IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 30 of 2002. Reserved on: 05.07.2011. Decided on: 14.07.2011. _____________________________________________________ Pritam Chand. …Appellant. -Versus- Kishan Chand and another. …Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. __________________________________________________________ For the appellant. : Mr. Varun Chandel, Advocate vice Mr. Rajeev Jiwan, Advocate. For respondent No. 1. : Mr. Janesh Gupta, Advocate vice Mr. Neeraj Gupta, Advocate. None for respondent No. 2. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge: This Regular Second Appeal is directed against the judgment and decree dated 28.11.2001, passed by the learned District Judge, Kangra at Dharamshala, H.P. in Civil Appeal No. 101/K/XIII/2000. 2. Material facts necessary for adjudication of this Regular Second Appeal, are that the respondent No. 1-plaintiff (hereinafter referred to as ‘the plaintiff’ for convenience sake) instituted a suit for grant of decree for declaration, permanent and mandatory injunction against the appellant-defendant No. 1 (hereinafter referred to as ‘the defendant No. 1’ for brevity sake) to the effect that he has no right, title or interest in the land bearing 1 Whether the reporters of the local papers may be allowed to see the judgment? No. - 2 - Khata No. 76 min, Khatauni No. 141, Khasra No. 106 measuring 0-03-20 hectares situated at Mohal & Mouza Kohala, Tehsil and District Kangra (H.P.), as per Jamabandi for the year 1990-91. According to him, the land in dispute was under the ownership of Bhagwan Singh alias Bhagwant Singh, Smt. Shanti Devi and Smt. Kusum, residents of Mohal Salol, Tehsil and District Kangra and the land was under the tenancy of the plaintiff and his father Lekh Ram from the very beginning as per the revenue record. The owners of the land in dispute filed a civil suit against defendant No. 1, namely, Pritam Chand for possession of the land. The name of Pritam Chand, defendant No. 1, appeared in the revenue record as a person in possession without any capacity. The suit was contested by defendant No. 1. Later on, the plaintiff came to know about the pendency of the suit and he also got himself impleaded as defendant No. 2. The suit of Bhagwan Singh etc. was dismissed and it was held that the plaintiff Kishan Chand was the tenant of the land in dispute. The Civil Suit was bearing No. 338/86 and it was decided on 25.05.1993 vide Ex. P-2. Copy of the decree is Ex. P-4. 3. The suit was contested by defendant No. 1 Pritam Chand. He also filed a counter-claim. According to him, plaintiff never became tenant, but in fact, the defendant was tenant over the suit land and he was paying Galla Bataie to the owners. Plaintiff also filed written statement to the counter-claim filed by defendant No. 1 Pritam Chand. Trial Court framed the issues. The suit filed by the plaintiff was decreed by the learned trial Court on 14.06.2000 and the counter-claim of the defendant was dismissed. The defendant No. 1, namely, Pritam Chand preferred - 3 - an appeal before the learned District Judge, Kangra at Dharamshala, H.P.. The same was dismissed on 28.11.2001. Hence, this Regular Second Appeal. 4. This Regular Second Appeal was admitted on the following substantial question of law: “Whether the learned Courts below have misread, mis-construed and mis-appreciated the facts and evidence available on record in right perspective? 5. Mr. Varun Chandel, learned vice counsel for the appellant has vehemently argued that both the courts below have misread and misconstrued the oral as well documentary evidence. According to him, his client was tenant and the findings recorded to the contrary are liable to be set aside. He also contended that the suit was liable to be dismissed, since the owner being a necessary party has not been impleaded. 6. Mr. Janesh Gupta, learned vice counsel for respondent No. 1 has supported the judgments and decrees passed by both the courts below. 7. I have heard the learned counsel for the parties and gone through the pleadings carefully. 8. Plaintiff has appeared as PW-1. According to him, he was in possession of the suit land as a tenant and defendant No. 1, i.e., Pritam Chand never came in possession of the land in dispute. 9. Defendant No. 1 has appeared as DW-1. According to him, he was tenant under the owners and was paying the galla batai. In cross-examination, he has admitted that earlier the - 4 - owners of the land in dispute filed a suit titled Bhagwan Dass Vs. Pritam. However, he has admitted that the suit was dismissed. He further stated that no appeal was preferred against the judgment. The version of DW-2 Chamaru Ram cannot be believed. According to him, defendant No. 1 had been cultivating the land in dispute for the last 60 years. When the statement of DW-1 Pritam Chand was recorded, he was 65 years old. 10. The previous owners have instituted a suit bearing Civil Suit No. 338/86 against defendant No. 1 Pritam Chand. The suit was dismissed by the learned trial Court on 25.05.1993 vide Ex. P-2. However, the trial court while dismissing the suit has returned a finding that Pritam Chand was not in possession of the suit land and the entries were wrong. It was also held that the possession was with the present plaintiff. On account of this, the relief of injunction was not granted and the suit was dismissed. 11. What emerges from the judgment dated 25.05.1993 Ex. P-2, is that neither the title of defendant Pritam Chand was recognized nor his possession over the suit land. This judgment has attained finality, since as per the version of DW-1, no appeal has been preferred against it. Thus, it can safely be concluded that it was the plaintiff, who was in possession of the suit land and his rights have been duly recognized in Civil Suit No. 338/86, decided on 25.05.1993 vide Ex. P-2. 12. Mr. Varun Chaudel, learned vice counsel for the appellant has drawn the attention of the Court to Jamabandi for the year 1995-96, Ex. D-1, copy of Jamabandi for the year 1974- 75, Ex. D-2 and copy of Khasra girdawari Ex.D-3. According to - 5 - him, in these revenue entries, the defendant No. 1 has been shown as in possession of the suit land. 13. Mr. Janesh Gupta, learned counsel for respondent No. 5 has drawn the attention of Court to copy of Jamabandi for the year 1965-66, Ex. P-5, whereby father of the plaintiff has been shown in possession of the land. In copy of Missal Haqiyat for the year 1974-75, Ex. P-6, the plaintiff has been recorded in possession of the suit land as Gair Moroosi tenant. 14. Now, as far as the revenue entries made in favour of the defendant are concerned, the defendant has not led any evidence in order to show as to how his name came to be recorded in the settlement record as in possession of the suit land, in place of Shri Lekhi Ram, who was earlier recorded in possession of the suit land as Gair Moroosi. Admittedly, Shri Lekhi Ram is the father of the plaintiff. There is no order of the revenue officer, on the basis of which, the entries have been made in the settlement record. The learned Sub Judge Ist Class (1), Kangra in the earlier civil suit has already recorded that the possession was with the plaintiff and not with Shri Prittam Chand. This judgment has attained finality. It further strengthens the case of the plaintiff, read in conjunction with revenue entries recorded in copy of Janamandi for the year 1965-66, Ex. P-5 and copy of Missal Haqiyat for the year 1974-75. 15. Mr. Varun Chandel, learned counsel for the appellant has also argued that owner was the necessary party and the suit could not be filed without impleading him. Suffice it to say that the plaintiff has not claimed any relief against the owner. The title - 6 - of the owner has not been disputed in any manner whatsoever. Thus, the present suit was maintainable in the present form. 16. It was necessary for the defendant to explain how the entries were changed in the settlement record. It is settled law by now that the entry in settlement record regarding possession without status will not carry any legal weight whatsoever (See Rajinder Kumar and another Versus Bhag Singh, 1996 (1) S.L.J. 215). 17. The defendants have also not proved the stray entries in their favour. Their Lordships of the Hon’ble Supreme Court in Sir Bhimeshwara Swami Varu Temple Vs. Pedapudi Krishna Murthi and others, AIR 1973 Supreme Court, 1299 have held as under: “The presumption arising from several entries in the revenue records of large number of years in respect of ownership and possession of land with certain person does not stand rebutted by mere stray entries in favour of others when the evidence is of uncertain character and inadequate.” 18. In the instant case, the revenue entries with regard to ownership and possession were in favour of the plaintiffs’ father and the same were reflected in the subsequent Jamabandi for the year 1965-66 Ex. P-5 and in the copy of Missal Haqiyat for the year 1974-75, Ex. P-6. Moreover, in the Jamabandi for the year 1990-1991, the defendant No. 1 has been recorded in possession of the land in dispute without payment of any rent. The creation of tenancy is a bilateral act. It was also for the defendant to prove that he was paying any rent to the owner, which he has failed to do so. - 7 - 19. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in this Regular Second Appeal and the same is dismissed. No costs. (Rajiv Sharma) Judge July 14, 2011. (bhupender) - 8 -