IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 86/1999 Reserved on:4.12. 2008 Decided on:12.12. 2008 Kewal Krishan and others. …Appellants. Versus Mehanga and another. …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. Yes For the appellants : Mr. N.K. Thakur, Advocate. For Respondent No.1 : Mr. Rajnish K. Lal vice Mr. K.D. Sood, Advocate. Rajiv Sharma, J. This appeal is directed against the judgment and decree dated 1.1.1999 passed by the learned District and Sessions Judge, Una in Civil Appeal No. 85 of 1997. Brief facts necessary for the adjudication of this Regular Second Appeal are that the predecessor-in-interest of the present appellants- plaintiffs (hereinafter referred to as ‘the plaintiff’ for convenience sake) filed a suit seeking declaration to the effect that he and the defendants had been coming in joint possession as tenants-at-will of land measuring 9 kanals 8 marlas bearing Khewat No. 662, Khasra No. 3601 and new 1 Whether the reporters of Local Papers may be allowed to see the judgment? No 2 khasra No.3077 situated in village Polian Beet, H.B. No.525 as entered in the jamabandi for the year 1982-83 and the revenue entries obtained by defendant No.1 showing himself in exclusive possession as tenant-at-will on the basis of the judgment and decree of the civil court obtained at the back of the plaintiff is illegal, inoperative, ineffective, null and void and not binding upon the right, title and interest of the plaintiff qua the suit land and for the issuance of permanent injunction as consequential relief restraining the respondents-defendants (hereinafter referred to as ‘the defendants’ for the sake of convenience) to oust the plaintiff from the joint possession. The suit was filed by the plaintiff primarily on the ground that the land measuring 9 kanals 8 marlas had been coming in joint possession as tenant-at-will of Kirpa son of Rulia, Maru son of Jodha as predecessor-in-interest of the plaintiff. Maru son of Jodha was in possession of the land measuring 5 kanals bearing khasra No.3601 min, new khasra No.2077 on payment of rent and Rulia son of Kirpa was recorded in possession of the land measuring 4 kanals 8 marlas bearing khasra No. 3601 as per jamabandi for the year 1940-41. It is further alleged that defendant No.1 (Mehnga) filed a suit against the sons of the plaintiff and he was not made party in the said suit. The civil court had held that the tenants were in possession of the suit land and the sale made by the land owners is not binding upon the tenants. It was further alleged that the plaintiff was never ejected nor he has relinquished the tenancy rights over the suit land and his father Maru has died and after the death of his father, he was coming in possession of the suit land as tenant-at-will. The defendants contested the lis by filing the written statement. On merits, it was alleged that Jodha was the sole tenant and after his death, two sons Kirpa and Maru came in possession as tenant-at- will and after the death of Kirpa, his son Rulia and Maru became tenants. 3 It was further alleged that Maru sometime about 28-29 years back, abandoned as well as relinquished the tenancy and thereafter Rulia father of the defendants remained in possession as sole tenant and after the death of Rulia, defendant No.1, his son became the sole tenant in possession and Maru had never remained in possession of the suit land since 28-29 years back on account of his voluntarily abandonment and relinquishment and thus there was no question of joint tenant either of Maru or after his death of the plaintiff or anybody else and his brothers. It is further alleged that defendant No.1 filed a Civil Suit No. 389 of 1975 against Tarsem Lal etc. on 12.6.1975 which was decided on 6.8.1982. The defendant No.1 was held to be sole tenant and the plea of Tarsem Lal etc. about their possession after the sale and plea of possession of owners before the sale was rejected. The sons of the plaintiff preferred an appeal against the judgment and decree which was dismissed as withdrawn on 16.10.1986. It was alleged that the suit was collusive as well as hit by the principle of esoppel as the sons of the plaintiff have lost in the previous case. The trial court on the basis of the evidence led by the parties dismissed the suit on 29.3.1997. The plaintiff feeling aggrieved and dissatisfied with the judgment and decree dated 29.3.1997 preferred an appeal before the learned District Judge, Una. The learned District Judge, Una also dismissed the appeal on 1.1.1999. The original plaintiff Chintu died during the pendency of the hearing of this Regular Second Appeal and his legal heirs were brought on record vide order dated 14.12.2000. The Regular Second Appeal was admitted on the following substantial questions of law: 1. What is the effect of unauthorized change thereby deleting the name of the plaintiff from the joint possession as tenant of the suit land? 4 2. Whether the plea of abandonment by a co-tenant against the other co-tenant can be proved and established simply by oral evidence? Mr. N.K. Thakur, Advocate has strenuously argued that the judgments and decrees passed by both the courts below are not sustainable. He also contended that both the learned courts below have misread the revenue entries, which has led to grave miscarriage of justice. He lastly contended that Sh. Maru, father of the plaintiff had never abandoned/relinquished the tenancy rights and the findings recorded by both the courts below are contrary to law. Mr. Rajnish K. Lal, Advocate appearing vice Mr. K.D. Sood, Advocate for respondent No.1 has supported the judgments and decrees passed by both the courts below. I have heard the learned counsel for the parties and perused the record carefully. Substantial Question of Law No.1: In order to adjudicate this substantial question of law, it will be necessary to take note of certain revenue entries. Ex.P-9 is the copy of jamabandi for the year 1916-17. Ex.P-10 is the copy of jamabandi for the year 1920-21. Ex.P-11 is the copy of jamabandi for the year 1924-25. Ex.P-12 is the copy of jamabandi for the year 1936-37 where the name of the predecessor-in-interest of the parties had been recorded as non- occupancy tenants. Ex.P-13 is the copy of jamabandi for the year 1940- 41 where the name of the predecessor-in-interest of the plaintiff as well as of the defendants had been recorded as non-occupancy tenants. Ex.P-14 is the copy of jamabandi for the year 1944-45. Ex.P-15 is the copy of jambandi for the year 1953-54. Ex.P-16 is the copy of jamabandi for the year 1958-59 where similar entries had been recorded. It is only in Ex.D-2 copy of jamabandi for the year 1962-63 where the name of the father of 5 the defendants had been recorded as non-occupancy tenant on payment of Rs. 14/- as Chakota per annum. The name of the father of the plaintiff Sh. Maru is missing for the first time in the revenue entry i.e. jamabandi for the year 1962-63. Ex.D-3 is the copy of jamabandi for the year 1967-68. In Ex. D-4, jamabandi for the year 1977-78, the name of defendant Mehnga Ram had been recorded as sole non-occupancy tenant. Ex.D-5 is the copy of jamabandi for the year 1982-83 where also the name of defendant Mehnga Ram had been recorded as sole non-occupancy tenant on payment of Rs. 14/- as Chakota per annum. Ex.P-7 is the copy of Khasra Girdawari from 1983 to 1986 where the name of the defendant Mehnga Ram had been recorded as non-occupancy tenant. It is evident from the revenue entries, as discussed hereinabove, that it was only in the year 1962-63 that the name of the plaintiff’s father Sh. Maru was deleted as tenant. The learned trial court on the basis of the subsequent entries recorded in the year 1962-63 onwards has come to a conclusion that the name of defendant Mehnga has been recorded as sole non-occupancy tenant. There is no material on record to justify the change of entries abruptly. The defendants have not placed any material on record how the change has been effected in the revenue entries from the year 1962-63 onwards. The revenue entries could be altered only on the basis of the orders of the revenue authorities. The defendants have not placed any order of the revenue authorities changing the entries earlier in the name of the father of the defendants and thereafter in the name of the defendants. There is no justification why the revenue entries have been altered. Their Lordships of the Hon’ble Supreme Court in Durga (deceased) and others versus Milkhi Ram and others, 1969 PLJ- 105 have held that where the earlier revenue entries were changed in the later 6 revenue entries and the change was effected without any mutation and there was no order of the revenue authorities showing how the change was made, although the presumption in the Punjab Land Revenue Act would be in favour of the later entries, but that presumption was rebuttable one and it would stand rebutted by the fact that the alteration in the later entries was made unauthorizedly or mistakenly, there being no material to justify the change of entries. Their Lordships have held as under: “Relying on Shri Raja Durga Singh of Solan v. Tholu (1963) 2 S.C.R. 693, 700=1962 P.L.J. 88), it was urged before the High Court, as before us, that the lower appellate Court had wrongly relied on the earlier revenue entries placing the burden on the defendants, whose names appeared in the later entries, to rebut the presumption. This Court observed in that case as follows:- “It was urged before us that there are prior entries which are in conflict with those on which the learned District judge has relied. It is sufficient to say that where there is such a conflict, it is the later entry which must prevail. Indeed from the language of section 44 itself it follows that where a new entry is substituted for an old one it is that new entry which will take the place of the old one and will be entitled to the presumption of correctness until and unless it is established to be wrong or substituted by another entry.” Grover, J., observed as follows: “It is clear from the pedigree-table set out in its judgment that Mathar Mal had three sons Jiwan, Amin Chand and Relu. Durga and Sidhu are the descendants of Jiwan whereas the plaintiff and defendant No.3 are the descendants of Amin Chand and Relu. Now, in the entries prior to 1929-30 each one of the descendants of the three sons of Mathar Mal had been shown to have 1/3rd share and without any mutation the entries were 7 changed in 1929-30. Admittedly there is no order of the revenue authorities showing how the change was made. Thus although the presumption would be in favour of the later entries but that presumption was a rebuttable one and it would stand rebutted by the fact that the alteration in the entries in 1929-30 was made unauthorizedly or mistakenly, there being no material to justify the change of entries.” Grover, J. distinguished Shri Raja Durga Singh of Solan v. Tholu (1963) 2 S.C.R. 693, 700=1962 P.L.J. 88) thus: “There is nothing to indicate that in the case decided by their Lordships such was the position. Moreover, the decision in that case proceeded largely on the finding of fact arrived at by the District judge on a consideration of the evidence being not open to interference in second appeal. The finding in the present case of the lower appellate Court is also based on evidence from which it has been inferred that the later entries are not the correct ones.” We agree with the observations of Grover, J.” The ratio laid down by their Lordships of the Hon’ble Supreme Court in the judgment cited supra has not at all been taken into consideration by both the courts below. It was necessary for the defendants to explain how and in what manner there was change in the revenue entries from the year 1962-63 onwards. The findings recorded by both the courts below to the contrary are liable to be interfered by this Court. Incidentally, the trial court has given credence to the entries made in the Khasra Girdawari from the year 1983 to 1986. It is settled law by now that there is no presumption of truth attached to the Khasra Girdawari under the Himachal Pradesh Land Revenue Act, 1953. No value could be attached by the trial court to the Khasra Girdawari. 8 Substantial Question of Law No.2: The case set up by the defendants was that the father of the plaintiff Sh. Maru had relinquished/abandoned his tenancy rights about 28- 29 years back. It was a question of fact to be proved. The defendants have failed to prove this fact of relinquishment/abandonment of tenancy by the father of the plaintiff Sh. Maru. The trial court has only observed that the relinquishment was rightly acted upon in the revenue record and this fact stood proved by oral as well as documentary evidence placed on record. The trial court has neither discussed oral nor any documentary evidence to prove that the plaintiff’s father had relinquished the tenancy rights. It was necessary for the trial court to discuss oral as well as documentary evidence. The same mistake has been repeated by the first appellate court while discussing the question of relinquishment by observing that there was no evidence that Maru had ever relinquished the suit land. It has come in the statement of DW-6 Mehnga Ram that Maru had been cultivating the land as tenant. The relinquishment/abandonment could not be lightly inferred by both the courts below. The defendants had failed to prove by leading any tangible evidence that the plaintiff’s father Sh. Maru had relinquished/abandoned his tenancy rights. Both the courts below have come to a wrong conclusion that the findings recorded in Civil Suit No. 389 of 1975 filed against Tarsem Lal etc. decided on 12.6.1975 were binding on the predecessor-in-interest of the plaintiffs. The suit was filed by the defendants against the sons of Maru. Sh. Maru was never added as a party-respondent. In this case neither the principles of res judicata nor estoppel would be applicable against the plaintiff. Consequently, in view of the observations made hereinabove on both the substantial questions of law, the Regular Second Appeal is allowed. The judgments and decrees passed by both the courts below are 9 set aside. The suit of the plaintiffs is decreed. The plaintiffs (LRs) are declared in possession as co-tenants of the suit land measuring 9 kanals 8 marlas bearing Khewat No. 662, Khasra No.3601 and new Khasra No.3077 situated in village Polian Beet, HB No. 525 along with defendants and the decree of the civil court in civil suit No. 389/1975 decided on 12.6.1975 is held not binding upon the plaintiff and the revenue entries made on the basis of this judgment are declared null and void. There will, however, be no order as to costs. 12.12. 2008 (Rajiv Sharma ), J. *awasthi*