Banwari vs Degh Ram and others

Surinder singh, J.—This Regular Second Appeal has been filed by the defendant in the circumstances which are these. The respondents filed a suit against the appellant for possession of agricultural land, as detailed in the plaint with the allegations that the land was previously owned by one Hira, who had died issueless. The respondents claimed that they were the heirs of the deceased being the great grandsons and daughters of Kundan, brother of Hira''s father. The land had since been mutated in their favour and they had, thus, become its owners. They alleged that the appellant had entered into wrongful possession of the land and prayed for a decree for possession against him. The suit was contested by the appellant, who admitted that the land was previously owned by Hira, who had died. It was also admitted that the plaintiffrespondents are the sons and daughters of Neki son of Mam Chand. The appellant, however, asserted that he was a tenant on the land in dispute from the time of his father for the last fifty years and that his application for purchase of the said land under the provisions of the Pepsu Tenancy and Agricultural Lands Act, was pending. The appellant pleaded that the respondents had no right to seek relief from Civil Court in view of the relationship of landlord and tenant between the parties. The appellant set up an alternative plea that he had become owner of the land by way of adverse possession. The trial Court framed the necessary issues to cover the points in controversy. Without going into unnecessary details, it may be mentioned that the trial Court found that the respondents were proved to be the owners Nos. 2 and 5, the trial Court held that the appellant was a tenant on the suit land and that being so, the respondents could not claim possession of the same. The suit of the respondents was, therefore, dismissed.

The respondents went up in appeal against the judgment of the trial Court which was heard by the Senior Subordinate Judge, Narnaul, with Enhanced Appellate Powers. The said Court affirmed the finding of the trial Court in respect of ownership of the land being that of the respondents. On the question of tenancy, the lower Appellate Court after considering the documentary and oral evidence on the record, came to the conclusion that the appellant was in occupation of the land only by forcible possession and as such, there was no relationship of landlord and tenant between the parties. The lower appellate Court, therefore, reversed the decision of the trial Court and decreed the suit of the respondents for possession against the appellant. This is how this second appeal has now been filed by the appellant to impugn the judgment and decree of the Senior Subordinate Judge.

The only point which has been mooted in this appeal is as to whether there was a relationship of the landlord and tenant between the parties, and if so, whether the appellant could resist the claim of possession as made in the suit by the respondents. So far as the factual position is concerned, the learned counsel do not dispute that up to the period 195354, the appellant and his father were shown in the Revenue entries..... as being in cultivating possession of the land in the capacity of nonoccupancy tenants. The copies of the relevant Jamabandi entries are Exhibites D6 to D11. However, for the later period, all the Revenue entries indicate that the appellant and his father are shown to be in forible possession of the land without payment of any rent. These entries are constituted by copy of the Jamabandi Exhibit P12 for 196162,copy of the Jamabandi Exhibit P6 for the year 196667 and copy of the Khasra Girdawari Exhibit P13 for the years 1963 to 1966. With this admitted factual position, it has to be considered as to which of the parties can claim better title to the land in dispute.

Mr. M.L. Sarin, learned counsel for the appellant has referred to a decision of the Supreme Court in Durga (deceased) and others V.Milkhi Ram and others, 1969 P.L.J. 105, which was followed by a learned Single Judge of this Court in Khushi Ram and others v. Hans Raj and others, 1980 P.L.J. 337. On the basis of the observations made in these authorities, the learned counsel seeks to contend that even though there is a change in the Revenue entries, preference should be given to the earlier entries in favour of the appellant. It was held in Durga''s case (supra) that if a change is made in the earlier Revenue entries without any mutation or an order of the Revenue Authority, the presumption attached to the correctness of the later entries would stand rebutted and the earlier entries should be accepted as correct. This view was followed in Khushi Ram''s case (supra). There is certainly no quarrel with the proposition of law as laid down in the above authorities, but they are distinguishable on facts. There is no material on the record in the present case to indicate that the later entries had been effected without proper mutation or an order of the Revenue Authorities. Indeed, it was for the appellant to prove these facts and only then the presumption attached to the later entries could have been rebutted. I am unable to agree with Mr. Sarin in his contention that the onus of bringing such material on the record was on the respondents. The Courts below were quite justified in accepting the later entries as correct and holding on the basis thereof that the appellant was not proved to be a tenant on the land in dispute.

As against the above authorities, Mr. P.N. Aggarwal learned counsel for the respondents has relied upon Rulhu Ram V.Than Singh and others,1966 P.L.J. 260, wherein it was held that the Revenue Authorities normally record a person as a tenant when they find him to be in possession of land without any right. However, nonpayment of rent negatives the existence of relationship of landlord and tenant. In Tarlok Singh v. Harnam Singh and another, 1947 P.L.J. 396, the above view was reiterated by this Court. Be that as it may, all the later entries show the appellant to be in forcible possession of the land and hence the question of his being a tenant does not arise. It has also been rightly argued by the learned counsel for the respondents that the very fact of repudiation of the title of the owner incurs upon the occupier the liability to be dispossessed and hardly any authority is required in support of this wellestablished rule of law.

In the ultimate analysis, both the Courts have arrived at a clear finding of fact that the respondents are proved to be the owners of the land. Furthermore, the findings of the lower appellate Court is that the appellant is not proved to be a tenant of the land. Even the alternative claim of the appellant for being in adverse possession of the property has been rejected. In the circumstances, there is no occasion to interfere with these findings of fact in the present second appeal, which is dismissed, but with no order as to costs.