered by Hon’ble Apex Court in Laxmidevamma and Others vs. Ranganath and Others, (2015)4 SCC 264 , wherein the Court has held as under: “16. Based on oral and documentary evidence, both the courts below have recorded concurrent findings of fact that the plaintiffs have established their right in A schedule property. In the light of the concurrent findings of fact, no substantial questions of law arose in the High Court and there was no substantial ground for reappreciation of evidence. While so, the High Court proceeded to observe that the first plaintiff has earmarked the A schedule property for road and that she could not have full-fledged right and on that premise proceeded to hold that declaration to the plaintiffs’ right cannot be granted. In exercise of jurisdiction under Section 100 CPC, concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. In our considered view, the High Court did not keep in view that the concurrent findings recorded by the courts below, are based on oral and documentary evidence and the judgment of the High Court cannot be sustained.” (p.269) 19.
In our considered view, the High Court did not keep in view that the concurrent findings recorded by the courts below, are based on oral and documentary evidence and the judgment of the High Court cannot be sustained.” (p.269) 19. In the facts and circumstances discussed above, this Court is of the view that findings returned by the trial Court below, which were further upheld by the first appellate Court, do not warrant any interference of this Court as findings given on the issues framed by the trial Court below as well as specifically taken up by this Court to reach the root of the controversy appear to be based on correct appreciation of oral as well as documentary evidence. 20. Hence, in view of detailed discussion made hereinabove, this Court sees no illegality and infirmity in the judgment passed by both the Courts below. The judgment and decree passed by both the Courts below are upheld. The present appeal fails and is dismissed, accordingly. 21. Interim order, if any, is vacated. All the miscellaneous applications are disposed of.