Mohar Singh and Others vs Parvat Singh and Others

Rajive Bhalla, J.

The appellants challenge judgment and decree dated 1.12.1987 passed by District Judge, Narnaul, accepting the appeal filed by the defendants-respondents and as a consequence setting aside judgment and decree, dated 6.1.1986, passed by Sub Judge II Class, Mahendergarh.

Counsel for the appellants submits that Manna Singh, was a tenant in cultivating possession of land owned by Ladha Singh. After the demise of Manna Singh, as Bhuru @ Nanar another son died issueless, the tenancy devolved upon Sita Singh and Chander Singh sons of Manna Singh, in equal shares, Sita Singh had three sons, Hardeva (deceased), Ram Datt and Mohar Singh (the plaintiffs). Chander Singh had one son Munga Singh. Munga Singh somehow managed to exclude the name of Sita Singh, father of the plaintiff, from the revenue record and got a proprietary allotment of the land under Section 22 of the Pepsu Tenancy and Agriculture Land Act, 1955 (hereinafter referred to as "the Act") in the name of his father Chander Singh. The appellants, therefore, filed present suit seeking a declaration that they are owners in possession of 1/2 share of the allotted land. The trial court decreed the suit but the first appellate court has set aside the judgment and decree passed by the trial court and dismissed the suit. The reasons recorded by the first appellate court are contrary to the record, particularly jamabandis Exs P3, P5 and P7. The finding that on the relevant date as Chander Singh alone was recorded as tenant in cultivating possession, of the land in dispute, the land was rightly allotted by the AC 1st Grade to Chander Singh. The findings, so recorded, are not only contrary to entries in jamabandis but also to admissions made by Ladha Singh, the original land owner and DW1 Raj Pal Singh son of Munga Singh and may, therefore, be set aside.

Counsel for the appellants has framed the following substantial question of law for adjudication:-

Whether findings recorded by the first appellate court are not perverse and arbitrary for failure to consider relevant evidence?

Counsel for the defendant-respondents submits that as relevant jamabandis record Chander Singh alone in cultivating possession as a tenant and the revenue record relied by the appellants, pertains to a different landlord and to different parcels of land, their suit has been rightly dismissed. The revenue record relied by the appellants was also considered by the Assistant Collector and the Collector, Mahendergarh but was rejected. The first appellate court has recorded clear and cogent findings preceded by a considered appraisal of the pleadings and the evidence and as these findings are neither perverse nor arbitrary, no question of law arises for consideration.

I have heard counsel for the parties, perused the impugned judgments and decrees and the revenue records.

The plaintiffs-appellants filed a suit praying for a declaration that they are owners to the extent of 1/2 share in the land in dispute. The appellants pleaded that Manna Singh was the original tenant. After the demise of Manna Singh, tenancy rights devolved upon Sita Singh and Chander Singh sons of Manna Singh, in equal shares, but Munga Singh son of Chander Singh has managed to obtain an allotment in the name of his father Chander Singh by showing him as the sole tenant. The appellants, being the progeny of Sita Singh son of Manna Singh are entitled to 1/2 share in the allotted land.

The defendants-respondents filed a written statement denying the aforesaid averments and pressed into service orders passed by the Assistant Collector 1st Grade and the Collector Mahendergarh rejecting objections raised by Ram Datt, one of the plaintiffs, on the ground that revenue entries record Chander Singh, alone in possession as a tenant and the revenue record relied by the appellants pertains to a different parcel of land. The appellants thereafter filed a replication. The trial court, after considering the pleadings, framed the following issues:-

"1. Whether the plaintiffs are the co-owners of the suit land to the extent of 1/2 share, as alleged? OPP

If issue No. 1 is proved whether the judgment dated 22.3.72 passed by the Court of A.C. 1st Grade, M/Garh is null and void, against law, fraudulent and based on misrepresentation and not binding on the plaintiff, as alleged? OPP

Whether the suit is within limitation? OPP

Whether the suit is barred by the provisions of O. 2 rule 2 CPC? OPD

Whether the civil court has no jurisdiction to entertain and try the present suit as alleged? OPD

Whether the suit is not maintainable in the present form? OPD

Whether the plaintiff has no locus standi to file the present suit? OPD

Whether the plaintiffs are estopped from filing the present suit by their act, conduct and waiver?OPD

Whether the suit is barred by the principle of res judicata? OPD

Whether the suit is false and frivolous and the defendant is entitled to special costs? OPD

Relief.

The trial court decreed the suit. Aggrieved by the aforesaid judgment and decree, the defendant-respondents filed an appeal. The first appellate court allowed the appeal, set aside the judgment and decree passed by the trial court and dismissed the suit by holding that the relevant revenue entries record Chander Singh alone as a tenant in possession of the land in dispute. The first appellate court also held that the revenue record relied by the appellants pertain to different parcels of land and as there is no evidence that Sita Singh was ever in possession as a tenant.

Before answering the arguments raised, it would be appropriate to point out that a sitting tenant is entitled to allotment of the land comprising his tenancy, under Section 22 of the Pepsu Tenancy and Agricultural Lands Act, 1955. The Assistant Collector, Mohindergarh allotted the land in dispute to Chander Singh as he alone was recorded as the tenant in possession. Ram Dutt, one of the plaintiffs, raised an objection that as their father Sita Singh was a co-tenant with Chander Singh, half of the land should be allotted to Ram Dutt and Mohar Singh sons of Sita Singh. The objection was rejected by holding that Chander Singh alone is recorded in possession as a tenant. The order was affirmed by the Collector in an appeal filed by Ram Dutt. The plaintiffs-appellants filed the present suit claiming 1/2 share in the allotted land by asserting that admittedly Manna Singh, was the original tenant under the landlord, Ladha Singh. After the demise of Manna Singh, the tenancy was inherited in equal shares by Sita Singh and Chander Singh sons of Manna Singh. The land, therefore, has to be allotted in equal shares to the plaintiffs who are the sons of Sita Singh and Chander Singh. The trial court decreed the suit but the first appellate court has reversed the judgment and decree passed by the trial court and dismissed the suit. A perusal of the evidence on record reveals that Sita Singh, through whom the appellants claim rights, is not recorded in possession, whether as a co-tenant or otherwise. The first appellate court has, while allowing the appeal and dismissing the suit, examined all relevant jamabandis relied by the appellants and held that these jamabandis pertain to a different parcel of land. A relevant extract from the judgment recorded by the first appellate court, reads as follows:-

"On going through the oral and documentary evidence on the file, I find considerable force in the arguments of the learned counsel for the appellants. The case made out by the plaintiff-respondents before the learned trial court was that their father Sita Singh and Chander Singh father of Moonga Singh were tenants on the land measuring 46 Bighas 10 Biswas vide jamabandi of the year 1962-63 Ex. P3 and therefore, Moonga Singh alone could not obtain proprietary rights. In fact, the documents relied upon by the plaintiff-respondents do not at all prove their case. According to the jamabandi Ex. P1 of 1949-50 it was Chander Singh son of Manna Singh who was alone in cultivating possession of the land recorded therein. Same is the position vide jamabandi Ex. P2 of 1953-54. The plaintiffs have relied upon the jamabandi Ex. P3 in which Sita, Chander Singh and Bhuru sons of Manna are recorded as mortgagees. The land mentioned therein is also different. Then there is another jamabandi Ex. P4 of Sammat 1994-95 in which Moharia, Ramdutt and Hardeva sons of Sita as recorded as tenants in equal shares. This is also a different land. Then as per jamabandi is Ex. P. 5 for the year 1949-50, Ex. P6 of 1953-54, Ex. P. 7 of 1963-64 and Ex. P. 8 of 1965-66, Chander Singh son of Sita Singh son of Manna Singh is recorded as a tenant. It is these entries which are relied upon by the plaintiffs stating that in these jamabandis Chander Singh was mentioned as son of Sita Singh but in fact Sita Singh was his brother and, therefore, he alone could not claim proprietary rights qua the suit land. It may be noted here that this very plea was raised by Ramdutt one of the plaintiffs appeared before Asstt. Collector Ist Grade and the Collector and they came to the conclusion that it was only a clerical error is describing Chander Singh as son of Sita Singh instead of Manna Singh in the aforesaid jamabandis. Asstt. Collector Ist Grade and the Collector took it as a clerical error in describing the parentage of Chander Singh and ignored the same. The collector also observed that this clerical error had no legal effect because Ramdutt himself admitted that after consolidation Moonga Singh alone was cultivating the land. The Collector also remarked that admitting that even if Sita Singh also cultivated the land for some time, Moonga Singh could still take advantage of the said cultivation in obtaining proprietary rights, under the Act because at the time of filing of the application for obtaining proprietary rights, Ramdutt was not in cultivating possession. Ramdutt one of the plaintiffs remained a party to the proceedings but he did not file any revision etc. against the order of the collector dated 17.7.1972. This would mean that the same have become final. Even otherwise, there is no material on the file to substantiate the claim made by the plaintiffs that their father Sita Singh was a tenant along with Chander Singh on the suit land. The land described in jamabandi Ex. P3 and P4 does not stand connected with the suit land. In the aforesaid two jamabandis old khasra numbers are mentioned. The present litigation started after the consolidation of holdings. Thus it was the duty of the plaintiff-respondents to have brought on the record the consolidation documents, namely, Naksha Haqdarwar, Khatoni paimaish and khatoni ishtemal in order to connect the land. This evidence is totally lacking in this case. However, reliance was placed on jamabandi Ex. P7 which also contains the previous khasra numbers. This document, however, is not at all sufficient to connect the identity of the two lands in the absence of the three material documents of consolidation. Ex. P7 only describes the old khasra numbers upon which the new khasra number was carved out. It is no evidence of the fact that the new khasra numbers were substituted in place of khasra numbers mentioned in the jamabandis Exs. P. 3 and P. 4 Thus for want of this evidence also, the plaintiffs could not succeed in the suit."

A perusal of the above extract reveals that the land in dispute was in exclusive cultivating possession of Chander Singh, father of Munga Singh, as a tenant as recorded in jamabandi, Exhibit P1, for the year 1949-50. Jamabandi Ex. P2, for the year 1953-54 also records Chander Singh in "cultivating possession". The jamabandi, Ex. P3, relied by the appellants, pertains to a different parcel of land and records predecessors of the parties as mortgagees and not as tenants. The jamabandi Ex. P4 also pertains to a different parcel of land. The jamabandis, Exhibits P5, P6 and P7 record Chander Singh, in possession as a tenant. The appellants urge that Chander Singh is wrongly described as son of Sita Singh. The entry should have been Chander Singh and Sita Singh. A similar objection was raised by Ram Dutt, one of the plaintiffs, before the Assistant Collector 1st Grade and Collector, Mahendergarh, but was rejected after examining the revenue record by holding that there is no error in the jamabandi. The onus to prove, by reference to revenue entries or other evidence that these entries are incorrect, lay upon the appellants but their inability to produce any such evidence, does not enable me to record that Sita Singh was a co-tenant with Chander Singh, and, therefore, entitled to 1/2 share in the allotted land. The appellants could have, apart from the revenue record, produced other evidence of their possession as co-tenants along with Chander Singh but have failed to produce to any evidence that would conclusively prove that their predecessor Sita Singh was in possession along with Chander Singh as a co-tenant. The findings recorded by the first appellate court cannot be said to be contrary to the pleadings or the evidence.

In view of what has been recorded hereinabove, the substantial question of law is answered against the appellants by holding that the impugned judgment and decree does not suffer from any failure to appraise and consider relevant pleadings and evidence. The appeal is, consequently, dismissed.