Choudhary Sada Ram and Others vs Choudhary Amar Nath

H.S. Thakur, J.—This is a second appeal preferred by the Appellants assailing the decree and judgment passed by the lower appellate Court, reversing the decree and judgment passed by the trial Court.

Necessary and relevant facts to decide this appeal may be stated. The dispute between the parties relates to 6 kanals and 11 marlas of land comprised in Khasra Nos. 2031 and 2032 now substituted by Khasra Nos. 2221 and 2222 respectively. The case of the Plaintiff (Respondent No. 1) was that he was the owner of the aforesaid khasra numbers whereas one Jagiri Ram, the father of Defendants 1 to 3 (Respondents 2 to 4) was an occupancy tenant of the said land. Jagiri Ram is stated to have left the village some 40 years before the filing of the suit and abandoned his occupancy rights in the land. According to the Plaintiff, he resumed the possession of this land after the abandonment and, continued to hold it adversely to Defendants 1 to 3 and thereby became its owner. It is alleged that the name of Jagiri Ram continued to appear in the column of cultivation as an occupancy tenant in the revenue record but after coming into force of the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, the said Shri Jagiri Ram was recorded as owner thereof and the Plaintiff as before, continued to be recorded in possession of the said land. The claim of the Plaintiff is that no doubt the entry showing Jagiri Rum and after his death his sons, Defendants 1 to 3 as owners, continued but it was only a paper entry though the Plaintiff had become absolute owner of the same by adverse possession. According to the Plaintiff, the Defendants 4 to 13, who are now the Appellants, got their names recorded as the ersons in possession of the said land, after consolidation proceedings. The Plaintiff claims that such entry is erroneous, had been made at his back and was not binding on him. As such, he prayed that he be declared as the owner in possession of the land in dispute and the Defendants be restrained from interfering with his possession. In the alternative, it was prayed by him that in case he was not found in possession of any part of the land in dispute; or was dispossessed therefrom during the pendency of the suit; a decree for possession be passed.

It may be pointed out that Defendants 1 to 3 (the sons of Jagiri Ram) did not defend the suit, did not appear in the trial Court as also before the lower appellate Court. They have not put in appearance in this Court as well. Such a conduct on their part shows that they are not interested in defending the appeal.

The Defendants 4 to 13 (the Appellants) in the written statement filed by them asserted that they along with the Plaintiff were the original owners in the village. It is, however, not disputed by them that Defendants 1 to 3 were occupancy tenants under them and the Plaintiff. According to them, the Defendants 1 to 3 left the village about 40 years back and the Plaintiff along with the said Defendants forcibly occupied the land of their respective khatas which was with Defendants 1 to 3. These Defendants claim that the Plaintiff never remained in possession of the land in suit, but after allotment during consolidation proceedings, they came in possession of the land, as owners. In para-7 of the written statement, it is contended by the Appellants/Defendants that the land in dispute had been allotted to them by consolidation authorities and the remedy of the Plaintiff, if any was to approach the consolidation authorities for the relief. The issues framed by the trial Court are almost inter-connected and have been dealt with by the trial Court as also by the lower appellate Court at length. It may be pointed out that the Appellants had conceded before the lower appellate Court that the suit was triable by a civil Court. The trial Court after considering the evidence on record came to the conclusion that from the evidence on record it was fully established that the Plaintiff had become the owner of the area comprised in Khasra Nos. 2031 and 2032 which is the area in dispute. This finding of the trial Court has also been affirmed by the lower appellate Court.

The main contention of Shri A.K. Goel, learned Counsel for the Appellants, is that in the ''Missal Bandobast'' for the year 1962-63 (Ex. P. 6), the Appellants have been entered as tenants under Defendants 1 to 3. It is further pointed out that in the jamabandi for the year 1965-66 (Ex. P. 7), the Appellants in the column of cultivation have been shown as non-occupancy tenants and the Plaintiff has been shown as a tenant under them. On the basis of these entries, it is contended by the learned Counsel that since entries were reflected in the revenue record after the consolidation, such entries have to be presumed as correct and consequently they are entitled to the possession of the land. It is further pointed out by Mr. Goel that the Appellants challenged the entry in the jamabandi for the year 1965-66 wherein the Plaintiff had been shown in actual possession of the land in dispute. For this purpose, an application is stated to have been filed before the revenue officer (Naib-Tehsildar) concerned, who ordered the deletion of the name of the Plaintiff as a sub-tenant. Copy of the order passed by the revenue officer has been placed on record as Ex. D. 1. On the basis of this order, a note was given in khasra-girdawari (Ex. D. 10) deleting the name of the Plaintiff. It is to be noticed that the application for the correction of entry was filed by the Appellants on 12-10-1966 and the said application was decided by the revenue officer on 25-10-1966. The suit was filed by the Plaintiff on November 15, 1966, wherein he also challenged the entry incorporated on the basis of the order passed by the revenue officer.

It is contended by Mr. Devinder Gupta, learned Counsel for the Plaintiff, that the Defendants 1 to 3 had left the village and had abandoned their rights in the land in dispute in favour of the Plaintiff. On this account, it is stressed that the Plaintiff resumed his ownership rights in the land. In the alternative, it is contended by him that both the Courts below have held that the Plaintiff had become owner by adverse possession and that there is no justification to disturb this finding. It is pointed out by Mr. Devinder Gupta that the entry reflected in Ex. D. 6 (Missal Bandobast), cannot be relied upon as the same is not based on any material. He has referred to a decision in Durga and Ors. v. Milkhi Ram and Ors. (1969 PLJ 105). Their Lordships of the Supreme Court in this judgment have observed that where the earlier revenue entries are changed in the later revenue entries and, the change was effected without any mutation, there was no order of the revenue authorities showing how the change was made, although the presumption u/s 44 of the Punjab Land Revenue Act would be in favour of the later entries but that presumption was rebuttable one and would stand rebutted by the fact that the alteration in the later entry was made unauthorisedly or mistakenly, there being no material to justify the entries.

It is to be noticed that the lower appellate Court has properly considered the revenue entries as also oral evidence and, has come to the conclusion that the entry as made in Ex. P. 6 was based on no material. I have also perused the entries in the revenue record. Ex. P. 1 is the copy of jamabandi for the year 1934-35 wherein Defendants 1 to 3, no doubt, have been shown as occupancy tenants but the Plaintiff is shown in possession of the said land. Similarly, in the jamabandi for the year 1938-39 (Ex. P. 2), the Plaintiff has been shown in possession of the entire land. In the jamabandi for the year 1946-47, the Plaintiff is shown as an owner of the land in dispute whereas Jagiri Ram though shown as an occupancy tenant, the possession of the land is entered in the name of the Plaintiff. Again, in the jamabandi for the year 1950-51, the Plaintiff is shown as an owner as also in possession of the land in dispute. In the jamabandi for the year 1955-56, the sons of Jagiri Ram have been shown as owners by operation of the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act but the Plaintiff is entered in possession thereof in the column of cultivation. It appears that the Defendants 1 to 3 have been entered as owners in the said jamabandi as a matter of routine, by giv ng effect to the provision of the aforesaid Act. I have already discussed above about the entries in the ''Missal Bandobast for the year 1962-63 as also in the jamabandi for the year 1965-66 Ex. P. 6 and Ex. P. 7 respectively.

I have considered the judgments of the Courts below and have also gone through the evidence on record. In view of the entries reflected in the revenue record, it appears that the Plaintiff has been in possession of the land in dispute from the year 1934. There is no material placed on record to show as to who was/were the person in possession of the said land prior to that period. Except for the entry in ''Missal Bandobast'' for the year 1962-63 and the entry made on the basis of the order passed by the Naib-Tehsildar, the Plaintiff has been shown in possession of the land in dispute continuously. These two entries are not free from doubt. In fact, no material has been, placed on record to show why and how the previous entries continuously in favour of the Plaintiff were changed. In the absence of any material, it is difficult to place reliance on these entries.

The learned Counsel for the Appellants endeavoured to show that the area comprised in Khasra Nos. 2031 and 2032 is different from the area comprised in Khasra Nos. 2221 and 2222. I completely disagree with the assertion of the learned Counsel. In fact, Shri Sat Parkash Kanungo, after examining the revenue record has clarified that this very area was allotted to Defendants 1 to 3. The learned Counsel for the Appellants has raised an objection that no opportunity was given to the Appellants to cross-examine this witness. It is, however, apparent from the record that the statement of the said Kanungo was recorded on 21-8-1970 and, on that date, the learned Counsel for the parties were present in Court. In case the Appellants so desired, they could have requested the Court to allow them to put certain questions by way of cross-examination, They, however, did not choose to exercise that right. As such, the objection is apparently frivolous and is rejected. It may be pointed out that this objection has not been taken even in the grounds of appeal. Moreover, the Kanungo has only stated facts as contained in the revenue record.

I have carefully considered the contentions of the learned Counsel for the parties, the evidence on record as also the judgments of the Courts below. After considering all the aspects of the case, I fully agree with the reasoning and the conclusion drawn by the lower appellate Court:

The result of the above discussion is that there is no merit in this appeal and the same is dismissed. The parties are, however, left to bear their own costs.