HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 501 of 2000 Reserved on: 6.10.2010 Decided on: 28.10.2010 Kailash Chand and others ……Appellants. Versus Romesh Chand ………Respondent Coram The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the appellants: Mr.Ajay Sharma, Advocate. For the respondent: Mr.Neeraj Gupta, Advocate. V.K. Ahuja, J.: This is a regular second appeal filed by the appellant/plaintiffs under Section 100 of the CPC against the judgment and decree, dated 20.6.2000, passed by the learned District Judge, Una, H.P., vide which, he affirmed the judgment and decree passed by the learned Sub Judge, Court No.2, Una, dated 29.5.1996, dismissing the suit of the plaintiff for declaration and permanent injunction. 2. Briefly stated, the facts of the case are that the appellants, hereinafter referred to as the plaintiffs, filed a suit for declaration and for permanent injunction as against the respondent, hereinafter referred to as the defendant. It was alleged by the plaintiffs that they are owners in possession of the land measuring 8 kanals 0 marlas comprised in Khasra No.R.63/14, as entered ______________________________ Whether reporters of local papers may be allowed to see the judgment? Yes. - 2 - in the jamabandi for the year 1981-82. It was alleged that the entry in the name of the defendant incorporated in Rabi 1976 in the Khasra Girdavari and subsequent jamabandi for the year 1981-82 showing him tenant at will are absolutely wrong, incorrect and illegal, hence the suit for declaration and for injunction filed by the plaintiffs. 3. The defendant pleaded that the land has been coming in his possession since long but during consolidation, he learnt that the tenancy has not been recorded in the revenue papers and the matter was brought to the notice of the Revenue Authorities, who after due spot inspection and verification, recorded the defendant as tenant of the suit land in the presence of the plaintiffs. It was also pleaded that the defendant is coming as owner in possession of the suit land, hence the suit is liable to be dismissed. 4. On the pleadings of the parties, the following issues were settled by the learned trial Court: “1. Whether the plaintiffs are owners in possession of the suit land as alleged? OPP 2. Whether the revenue entries contrary to the plaintiffs’ interest to the suit land are illegal, null and void? OPD 3. Whether the suit is without any cause of action as alleged? OPD 4. Whether the suit is not maintainable in the present form as alleged? OPD 5. Whether the plaintiffs have no locus standi to file this suit as alleged? OPD - 3 - 5-A. Whether the defendant has become the owner of suit land by way of adverse possession if his tenancy is not proved? OPD 6. Relief.” 5. The parties led their evidence and the learned trial Court vide its judgment, dismissed the suit of the plaintiffs in full. On appeal, those findings were affirmed by the learned Appellate Court. 6. I have heard the learned counsel for the parties and have gone through the record of the case. 7. The submissions made by the learned counsel for the appellants were that they were duly recorded owners in possession of the suit land. The entry was corrected on the basis of change effected in Rabi 1976 in the Khasra Girdavari and thereafter all the subsequent entries showing the defendant as tenant are wrong and without any basis and hence these are liable to be not relied upon. It was also submitted that there is no order of competent authority on record and as such the plaintiffs were entitled to the relief claimed by them. 8. On the other hand, the submissions made by the learned counsel for the respondent were that there are long standing entries in favour of the defendant showing him as a tenant in possession. The presumption of correctness attached to the later jamabandi entries does not stand rebutted since the initial burden was upon the plaintiffs to prove that the order passed was without any basis, which burden has not been discharged. Hence the - 4 - plaintiffs were rightly held not entitled to the relief claimed by them. 9. On appraisal of the record of the case, it is clear that the appeal was admitted by this Court on four substantial questions of law. The main question was as to whether the courts below have misread and mis-appreciated the evidence and that the courts below have erred in attaching presumption of truth to the revenue entries which were not made in accordance with law. The appeal was also admitted on the substantial question of law that the payment of rent is a sine qua non, but both the courts below have failed to look into this aspect of the case. 10. On appraisal of the record of the case, it is clear that that the plaintiffs filed the suit on 18.1.1990. He filed alongwith the plaint a copy of the jamabandi for the year 1973-74, which showed that the plaintiff was in possession of the land. The copy of jamabandi Ext.D-2 for the year 1981-82 shows that the defendant was entered as a tenant under the plaintiffs and it was mentioned in Column No.9 that 1/4th of the produce was being paid. Ext.D-3 is the copy of settlement, which shows that the suit land was entered in possession of the defendant as tenant. Ext.D-5 is the copy of Khasra Girdavari from Rabi 1994 onwards which shows the name of the defendant in possession as a tenant. Ext.D-4 is the copy of Khasra Girdavari from Rabi 1993 to Kharif 1995, which also shows the same entries. - 5 - 11. The earliest copy of jamabandi placed on the record by the plaintiffs is Ext.P-1 for the year 1966-67 which is not for the suit land. Ext.P-2 is the copy of jamabandi for the year 1973-74, which shows the names of the owners in possession of the suit land. Ext.P-3 is the copy of jamabandi for the year 1981-82, which shows the same entries as in Ext.D-2, in favour of the defendant. Ext.P-4 is the copy of Rojnamcha, dated 8th May, 1976, which does not pertain to the suit land. Ext.P-5, which is copy of Khasra Girdavari from Rabi 1974 to Rabi 1976, shows that change has been effected in favour of the defendant as tenant. 12. It is clear from the above discussion that the earliest jamabandi placed on record by the plaintiff was for the year 1973-74 and not prior to that and this copy only showed the name of the plaintiffs as owners in possession of the suit land. Thereafter, the change has been shown in Khasra Girdavari and on that basis correction was made in favour of the defendant and in the subsequent copies of jamabandi for the year 1981-82 during settlement and for the year 1994-95, the name of the defendant appears as a tenant. Thus, there is only one entry in favour of the plaintiffs and in the later copies of jamabandi for the year 1981-82 onwards till 1994-95, the defendant has been duly recorded in possession as tenant. The defendant has been able to show that the basis of the entry was a change recorded in Khasra Girdavari and the same was carried out in jamabandi thereafter, which is reflected in jamabandi - 6 - for the year 1994-95. The plaintiff filed the suit in the year 1990 and he was well aware of the entries which did not show him in possession of the suit land, but showed the defendant in possession as a tenant. Even after knowing the entries which are not in his favour, the plaintiffs never filed any application for correction of the entry in the revenue record and rather after many years of the change reflected in copy of jamabandi for the year 1981-82 onwards, he filed the present suit in the year 1990 and claimed that he was in possession of the suit land and was entitled to the relief of permanent injunction. However, no relief for possession, in the alternative, was also claimed by the plaintiffs, if they were proved to be not in possession of the suit land. 13. To substantiate his submissions that the plaintiffs were entitled to the relief of declaration and injunction, the learned counsel for the appellants had relied upon the decision in Sir Bhimeshwara Swami Varu Temple versus Pedapudi Krishna Murthi and others, AIR 1973 Supreme Court 1299, wherein it was observed 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 is inadequate.” 14. Reliance was also placed in Rajinder Kumar and another versus Bhag Singh, 1996(1) S.L.J. 215, wherein - 7 - entry in settlement was recorded regarding possession without status. It was held that it will not carry any legal weight whatsoever. This decision is not attracted to the facts of the present case because the entry of possession in favour of the defendant has not been recorded without any status, but on payment of 1/4th of the produce. 15. Reliance was also placed on the decision in Shyam Lal versus Johli and others, 1995(3) S.L.J. 1806, wherein it was held that 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. 16. Reliance was also placed upon the decision in Kanshi Ram versus Nikka Ram, 1988 S.L.J. 264, wherein it was held that no inquires were held by the Revenue Officer while making entries in the revenue record. Therefore, the entries were held to be illegal. The claim of the plaintiff that the defendant got the entries inserted in the revenue record by colluding with the Consolidation Officer held sustainable. 17. Coming to the change effected in the entries, the presumption of correctness is attached to the later jamabandi entries until and unless it is shown that the later entries were changed in the revenue record without any basis. Initially, the burden is upon the plaintiffs to show that the change was effected without any basis. It was for the plaintiffs to have rebutted the presumption of correctness attached to the later jamabandi - 8 - entries showing the defendant as tenant for which he has failed for the reasons given here-in-below. It is clear that on the basis of the change incorporated in the Khasra Girdavari, the later entries were changed and it was for the plaintiffs to have shown that there was no basis for the change. The entries incorporated during settlement also show the defendant in possession as a tenant and not without any status. The proceedings during settlement are conducted in detail and thereafter the entries are recorded, which shows that the defendant was in possession of the suit land. Therefore, it cannot be said that one entry showing the plaintiff in possession does not stand rebutted by the later entries right from the year 1981-82 upto the year 1993-94. The said entries were never challenged by the plaintiffs at any time. 18. Apart from this, it cannot be ignored that one of the plaintiffs, who appeared in the witness box as PW-1 Kailash Chand had clearly admitted in his statement that apart from the suit land, the defendant was also the tenant of other land including the suit land and this admission made by the plaintiff that he was also a tenant of the suit land cannot be ignored. He admitted that the rent was being collected for the other land also but no receipts were being issued and, therefore, non-production of receipts in question does not affect the case of the defendant. The plaintiff also admitted that he was serving at Delhi for the last 25 years and the rent was being colleted by his brother Raghbir Chand, who was living in - 9 - the village but the said Raghbir Chand was never examined to prove that he had not been collecting the rent for the suit land or the defendant was not in possession of the suit land. The initial burden was upon the plaintiff in which he failed and rather admitted that the defendant was in possession and once the plaintiffs were out of possession, they could not file the suit for declaration when no prayer was made in the alternative for possession also. Both the courts below have come to the conclusion that the plaintiffs were out of possession and were not entitled to the relief and those findings of fact recorded by both the courts below rather do not call for any reappraisal of the evidence but since the appeal was admitted on this substantial question of law, the evidence has been appreciated. I do not find any reason to differ with the findings recorded by both the courts below that the plaintiffs were out of possession and were not entitled to the relief claimed by them. 19. In view of the above discussion, I accordingly hold that there is no merit in the appeal filed by the appellant, which stands dismissed. However, the parties are left to bear their own cost. Oct.28, 2010. (V.K. Ahuja), (TILAK) Judge.