Gian Chand vs Kultar Singh

Pritpal Singh, J.—This appeal has been filed against the judgment and decree of the lower appellate Court dated March 8, 1976 by which the decision of the trial Court was affirmed and the first appeal filed by the plaintiffappellant Gian Chand was dismissed.

The facts of this case are that the land in dispute originally belonged to the Maharaja of Kapurthala. Subsequently its ownership vested in the Punjab Government. It was given by way of muafi to the ancestors of the plaintiffappeallant Gian Chand and some others, namely Rattan Kaur, Goverdhan Lal, Gauri Shankar, Banke Lal, Jamna Dass, Karam Chand, Charan Dass and Tek Chand. The appellant brought a suit for possession of this land on the grounds that he alone had been in adverse possession thereof for about 25 years and as such he had become its owner; that he continued to be in possession of it till August 1968, when he was forcibly dispossessed by the defendantsrespondents Kultar Singh and Lal Singh.

The defendants contested the suit denying the plaintiff''s allegations. They pleaded that earlier Lal Singh defendant No. 2 was in possession of this land as a lessee under the muafidars Rattan Kaur, Karam Chand, Charan Dass and Tek Chand. Thereafter Lal Singh handed over possession to defendant No. 1 Kultar Singh who was accepted as lessee by the aforesaid muafidars vide two leasedeeds. The first (Exhibit D.1) was executed by Charan Dass and Karam Chand muafidars on January 7, 1967 and the second (Exhibit D.2) was executed by Tek Chand and Rattan Kaur muafidars on January 19, 1967. It is, therefore, contended that the appellant was not in possession of this land in August 1968 when, according to him, he was dispossessed by the defendants.

The trial Court held that the appellant was in possession of only a part of the suit land bearing Khasra No. 2179, 2180 and 2181 and that the remaining land was in occupation of the defendant No 1 Kultar Singh as a lessee of the aforesaid muafidars. On these findings a decree of declaration was granted in favour of the appellant declaring that he is in possession of the aforesaid land as a muafidar. His suit regarding the rest of the land was dismissed. In appeal the District Judge, Kapurthala, affirmed this decision and dismissed the plaintiff''s appeal.

It is not disputed that the plaintiffappellant and the aforesaid Rattan Kaur, etc. are muafidars of the land in dispute. The vital question to be decided on this case was whether the plaintiff alone was in possession of this land till August 1968 and, as alleged, was forcibly dispossessed therefrom by the defendants. In arriving at the conclusion that the plaintiff was not so in exclusive possession of the land except Khasra Nos. 2179, 2180 and 2181, the lower appellate Court inter alia relied upon two premises. Firstly, the copies of the Khasra Girdawari entries Exhibits P. 3 and P.4 relating to Kharif 1966 and Rabi 1967 and copies of Khasra Girdawari entries Exhibit P.7 and P.8 for the period from Kharif 1960 to Rabi 1964 show that all the muafidars have been recorded to be in joint possession of the land. Secondly, that the Commissioner of Jullundur Division, vide his order dated February 16, 1971 (Exhibit DW 13/4) held, in Khasra Girdawari correction proceedings, that Lal Singh defendant No 2 was in possession of the land in dispute in Kharif 1966. The learned appellant''s counsel contended that the first premises is factually wrong and the second could not be taken into consideration by the lower appellate Court in deciding the appeal. This contention in my view has ample merit. The first appellate Court while coming to the conclusion that the defendants has been lawfully leased out the land, by the muafidars Charan Dass, Rattan Kaur, Karam Chand and Tek Chand, was influenced by the fact that in the aforesaid Khasra Girdawari entries all the muafidars were entered to be in joint possession of the land. A perusal of these entries would, however, show that the lower appellate Court has misread the same. These entries clearly show that the appellant alone had been entered to be in possession of the land as a cosharer on behalf of the other muafidars. In view of this misreading of documentary evidence the finding of fact arrived at by the lower appellate Court is not binding in second appeal. In this respect I reply upon the observations in Ganesh Lall v. Bisesar Pandey, A.I.R. 1926 Patna 49, that where a finding of fact is based on a piece of a documentary evidence which has been completely misread by the Court, the finding is not binding in second appeal. The first premise of the lower appellate Court regarding the contents of the aforesaid Khasra Girdawari entries, is, therefore, evidently erroneous.

The first appellate Court has then taken into consideration that the Commissioner, Jullundur Division, vide his order dated February 16, 1971 (Exhibit DW 13/4) has found that Lal Singh defendant No. 2 was in possession of the land in dispute in Kharif 1966. The appellant filed this suit on May 1, 1970. It is, therefore, manifest that the Commissioner, Jullundur Division, had passed this order during the pendency of the suit. Such an order could not have been taken into consideration by the lower appellate Court in view of the judgment of this Court in Gurnam Singh v. S Jagjit Singh, 1972 P.L.J. 211. In this judgment it was clearly held that once the disputes have arisen between the parties, regarding the correctness of Khasra Girdawari entries, the controversy cannot be allowed to be transferred for decision to the Revenue Authorities. If any orders for the correction of the entries in the Khasra Girdawaris have been made by these authorities, those would be irrelevant in the civil proceedings and only the evidence adduced by the parties in connection with the truthfulness or falsity of Khasra Girdawari entries shall have to be assessed independently by the Civil Court.

In this view of the matter there is much force in the submission of the appellant''s counsel that the findings of the lower appellate Court regarding possession visavis the land in dispute cannot be upheld because it is impossible to say what the decision of the Court would have been if it had correctly read the aforesaid Khasra Girdawari entries and had ignored the order of the Commissioner, Jullundur Division, (Exhibit DW 13/4). I am, therefore, of the opinion that the decision of the lower appellate Court cannot be sustained.

In the view taken by me the judgment and decree of the lower appellate Court are set aside and the first appeal is remanded to the District Judge, Kapurthala, for disposal after reconsidering the evidence of parties, in the light of above observations. The parties will bear their own costs.