Ratan Singh and Others vs Sukhram and Others

Harnam Singh, J.—On the 10th of March, 1950, Tejpal and Udey Sjngh sons of Kallu and Bhure son of Ram Sarup instituted Civil Suit No. 16 of 1950 for declaration that they were owners of the land in suit and for injunction restraining the defendants from ejecting them in execution of the decree passed in the Court of the Assistant Collector 1st Grade, Palwal, in Revenue Suit No. 12 of 1948 on the 1st of July, 1949. That decree proceeds upon the ground that the plaintiffs were tenants-at-will and the defendants-occupancy-tenants were the landlords. The decree was upheld by the Collector, Gurgaon District, on the 14th of December, 1949.

In Civil Suit No. 16 of 1950 the plaintiffs maintained that they entered upon the land in suit as owners and that the amounts that they paid did not exceed land revenue and cesses.

Sukh Ram, Dhani, Lal Singh and Khe-man sons of Teka ''Chamar'' resisted the suit pleading that the plaintiffs held the land in suit as tenants-at-will and they had been rightly ordered to be ejected by the Revenue Court.

On the pleadings of the parties the Court of first instance fixed the following issues:

"1. Is the suit barred u/s 50, Tenancy Act?

Is the suit barred by estoppel?

Are the plaintiffs owners by adverse possession?

Relief."

In deciding Civil Suit No. 16 of 1950 the Court of first instance found that the plaintiffs were not estopped from suing, that the plaintiffs were tenants-at-will under the defendants-occupancy-tenants and that the plaintiffs had not become owners of the land in suit by adverse possession. In the result, the plaintiffs'' suit was dismissed with costs.

From the decree passed by the Court of first instance on the 8th of March, 1951, the plaintiffs appealed in the Court of the Senior Subordinate Judge, Gurgaon. The appeal failed and was dismissed with costs.

From the decree passed by the Senior Subordinate Judge on the 14th of May, 1951, the plaintiff have come up in further appeal u/s 100 of the Civil P. C.

Mr. Faqir Chand Mital appearing for the appellants urges that in the circumstances of the case the ''jamabandi'' does not create any presumption of tenancy in favour of the defendants. In this connection reliance is placed upon the decision in Letters Patent Appeal No. 5 of 1949 decided in this Court on the 18th of July, 1951. In that case it was said: "With regard to the value to be attached to the revenue records in which in the year 1920 the defendants were shown as tenants-at-will decisions of the Punjab High Court, for example, ''Ghulam Murtaza v. Nagina''. 11 Lah 430. ''Sher v. Phuman Ram'', 42 P L R 497 and ''Girdhari Ram v. Qasim AIR 1936 Lah 461 establish that the ordinary presumption which attaches to the correctness of entries in revenue records has little or no magnitude in the case of entries showing persons in occupation of parts of ''Shami-lat deh'' as tenants-at-will." (9) Basing himself upon the decision in L. P. A. No. 5 of 1949 counsel urges that no presumption of tenancy arose in favour of the defendants in the suit out of which these proceedings have arisen. I do not accept the argument raised. On this point reference may be made to Section 44 of the Punjab Land Revenue Act, 1887, hereinafter referred to as the Act. Section 44 of the Act reads:

"44. An entry made in a record-of-rights in accordance with the law for the time being in force or in an annual record in accordance with the provisions of this chapter and the rules thereunder ''shall be presumed to be true'' until the contrary is proved or a new entry is lawfully substituted therefor."

Clearly, Section 44 of the Act raises a rebut-table presumption of law in favour of the defendants and the fact that the plaintiffs have come to Court pleading that they are in adverse possession of the land in suit does not affect the initial presumption.

In L.P.A. No. 5 of 1949 the presumption arising u/s 44 of the Act appears to have been rebutted by the pleadings of the parties. In the three suits giving rise to Letters Patent Appeals Nos. 5, 6 and 7 of 1949 the defendants were recorded in the record of rights as tenants-at-will. In those suits plaintiffs pleaded that the defendants were trespassers and the defendants pleaded that they had been in adverse possession of the sites in dispute for the last seventy or eighty years. That being so, the presumption arising from Section 44 of the Act was rebutted by the pleadings in those suits. Indeed, Mr. Fakir Chand Mital conceded that the decision in Letters Patent Appeal No. 5 of 1949 does not govern the suit out of which this appeal has arisen.

From the excerpt, Exhibit P.W. 5/1, it is clear that in the year 1908-09 the plaintiffs were cultivating the land in suit as tenants-at-will under the defendants-occupancy tenants. In the ''Jamabandi'' for 1908-09 it is recorded that the plaintiffs paid to the proprietors and the occupancy-tenants rupees two annas eleven and pies nine per annum which was the land revenue and cesses. In other words. Exhibit P. W. 5/1, shows that the plaintiffs-appellants entered on the land in suit as tenants-at-will on payment of the land revenue and cesses to the defendants-occupancy-tenants and the proprietors. If so, the onus was on the plaintiffs-appellants to show that they were not tenants-at-will under the defendants. That onus is not discharged by proof of the fact that the amount which the plaintiffs-appellants paid to the defendants did not exceed the amount of revenue and cesses.

No other point arises in these proceedings.

In the result, the appeal fails and is dis-missed with costs.