HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 293 of 2000 & CMP No.10 of 2002. Reserved on: 7.10.2010 Decided on: 26.11.2010 Dilip Singh ……Appellant. Versus Ram Bhaj and others ………Respondents Coram The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? For the appellant: Ms.Jyotsna Rewal Dua, Advocate. For respondent No.1: Mr.Bimal Gupta, Advocate. V.K. Ahuja, J.: This is a regular second appeal filed by the appellant/defendant under Section 100 of the CPC against the judgment and decree, dated 4.4.2000, passed by the learned District Judge, Sirmour at Nahan, H.P., vide which, he set aside the judgment and decree of the learned Sub Judge, Court No.II, Paonta Sahib, District Sirmour, 12.10.1999, and decreed the suit of the respondent for permanent injunction as against the appellant. 2. Briefly stated, the facts of the case are that respondent No.1, hereinafter referred to as the plaintiff, filed a suit for permanent injunction as against the appellant and proforma respondents, hereinafter also referred to as defendants. It was alleged by the ______________________________ Whether reporters of local papers may be allowed to see the judgment? - 2 - plaintiff that he is in possession of the land comprised in Khasra No.393 and 394, measuring 4 bigha and 4 biswa as a tenant under the defendants and other persons on payment of land revenue to the Government. It was also alleged that the plaintiff had mortgaged the suit land to Khusia and one Mohi Ram with possession sometime in the year 1969 but the aforesaid mortgagees after the mortgage was created in their favour by the plaintiff inducted the plaintiff as tenant on the suit land on ‘Bashera Malkana Bila Malkana’ and, therefore, the plaintiff is cultivating the suit land as a tenant. The defendants are the successors-in-interest of the said Khusia and Mohi Ram. It was alleged that on 6.4.1998, defendants entered the suit land for ousting the plaintiff from the suit land and caused damage to the crop standing thereon and as they are bent upon to interfere in the possession of the plaintiff over the suit land, hence the suit filed by the plaintiff. 3. Defendants took up the preliminary objection in regard to the maintainability etc. On merits, they pleaded that the plaintiff was never inducted as a tenant by the defendants nor they are paying any rent to the defendants. It was also pleaded that the defendants are in possession of the suit land and the plaintiff has no concern with the suit land and no cause of action had arisen in favour of the plaintiff, as such, the suit is liable to be dismissed. 4. On the pleadings of the parties, the following issues were settled by the learned trial Court: - 3 - 1. Whether the plaintiff is in possession of the suit land as a tenant as alleged? OPP 2. If issue No.1 is proved in affirmative, whether the plaintiff is entitled for the relief of permanent injunction as alleged? OPP 3. Whether the suit is not maintainable as alleged? OPD 4. Whether the court has no jurisdiction as alleged? OPD 5. Whether the plaintiff has no cause of action as alleged? OPD 6. Whether the suit is not properly valued as alleged? OPD 7. Whether the plaintiff has not come to the court with clean hands as alleged. If so, its effect? OPD 8. Relief. 5. On appeal, those findings were set aside by the learned First Appellate Court and the suit of the plaintiff was decreed but with the rider that the defendants are restrained from dispossessing the plaintiff from the suit land illegally, forcibly or otherwise than in due course of law. Being aggrieved, the defendants have come up in second appeal. 7. I have heard the learned counsel for the parties and have gone through the record of the case. 8. The first point raised by the learned counsel for the appellant was that the application filed by the appellant under Order 41 Rule 27 CPC deserves to be allowed. The next plea raised by the learned counsel for the appellant was that the plaintiff had failed to prove that he was inducted as a tenant by the - 4 - defendants/mortgagees after the mortgage. It was also submitted that the mortgagees with defendants were in possession of the suit land and the plaintiffs who were mortgagors themselves being the land owners cannot be the tenants also over the suit land and as such the findings of the learned Appellate Court decreeing the suit of the plaintiff for permanent injunction are liable to be set aside while that of the court of the learned trial Court are liable to be restored. 9. On the other hand, the learned counsel for the respondent had supported the impugned judgment for the reasons given therein supplementing it by the submission that the later entries clearly showed the plaintiff to be in possession and presumption of correctness was attached to the later entries and as such there is no merit in the appeal filed by the appellant, which deserves to be dismissed accordingly. 10. Coming to the first question as to whether the application under Order 41 Rule 27 CPC deserves to be allowed, a perusal of the record shows that an application under Order 41 Rule 27 CPC was filed by the appellant for bringing on record the jamabandies for the year 1951-52, 1955-56 and 1963-64 in regard to the suit land. It was alleged that the copy of the jamabandi for the year 1963-64 is already on the record, while the other copies are not on record and the appellant’s counsel observed that the appellant had procured entire revenue record from the - 5 - record room but the copies were not placed on the record, hence the application filed by the appellant. 11. A perusal of the record shows that alongwith the application, the applicant/appellant had enclosed not the original copies of the jamabandis duly certified by the Patwari, but he placed on record photocopies of the jamabandi allegedly attested by some counsel. These are not even certified copies of the jamabandis placed on the record by the appellant and hence these copies could not be looked into or considered for being tendered in evidence by the appellant in case the application for additional evidence was allowed by this Court. Once the documents have not been produced alongwith the application, the same did not deserve to be allowed for tendering in evidence since such copies could not be tendered in evidence even if the application was allowed. 12. Apart from the above, it is also clear that no case was made out for allowing the application under the provisions of Order 41 Rule 27 CPC since the documents were in existence when the appeal was filed by the appellant or during the trial of the case. The only contention put fourth by the learned counsel for the appellant to allow the application was that these are public documents and as such the application should be allowed. Simply on the ground that these are public documents, the application cannot be allowed and that could be one of the considerations in allowing the application but the ingredients of Order 41 Rule 27 CPC should be proved before - 6 - the application is considered. The appellant has failed to make out any case under the provisions of Order 41 Rule 27 CPC and as such the application filed by the appellant is rejected accordingly. 13. Coming to the second point, a reference has to be made to the documentary evidence placed on the record by both the parties since the appeal was admitted on substantial questions of law No.1 to 4, which are mainly as to whether the Appellate Court was entitled to reverse the judgment of the learned trial Court on the basis of the copies of the jamabandis. A perusal of the record shows that the earliest copy of the jamabandi placed on record by the parties was for the year 1963-64 Ext.P-3, which shows that out of two khasra numbers in dispute, Khasra No.393 was entered in possession of the mortgagor i.e. Ram Bhaj. In regard to other Khasra No.394, the record shows Ram Bhaj as mortgagor and Khusia and Mohi Ram as mortgagees and the land was recorded in self cultivation of the mortgagor. The next copy of jamabandi on record was Ext.P-4 for the year 1968-69, which showed that Khasra No.394 was entered in possession of the mortgagor as a tenant. Ext.P-5, copy of jamabandi, pertained to Khasra No393 which also showed the same entries but there was nothing in column No.9 in regard to payment of rent. However, in subsequent copy of jamabandi for the year 1973-74, Ext.P-6, the same entries were reflected showing the mortgagor in possession as a tenant and in column No.9, it was entered as ‘Bashera Malkana Bila Malkana’ i.e. on pay of land revenue to the - 7 - State. The same entries were reflected in Ext.P-7 for the year 1978-79, 1983-84 Ect.P-8 and 1988-90 Ext.P-9. A perusal of Ext.P-10 and Ext.P-11, which are the copies of entries of the mutation register, shows that there is a reference in regard to mortgage, but only the reference was in regard to Khasra No.394 and not for Khasra No.393, however, the date of attestation of mutation is not clear. 14. The defendants have also placed on record Ext.DA, which is the copy of register of mutation attested on 11.6.1960, which shows that the mortgage has been created and the possession is admitted of mortgagee in regard to the land measuring 4-3 bigha for a sum of ` 100. A perusal of Ext.DM, copy of the jamabandi for the year 1959- 60 also shows that in regard to Khasra No.394, the possession is entered that of the mortgagee. 15. From the above discussion of the evidence, it is clear that the possession was already entered of the plaintiff prior to 1969 and, therefore, the allegations made by the plaintiff that the mortgage was created in the year 1969, as alleged by him, were rightly rejected by the learned trial Court, who held that the mortgage was created prior to 1969. However, the fact remains that the plaintiff was already in possession of the suit land prior to the creation of the mortgage and thereafter, the entries showed him in possession as a mortgagee and as a tenant. It has been rightly pointed out by the learned counsel for the appellant that the plaintiff could not be the mortgagor and a tenant as well under the mortgagee once the mortgage - 8 - was created prior to 1969. But the fact remains that the possession of the plaintiff was already recorded prior to the creation of the mortgage. He has failed to substantiate the plea that even after the mortgage was created, he came in possession under the mortgagee as a tenant for which there was no evidence and the learned trial Court had rightly concluded that there was no evidence on record to show that the plaintiff was inducted as a tenant by the mortgagees i.e. the predecessor-in-interest of the defendants. The plaintiff failed to allege as to in which year the tenancy was created, in whose presence it was created or what were the terms and conditions of the tenancy so created by the mortgagees. His own statement as PW-1 also showed that he referred to his possession over the suit land but did not substantiate that he was inducted as a tenant by the mortgagees and in whose presence or if there was any agreement in regard to the tenancy, oral or written, since the tenancy is created by means of agreement in between the two parties and is not created unilaterally. Therefore, the statement of PW-2 Jeet Ram was rightly not believed that the tenancy was created while the talks were held in the house of one Dalip Singh, which was never the case of the plaintiff either in the plaint or in his statement. Therefore, the plea of the plaintiff that the tenancy was created in his favour by the mortgagee was not at all substantiated. The defendant has not denied or admitted the suggestion in regard to the creation of the mortgage or induction of the plaintiff as a tenant by his - 9 - predecessors, except by denying that he never inducted the plaintiff as a tenant over the suit land. 16. Therefore, the conclusion that can be drawn from the discussion of oral and documentary evidence is that the plaintiff has been able to prove that he was in possession and the revenue entries were in his favour showing his possession over the suit land, but they did not substantiate his capacity as to whether he was in possession as a tenant or as a tenant under the mortgagees. Therefore, the learned First Appellate Court had rightly held that the plaintiff was not entitled to be evicted once he was proved to be in possession, except by due process of law. As such, the findings recorded by the learned First Appellate Court are based upon correct appreciation of evidence and law and the plaintiff, who has been proved to be in possession, is entitled to remain in possession, except when he is evicted by due process of law. The appeal as well as the application under Order 41 Rule 27 CPC filed by the appellant is accordingly dismissed. However, there is no order as to costs. Nov.26, 2010. (V.K. Ahuja), (tilak) Judge.