Swarani Devi vs Bhagat Ram

R.L. Anand, J.

The unsuccessful plaintiffs have come up in regular second appeal against the judgment and decree of the first appellate Court affirming in appeal those of the trial Judge dismissing their suit for declaration that they were ownersinpossession of 1/6th share of the suit land.

The facts are as under :

As is evidenced by Mutation No. 717 dated December 19, 1898, Ex.P.11, Devia had three sons, namely, Joti, Moti and Phinda. Joti died issueless and his inheritance devolved upon Phinda son of Devia and Rulia son of Moti in equal shares; that the plaintiffs are sons of Rulia, whereas the defendants are the successorsininterest of Phinda; that the parties to the lis have been in possession of the land which devolved upon them on the death of Moti in ancestral shares till consolidation; that during consolidation, the share of Joti, which devolved on the sons of Moti and Phinda, was allotted to the progeny of Phinda and this necessitated the filing of the suit by the plaintiffs for declaration of their share in the joint land which devolved upon heirs of Devia in the fist instance and on Joti''s death, on Rulia son of Moti and Phinda son of Devia.

The defendants contested the suit and denied that the inheritance of Joti devolved upon Rulia, predecessorininterest of the plaintiffs, but they did not specifically deny that the party had been in possession of their ancestral shares devolving upon them as is evidenced by mutation Ex.P11.

From the pleadings of the parties, following issues were framed by the trial Judge :

Whether the plaintiffs are the owners of the suit land ? OPP.

Whether plaintiffs are in possession of the suit land, if not its effect ? OPP.

Whether the suit is within time ? OPD.

Whether plaintiffs are estopped to file the suit by their act and conduct ? OPD.

Relief.

Under issues Nos. 1 and 2, the trial Judge found that the revenue record produced by the plaintiffs established that they had 1/3rd share in the suit land and that Rulia, their predecessorininterest, did not succeed to the share of Joti deceased; under issue No. 3, the trial Judge found that the parties were allotted the land during consolidation as per their entitlement borne out by the revenue record anterior to the consolidation; issue No. 4 was answered against the plaintiffs and it was held that they were estopped by their conduct from filing the suit.

The first appellate Court affirmed the conclusions arrived at by the trial Judge.

This appeal was earlier heard by Hon''ble Mr. Justice G.R. Majithia, who vide order dated 15.1.1992 set aside the findings of the Courts below on issues Nos. 1 and 2 and directed the District Judge, Ropar, to send his report as indicated in the order itself. It was observed by his Lordship as under :

``.......In order to effectively and finally adjudicate upon the rights of the parties, it has become necessary to permit them to lead additional evidence in the form of revenue records to connect the land devolving upon the parties and their predecessorininterest on the death of Joti. The evidence is required for doing substantial justice to the parties. The parties may not suffer because of the ignorance or inaction on the part of their counsel for not advising them to produce the link evidence which was available and could have been produced and the same would have conclusively established the rights of the parties and the Court would have effectively decided upon their rights. It will meet the ends of justice if the parties are allowed one opportunity to lead additional evidence as indicated above. The interests of justice require that a direction be issued to District Judge, Ropar, to permit the parties to lead such evidence as they think fit and in the light of the evidence to be brought on record as indicated and keeping in view the evidence already on the record, he will redecide issues Nos. 1 and 2 and send his report accordingly.''''

In compliance with the order of the High Court, the District Judge, Ropar, submitted his report dated 7th August, 1992 and he again reiterated the findings on issue Nos. 1 and 2 against the plaintiffs. Aggrieved by the report dated 7th August, 1992 and the judgments and decrees of the trial Court as well as of the first appellate Court, the plaintiffs have filed the present appeal.

I have heard the learned counsel for the appellants, only as the respondents did not care to give contest in the present regular second appeal, and as such I am disposing of this appeal with the assistance of Shri G.S. Jaiswal, Advocate, who submitted that the Courts below did not appreciate the revenue entries in a proper manner. The oral evidence produced by the plaintiffs corroborates the entries Exs. P12 and P13, which were incorporated on the basis of the mutation Ex.P11. It has also been proved, according to the learned counsel for the appellants, that the predecessorsininterest of the plaintiffs were in possession of the land in dispute which devolved upon them on the death of Joti. The counsel relied upon an authority of the Hon''ble Supreme Court reported as Durga (deceased) and others v. Milkhi Ram and others, 1969 P.L.J. 105, and submitted that if the earlier revenue entries were changed in the later revenue entries and the change was effected in an unauthorised manner or by mistake, and that there is no material to justify the change of entries, the earlier entries should be acted upon and the presumption of correctness with regard to the subsequent entries stands rebutted. I have considered the contentions raised by the learned counsel for the appellants with the help of the record and I am of the considered view that these are devoid of any merit. It may be highlighted at the first instance that Hon''ble G.R. Majithia, J. earlier gave opportunity to the parties to lead additional evidence by calling upon the report of the District Judge, to fill in the lacuna, if possible, which had occurred in the evidence led by the plaintiffs. The Hon''ble Judge was pleased to remark in the order dated 15.1.1992 that the only difficulty created by the plaintiffs was that they did not produce the revenue records upto date showing their possession over that part of the land which devolved upon their predecessorininterest on the death of Joti. The learned Judge observed that the plaintiffs were illadvised not to get the excerpt of the land prepared. This document would have traced out the history of the land deveolving upon the plaintiffs and their predecessorininterest after the death of Joti and that evidence would have removed the lacunae which had crept in. In spite of the opportunity given by this Court, the plaintiffs did not lead any evidence before the District Judge, so much so, that on 27th March, 1992 the counsel appearing on behalf of the appellants stated before the District Judge that he had no instructions. Accordingly, notice was ordered to be issued to the appellants. Only Smt. Swarni Devi appellant appeared before the District Judge on 6.4.1992, but thereafter she did not appear on the next date, i.e. on 21.4.1992. Other appellants, namely, Hakam Rai, Khushi Ram failed to appear despite service, giving rise to the only presumption that the plaintiffs appellants were not prepared to support their pleas as raised in the plaint perhaps for want of evidence. Appellants Nos. 2 to 4, who were minors and who sued through their mother, also failed to be represented. Before the District Judge only the respondents appeared through their counsel and convinced the District Judge, who submitted the report against the plaintiffs. The reliance was placed on Exhibits P11, P12 and P13. Exhibit P11 is the mutation sanctioned on 19.12.1898 recording the death of Joti. Exhibit P12 is the Jamabandi for the year 19031904. Exhibit P13 is the Jamabandi for the year 190708. In the documents Exhibits P12 and P13 it has been shown that the plaintiffs were in possession of the property as occupancy tenants. Thereafter there is no record of rights which has been brought on the file by the plaintiffs from which it can be concluded and decided that they were owners of the land in question. The consolidation in this village took place somewhere in the year 196364 or in the year 1966, as would be evident from the statement of Amritsaria P.W.1, which was made on 19.5.1979 when this witness stated that consolidation took place in the village about 7/8 years earlier. Similar was the statement of Khushi Ram, who deposed that consolidation proceedings took place in the village 10/12 years back and his statement was recorded on 4.9.1976. From the statements of these two witnesses, which were made in the year 1976, it stands proved that consolidation did take place in this village. It can be reasonably inferred that entries made in the revenue record after the consolidation must have been based on those entries, which immediately stood prior to the consolidation.

The defendants have placed on record the Jambandies Exhibits D1 to D6 starting from the year 196768 upto 197273. In these entries the names of the plaintiff or their predecessorsininterest do not figure anywhere. Until and unless the plaintiffs connect the property in dispute with any latest revenue entries, the Jamabandies Exhibits P12 and P13 and the mutation Exhibit P11 cannot be acted upon. A perusal of the Jamabandies Exhibits D1 to D6 shows that the ownership of the land has been recorded in the name of the defendants and in these circumstances it cannot be said that the subsequent entries Exhibits D1 to D6 were made in an unauthorised manner or under mistake. On the contrary there is a version of the defendants that Joti was the occupancy tenant and that the plaintiffs and their father Rulia had relinquished and abandoned all the rights qua the estate of Joti and the defendants had acquired the same. This part of the stand of the defendants could only be controverted by the plaintiffs by producing some revenue record, but they have not cared to produce the same in spite of the opportunity given to them by the District Judge after the passing of the order by this Court on 15.1.1992. The citation, which has been relied upon by the learned counsel for the appellants, is not applicable to the facts in hand. Rather this very citation goes against the plaintiffsappellants, as it has been rightly laid down by the Supreme Court in this authority that there is a rebuttable presumption of correctness attached to the revenue entries. Learned counsel for the appellants has not been able to convince me how the entries Exhibits D1 to D6 were made in an unauthorised manner or mistakenly. There is no material on the record from which I may draw a conclusion that there was no justification for the change of subsequent entries. The onus to prove issues Nos. 1 and 2 was on the plaintiffs and they did not lead any evidence in the shape of revenue record or excerpt in spite of the opportunity which was given to them by this Court. In the cited case, it stood proved that the subsequent entries were made in an unauthorised manner or mistakenly. There is not an iota of evidence on the file of this case and in these circumstances the only presumption would be in favour of the later entries, which has not been rebutted by the learned counsel for the plaintiffsappellants by inviting my attention to any document on the record.

In this view of the matter, I accept the report of the District Judge and affirm the findings of the Courts below on issues Nos. 1 and 2. Even the copies of the Jamabandies placed on the record by the defendants show that they are in possession of the property.

Seeing no merit in this appeal, I dismiss the same. Since no contest has been given by the defendants in the appeal before me, the costs are made easy.