IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 337 of 1998 Reserved on: 08.12.2008 Date of decision: 10.12.2008 Chhajju Ram ... Appellant Versus Hans Raj & another … Respondents Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellant: Mr. N.K. Thakur, Advocate. For the respondents: Mr. H.K. Bhardwaj, Advocate, for respondent No. 1. V.K. Ahuja, J.: This is a Regular Second Appeal under Section 100 C.P.C. filed by the appellant against the judgment and decree dated 1.6.1998 of the Court of learned District Judge, Una, vide which the judgment and decree passed by the learned trial Court (Sub Judge Ist Class, Court No.II, Amb), dated 7.11.1991, was affirmed. Briefly stated, the facts of the case are that the appellant as plaintiff filed a suit for declaration and permanent injunction and in the alternative for possession as against respondents who were impleaded as defendants. It was alleged by the plaintiff that he is owner in possession of land comprised in Khasra No. 18/31, 22/3 and 23/1 measuring 5-9 kanals, situated in village Kaloh, Tehsil Amb, District 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 Una. The plaintiff alleged that the land is owned and possessed by him and Haria, predecessor-in-interest of the defendants was given Power of Attorney by the plaintiff and under the garb of that authority, he got himself recorded as tenant at will over the suit land, which entry is wrong and illegal and not binding on the plaintiff since Haria was never inducted as a tenant by the plaintiff. The order of mutation sanctioning proprietary rights in favour of the defendants was also challenged being illegal and void and as the defendants were threatening to interfere in possession of the plaintiff over the suit land, hence the suit filed by the plaintiff. Defendants pleaded that their predecessor-in-interest Haria was tenant at will on payment of rent and on the commencement of the H.P. Tenancy and Land Reforms Act, they became owners and mutation was also sanctioned of proprietary rights in their favour. The defendants also pleaded that in the year 1982, the plaintiff had moved the Tehsildar for correction of revenue entries and after due enquiry, the said application was rejected. The plaintiff preferred an appeal before the Collector, which was also dismissed on 17.2.1986. On the pleadings of the parties, the learned trial Court framed the issues and the main issue was as to whether the plaintiff was owner in possession of the suit land. Both the parties led evidence and on conclusion of the trial, the learned trial Court held that the plaintiff was not in possession of the suit land and the suit was not maintainable since the Civil Court had no jurisdiction and the suit was also not filed in time. Those findings were affirmed by the learned first Appellate Court on appeal except in regard to jurisdiction, which was held to be there of the Civil Court. 3 An appeal was preferred by the appellant and the appeal had been admitted by this Court on the three questions formulated alongwith the appeal, which are as under:- 1. Whether the contract of tenancy being bilateral can be proved without the consent of the land owner or payment of rent? 2. What is the effect of mis-interpretation and mis-construction of the document Ext. P.5, a compromise statement? 3. What is the effect of non-production of oral evidence in support of their claim of tenancy? I have heard the learned counsel for the parties and have gone through the record of the case. On appraisal of the substantial questions of law formulated at the time of admission of appeal, it is clear that the main question pertains as to whether there was a contract of tenancy in between the parties and whether it stood proved in the absence of the evidence on payment of rent or consent of land owner or non-production of oral evidence by the respondent. A perusal of the record of the case shows that to substantiate their case, the plaintiff had led oral evidence including his own statement and had also filed documentary evidence on record. The plaintiff had placed on record the earliest copy of jamabandi Ext. P-5 for the year 1952-53, which shows that Haria was recorded as a non- occupancy tenant under Chhajju, co-sharer. Ext. P-2 copy of jamabandi for 1943 does not pertain to suit land. Ext. P-1, copy of jamabandi for the year 1981-1982 shows that the land in suit is recorded in the ownership column in the name of plaintiff, while the defendants are recorded as tenants over the whole land. Photostat copy of the order 4 passed by the Assistant Collector and Photostat copy of the order passed by the Collector were produced on record. But as these Photostat copies are not certified copies, they are not being referred to. Ext. P-4 is the copy of Power of Attorney executed by Chhajju Ram in favour of the predecessor-in-interest of the defendants, namely, Haria, which is dated 16.2.1961. A certified copy of the statement made by Hans Raj, respondent No. 1 was placed on record to show that some compromise was effected in a criminal case instituted against the present appellant. Nothing can be made out of this statement since it was alleged therein that the parties shall be bound by the verdict of the Civil Court. No Khasra numbers have been mentioned therein about the land and to my mind, that statement is not material for the present discussion. From the above discussion of the evidence, it is clear that the earliest copy of jamabandi on record showing the possession of the defendants over the suit land is copy of jamabandi for the year 1952-53 Ext. P-5, which shows their possession over the suit land. The allegations made by the plaintiff in the plaint were that the predecessor- in-interest of the defendants, namely, Haria, got himself recorded as a tenant after the Power of Attorney was executed by the plaintiff in his favour. However, as rightly discussed by both the Courts below, the Power of Attorney was executed on 16.2.1961 and Haria was already recorded as in possession of the suit land in the year 1952-53 i.e. 9 years prior to the execution of the Power of Attorney in his favour. The plaintiff as PW-1 has again asserted that he gave an Attorney in favour of Haria who got himself entered as a tenant which assertion falls flat since the entry came into effect about 9 years earlier, while the Power 5 of Attorney was executed thereafter, which clearly belies the assertions made by the plaintiff in the plaint which were rightly not believed by both the Courts below. The learned trial Court had discussed in detail these facts and had rightly concluded that this assertion of the plaintiff cannot be accepted as correct, that he got himself recorded as a tenant after the Power of Attorney was executed in his favour. I have already held above that the copy of the statement in the criminal case is not relevant and, therefore, does not affect the merits of the case. Coming to the plea raised by the learned counsel for the appellant that the tenancy is a bilateral agreement, for which a consent of owner is required and the payment of rent is one of the essential ingredients of this contract, though the parties may agree to the contrary. However, this fact cannot be lost sight that the entry in favour of the defendants are coming from the year 1952-53 i.e. more than 50 years and after the lapse of so many years, the Civil Court cannot insist upon proof of payment of rent or proof of the consent of the owner. Therefore, this type of evidence will not be available and cannot be insisted upon. Coming to the question raised by the learned counsel for the appellant that the revenue records are not documents of title and the tenancy has not been established. The presumption of correctness is attached to the copy of jamabandi for the year 1952-53 placed on record by the plaintiff himself and it is for the plaintiff to rebut the presumption of correctness attached to this copy of jamabandi entry. It cannot be said that since it is not a document of title, no presumption of truth is attached to this copy of jamabandi entry. The copy of jamabandi entries right from 1952-53 upto 1982-83 show the entries in 6 favour of the defendants or their predecessor-in-interest as tenant over the suit land and, therefore, the presumption of truth is attached to these long standing entries until and unless these are rebutted by the plaintiff by cogent and reliable evidence in which the plaintiff has failed. The plaintiff examined himself as PW-1 and failed to substantiate that the tenancy was created after he gave the Power of Attorney in favour of previous tenant Haria and he also examined PW-2 Yudhvir Singh, whose statement is not sufficient to prove the case of the plaintiff, who stated that the plaintiff had been cultivating land since 1965-66, which statement is contrary to the record. Coming to the question that the defendant had not stepped into the witness box and, therefore, adverse inference should be drawn against the defendants. The learned counsel for the appellant had relied upon two decisions to substantiate his case. Reliance was placed upon the decision in M/s Sodhi Transport Co. and another etc. etc. Vs. State of U.P. and another etc. etc., AIR 1986 Supreme Court 1099. The observations made in Para-14 are relevant and are being reproduced below:- “A presumption is not in itself evidence but only makes a prima facie case for party in whose favour it exists. It is a rule concerning evidence. It indicates the person on whom the burden of proof lies. When presumption is conclusive, it obviates the production of any other evidence to dislodge the conclusion to be drawn on proof of certain facts. But when it is rebuttable it only points out the party on whom lies the duty of going forward with evidence on the fact presumed, and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed the purpose of presumption is over. Then the 7 evidence will determine the true nature of the fact to be established. The rules of presumption are deduced from enlightened human knowledge and experience and are drawn from the connection, relation and coincidence of facts and circumstances.” Reliance was also placed upon the decision in Janki Vashdeo Bhojwani and another Vs. Indusind Bank Ltd., and others, AIR 2005 Supreme Court 439. It was held that he may depose for the principal in respect of such acts done by him in pursuance to the Power of Attorney but he cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which principal is entitled to be cross-examined. It is true that the defendant was required to step into the witness box to substantiate his case, but his failure to do so in every case cannot result in an adverse inference being drawn against him. It depends upon the facts and circumstances of the case whether his non-examination can be termed as fatal and adverse inference should be drawn against him or not. In the present case, the onus was upon the plaintiff to have rebutted the presumption of long standing entries in the jamabandi in favour of the plaintiff, in which he had miserably failed and, therefore, this cannot be said to be fatal for the case of the defendants and in such circumstances, no adverse inference can be drawn against the defendants for not appearing in the witness box. When no such facts have been brought on record to show by the plaintiff from his own statement as to when the tenancy was created or no rent was ever paid and no such questions were stated by him in his statement which were required to be rebutted by the defendants. 8 Coming to the question that the cause of action has not arisen to the plaintiff as submitted by the learned counsel for the plaintiff since the suit was to be filed when his title is jeopardized. He placed reliance upon the decision in H.K. Dasappa Setty and others Vs. K.N. Tammanna Gowda and another, AIR 1984 Karnataka 153. The observations made in Para-18 are relevant and are being reproduced below:- “In a suit for declaration of title, it is clear that the plaintiff is not expected to rush to the Court at every innocuous denial of title, when he feels that the title is jeopardized, he is to go to court and his subsisting title at that time should not have been lost.” It is true that the plaintiff is required to file a suit when there is a threat to his rights. However, in the facts and circumstances of the case, it cannot be said that there was no threat to the rights of the plaintiff when the entries existed in favour of the defendants which gave a threat to the rights of the plaintiff. Moreover, the plaintiff applied for correction before the Tehsildar, which application was dismissed on 31.3.1983 and the appeal was also dismissed on 17.2.1986. Once the application was dismissed as well the appeal, it gave a cause of action to the plaintiff since there was a threat to his rights to possess the land. The cause of action arose to the plaintiff when the mutation was attested of proprietary rights in favour of the defendants on 11.4.1984 and he should have filed an appeal within a period of one year from that date or even if he had failed Civil Suit, it should have been filed within one year or three years from that date, in which he failed since he filed the suit on 27.5.1987 after three years from the attestation of the mutation and, therefore, the cause of action had arisen to him when 9 his application was dismissed or the mutation was attested and the suit having been filed after three years cannot be said to be within time. Coming to the question of jurisdiction of the Court, this point was not specifically disputed that the Civil Court had the jurisdiction. Moreover, this question has been considered at length by the learned first Appellate Court, who had placed reliance upon the Full Bench Decision in Chuhniya Devi Vs. Jindu Ram, 1991(1) SLC 223, in which it was held that the Civil Court had no jurisdiction to consider the question of conferment of proprietary rights but in case the Tribunal or the authorities had not complied with the provisions of natural justice, the said question can be considered. The learned first Appellate Court had held that the jurisdiction of the Civil Court was there since the claim was made by the plaintiff that the mutation was attested without notice to him and from these assertions, the jurisdiction of the Civil Court was there, though on facts it was held that the plaintiff had failed to prove that no notice was issued to him. The question of jurisdiction was considered by learned Single Judge of this Court in Pritam Chand and others Vs. Krishan Kumar and others, 1997(1) SLC 255, in which it was held that the jurisdiction of the Civil Court was there in case there is a dispute in regard to the entries of tenancy, which are not admitted by the other party as correct. Relying upon the said decision, the conclusion drawn by the learned first Appellate Court on that basis can be said to be correct. I affirm the findings recorded by the learned first Appellate Court that jurisdiction of the Civil Court was there to consider the question, but the plaintiff had failed to substantiate the assertions made by him that the principle of 10 natural justice was not followed since no notice was proved to have not been issued to him. Keeping in view the above discussion, I accordingly, hold that there is no merit in the appeal filed by the appellant and there are findings of fact recorded by both the Courts below and all the points raised have been considered by this Court. There is no merit in the appeal filed by the appellant against the judgment of learned first Appellate Court, which findings are liable to be affirmed and the appeal is accordingly dismissed. However, the parties are left to bear their own costs. ( V.K. Ahuja ), December 10, 2008 Judge (BSS)