Rajinder Prashad vs Chuni Lal

Dharam Chand Chaudhary, J.—Appellants-plaintiffs in the trial Court are in second appeal, as they have assailed the legality and validity of the judgment and decree dated 19.01.2002 passed by learned Additional District Judge (II), Kangra at Dharamshala in Civil Appeal No. 10-P/99, whereby the judgment and decree passed by learned Sub Judge, 1st Class (II), Palampur, District Kangra in Civil Suit No. 139 of 1993 has been affirmed and the appeal dismissed.

The challenge to the impugned judgment and decree is on the grounds inter-alia that both Courts below have not appreciated the evidence available on record in its right perspective and to the contrary recorded the findings on surmises and conjectures. The dismissal of the suit partly is contrary to the given facts and circumstances and also evidence available on record. No presumption of truth to the entries in the revenue records showing the respondent (defendant in the trial Court) being in possession of part of the suit land is stated to be attached in the given facts and circumstances and rather such presumption is rebuttable. The respondent-defendant allegedly managed the entries in his name during the settlement operation, which cannot be made basis to hold him in possession of the suit land. It is also pointed out that Courts below have failed to appreciate the real controversy in the suit, as the same having been filed for the decree of permanent prohibitory injunction, no declaration that the respondent-defendant is in possession thereof in the capacity of tenant could have been granted in the absence of other recorded co-sharers. The suit, according to the plaintiffs, should have been decreed for the relief of permanent prohibitory injunction as a whole and not in part.

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

Whether both the courts below have illegally ignored from consideration the material evidence particularly Ext. P-2, jamabandi for the year 1945-46, which was decisive of the respective rights of the parties, are not the grounds on which the said material evidence has been rejected erroneous thereby material effecting the decision?

Whether both the courts below have wrongly raised presumption of truth to revenue records, unauthorisedly incorporated during the consolidation proceedings in favour of the defendant-respondent showing them to be in possession of the suit property. Could such revenue entries which lost its presumptive value on account of their having been corrected during the course of settlement proceedings later on, to be made basis by both the courts below to raise presumption of tenancy in favour of the defendant-respondent, without there being any evidence showing the contract of tenancy and other incidence of the tenancy?

Whether both the courts below have acted beyond their jurisdiction in declining the relief of permanent perpetual prohibitory injunction to the plaintiff qua the whole suit land, when the facts available on record justify the same?

Whether both the courts below have committed grave procedural illegality in declaring the respondent to be tenant qua the part of the suit land in the absence of other co-sharers who having not been impleaded to the suit effecting their rights qua the suit property?

Mr. Bhupinder Gupta, learned Senior Advocate has emphasized that Shri Kirpu, predecessor-in-interest of defendant at the most was recorded as tenant only over a portion of the suit land measuring 6 marlas bearing Khasra No. 332 as per entries in the jamabandi for the year 1945-46, Ext. P-2. In the subsequent jamabandis said Shri Kirpu was shown to be in possession of some more land, however, such entries without there being any order passed by the competent authority, according to Mr. Gupta are absolutely illegal. It has also been pointed out that in a suit filed for the decree of permanent prohibitory injunction, no declaration that the defendant is in possession of the suit land in the capacity of tenant could have been made.

On the other hand, Mr. Ajay Sharma, learned counsel representing the respondent-defendant has forcefully contended that without challenging the entries showing the defendant in possession of the suit land in the capacity of tenant, the plaintiffs are not justified in claiming that they are in possession of the suit land in the capacity of tenant. Therefore, according to Mr. Sharma, the defendant is well within his right to utilize that part of suit land, which is in his possession in the capacity of tenant in his own way. According to Mr. Sharma, the impugned judgment calls for no interference by this Court in the present appeal.

It is seen from the record that the suit land is comprising Khata No. 42, Khatoni No. 83, 84, 85, 86, 80, 81, 82, 82/1, 83, 88, 89, 90, 93, Khasra Nos. 724, 697, 723, 720, 701, 725, 1859/692, 1860/692, 699, 700, 719, 784, 768, 718, 783, 698, 694, 695, 696, 691, 693, 782 (total kita 22) total land measuring 0-20-19 hectares situated in Mohal Aima, Mouja Bandla, Tehsil Palampur, District Kangra, as per entries in the jamabandi for the year 1987-88 Ext. P-1/D-1. The plaintiffs claim themselves to be owner in possession thereof alongwith other co-shares. The defendant allegedly started digging a portion of the suit land and when requested not to interfere therein, he claimed himself to be in possession thereof. The defendant, according to the plaintiffs, has nothing to do with the suit land. Learned trial Court in view of the pleadings of the parties on both sides had framed the following issues:

Whether the plaintiffs are entitled to the relief of permanent injunction, against the defendant, as prayed for?

OPP.

If issue No. 1 is not proved, whether in the alternative, the plaintiffs are entitled to the possession of the suit land, as prayed for?

OPP.

Whether the suit is not maintainable as alleged?

OPD.

Whether the plaintiffs have no locus standi to file suit?

OPD.

Whether the plaintiffs have no cause of action?

OPD.

Whether the jurisdiction is barred?

OPD.

Relief.

The parties in turn have produced the evidence consisting of oral as well as documentary. Plaintiff No. 1 has stepped into the witness box as PW-1 and they have examined Shri Madan Lal as PW-2 and Shri Jagat Ram as PW-3. They have also produced in evidence copy of jamabandi for the year 1987-88 Ext. P-1 and that for the year 1945-46 Ext. P-2. On the other hand, deceased defendant Chuni Lal has stepped into the witness box as DW-1 and examined Smt. Dhano Devi as DW-2. He has placed on record documentary evidence i.e. Ext. D-I to Ext. D-VII. The oral evidence produced by the parties on both sides is equally balanced and as such, not of much help to decide the real point in issue. As a matter of fact, it is the documentary evidence, which assumes considerable force. The latest revenue record pertaining to the suit land is in the shape of jamabandi for the year 1987-88 Ext. P-1. The oldest is jamabandi for the year 1945-46 Ext. P-2. In this document, the predecessor-in-interest of defendant Shri Kirpu has been shown in possession of 6 marlas of suit land bearing Khasra No. 332. The rest of the land, as per this document, was recorded in the ownership and possession of other persons. The next document is missal hakiyat bandobast jadid, Ext. D-IV. The entries in this document reveal that the old Khasra No. 332 as per entries in the jamabandi for the year 1945-46 has been changed into new Khasra No. 368, however, its area remains the same i.e. 6 marlas. Shri Kirpu, predecessor-in-interest of defendant, however, has also been shown in possession of some other land bearing Khasra Nos. 369 and 370. The old Khasra numbers whereof were 333, 334, 337, 338, 339 and 340 respectively. As per entries in the jamabandi for the year 1945-46, Ext. P-2 Khasra Nos. 333, 334, 337 and 338 were recorded in possession of Bam Dev and Lehnu etc., whereas Khasra No. 331 in possession of one Krishan Dev. Whether said Shri Bam Dev and Lehnu etc. or Krishan Dev had inducted Kirpu the predecessor-in-interest of defendant as tenant qua other land also, no cogent and reliable evidence has come on record. In the jamabandi for the year 1966-67 also though Kirpu, the predecessor-in-interest of defendant has been shown in the possession of land entered in Khasra No. 368, 369, 370, 372 and 374 in the capacity of non-occupancy tenant under Nand Lal and Prakash Chand etc. As per entries in missal hakiyat bandobast jadid, Ext. D-V old Khasra No. 374min has been denoted by new Khasra No. 718 and 783, Khasra No. 372 by 719, Khasra No. 369-373min by 721, Khasra No. 370min-373min by 722 and Khasra No. 370min-371min by 724. Interestingly, old Khasra No. 332, as per jamabandi for the year 1945-46 denoted by new Khasra No. 368, as per entries in jamabandi for the year 1960-61, Ext. D-VI, was shown in possession of deceased Kirpu along with Khasra No. 333 and 334 as tenant. Such entries have wrongly been substituted and are also wrongly reflected in Ext. D-VI and Ext. D-VII, however, in Misal Hakiyat Bandobast Jadid Ext. D-IV/Ext. D-V, Khasra No. 719, 723 and 784 have been recorded in possession of Pran Nath etc., the co-owners and not in that of Kirpu. As a matter of fact, it is only new Khasra Nos. 720, 721, 722 and 724 Khatoni No. 96 as per this document came to be recorded in possession of said Shri Kirpu in the capacity of tenant. Said Shri Kirpu came to be recorded in possession of the suit land entered in Khasra Nos. 720, 721, 722 and 724 even in the jamabandi for the year 1982-83, Ext. D-III, for the year 1979-80 Ext. D-II, however, in the latest jamabandi for the year 1987-88 Ext. D-I, he has only been shown in possession of suit land bearing Khasra Nos. 721 and 722 and land bearing Khasra Nos. 720 and 724 previously shown in possession of said Shri Kirpu and in possession of Smt. Kamla Devi, one of the co-sharer, in this document. True it is that initially as per entries in the jamabandi for the year 1945-46, said Shri Kirpu was shown only in possession of suit land measuring 6 marlas and nature thereof is ''abadi''. As noticed supra, the subsequent record of rights reveals that he was not shown in possession of some more land. As per entries in jamabandi for the year 1960-61 he has been shown in possession of land bearing Khasra Nos. 368, 369, 370, 372 and 374 also, which as per entries in the jamabandi for the year 1945-46 was in the possession of few of the co-sharers i.e. Bam Dev, Lehnu and Krishan Dev etc.

True it is that there is no evidence as to who inducted said Shri Kirpu as tenant, however, this question cannot be gone into in the present suit i.e. suit simplicitor for the grant of decree of permanent prohibitory injunction. The fact, however, remains that the predecessor-in-interest of defendant Shri Kirpu came to be recorded in possession of part of suit land as per entries in the jamabandi for the year 1960-61 Ext. D-V bearing Khasra Nos. 368, 369, 370, 372 and 374 and also in the jamabandi for the year 1966-67 Ext. D-VII, now changed into new Khasra numbers as per entries in the misal hakiyat bandobast jadid Ext. D-IV/D-V denoted by new Khasra No. 718 and 783, Khasra No. 372 by 719, Khasra No. 369-373min by 721, Khasra No. 370min-373min by 722 and Khasra No. 370min-371min by 724. The entries in the subsequent revenue record i.e. jamabandi for the year 1979-80, Ext. D-II, for the year 1982-83, Ext. D-III, reveals that said Shri Kirpu is in possession of Khasra No. 720, 721, 722 and 724. As per jamabandi for the year 1986-87 he, however, has only been shown in possession of land bearing Khasra No. 721 and 722. The defendant has not challenged the change in the revenue entries qua land bearing Khasra No. 720 and 724, which in the previous jamabandi was also shown in the name of said Shri Kirpu. Deceased Kirpu was inducted as tenant in accordance with law is a question to be gone into in appropriate proceedings and not in the present suit. The defendant, no doubt, has claimed himself to be in possession of the suit land in the capacity of non-occupancy tenant, however, without seeking any declaration to this effect by filing counter-claims etc. The long standing entries in the revenue record, however, reveal that his predecessor-in-interest Kirpu was in possession of a portion of the suit land, however, in the capacity of non-occupancy tenant or any other capacity left open to be decided by the appropriate Court having jurisdiction over the matter for decision, in accordance with law. However, in my considered opinion, the defendant irrespective of in possession of the suit land cannot change nature thereof without seeking declaration that his possession over a portion of the suit land is in the capacity of a tenant and that he is in separate possession thereof. The suit, therefore, should have been decreed for the relief of permanent prohibitory injunction restraining the defendant from changing the nature of the suit land or alienating the same, leaving it open to the parties to decide the question of title by the appropriate Court having jurisdiction to entertain and decide the same. Consequently, in modification of the judgment and decree under challenge in the present appeal, the suit deserves to be decreed only to the above extent.

In view of the foregoing reasons, the appeal succeeds and the same is accordingly allowed the suit is decreed for the relief of permanent prohibitory injunction restraining thereby the defendant from changing the nature of the suit land in his possession and alienation thereof in any manner whatsoever, leaving it open to the parties to approach the appropriate forum to get the question of title decided in accordance with law. No orders as to costs.

The appeal stands disposed of accordingly. Pending application(s), if any, shall also stand disposed of.