IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 102 of 1999 Reserved on: 7.4.2011. Date of decision : 13.6.2011. Jagdev Singh …Appellant. Versus Smt. Bhagwanti and others …Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting?1 Yes. For the Appellant: Mr. Sanjeev Kuthiala, Advocate. For the respondents: Mr. G.D.Verma, Sr. Advocate 1 to 28 with Mr. B.C.Verma, Advocate. Deepak Gupta, J. 1. By means of this Regular Second Appeal filed under Section 100 CPC, the appellant (here- in-after referred to as the defendant) lays challenge to the judgement dated 8.1.1999 passed by the learned Additional District Judge (1), Kangra at Dharamshala, Camp at Una in Civil Appeal No. 154 of 1992 whereby he allowed the appeal of the plaintiffs and set-aside the judgement and decree dated 15.9.1992 delivered by the learned Sub Judge 1st Class, Amb 1 Whether the reporters of the local papers may be allowed to see the Judgment? yes. 2 dismissing the suit of the plaintiffs and consequently passed a decree in favour of the plaintiffs declaring them to be owners in possession of the suit land and further held that the entries showing the defendants in possession of the suit land are null and void. 2. Briefly stated the facts of the case are that the plaintiffs filed a suit claiming that they alongwith proforma respondents No. 5 to 9 and prior to them their predecessors-in-interest were in possession of the suit land as tenant on payment of rent and that they have become owners of the suit land by virtue of the provisions of the H.P. Tenancy and Land Reforms Act. According to the plaintiffs, they never relinquished their tenancy rights and continue to be in possession of the same. The learned trail Court on consideration of the oral and documentary evidence held that the plaintiffs are neither owners of the suit land nor in possession of the same and therefore, dismissed the suit. The plaintiffs filed an appeal and the learned lower Appellate Court allowed the appeal and held that the plaintiffs were tenants of the suit land and had never 3 relinquished the tenancy and therefore, declared them to be owners in possession of the suit land. 3. One of the defendants filed the present appeal, which was admitted on a number of questions of law. However, on consideration of the entire case, I am of the view that the only question which arises are: 1. Whether the presumption of truth attached to earlier entries in the revenue record is rebuttable and when the earlier entries are changed should reliance be placed on the later record or on the earlier record ? 2. Whether presumption of truth attached to entries of tenancy when changed without placing on record the order of correction are deemed to have been changed in accordance with law ? Documentary Evidence:- 4. The plaintiffs have filed five documents. Ext.P-1 is a copy of the Jamabandi for the year 1912-13. In the ownership column, the land is shown to be Shamlat land meaning thereby that it was owned by the village proprietary body. In the column of possession, a number of persons were shown to be in possession over various shares 4 including the predecessors-in-interest of the plaintiffs. The second document placed on record is Ext.P-2, which is a copy of Jamabandi for the year 1935-36. In the column of ownership, a number of persons including Sohan Singh predecessor-in-interest of the defendants is shown to be owner. Similarly, there are number of persons shown to be in possession and Rijhu predecessor-in-interest of the plaintiffs is also shown to be in possession of a portion of the suit land. Similar entries are in the Jamabandi for the year 1961-62, copy of which has been exhibited as Ext.P-3. 5. Ext.P-4 is the copy of the Jamabandi for the year 1966-67. In this a large number of persons are shown to be joint owners but possession is shown to be of Sohan Singh, predecessor-in- interest of the defendants alone. None else is shown in the column of possession. Ext.P-5 is the copy of a Jamabandi for the year 1982-83 and Jai Singh and Balwant Singh are shown to be owners. In the column of possession Pritam Singh S/o Sohan Singh and Mukhtayar Singh, Balwant Singh sons of Sohan Singh are shown to be in possession of the suit land. 5 6. In Ext.P-1 to Ext.P-3 the persons in possession are shown to be as gairmarusee i.e. non-occupancy tenant and rent is shown to be Rs.16/- in Ext.P-1, Rs.5/- in Ext.P-2 and no rent is shown in Ext.P-3. In Ext.P-4 there is no entry of rent and in Ext.P-5 rent is shown to be Rs.25/-. It would also be pertinent to mention that this land is shown to be uncultivable jungle in Ext.P-1 to Ext.P-4, uncultivable Charand and uncultivable Khad in Ext.P-5. The defendants have only produced one document, which is a copy of missal haqiat for the year 1990-91 but defendants have failed to connect this missal haqiat to the land in question. Oral Evidence: 7. Plaintiff No.23 Nank Chand appeared as PW- 1. According to him, his predecessors-in-interest were tenants on the land and after the death of their predecessors the plaintiffs are in possession of the land as tenant at rent of Rs.16/- per annum. He stated that they are in fact in possession of the suit land and have never left possession of the same. It was further alleged that defendant Balwant Singh, who was a Patwari manage to get the revenue entries changed and 6 introduced his sons and nephews as tenants on the suit land. According to him, they came to know about this in the year 1985 and thereafter the suit was filed. In cross-examination, he admitted that the land has never been cultivated and about 50 kanals is covered by Khads and the rest consists of Ghasnees and on this cattle go to graze. A number of pine trees are there on the land also. 8. The learned trial Court relied upon statement of this witness wherein he stated that in case the defendants give up possession of the land then there will be no dispute. He also admitted that since the defendants do not leave the land, therefore, they have been compelled to file the suit. He also admitted the suggestion that they had filed the suit since entries are in favour of their ancestors and therefore, they want that the land should come to them. PW-2 Madan Lal states that the land is in possession of the plaintiffs but in cross-examination, he admitted that in case the defendants leave possession of the suit land then no dispute will be left between the parties. 9. PW-3 Ghaseetu Ram in examination-in-chief stated that the plaintiffs are in possession of the 7 suit land but he also admitted that in case the defendants leave the possession of the suit land in favour of the plaintiffs then no dispute shall be left. 10. On the other hand, Balwant Singh appeared as a sole witness for the defendants. According to him, the plaintiffs were never in possession of the suit land and were never tenants over the same. The suit land is a forest and a management committee looks after the same. In cross- examination, he states that his brother Jai Singh and his sons were not his tenants but shown as such in the revenue record. This is the entire evidence led by the parties. 11. Shri Sanjeev Kuthiala, learned counsel for the defendants submits that it is the later entries in the revenue record which have to be relied upon and no reliance can be placed on the earlier entries. He also submits that oral evidence does not support the plaintiffs and there could have been no tenancy over forest land and admittedly when the land was uncultivable there could have been no tenancy. He has drawn my attention to a number of judgements. 8 12. In Hem Singh (died) represented by L.Rs vs. Mehnga Singh and others, 1982 P.L.J 15, a learned Single Judge of the Punjab and Haryana High Court held that unless later entries are shown to be incorrect no value can be attached to entries in the earlier Jamabandi. According to this judgement, it is for the person trying to relying upon the earlier Jamabandi to show that the later jamabandies were affected without any sufficient cause or legal order. 13. In Narain Dass and others vs. Bhup Singh and others, 1997(3) Sim.L.C. 380, a learned Single Judge of this Court held that tenancy is created by an agreement and the person claiming to be a tenant has to place on record clear cut evidence of his right of tenancy. The judgement in Jai Kishan and others vs. Saran Dass and others, 1998(1) Shim.L.C. 398, has no applicability to the facts of this case. 14. A learned Single Judge of this Court in Lal Chand and others vs. Pala, 1998 (2) S.L.J. 1526, also held that legal presumption of truth is attached to latest entries but this presumption is rebuttable. He further went on to hold that if change in entry is made without any authority and 9 without following the procedure followed by law then no presumption is attached to the subsequent entries. The learned Single Judge has also held that a party claiming status of tenant must not only prove the alleged agreement of tenancy but plead the same. 15. The latest judgement relied upon by Shri Sanjeev Kuthiala, Advocate, in State of H.P. and others vs. Ajay Vij and others, 2011 (1) Him.L.R. 417, wherein a learned Single Judge of this Court held that a tenancy is a creation of contract between the parties which is required to be pleaded and proved. 16. On the other hand Shri G.D.Verma, learned Senior Counsel appearing on behalf of the respondents-plaintiffs relied upon the judgement of the Apex Court in Durga (deceased) and others vs. Milkhi Ram and others, 1969 P.L.J 105, wherein the Apex Court upheld the observations of Justice Grover of the Punjab High Court that if there is no order of the revenue authorities showing how the change was made then though the presumption would be in favour of the later entries but that presumption was a rebuttable one and would stand rebutted by the fact that the 10 alteration in the entries was made unauthroisedly or mistakenly, there being no material to justify the change in the entries. These observations were upheld by the Apex Court while dismissing the appeal. 17. A single Judge of the Punjab and Haryana High Court in Resham Singh and others vs. Paul Singh and others, 1969 P.L.J 207, held that jamabandies are mere piece of evidence and cannot become the basis of title. A single Judge of this Court in Shyam Lal vs. Johli and Ors, 1995(1) CLJ (HP) 635, held as follows:- “32. There is nothing on record to suggest that the Patwari while changing the entry in the name of the plaintiff in the year 1967, so any change made without any enquiry, behind the back of the tenants, without any order from any competent authority, will not be competent in the eye of law and has to be ignored. 33. The change in entry in the year 1967 being without any authority, will have no legal force at all and as a consequence thereof the subsequent entries made on the basis of that change in favour of the plaintiff stood legally rebutted.” 11 18. Similar view was taken in Lal Chand and others vs. Pala 1999(2) Cur.L.J(H.P) 415 and Suresh Chand and others vs. Gurdas Ram and others 2004(1) Cur.L.J (H.P.) 155. 19. Each case has to be examined on its own facts. Entries of tenancy which are in existence for a long time can themselves show that such entries are proof of the tenancy themselves. In the present case there was a clear cut pleading by the plaintiffs of tenancy. They also proved on record the documents Ext.P-1 to Ext.P-3, which showed the existence of the tenancy. In Ext.P-4, which is of the year 1966-67, Sohan Singh is shown to be the person in possession. The question which arises is whether this entry which was made in the year 1966-67 should be relied upon or not because admittedly thereafter the possession was shown of the defendants only. 20. The learned trial Court while appreciating the oral evidence held that since the plaintiffs had admitted the possession of the defendants they could not be held to be in possession of the suit land. The learned lower Appellate Court set-aside these findings on the ground that the statements of the parties should be read as a whole. This 12 may be true but there is no denial to the fact that the plaintiff as well as their witnesses have in no uncertain terms virtually admitted the possession of the defendants by saying that in case the defendants hand over the possession then there shall be no dispute left between the parties. 21. Another important factor in this case is that the first entry showing the defendants or their predecessors-in-interest to be in possession was incorporated in the year 1966-67. The suit was filed in the year 1985 and thus the entries in favour of the defendants were continuing for almost two decades and these entries showed the defendants to be in possession of the suit land. The tenancy, if any, of the plaintiffs was not in favour of the plaintiffs alone but in favour of a large number of persons. The predecessors-in- interest of the plaintiffs were not in exclusive possession of the entire land measuring 243-11 kanals. It appears that a large number of co- villagers were shown to be in possession and a formal entry showing them to be tenants was made. There could have, in fact, been no tenancy over the land which admittedly is uncultivable. In Ext.P-1 to Ext.P-3 a large number of persons are 13 shown to be owners and similarly a large number of persons are shown to be in possession. However, in Ext.P-4 only Sohan Singh is shown to be in possession of the suit land. No doubt, there is no material on record to show how this change in the entry was recorded but keeping in view the nature of the suit land and the fact that Sohan Singh was one of the co-owners, it cannot be said that this entry is wrong. As far as Ext.P-5 is concerned sons of Sohan Singh and the family members themselves are shown to be sole owners. This entry is of the year 1982-83. Therefore, entry in favour of Sohan Singh was incorporated for the first time prior to year 1966-67. There is some legitimacy attached to these entries of more than two decades. Further more entries in the revenue record are just pieces of evidence. The plaintiffs have failed to show that how and in what capacity they were tenants. Even assuming that their predecessors were tenants, the plaintiffs themselves have failed to lead any evidence to show that they are actually in possession of the suit land. The learned lower Appellate Court totally misdirected itself and misread the oral and documentary evidence which clearly showed that 14 the plaintiffs had virtually admitted that the defendants were in possession of the suit land. There can be no tenancy without possession and, therefore, the learned trial Court was justified in holding that the plaintiffs have failed to show that they are owners in possession of the suit land. 22. In view of the above discussions, both the questions are answered in favour of the defendants and against the plaintiffs. The appeal is accordingly allowed. The judgment and decree of the learned lower Appellate Court is set-aside and that of the learned trial Court is restored. No costs. 13th June, 2011 ( Deepak Gupta ) ™ Judge.