IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 163/1999 Reserved on:8.5.2009 Decided on: 5.6. 2009 Om Prakash and others. …Appellants. Versus Sunita and others. …Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. No. For the appellants : Mr. Bhupinder Gupta, Senior Advocate with Ms. Charu Gupta, Advocate. For the Respondents : Mr. Rakesh Jaswal, Advocate. Rajiv Sharma, J. This Regular Second Appeal has been directed against the judgment and decree dated 1.7.1998 passed by the learned District Judge, Bilaspur in civil appeal No.64 of 1986. Brief facts necessary for the adjudication of this Regular Second Appeal are that the predecessor-in-interest of the appellants-plaintiffs (hereinafter referred to as ‘the plaintiff’ for convenience sake) filed a suit in the court of Sub Judge 1st Class, Ghumarwin for permanent prohibitory injunction restraining the respondents-defendants (hereinafter referred to as ‘the defendants’ for convenience sake) from interfering in peaceful 1 Whether the reporters of Local Papers may be allowed to see the judgment? No. 2 possession of the land comprised in Khasra No. 937 measuring 11-3 bighas situated at village Takrehra. He had alleged that Sewak Ram was the owner of the suit land who inducted him as a tenant on payment of 1/4th share of the produce in lieu of the rent. The mutation of inheritance has been attested in favour of the defendants after the death of Sewak Ram. They had interfered in the suit property. The suit was contested by all the defendants except Smt. Mathru Devi, who is the wife of the plaintiff. She had admitted the claim of the plaintiff. The defendants stated that the plaintiff was never inducted as a tenant by Sh. Sewak Ram and he was not paying 1/4th share of the produce. The learned trial court dismissed the suit on 25.5.1984. The plaintiff preferred an appeal against the judgment and decree dated 25.5.1984 passed by the trial court before the learned District Judge, Bilaspur. The learned District Judge, Bilaspur dismissed the appeal. This Regular Second Appeal has been filed against the judgment and decree dated 1.7.1998. The same was admitted on the following substantial questions of law: 1. “Whether the learned Lower Appellate Court has erroneously dismissed the application moved by the plaintiff-appellant for leading secondary evidence when existence of the documents sought to be proved was duly established on the record and it was further proved that such record is not traceable now? 2. Whether both the learned courts below have ignored the documentary evidence on the record which show consistently the possession of the plaintiff/appellant as a tenant on payment of rent to the land owners, could such documentary evidence be ignored without giving any sufficient ground for not accepting the same? 3. Whether the judgment and decree passed by the courts below are vitiated in not considering the effect of Ex.PA, the affidavit of Smt. Mathru, defendant-respondent No.3 3 denoting the occupation of the plaintiff-appellant over the suit property as a tenant?” Mr. Bhupender Gupta, Senior Advocate has strenuously argued that the judgments and decrees passed by both the courts below are not sustainable. He then contended that his client has proved the tenancy over the suit land. Mr. Rakesh Jaswal, Advocate has supported the judgments and decrees passed by both the courts below. I have heard the learned counsel for the parties and perused the record carefully. Since all the substantial questions of law are inter-linked and inter connected, therefore, the same are being taken up together for determination to avoid repetition of discussion of the evidence. The whole case of the plaintiff is that he had been serving his father-in-law and in lieu of that he was inducted as a tenant. After the death of Sewak Ram, he had started paying the Lagan to the defendants. He has placed strong reliance upon the copies of jamabandis for the year 1973-74 Ex.PB, 1978-79 Ex.PA/1 to Ex.PA/4 and copy of Khasra Girdawari Ex.PC. He has nowhere mentioned in the plaint that he was inducted as a tenant on the payment of ¼ Galla Batai to Sewak Ram. He has simply mentioned in the plaint that he was non-occupancy tenant in possession of the suit property on payment of 1/4th share of the produce to the defendants. While appearing as PW-1 he has stated that he was inducted as a tenant by Sewak Ram. He has admitted that all the three brothers had been looking after Sh. Sewak Ram. He has failed to produce any receipt either issued by Sh. Sewak Ram or by any other defendant. He has strongly relied upon Ex.PA, which was executed by his wife. This is dated 26.2.1982. 4 In the Jamabandi for the year 1973-74 Ex.PB though the name of the plaintiff is recorded as non-occupancy tenant, however, the column of rent is blank. It was necessary for the plaintiff to prove that he had been paying the rent to Sh. Sewak Ram. There is no presumption of truth attached to Khasra Girdawari Ex.PC. Ex.PA, the affidavit of Smt. Mathru Devi, has rightly been discarded by both the courts below. It was scribed by Shyama Nand Soni. He has admitted that he did not know Mathru personally. He has admitted that she was identified by Sh. Bal Krishan Lambardar. There is no explanation on record why he has not been produced. In jamabandi for the year 1978-79 though the plaintiff has been shown as tenant and in column of rent ¼ share of produce has been mentioned, but this entry is contrary to the earlier entry made in the copy of jamabandi for the year 1973-74 where the column of rent was kept blank. The plaintiff has failed to prove when he was inducted as a tenant by Sh. Sewak Ram. He has also failed to prove that any rent was paid to Sh. Sewak Ram. He also could not prove when he started paying the rent to other defendants. A bare perusal of Ex.PB, copy of jamabandi for the year 1973-74 reveals that though the plaintiff has been recorded as tenant, however, the column of Lagan/rent is blank. Rather a note has been made to the effect that the owner was lunatic thus could not become owner. In Ex.PA/1 and Ex.PA/4, the plaintiff has been recorded as tenant on payment of 1/4th produce to the owner. However, the entries made in Ex.PB and Ex.PA-1 to PA-4 are contrary to each other. Mr. Bhupender Gupta, Senior Advocate has also strenuously argued that the presumption of truth is attached to the latest revenue entries. It is also true that the revenue entries can be altered/changed 5 only on the basis of orders passed by the competent Revenue Officer. In the present case, the plaintiff has not led any tangible evident to establish that the changes were effected on the basis of orders passed by the Revenue Officer. It is true that there is presumption attached to the later entries, however, the same is rebuttable. In the present case, in the earlier document i.e. Ex.PB, the column of rent was blank. However, the entries have been changed for the same year 1973-74 and 1978-79 whereby entry has been recorded in the column of rent that the plaintiff has been paying 1/4th produce to the owner. How these entries have been made has not been explained. Their Lordships of the Hon’ble Supreme Court in Durga (deceased) and others versus Milkhi Ram and others, PLJ 1969 -105 have held as under: “Admittedly there is no order of the revenue authorities showing how the change was made. Thus although the presumption would be in favour of the later entries but that presumption was a rebuttable one and it would stand rebutted by the fact that the alteration in the entries in 1929-30 was made unauthorizedly or mistakenly, there being no material to justify the change of entries.” Mr. Gupta, learned Senior Counsel also argued that in fact the Revenue Officer has directed the correction of revenue entries vide order dated 25.8.1965. He has also relied upon Ex.PX-1. He further contended that in fact the plaintiff had moved an application on 22.1.1998 for holding an inquiry to trace the file whereby the correction of the revenue entries titled Amar Nath versus Sewak Ram was ordered. Sh. Vipin Kumar, Clerk from the office of the Sub Divisional Magistrate, Bilaspur had brought the case register from 25.8.1965 to 28.5.1966. According to him, no case 6 titled Amar Nath versus Sewak Ram was entered and no such file was available on record. In case there was any order passed by the Revenue Officer as argued by Mr. Gupta, the copy of the same was required to be placed on record by the plaintiff. In fact, no entry was available on record. Mr. Gupta has also argued that the entry to this effect was also recorded in Khasra Girdawari for the year 1964 to 1969. There is no presumption of truth attached to Khasra Girdawari. In these circumstances, both the courts below have correctly appreciated the oral as well as documentary evidence led by the parties. Accordingly, in view of the aforesaid discussion, there is no question of law much less substantial question of law involved in the Regular Second Appeal and the same is dismissed. There shall, however, be no order as to costs. 5.6. 2009 (Rajiv Sharma ), J. *awasthi*