Research › Search › Judgment

Punjab High Court · body

2024 DIGILAW 34 (PNJ)

Bahadur v. Mohinder Kumar

2024-01-05

ANIL KSHETARPAL

body2024
Judgment Mr. Anil Kshetarpal, J. The Regular Second Appeal in the States of Punjab and Haryana and Union Territory, Chandigarh is governed by Section 41 of the Punjab Courts Act, 1918 and not by Section 100 of the Code of Civil Procedure, 1908, as held by a five Judge Bench of the Supreme Court in Pankajakshi (Dead) through LRs v. Chandrika and Others (2016) 6 SCC 157 . 2. In this regular second appeal, the defendants assail the correctness of the judgment passed by the First Appellate Court, which, in turn, has reversed the judgment and decree passed by the trial Court. In order to comprehend the issue involved in the present case, the relevant facts, in brief, are required to be noticed. 3. On 08.08.1986, the respondents (plaintiffs) filed a suit for grant of decree of declaration that they are the owners in possession of the agricultural land measuring 57 kanals 7 marlas as they have perfected their title by way of adverse possession/with prescription of time. In substance, the plaintiffs claimed that their predecessor, namely Jassa Ram, their father, was in the cultivating adverse possession of the agricultural land, who died in the year 1984. Jassa Ram was in the continuous possession of the land since the year 1960. Thereafter, the plaintiffs had continued to cultivate the land. Neither Jassa Ram nor the plaintiffs cultivated the land as tenants. Some of the defendants entered appearance and contested the suit. It was asserted that the plaintiffs were the tenants and were paying 1/3rd share of the produce in lieu of the lease money. 4. In order to prove their respective case, the plaintiffs produced a copy of jamabandi for the years 1974-75 (Ex.P1), 1979-80 (Ex.P2), 1984-85 (Ex.P3), copies of the khasra girdawaries (Ex.P4 and Ex.P5) and a copy of the order passed by the Additional Director, Consolidation of holdings dated 17.06.1988 (Ex.P6). They also examined four witnesses in the oral evidence. 5. 4. In order to prove their respective case, the plaintiffs produced a copy of jamabandi for the years 1974-75 (Ex.P1), 1979-80 (Ex.P2), 1984-85 (Ex.P3), copies of the khasra girdawaries (Ex.P4 and Ex.P5) and a copy of the order passed by the Additional Director, Consolidation of holdings dated 17.06.1988 (Ex.P6). They also examined four witnesses in the oral evidence. 5. On the other hand, the defendants, in order to prove their case, produced a copy of jamabandi for the year 1984-85 (Ex.D1), a copy of khasra girdawari for the year 1963-64 onwards till 1972-73 as Ex.D2 to Ex.D4, a copy of khasra girdawari for the years 1984-85 and 1985-86 as Ex.D5 and Ex.D6, respectively, a copy of khatauni istemal (Ex.D7), a copy of the proceedings in the consolidation of holdings Ex.D8)a copy of the proceedings a copy of naqsha haqdarwar (Ex.D9) and a copy of khatauni paimaish (Ex.D10). They also examined Bahadur Ram and Prithvi Raj as DW.1 and DW.2 in the oral evidence. 6. The trial Court dismissed the suit after recording the following reasons:- I) The plaintiffs have failed to produce the jamabandies prior to the year 1974-75 to prove that their possession was open, hostile and without payment of rent. II) Further, from the perusal of the documents (Ex.D1 to Ex.D10), it is evident that Jassa Ram was cultivating the land as a tenant on the payment of 1/3rd share of the produce. 7. The First Appellate Court reversed the judgment of the trial Court on the ground that Ex.D6 is an order passed by the Additional Director Consolidation on 17.06.1988 while dismissing the application filed by the defendants to correct the error in column No.10 of the jamabandi. The aforesaid judgment has become final and the defendants have failed to prove that Jassa Ram was cultivating the land as a tenant. 8. Heard the learned counsel representing the parties at length and with their able assistance, perused the paper-book along with the requisitioned record and the written submissions made on behalf of the learned counsel representing the parties. 9. This Court in Mukhtiar Singh and Others v. Dara Singh and Others (Regular Second Appeal No. 138 of 2010, decided on 28.04.2022, after examining the case law on the subject, held as under:- “Before granting declaration that the person has become owner by way of adverse possession, the court is required to examine the case thoroughly. 9. This Court in Mukhtiar Singh and Others v. Dara Singh and Others (Regular Second Appeal No. 138 of 2010, decided on 28.04.2022, after examining the case law on the subject, held as under:- “Before granting declaration that the person has become owner by way of adverse possession, the court is required to examine the case thoroughly. Merely a long continuous possession is not sufficient to prove the adverse possession. The Supreme Court in Saroop Singh vs. Banto and others, AIR 2005 SC 4407 , has laid down the following tests which the Court must apply before granting the decree of declaration with respect to conferring ownership on the basis of adverse possession:- (1) on what date, month or period the party came into adverse possession. (2) what was the nature of his possession. (3) whether the factum of possession was known to the other party. (4) was his possession open, hostile and undisputed. (5) how long he continued in possession. Further the Supreme Court in Achal Reddi vs. Ramakrishna Reddiar and others (1990) SC 706 has laid down that the adverse possession must be established by proving that it commenced with a wrong and maintained against the owner with a right. Further, in Amrendra Pratap Singh vs Tej Bahadur Prajapati & Ors 2004(10) SCC, 65, it has been held that entry in possession should be adverse and there should be some evidence that the person had set up title in himself.” 10. In this case, the plaintiffs came to the Court with a positive plea that they have never cultivated the land as a tenant and their possession is continuously adverse since the year 1960. However, they have not produced any evidence apart from the jamabandi from the year 1974-75. It is evident that the consolidation of holdings took place in the village somewhere in the year 1974-75. The plaintiffs were required to prove the date, month or the period when they came into possession of the disputed property. They were also required to prove the nature of their possession when they entered the land. PW.3-Prithvi Raj, in his cross-examination, has admitted that Jassa Ram had taken the land from the owners for cultivation purposes. Thus, PW.3-Prithvi Raj admitted that the possession of Jassa Ram was permissive. They were also required to prove the nature of their possession when they entered the land. PW.3-Prithvi Raj, in his cross-examination, has admitted that Jassa Ram had taken the land from the owners for cultivation purposes. Thus, PW.3-Prithvi Raj admitted that the possession of Jassa Ram was permissive. Furthermore, the defendants have produced the copies of khasra girdawari from the year 1963-64 to prove that the possession of Jassa Ram, in the revenue record, was recorded as a tenant. The copies of khasra girdawaries may not carry the presumption of correctness, however, they still form a part of the official record. The First Appellate Court has also overlooked the khasra girdawaries (Ex.D2 to Ex.D6) which consistently prove that Jassa Ram was recorded in the cultivating possession as a tenant and after his death, the plaintiffs’ name in cultivation column has been recorded. The First Appellate Court has heavily relied upon Ex.D6, the order of the Additional Director of Consolidation passed on 17.06.1988. On the careful perusal of the said order, it is evident that defendant-Bahadur Ram filed an application for the correction of the revenue record on the ground that the entry in the column of rent has been inadvertently omitted by the consolidation authorities. The aforesaid application was dismissed only on the ground that the revenue record prior to the consolidation of holdings has not been produced. It is a summary order passed by the Additional Director of Consolidation in exercise of powers under Section 42 of the East Punjab Fragmentation Act, 1949. The Additional Director had no jurisdiction whatsoever to decide the question of title. In this case, the defendants have produced the copies of the khasra girdawaries. Moreover, the onus lies on the plaintiffs to prove that when their possession commenced, and from when it was open, hostile and adverse to the owners. Furthermore, PW.3- Prithvi Raj, who is a witness produced by the plaintiffs, proved that Jassa Ram entered into possession with the permission of the owners. In the absence of the evidence to prove that Jassa Ram, their predecessor-ininterest, entered into possession forcibly, the suit should not have been decreed. In Achal Reddi vs. Ramakrishna Reddiar and others (1990) SC 706, the Court has held that the adverse possession must be established by proving that it commenced with a wrong and is maintained against the owner as a right. In Achal Reddi vs. Ramakrishna Reddiar and others (1990) SC 706, the Court has held that the adverse possession must be established by proving that it commenced with a wrong and is maintained against the owner as a right. In Amrendra Pratap Singh vs Tej Bahadur Prajapati and Others 2004(10) SCC, 65, the Court held that the entry in possession should be adverse and there should be some evidence that the person had set up title in himself. It is evident that the First Appellate Court has not applied the aforesaid test before allowing the appeal. 11. The First Appellate Court has also overlooked the fact that it was for the plaintiffs to prove that they entered into the hostile possession in the year 1960 as pleaded by them. If the plaintiffs failed to prove their adverse possession, their suit was liable to be dismissed. The First Appellate Court has wrongly shifted the onus on the defendants to prove that the possession of the plaintiffs was as a tenant only. Once the plaintiffs came to file the suit claiming to be in adverse possession in the year 1960, at the first instance, they were required to prove the fact they were claiming. Once the plaintiffs failed to prove their adverse possession, the adverse inference was required to be drawn against the plaintiffs. 12. This Court has requested the official translator of Punjabi as well as Urdu languages to read over the documents for Court’s consideration. On a careful perusal of the khasra girdawari Ex.D2, it is evident that Jassa Ram, the father of the plaintiffs, was recorded to be in cultivating possession of 1/3rd share in between the years 1963 to 1967. On perusal of khasra girdawaries (Ex.D3 and Ex.D4), it becomes evident that from the year 1967 to 1973, the entry of 1/3rd share is reflected in the revenue record. Moreover, a perusal of Ex.D10 ‘khatauni paimaish’, prepared at the time of consolidation of holdings shows that Jassa Ram was in possession of the property as a tenant on payment of 1/3rd share of the produce to the predecessor of the defendants (appellants). Moreover, a perusal of Ex.D10 ‘khatauni paimaish’, prepared at the time of consolidation of holdings shows that Jassa Ram was in possession of the property as a tenant on payment of 1/3rd share of the produce to the predecessor of the defendants (appellants). Thus, it is established that the predecessor of the plaintiffs entered into possession of the property as a tenant and on account of the error by the Consolidation Authorities and the Revenue Authorities, the entry of payment of 1/3rd share of the produce to the landowners was not entered. Hence, the plaintiffs have failed to prove that their predecessor entered into possession of the property forcibly. Rather it is proved that he entered into possession in the year 1963 as a tenant under the predecessor of the defendants. 13. Keeping in view the aforesaid facts and discussion, the present appeal is allowed. The judgment passed by the First Appellate court is not sustainable being erroneous and hence, the same is set aside. The judgment and decree passed by the trial Court is restored. 14. The miscellaneous application(s) pending, if any, shall stand disposed of.