IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 276 of 1999 Reserved on: 31.3.2011 Date of decision : 11.4.2011. Vidya Devi and others …Appellants. Versus Parvahi Devi and others …Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting?1 No. For the Appellants: M/s N.K.Sood & Aman Sood, Advocates. For the respondents 1(a) to 1(m): Mr. G.S.Thakur, Advocate. Deepak Gupta, J. 1. The appellants-plaintiffs filed a suit for declaration to the effect that they are joint owners in possession of the suit land bearing Khasra No. 1443 measuring 0-28-28 hectares and the entry showing the defendants in possession as claimants for sale (Dawedar Bai) are wrong and incorrect. 2. The plaintiffs were shown to be joint owners of the suit land but the defendants were shown to be in possession of the same as claimants under a 1 Whether the reporters of the local papers may be allowed to see the Judgment? yes. 2 sale. The defendants filed written statement and claimed that they had purchased the suit land from one Shri Dhari in the year 1967 for a consideration of Rs.250/-. The land in question is admittedly Ghasni (grassy land). Written statement was amended and after amendment it was pleaded that the suit land had been purchased from Dhari and Gilju for a consideration of Rs.140/- and that the defendants are cutting grass from the land. 3. The learned trial Court came to the conclusion that the land in question had been purchased by the defendants and hence the suit of the plaintiffs was dismissed. The learned trial Court came to the conclusion that the defendants had proved that the suit land had been purchased from Dhari and Gilju for a sum of Rs.140/- in view of the mutation Ext.D-6 and thereafter since the defendants were being shown in possession they were deemed to be owners in possession of the suit land. 4. It was specifically pleaded before the learned trial Court that the defendants had purchased Khasra No. 1432/1018 and the new khasra number 3 is 1448 and the suit has been filed in respect of khasra No. 1443 which was never purchased by the defendants. The plaintiffs relied upon Bandobast Jadeed Ext.P-2 but the same was rejected by both the Courts below on the ground that it was not issued by the copying agency but was directly issued by the Patwari. 5. Normally, in a second appeal this Court would not enter into the factual aspect of the matter. However, if the judgement is perverse or where there is gross misreading of the evidence then this Court must interfere and cannot be a mute spectator to injustice. 6. The present appeal was admitted on the following questions of law:- 1. Whether in law, copies of revenue record supplied by Copying Agency under Section 76 of the Indian Evidence Act only can be relied and such copies shall have precedence qua the copies of the revenue record supplied by the concerned competent revenue authority under his certification in discharge of his official duties? 2. When joint and inseparable claim is set up in a suit against the defendants common in all to them, whether the admission/concessions 4 made qua such claim by one set of majority of defendants can be ignored to return findings in favour of a contesting defendant? 3. Whether the change made in revenue record qua possession and subsequently carried over and reflected in Jamabandies for years together can be presumed to be reflecting correct state of affairs when such change is neither based on nor is supported by any order of a competent authority in this behalf? 4. Whether the findings of the learned courts below are vitiated for variance between pleadings and proof and further for mis- interpretation and misconstruction of the pleadings as also the revenue record produced and proved by the contesting defendant which record on the face of it was self contradictory and self destructive to the pleas raised by the defendant? 5. Whether in law, in a suit for declaration and injunction challenging the wrongful revenue entries limitation to file the suit starts from the day when shadow is cast on the right, title and interest of the aggrieved party on the strength of such wrong revenue entries and not from the date when actually such entries are incorporated in record? 7. In my opinion the only substantial question of law which arises is whether the Courts below have totally misread the documents Ext.D-6 and Ext.P-2. 5 8. Document Ext.D-6, which is the basis of the claim of the defendants shows that the defendants purchased Khasra No. 1018/2 measuring 2-5-2 bigha for a sum of Rs.140/- from Dhari and Gilju. The plaintiffs had produced document Ext.P-2, which is the Bandobast Jadeed in which it was reflected that Khasra No.1432/1018 was renumbered as 1448. The defendants do not claim to be owners of the suit land by way of adverse possession. In fact, nobody can be said to be in possession of Ghasnis (grass land) since nobody cultivates such land and only grass is cut from such land. 9. After the matter was heard in part. The following order was passed on 24.11.2010:- “Heard in part. While hearing the matter, I find that there is some dispute regarding the authenticity of the document Ext.D-6, which is mutation No.130 attested on 23.12.1950 of Mauza Tapon, Hadbast No.244, Tehsil Sarkaghat, District Mandi, H.P. There is some confusion with regard to this document since one portion of the mutation which contains the sanctioning order is in Hindi and the rest of the document is in Urdu. Since the half document is in Hindi and half in Urdu, 6 therefore, I am of the opinion that the original mutation register from the record room should be called for to verify whether Ext.D-6 is a correct copy of the original. Therefore, the Tehsildar, Sarkaghat is directed to produce the original record of mutation No.130 attested on 23.12.1950 of Mauza Tapon, Hadbast No.244, Tehsil Sarkaghat, District Mandi, H.P. on 9th March, 2011. The Tehsildar shall also bring the record to show what was the new khasra number of khasra No.1018/2 sold vide this mutation. List on 9.3.2011” 10. On 9.3.2011 the Tehsildar Sarkaghat appeared and it was found that Ext.D-6 is the true copy of the original mutation. The Tehsildar on the basis of the record, which was perused by this Court stated that Khasra No.1018/2 was first renumbered as Khasra No. 1432/1018. In settlement proceedings the area of this khasra number was reduced to 0-13-68 hectares and after settlement it was renumbered as Khasra No. 1448. It is thus clear that the land purchased by the defendants is now depicted by Khasra No.1448 and not by 1443. Therefore, both the Courts below erred in misreading documents Ext.P-2 and Ext.D-6. The plaintiffs are, therefore, held to be owners in 7 possession of the suit land comprised in Khasra No.1443, which is the suit land in question. 11. In view of the above discussion, the judgements and decrees of both the Courts below are set-aside. The suit of the plaintiffs is decreed and they are held to be owners in possession of the suit land comprised in Khewat Khatauni No.33 Min/89 bearing Khasra No.1443 measuring 0-28-28 hectares situated in village Tapon, Illaqua Badhrota, Tehsil Sarkaghat, Distt. Mandi. Decree sheet be prepared accordingly. No costs. 11th April, 2011 ( Deepak Gupta ) ™ Judge.