IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No.112 of 1999. Judgment reserved on:18.12.2009. Date of Decision: 24.12.2009 Brahma Nand (dead) through Ramesh Chand and others ..Appellants Versus Bishna and others ..Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for Reporting? No For the Appellant(s): Mr. Bhupinder Gupta, Senior Advocate with Mr.Neeraj Gupta, Advocate For the Respondent(s): Mr.K.D. Sood, counsel for respondents 1&2. Deepak Gupta, J. This Regular Second Appeal is directed against the judgment of the learned District Judge, Una in Civil Appeal No.17 of 1984 decided on 1.9.1998 whereby he upheld the judgment and decree passed by the Sub Judge, Ist Class, Una dismissing the suit of the appellants (hereinafter referred to as the plaintiffs). Briefly stated the facts of the case are that the plaintiffs filed a suit for issuance of permanent injunction restraining the defendants 1 to 5 from interfering in the possession of the plaintiffs or taking forcible possession of the suit land measuring 22 canals 9 marlas in village - 2 - Badehar Dehlan, Tehsil and District Una, H.P. In the alternative they prayed for a decree for possession of the suit land. In the plaint the plaintiffs claimed that they are in possession of the suit land as co-sharers in hissedari possession. According to them the defendants were trying to interfere in their possession and hence the suit. The defendants filed written statement alleging that the land in question was owned by the Panchayat and now the State of H.P. had become the owner of the land and it was necessary party to the proceedings. According to the defendants, the plaintiffs were never in possession of the suit land and the defendant No.1 was in actual possession of the same. They had constructed two chhapers on the land and sown the crops on the land in question. The learned trial court dismissed the suit holding that the plaintiffs were out of possession of the suit land from Rabi 1969 and since they had ceased to be the co- owners of the suit property which had vested in the State their suit would not lie. The learned lower Appellate Court dismissed the appeal filed by the plaintiffs. Hence, the present appeal. - 3 - I have heard Sh.Bhupinder Gupta, learned Senior Counsel for the appellants and Sh.K.D. Sood, learned counsel for the respondents 1&2. The main argument raised on behalf of the plaintiffs is that the change in the revenue entries was not made in accordance with the procedure prescribed by law and hence the entries showing the defendants in possession of the suit land cannot be relied upon. It is urged that the entries showing the defendant to be a tenant on the property are totally illegal and without any basis. Since the defendants have no right to be in possession even if the possession is that of the defendants, a decree of possession be passed in favour of the plaintiffs. My attention has been drawn to para 279 of the Punjab Settlement Manual which provides that the existing entry standing in the annual records can only be varied in subsequent records by making entries in accordance with the facts proved or admitted to have occurred or by agreement of all the parties or on the basis of a decree or other order binging on the parties. My attention has also been drawn to the instructions relating to the preparation of khasra girdwari register which provides for the manner of making correction in the - 4 - khasra girdwari. My specific attention is drawn to the instructions relating to the correction of revenue entries which provide that at the time of preparation or correction of jamabandi only a revenue officer in the rank of Naib Tehsildar or above may order the correction of wrong entry that has crept in the khasra girdwari after giving an opportunity of being heard to the parties concerned. Reference has also been made to Section 10-A of the H.P. Tenancy and Land Reforms Act, 1975 which provides that no entry showing a person to be tenant by succession under Section 45 shall be made in the order except through a mutation. It has also been urged that the correction of the entries could have been made only by Land Reforms Officer and none-else. There can be no dispute with the proposition that no presumption of truth is attached to the entries in the khasra girdwaries. In the present case it is not disputed that up to the year 1966-67 in all the jamabandies the plaintiffs were shown in hisedari possession of the suit land. The land in question was basically shamlat land which belongs to the village proprietary body and therefore the villager who has a right to possess such land, if he is in - 5 - occupation of any shamlat land is shown in joint possession of the shamlat land. Under the Punjab Village Common Lands Act, 1954 the shamlat land vested in the Panchayat. Thereafter, the ownership was recorded to be that of the Panchayat but the plaintiffs continued to be shown in possession of the land. However, during the bi-annual crop inspection for preparation of khasra girdwari for the first time when entry was made for the crop Rabi 1968, the defendants were shown in possession of the suit land. Thereafter, they continued to be shown in possession of the suit land in khasra girdwaries Exts.D-1, 2,3,4 and 10. However, when the jamabandi for the year 1971-72 Ext.P-1 was prepared the name of Bishna was not incorporated in the column of possession and again the plaintiffs were shown to be in hisedari possession of the suit land. It would be pertinent to mention that Bishna defendant moved an application before the Naib Tehsildar, Una on 16.4.1975 alleging that in the jamabandi his name should be shown to be in possession of the suit land. Thereafter, the suit was filed by the plaintiffs on 3.6.1975. In the proceedings before the Naib Tehsildar an order Ext.D-5 was passed wherein the Jamabandi for the - 6 - year 1971-72 was ordered to be corrected. In this order dated 23.7.1976 it was recorded that as per the spot inspection Bishna was in cultivating possession of the land and had sown vegetable crop on the land. He ordered correction in favour of Bishna. Thereafter, an appeal was filed to the Deputy Commissioner who dismissed the appeal vide order Ext.D-7 on 28.3.1979. Revision filed was dismissed by the Divisional Commissioner on 19.4.1982. Sh.Bhupinder Gupta has urged that the orders of the Revenue Courts were passed after the civil suit had been field and therefore they could not bind the civil court. He also submits that the corrections having not been made in accordance with the procedure laid down and as such no reliance on such entries can be made. Reliance has been placed on the judgments of this Court in Tulsa Singh vs. Agya Ram and others, 1994 (2) CLJ (HP) 584, Shyam Lal vs. Johli and others, 1995 (1) CLJ (HP) 635, Lal Chand and others vs. Pala, 1999 (2) Cur.L.J. (HP) 415, Smt.Kukhtiar Devi and others, vs. Smt.Gauran and others, 2000 (2) Cur.L.J. (HP) 158 and Surat Singh vs. F.C. (Appeals) and another, Latest HLJ 2008 (HP) 20. There can be no quarrel with the proposition of law that the correction in the revenue record must be made - 7 - after hearing both the sides. However, this does not mean that while recording possession the revenue authorities can totally ignore the factual situation on the spot. The purpose of recording the khasra girdwari is to depict the factual situation on the spot. In this case right from Rabi-1968 the defendant No.1 was shown in possession of the suit land in the khasra girdwari. There can be no manner of doubt that presumption of truth is not attached to the khasra girdwari. Presumption of truth is only attached to the record of rights such as the jamabandi. However, the presumption of truth attached to the record of rights is also a rebuttable presumption. In the present case one of the issues framed was whether the plaintiffs are in exclusive hissedari possession of the suit land as alleged. Issue No.2A was whether the defendant was in possession of the suit land. None of the plaintiffs chose to appear in the witness box. The defendant on the other hand not only appeared in the witness box but examined a number of witnesses to prove the fact that he was in possession of the suit land. This issue was decided by both the courts in favour of the defendants and they came to a finding of fact based on the evidence that it is the defendant who is in possession - 8 - of the suit land. In my opinion this pure finding of fact cannot be disturbed in a second appeal. Having said so the question which arises is in what capacity the defendants are in possession. In the revenue records it is mentioned that Bishna is a tenant paying rent. This cannot be so because in the suit no plea of tenancy was raised. The ownership of the plaintiffs was denied. A person cannot be a tenant under the person who he claims is not the owner. The ownership of the land initially vested in the Panchayat and later with the State Government. Therefore, the findings of both the courts below that the defendant was in possession as tenant on payment of rent is totally perverse. There is no evidence of payment of rent or creation of tenancy. The learned Courts below have totally mis-read the evidence in coming to this conclusion. As stated above the defendants themselves had not set-up the plea of tenancy in the written statement. In the absence of any such plea the defendants could not be held to be tenant. The next question which arises is whether the plaintiffs can claim possession of the suit land. It is urged by Sh.Bhupinder Gupta, learned counsel for the plaintiffs - 9 - that the plaintiffs have possessory title on the suit land and assuming they were dispossessed, they having been wrongly dispossessed are entitled to seek possession of the suit land. I am afraid, this contention cannot be accepted. The suit land was shamlat deh. Under the Punjab Village Common Lands Act it vested in the Village Panchayat. After coming into force of the H.P. village Common Lands Vesting and Utilization Act, 1974 the same vested in the State of Himachal Pradesh free from all encumbrances. The Himachal Pradesh Village Common Lands Vesting and Utilization Act, 1974 came into force on 29.8.1974. The suit was filed on 3.6.1975. By that time the suit land had vested in the State Government. The plaintiffs therefore had no title in the suit land and were not entitled to seek possession of the same. In view of the above discussion, the suit of the plaintiffs was rightly dismissed. I find no merit in the appeal which is accordingly dismissed. No costs. December 24, 2009. ( Deepak Gupta ), J. PV