Raj Kumari and Others vs Rattan Singh and Others

Dharam Chand Chaudhary, J.—Challenge herein is to the judgment and decree dated 20.2.2001, passed by learned Additional District Judge-II, Kangra at Dharamshala, in Civil Appeal No. 57-N/97, allowing thereby the appeal on reversal of the judgment and decree passed by learned Sub Judge 1st Class, Court No. 1, Nurpur, District Kangra, in Civil Suit No. 503/89, and decreeing the suit for the relief of declaration to the effect that the appellants, hereinafter referred to as ''the plaintiffs'' are in cultivating possession of the suit land and that respondent No. 1, hereinafter referred to as ''the defendant'', has no right, title or interest in the suit land. The defendant has also been restrained from causing any interference in the suit land in any manner whatsoever.

The land bearing khasra No. 2836/1060, measuring 31 kanals 11 marlas, situated in Mohal Pucca Tiala, Mouza Baranda, Tehsil Nurpur, District Kangra, as per entries in the Jamabandi for the year 1978-79 (Ext. P.1), was recorded in the ownership of Shero to the extent of 1/2 share and that of Bashir, respondent No. 18-plaintiff No. 9 to the extent of 1/4th share, whereas Wali Mohammad, respondent-defendant No. 2 to the extent of remaining 1/4th share. The same, no doubt, was shown in the joint possession of plaintiffs No. 1 to 7. Ultimately the share of Shero in the suit land was purchased by plaintiffs No. 1 to 7 vide sale deed Ext. PW-3/A. The land to the extent of 1/4th belonging to plaintiff No. 9 Bashir was purchased by Shamsher Singh (since dead), plaintiff No. 8 in the main suit, the predecessors-in-interest of appellants No. 14 to 17. The mutation to this effect was also sanctioned and attested in the name of said Shri Shamsher Singh, as per entries in the remarks column of Jamabandi for the year 1984-85 (Ext. P-3).

As a matter of fact, there is no dispute so as to the land which was in the share of aforesaid S/Shri Shero and Bashir. The subject matter of dispute in the present lis is the land pertaining to the share of Wali Mohammad, defendant No. 2.

Admittedly, said Shri Wali Mohammad is unheard of for a period over 32 years. As per plaintiffs'' case mutation of the land to the extent of 1/4th share of Wali Mohammad was sanctioned and attested in favour of his brother Bashir, who is plaintiff No. 9 and rightly so because the plaintiffs have produced in evidence, order of mutation, (Ext. PY), which is reasoned one and also the Jamabandi for the year 1990-91 (Ext. PX). The appellants-plaintiffs, therefore, claim the land which was in the share of Wali Mohammad also in their ownership and possession, whereas respondent-defendant No. 1 Rattan Singh has come forward with the version that said Shri Wali Mohammad had inducted him as tenant over the land in his share and as such the land bearing khasra Nos. 1924 and 1927 (the suit land) being in his possession in the capacity of tenant and on conferment of proprietary rights under H.P. Tenancy and Land Reforms Act he has become owner thereof. He has placed reliance on Missal Hakiat Bandobast Jadid for the year 1984-85 (Ext. DA) and also the judgment and decree passed by learned Sub Judge 1st Class, Court No. 1, Nurpur on 1.4.1986 (Ext. DB) in a previously instituted suit. Besides, the parties have also produced oral evidence.

The learned trial Court after appreciating the evidence available on record has arrived at a conclusion that a stray entry in the Missal Hakiat Jadid for the year 1984-85 (Ext. DA) without there being any basis thereto showing respondent-defendant No. 1 as ''Kabiz'' over the suit land cannot be held to be legal and valid nor he can be said to be in possession of the suit land or having acquired ownership on conferment of proprietary rights. Therefore, while decreeing the suit, learned trial Court has held that the plaintiffs are in cultivating possession of the suit land and defendant No. 1 having no right, title or interest therein should be restrained from causing any interference. Learned lower appellate Court, however, while disagreeing with the findings so recorded by learned trial Judge, has accepted the appeal and after setting aside the judgment and decree passed in favour of the plaintiffs, dismissed the suit vide judgment and decree which is under challenge in the present appeal.

The legality and validity of the impugned judgment and decree has been questioned on the grounds, inter alia, that lower appellate Court has not appreciated the evidence and also pleadings of the parties in its right perspective and formed an opinion which could have not at all been formed on the basis of evidence available on record. Therefore, the findings recorded by the lower appellate Court being stated to be perverse, it has been submitted that the impugned judgment and decree is vitiated and, as such, not legally sustainable. The entries abruptly appeared in Missal Hakiat Bandobast Jadid for the year 1984-85 showing respondent-defendant No. 1 as ''Kabiz'' over the suit land allegedly given undue weight-age and overwhelming documentary evidence produced by the plaintiffs has been brushed aside. The findings that defendant No. 1 must have come in possession of the suit land in the year 1961-62 have been assailed, being without any basis, hence erroneous. It is pointed out that in the absence of any evidence showing that defendant No. 1 was inducted as tenant by Wali Mohammad and also qua the payment of rent, no such findings could have been recorded. Although, one of the points urged in the grounds of appeal pertains to the death of one of the plaintiffs Shamsher Singh and his legal representatives not allegedly brought on record, however, in view of the fact that legal representatives of said plaintiff were brought on record vide order dated 30.11.2000 passed by learned lower appellate Court, the point so urged was not pressed.

The appeal has been admitted on the following substantial questions of law:

"1. Whether the plaintiffs were entitled to the relief of possession if they were not found in possession in respect of khasra Nos. 1924 and 1927?

Whether the impugned judgment is the result of misleading of evidence on record?"

There is no dispute so as to the entire land measuring 31 kanals 11 marlas being in the ownership of S/Shri Shero, Bashir and Wali Mohammad. There is again no quarrel as regards to their respective shares, highlighted at the very outset, in the land in question. There is again no quarrel so as to 1/2 of the share of Shero in this land was acquired by plaintiffs No. 1 to 7 by way of sale, whereas 1/4th by plaintiff No. 9 Bashir and the remaining by plaintiff No. 8 Shamsher Singh (since dead).

The dispute is only with respect to the land bearing khasra Nos. 1924 and 1927, measuring 12 kanals belonging to Wali Mohammad. Defendant No. 1 claims himself to be inducted as tenant over this land somewhere in the year 1961-62 and as such with the passage of time acquired title therein on conferment of proprietary rights. Except for a stray entry in Missal Hakiat Bandobast Jadid for the year 1984-85, he, however, has failed to produce any other and further evidence in this regard. Even in this document also he has been shown having occupied the land in question in the capacity of a tenant. He rather has been shown as ''Kabiz'', i.e., only in possession of the land in question. It is well settled that the tenancy is a creature of bilateral agreement. The agreement may be either oral or in writing. It has been held so by our own High Court in Kanshi Ram Vs. Basanta and Others, . Defendant No. 1 has failed to produce any evidence as to when he was inducted as tenant by said Shri Wali Mohammad and what was the rent agreed to be paid/given and to whom. He has been paying the same and the receipts, if any, issued in this behalf.

No doubt, the judgment Ext. DB rendered in previous suit reveals that he has been held in possession of the suit land bearing khasra Nos. 1924 and 1927, measuring 12 kanals, however, not in the capacity of a tenant. Above all, in the appeal learned District Judge, Kangra at Dharamshala, vide order dated 27.5.1988 (Ext. P-7), had allowed the plaintiffs to withdraw that suit with liberty to file afresh and as such the judgment Ext. DB cannot be read in evidence being not in existence.

It is again well settled that a stray entry made abruptly in the revenue record without there being any order passed by a competent authority, should be ignored and not relied upon to determine the rights in respect of the said property. In case the defendant was inducted as tenant by Wali Mohammad somewhere in the year 1961-62, the entries to this effect would have been reflected in the revenue record prior to 1984-85. Jamabandi for the year 1978-79 (Ext. P-1), however, reveals that his name is not reflected therein.

On the other hand, the order of mutation Ext. PY, which is reasoned one, reveals that the land in the share of Wali Mohammad was mutated in favour of his brother Bashir, plaintiff No. 9. The evidence so available on record leads to the only conclusion that defendant No. 1 is not in possession of the suit land bearing khasra Nos. 1924 and 1925.

The oral evidence is also equally balanced for the reasons that plaintiff Khushal Singh while in the witness box as PW-1 and Parbhat Singh, as PW-2, have stated in one voice that the entire land measuring 31 kanals 11 marlas is in possession of the plaintiffs. Defendant No. 1 and Shri Sansar Singh while in the witness box as DW-1 and DW-2, respectively, have come forward with version that defendant No. 1 is in possession of 12 kanals of land for the last 30-35 years. The oral evidence as has come on record by way of testimony of plaintiff Khusual Singh and PW-2 finds corroboration from the documentary evidence in the form of revenue record. The own testimony of defendant No. 1 and that of DW-2 is, however, not worthy of credence for the reasons recorded hereinabove and also that had he been in possession of 12 kanals of land for the last 30-35 years, the entries to this effect would have been reflected in the revenue record or he himself should have approached the revenue authorities for correction in the revenue record.

The present, therefore, is a case where it is the plaintiffs, who are in possession of the entire land and defendant No. 1 who claims himself to be the owner in possession over 12 kanals of land on the basis of stray entry in Missal Hakiat Bandobast Jadid for the year 1984-85 in the suit land, is not at all justified in claiming so as he even is not in actual and physical possession over the said land. I am not in agreement with the findings recorded by learned lower appellate Court while reversing the judgment and decree passed by learned trial Court for the reason that the same are result of misappreciation of evidence and misinterpretation of law as well as facts of the case. Both the questions of law formulated in the present appeal are, therefore, answered accordingly.

The result of the above discussion is that the judgment and decree impugned in this appeal is not legally and factually maintainable, hence the same is quashed and set aside, whereas that of trial Court is restored. The appeal accordingly succeeds. However, there will be no order so as to costs.