Ramphal vs Nand Ram and Others

Surinder Gupta, J.—Plaintiff-Ramphal filed suit for declaration of his title over the suit land measuring 3 bighas 12 biswas bearing khasra No. 1328, khewat No. 462/366, khatoni No. 977 as per jamabandi for the year 1996-97 situated in village Mauja Chhapar, Tehsil Charkhi Dadri, District Bhiwani.

Case of plaintiff, in brief, is that his forefathers have settled in village Mauja Chhapar and had been cultivating the suit land. Defendants or their forefathers never resided in this village or cultivated the suit land. Entry in the revenue record showing plaintiff as owner of the suit land had been wrongly made against the law. Because of the continuous possession for the last more than 50 years, plaintiff has attained title over the suit land by way of adverse possession. Even otherwise he is entitled to be declared occupancy tenant and owner of the suit land under Section 3 of the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1952.

Defendants admitted possession of plaintiff over the suit land and alleged that he had taken forcible possession of land in dispute in the month of May, 2005. All the averments in plaint were contested, controverted and denied and counterclaim was filed seeking possession of the suit land.

The suit of plaintiff was dismissed by Civil Judge (Junior Division), Charkhi Dadri with observation in para 16 as follows:--

"16. Onus to prove this issue is placed upon the defendant and in order to discharge the same, the learned counsel for the defendant has pointed out the documentary evidence Ex. P3, P6, P8, DW1/A and DW1/B wherein there is some correction, cutting and overwriting which is without any sanction of competent authority. Though, the plaintiff is claiming himself to be owner in possession of suit land for last more than 50 years. The disputed cutting and overwriting proves that there has been change of possession. The plaintiff has also not produced any rupat roznamcha vakyati in this regard and has filed the present suit for declaration qua the suit land on the basis of revenue entries in his favour, but has not proved how his name was entered. Hence, he has not come to the court with clean hands and concealed the true and material facts/evidence from the court."

Ist Appellate Court affirmed the findings of learned Civil Judge (Junior Division) and observed in para 16 and 18 as follows:--

"16. It is admitted fact that the respondents are owners of the land in dispute. The copy of khasra-girdawari for the (year) 1957 to 1959 shows i.e. Ex. P16 that Shri Chand i.e. father of the appellant had cultivated the land in dispute from 1957 to 1959. Thereafter the land in dispute was cultivated by Shubh Ram son of Hardwari. In the year 1973, the land in dispute was cultivated by Ramu Ram son of Hardwari. This fact made it clear that the land in dispute till 1977 was not cultivated by the father of the appellant. The name of the appellant came into the revenue record for the first time in the year 1981 and the copy of khasra-girdawari Ex. P20 has also proved this fact. This khasra-girdawari nowhere shows that how much rent the appellant was paying to the land owners. The appellant had also produced the photocopy of khasra-girdawari for the year 1981 and 1986 i.e. Ex. P8 and Ex. P6. There is a cutting in the name in para No. 3 of the khasra-girdawari. The respondents had also examined Jagdish Patwari as DW1, who has also admitted that there is a cutting and overwriting in the name of the person who is cultivating the land in dispute. Learned lower Court has also highlighted this fact and observed that the khasra girdawari was manipulated and the same cannot be looked into. The appellant had also not produced the copy of rapat-roznamcha which can show that how his name was entered in the khasra-girdawari for the first time in the year 1981. Only on the basis of khasra-girdawari, he cannot claim his possession as tenant in respect of the land in dispute. If there is any change in the khasra-girdawari then the same has to be on the basis of rapat-roznamcha. But in the present case, the appellant had not produced the copy of rapat-roznamcha in order to prove that his name was entered in the revenue record on the basis of some agreement or some understanding with the owners.

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The appellant has claimed that he is cultivating the land in dispute on nominal rent and he has acquired occupancy rights as per section 3 of the Act as well as sections 5 and 8 of the Punjab Tenancy Act. The pleading of the appellant made it clear that he had not claimed occupancy rights in respect of the land in dispute in view of the sections 5 and 8 of Punjab Tenancy Act. He has claimed occupancy rights in view of section 3 of the Act. The Punjab Occupancy Tenant (Vesting of Proprietary Rights) Act made it clear that if a person claims occupancy rights in view of section 3 of the Act then he has to prove that his name has been recorded in the revenue record immediately before the commencement of the Act and recorded as occupancy tenant. The appellant has not produced any revenue record which can show that his name was recorded as tenant in 1952, therefore, the appellant cannot claim occupancy rights in respect of the land in dispute and learned lower Court had also rightly declined the relief of occupancy rights to the appellant."

Not satisfied plaintiff has filed this second appeal.

I have heard learned counsel for the appellant and perused the paper-book and lower Court record with his assistance.

Learned counsel for the appellant has tried to make out that plaintiff came to be recorded in possession over the suit land as tenant in the year 1981. Prior to that uncle of plaintiff was occupancy tenant and plaintiff has inherited his rights. The Courts below on the basis of evidence on record and testimony of concerned patwari recorded a categorical finding that there was overwriting, cutting and tampering of the revenue record. There was no rapat roznamcha entered by the revenue authorities for making changes in the revenue record. Even otherwise, it is nowhere pleaded that plaintiff has inherited tenancy rights of his uncle. Admittedly, before plaintiff, Shubh Ram was in possession of the suit property. He was son of Hardwari while plaintiff is son of Shri Chand. Entry in the name of plaintiff was made due to his cultivation of the suit land. As is apparent from the copy of revenue record produced on file as Ex. P-6 and Ex. P-8, there is tampering, cutting and overwriting in the revenue record without any order of any authority and these overwriting and cutting have also not been initialed by any official.

Learned counsel for the appellant has tried to make out that entry in the revenue record continued even after the year 1983 and was never challenged but has not been able to explain as to how and on what basis entry of possession over the suit property was recorded in favour of plaintiff as tenant under the defendants.

Learned counsel for the appellant has referred to judgments of this Court in cases Jai Ram v. The Gram Panchayat, Dehlaka and others, 1978 PLJ 43; Akhtar and others v. Israil and another, 2012 (4) PLR 797 ; and Shiv Charan Vs. The Financial Commissioner, Revenue Department and Others, . With the assistance of learned counsel for the appellant, these citations were perused during course of arguments and none is found to be applicable to the facts and circumstances of present case.

Learned counsel for the appellant has argued that one written statement was filed by defendants No. 1 to 4 on 15.07.2007 and then they filed another written statement on 20.07.2007. The second written statement was filed by defendants No. 1 to 5 where counter-claim was also preferred. He has argued that defendants could not substitute the first written statement and file another written statement without permission of the Court.

Above argument of learned counsel for the appellant was also taken note by the Ist Appellate Court and discarded. At no point of time it was argued before the trial Court that defendants No. 1 to 4 have filed written statement on 15.07.2007. Neither any objection to this effect was taken in the replication nor defendants were confronted with any of the plea taken in this written statement. The replication was filed on 31.07.2008. No plea was raised that defendants have filed two written statements in this case.

In view of my above discussion, I find that both the Courts below on the basis of record have rightly held possession of plaintiff over the suit property as a trespasser. The concurrent finding of Courts below is based on evidence on record and calls for no interference. No substantial question of law, requiring determination arises in this appeal, which has no merit.

Dismissed.