IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A.No. 251 of 2000. Decided on : 3.5.2010. Jagdish Chand and others …Appellants. Versus Savitri Devi and another …Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 No For the appellants : Ms. Vidushi Sharma, vice Mr. R.K.Sharma, Advocate. For the respondents : Pt. Om Parkash Sharma, Advocate. Kuldip Singh , Judge (Oral) This appeal has been directed against the judgment, decree dated 18.3.1999 passed by the learned Additional District Judge (I), Kangra at Dharamshala in Civil Appeal No. 39-N/1998 reversing the judgment, decree dated 12.3.1998 passed by the learned Sub Judge (II), Nurpur in Civil Suit No. 260 of 1992. 2. The facts, in brief, are that respondents had filed a suit for possession against Girdhari Lal predecessor-in-interest of appellants 1(a), 1(b) and appellant No.2 on the grounds that they are owners of the land comprised in Khata No. 106 min, Khatauni No. 151, khasra Nos. 3881, 3887, 3888 plots 3, measuring 815-70 sq.mtrs. vide Missal Haquiat Bandobast Jadid Sani for the year 1987- 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes 2 88, situated in Up-Mohal Rampuri, Mauza Nurpur Town, Tehsil Nurpur, District Kangra (hereinafter referred to as suit land). The further case of the respondents is that suit land was never given to appellants for cultivation or otherwise by the respondents nor they were inducted as tenants. The respondents are illiterate ladies. The appellants by taking undue benefit of their illiteracy in connivance with the settlement officials during the settlement operation in the month of May, 1987, forcibly trespassed into the suit land and took possession by cultivation. The possession of appellants is without any legal status since May, 1987. The appellants were requested to handover the possession back to the respondents of the suit land. In the beginning the appellants pretended that they would vacate the suit land but it was found lateron that they in connivance with the settlement officials got their names recorded as Kabizan over the suit land. The appellants have no right, title or interest in the suit land. In these circumstances, the suit was filed. 3. The suit was contested by appellants by filing written statement and they have taken preliminary objections of maintainability, they are owners in possession of the suit land, lack of cause of action and valuation as well as jurisdiction of the Court. On merits, the appellants denied the case of the respondents and reiterated that the appellants are owners in possession of the suit land. It was also pleaded that suit land is part and parcel of Khasra No. 788, Abadi Tika of Tika Lagore, Mauza Gain Lagore at present Up Mohal Rampuri, Mauza Nurpur Shahr as per Missal Haquiat for the year 1987-88. The appellants are coming in possession of the suit land since time immemorial and thus are full owners of the suit land 3 with possession. It has been alleged that respondents in connivance with the settlement staff wrongly recorded themselves as owners in the column of ownership and further got recorded themselves as Kabiz over the suit land inspite of the fact that appellants are owners in exclusive possession of the suit land. The settlement in the Abadi Tika of Up Mohal Rampuri Mauza Nurpur Town has been challenged in the High Court and the stay has been granted against the settlement operation by the High Court. The appellants prayed for dismissal of the suit with special costs. The respondents filed replication, they denied the stand taken by the appellants and reiterated their case. 4. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiffs are owners of the suit land? OPP 2. If issue No.1 is proved in affirmative, whether the defendants are in un-authorised possession of the suit land and the plaintiffs are entitled to recover possession of it? OPP 3. Whether the suit is not maintainable in the present form?OPD 4. Whether the plaintiffs have got no cause of action to sue the defendants? OPD 5. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction, if so, what is the correct valuation of the suit property? OPD 6. Relief. 5. The issues No.1, 2, and 5 were answered in negative and issues No. 3 and 4 in affirmative and the suit was dismissed by the learned Sub Judge on 12.3.1998. The decision dated 12.3.1998 was assailed in appeal. The learned Additional District Judge (I), 4 Kangra at Dharamshala allowed the appeal on 18.3.1999 and decreed the suit of the respondents for possession of the suit land. The judgment, decree dated 18.3.1999 has been assailed now in the second appeal which has been admitted on the following substantial questions of law:- 1. That whether the learned first appellate Court was justified in allowing the plaintiffs to adduce the additional evidence, at the appellate stage? 2. That whether the order Ex.A/1, copy of the order dated 13.4.1987 passed by the Settlement Collector, Dharamshala in file No. 134/87/80 without hearing the defendants is valid? 6. I have heard Ms. Vidushi Sharma, learned counsel for the appellants and Mr.Pt. Om Parkash Sharma, learned counsel for the respondents and have also gone through the record. It has been submitted on behalf of the appellants that the learned lower appellate court has erred in allowing the application under Order 41 Rule 27 C.P.C. for additional evidence. She has also submitted that the order dated 13.4.1987 Ex.A/1 in file No. 134/87/80 was passed without hearing the appellants and, therefore, the respondents cannot take benefit of order Ex.A/1. The learned Additional District Judge has erred in relying order Ex.A/1 while accepting the appeal and decreeing the suit of the respondents. The learned counsel for the respondents has supported the impugned judgment, decree. 7. The application for additional evidence was filed by the respondents in lower appellate Court. It was initially contested by the appellants but on 11.3.1999 when the application for additional evidence was taken up for consideration, on that date the learned counsel for the appellants stated at the bar that he has no objection 5 in case the documents proposed to be produced by way of additional evidence are allowed to be tendered and accordingly the documents Ex.A-1 to Ex.A-7 were taken on record. The costs ordered by the court was also paid to the learned counsel. In these circumstances, the substantial question of law No.1 is decided against the appellants. 8. Ex.P-3 is the copy of jamabandi for the year 1977-78 Tika Lagor, Mauza Gheri Lagor regarding khasra No. 788 which has been shown under the ownership and possession of Abadi Tika. There is an entry in remarks column in Ex.P-3 indicating that Khasra No. 788 has been merged in new Up-Mohal Rampuri vide decision dated 14.3.1988. Ex.P-2 is the copy of jamabandi Missal Haquiat Bandobast Jadid Sani for the year 1987-88 Up-Mohal Rampuri Mauza Nurpur (Shahr), in which the suit land is shown owned by the respondents and in possession of Girdhari Lal predecessor of appellants 1(a), 1(b) and appellant No.2. The old khasra No.788 min of the suit land has also been mentioned in Ex.P-2. It is thus clear that the suit land has been carved out from old khasra No. 788. Ex.D-2 is the copy of jamabandi 1992-93 No.Hadbast 163, Lagor, Mauza Gehri Lagor, Tehsil Nurpur, District Kangra showing khasra No. 530, 531, 532 owned and possessed by Girdhari Lal but the land mentioned in khasra No. Ex.D-2 has nothing to do with the suit land. Ex.D-3 (Ex.A-1) is a copy of order vide which the respondents have been shown owners of the suit land besides other land. Ex.A-7 is the copy of letter dated 26.2. 1999 indicating that CWP No.691 of 1993 Raj Kumar and another Vs. State & Others and CWP No. 79 of 1998 6 Rattan Singh and others Vs. State were dismissed on 23.2.1999 by the High Court. 9. PW-1 Durga Dass has admitted that the residents of Gehri-Lagor had filed writ petition in the High Court regarding the settlement. He has also stated that the High Court had also granted the stay. The respondents have placed on record letter dated 26.2.1999 indicating that two writ petitions were dismissed by the High Court on 23.2.1999. It is not the case of the appellants that the writ petitions mentioned in letter Ex.A-7 were not the writ petitions filed by the residents challenging the settlement. 10. The appellants in the written statement have not challenged the order dated 13.4.1987 Ex.D-3 vide which Settlement Collector recorded the ownership of respondents on the suit land and other land, nor they have put up any counterclaim claiming therein title over the suit land. There is substance in the submission of learned counsel for the respondents that out of khasra No. 788, some land was recorded in the ownership of respondents and some land was recorded in the ownership of appellants. The land which was recorded in the ownership of the respondents was through Ex.A-1 (D-3) and land which was recorded in the ownership of appellants through Ex.A-4. The appellants are questioning Ex.A-1 (D-3) but they are accepting the order Ex.A-4. In these circumstances, the appellants cannot blow hot and cold in the same breath. 11. In any case the appellants have not challenged the order Ex.A-1(D-3), the respondents are recorded in possession of the suit land vide jamabandi Missal Haquiat Bandobast Jadid Sani for the year 1987-88 Ex. P-2. The respondents have also established that 7 entry showing their ownership of the suit land in Ex.P-2 has been made on the basis of order passed by the Collector vide Ex.A-1 (D-3). There is nothing worth believing material on record to show that Ex. D-3 was passed without hearing the interested persons. The presumption of truth is attached to jamabandi/Missal Haquiat and official acts unless rebutted. The appellants have not rebutted this presumption. The learned lower appellate court has rightly appreciated the material on record. There is no perversity in the impugned judgment, decree. The substantial question of law No.2 is decided against the appellants. 12. No other point was urged. 13. The result of the above discussion, the appeal fails and is accordingly dismissed with no order as to costs. ( Kuldip Singh ) Judge. May 3, 2010. (GR)