Puran Chand, Des Raj vs Bishan Dass

This is a civil 2nd appeal filed against the judgement and decree dated 31.8.89 passed by the learned District Judge, Kathua whereby he reversed

the judgement and dcree dated Jan. 25, 1988 passed by the learned Munsiff, Hiranagar.

The facts of the case briefly stated are that the appellants herein had filed suit for possession in respect of 15 marlas of land comprising of

Kh.No.1631/1161 situate in village Bhayia Teh. Hiranagar. The case of the appellants was that in the month of February 1986, the respondent

over the said land started forcible digging of the foundations of a room of the dimension of 12 x 12 ft. and constructed a Chun (cattle shed) of the

same dimensions alongwith fodder place for the cattle of the dimensions of 2 x 9 ft. It is also alleged that the land was situated in Abaddi Deh.

The trial court had framed the following isues :

Whether the defendant has unlawfully constructed a Chhun and a room, 12 x 12 ft. dimensions each and equally, and a fodder place in the

dimension on 2 x 9 ft. on the suit land of which the plaintiff is the owner ? OPP.

Whether the defendant had laid foundation for another room on the suit land belonging to the plaintiff, and he is bent upon to raise construction ?

OPP.

Whether court fee for the purpose of jurisdiction is not proper, if so, what should be the proper, if so, what should be the proper court fee ? OPD.

Relief.

The trial court decided all the issues in favour of the plaintiff (appellants herein), and decreed the suit.

The respondent filed the appeal before the learned District Judge, Kathua. The appeal was accepted and the judgement and decree of the trial

court was set aside. It was held that on the basis of evidence the appellants herein were not found in possession as owners of the suit land, where

the room as well as the shed and the Fodder place were constructed.

Through the medium of this Second appeal, the judgement and decree of the District Judge, Kathua (First Appellate Court) has been challenged

on the following ground :

i) That the court below has misappreciated the evidence on the question of facts as well as law and has arrived at wrong conclusions.

The court vide its order dated 6.4.90 had reckoned six questions as substantial questions of law, which were formulated in the Memorandum of

appeal and they are to the following effect :

i) What does the term ""Tasavvur Malkiat"" in the revenue record cannotes and means ?

ii) Whether a person shown in possession of land on the strength of ""Tasavvur Malkiat"" assumes the status of an owner and is entitled to maintain

suit for injunction in the event of trespass?

iii) Whether the findings recorded by the first appellate court are perverse in law and on facts while reversing the judgement and decree of the trial

court on the ground that Tasavvur Malkiat does hot confer any title in respect of the land despite entry in the revenue record ? iv) Whether

judgement and decree based on perverse reasonings recorded by 1st. Appellate court is sustainable in law?

iv What is the scope and effect in law of a revenue entry recorded by the Patwari ?

v) Whether in absence of proof to the contrary revenue entries can be ignored ?

Heard the arguments.

It is stated here that this 2nd appeal was decided on Sept. 9,1997 in the absence of counsel of respondent, who later approached the court with

the prayer that there was sufficient cause for his absence and this prayer was accepted in terms of order dated June 26,1998 passed in CMP No.

46/97.

Learned counsel appearing for the appellants has contended that the first appellate court has appreciated the evidence in a perverse manner by not

giving true legal meaning to the revenue entry of ""Tasavvur Milkyiat"" (as figuring in the revenue record). That in the revenue record the land in

dispute has been shown as ""Abadhi Den"" and from the year 1963 to 1985 the appellants continuously have been shown in possession thereof as

Tasavvur Milkyiat"" which literally means considering themselves as owners. In support of this contention the learned counsel has referred the

copies of the khasra Girdwaris EXPK2, EXPK3 and EXPK 4 which show Hukama (the predecessor of the appellants) in possession by virtue of

Tasavvur Milkyiat"". Concluding his arguments it is asserted that the first appellate court had ignorned the above stated documentary evidence as

well as oral evidence led in support thereof and placed reliance on the accular account of the respondent and his witnesses and thus in an illegal

and perverse manner arrived at the conclusions which are not tenable under law.

In rebuttal, the counsel for the respondent has contended that no substantial question of law can arise in this 2nd appeal because substantial

questions of law formulated in the memo of appeal are questions of fact and this appeal should not have been admitted considering those questions

as no substantial questions of law arises. In support of his contention he has cited the case of Corporation of the City of Bangalore vs. M. Papaiah

and Another (AIR 1989 SC1809).

The learned counsel for appellants has contended that substantial questions of law as enumerated above (questions No. 1 to 6) were formulated in

the memo of appeal and after hearing the counsel for the parties the court on 6.4.90 had reckoned those questions as substantial questions of law

and new it is too late in the day to contend that they are not substantial questions of law.

The only point worth consideration is whether the appreciation of evidence done by the 1st. appellate court in arriving at a reversal finding was

according to law or in derogation to the principles of appreciating the evidence. Documentary evidence which was of Khasra Girdawaris was in

favour of the appellants from the year 1963 to 1985 and it had been supported by the oral assertions of the witnesses including the version of the

appellants. Against this cogent and convincing evidence, the 1st. appellate court gave the finding on the oral blad assertions of the respondent and

his witnesses. Perverse appreciation of evidence gives rise to a substantial question of law for interfering in second appeal. The contention which is

being raised by the counsel of the respondent that interpretation of revenue record is not a question of law, has no bearing with the facts of the

present case. Undoubtedly, there cannot be said anything contrary to the view of the apex court (held in AIR 1989 SC 1809 (supra) that

interpretation of revenue record is not question of law, but on the facts of the present case, it is said that the appreciation of the documentary

evidence as well as oral evidence is relevant and the same has been done not in a judicious manner, but ignoring intrinsic value and on this view of

the matter, the contention of Mr. Sangra does not hold good.

On the evidence, it is established that the appellants and their predecessor were in possession of the disputed room (cattle shed) alongwith

fodder place of the dimensions stated above while considering themselves as owners and it is situated in Abadhi Deh qua (habitated area of the

village). Thus this is a substantial question of law arisen in the case and as the first appellate court has not given correct finding so the appeal is

accepted and the impugned judgement and decree of 1st. appellate court is setaside and that of the trial court maintained.