IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.284/1997 Reserved on: 8.5.2008 Decided on:30.5.2008 Kewal Singh alias Kewal Kumar …Appellant. Versus Ramesh Chand …Respondent. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. yes For the appellant : Mr. G.D. Verma, Sr. Advocate with Mr. B.C. Verma, Advocate. For the respondent : Mr. Rajnish K. Lal, Advocate vice Mr. K.D. Sood, Advocate. Rajiv Sharma, J. This Regular Second Appeal is directed against the judgment and decree dated 30.8.1997 in civil appeal No.44-K/94 passed by the learned Additional District Judge-I, Kangra at Dharamshala. The brief facts necessary for the adjudication of this appeal are that the respondent-plaintiff (hereinafter referred to as the plaintiff for convenience sake) filed a suit for permanent injunction against the appellant-defendant (hereinafter referred to as the defendant for convenience sake) in respect of land comprised in Khata/Khatauni No. 142/351, Khasra No. 60 measuring 0-20-31 hectares situated in Mohal Goju Roori, Mauza Rehlu, Tehsil and 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes 2 District Kangra, H.P. on the premise that he was in possession of the suit land as tenant for the last many years and was entitled to remain till ejected in due course of law. The defendant resisted and contested the suit filed by the plaintiff. The learned trial court decreed the suit on 25.7.1994. The defendant preferred an appeal against the judgment and decree dated 25.7.1994 before the learned Additional District Judge-I, Kangra at Dharamshala on 14.9.1994. The learned Additional District Judge-I had framed the following points for determination: 1. Whether the impugned judgment and decree is legal and valid and sustainable in the eye of law? 2. Relief in appeal. The learned Additional District Judge had recorded the following findings on the afore-mentioned points: Point No.1 Yes. Relief in appeal Appeal dismissed, as per operative part of the judgment. The learned District Judge dismissed the appeal on 30.8.1997. This Regular Second Appeal is preferred against the judgment and decree dated 30.8.1997. The Regular Second Appeal was admitted on the following substantial questions of laws: 1. Whether the respondent has relinquished the tenancy rights in accordance with law on 25.8.1972? 2. Whether the courts below have mis-construed the writing of relinquishment Exc.AW-1/A upon which signatures of respondent Ex.AW-1/B are contained? 3 3. Whether due to mis-appreciation and misreading of report of Kanungo Ex.AW-2/A and the copies of Revenue record Ex.D-1 and D-2, the findings are liable to be set aside? 4. Whether in the absence of owners of the land in suit, the subject matter of dispute could not be determined? 5. Whether the relinquishment of tenancy rights is compulsorily registerable? Mr. G.D. Verma, Senior Advocate had strenuously argued that the judgments rendered by both the courts below are not sustainable in the eyes of law and has argued on all the questions framed by this Court at the time of admission of this appeal. Mr. Rajnish K. Lal, Advocate supported the judgments dated 25.7.1994 and 30.8.1997. He had argued that there is no substantial question of law involved in this appeal and there is no need to interfere with the concurrent findings of facts recorded by both the learned courts below. I have heard the learned counsel for the parties and perused the record meticulously. Questions No.1 and 2: Since both the questions of law are inter-connected, therefore, the same can be conveniently discussed together. Mr. G.D. Verma, Senior Advocate had strenuously argued that the plaintiff had relinquished his tenancy vide Ex.AW-1/A dated 25.8.1972. He had further argued that the possession of the suit land was handed over in favour of the appellant by the plaintiff 4 during Rabi 1972. The suit land was owned by one Sh. Hardyal, Smt. Himati, Smt. Dei, Sh. Jai Dev, Chattar Singh, Shakti Prashad etc. The plaintiff’s father was recorded as tenant under these landlords as is evident from Ex. P-9 i.e. copy of Jamabandi for the year 1967-68. The plaintiff was recorded as tenant on payment of rent to these landlords. Ex.AW-1/A was executed in respect of land belonging to one Sh. Jagat Ram, Bhagat Ram and Ajit Singh sons of Sh. Mangat Ram. The document refers to tenancy land of these landlords situated in Basnoor. It is clear from the document that the plaintiff was raising some construction which led to registration of a case also in Police Station and the same resulted in compromise Ex.AW-1/A. The plaintiff undertook to relinquish and deliver the possession of that land in favour of Jagat Ram etc. which is situated in village Basnoor. Though word ‘village Goju Roori’ had come in Ex.AW-1/A, but it was only relatable to Jagat Ram, Bhagat Ram and Ajit Singh sons of Sh. Mangat Ram of village Rehlu. It was not relatable to land owners Hardyal Singh and others. The revenue entries always existed in favour of Hardyal Singh and others and there was no entry of ownership in the name of Jagat Ram etc. In fact, Ex. AW-1/A is not relatable to the suit land. The matter can be viewed from another angle. The relinquishment was to be made as per section 36 of the Punjab Tenancy Act in favour of the landlord only. At the time when the alleged relinquishment deed Ex.AW-1/A was made, the Punjab Tenancy Act was in operation in District Kangra. It is evident from 5 the provisions of section 36 of the Punjab Tenancy Act as noticed above that the relinquishment could only be made to the landlord and not to tenant. DW-1 had earlier produced Ex.AW-1/A which was only marked as mark-‘A’. It was only by way of additional evidence that the defendant had produced on record the copy of writing which according to him was copy of relinquishment deed i.e. AW-1/A. AW-1 Sh. Mehar Singh Parmar was produced by the defendant to prove Ex.AW-1/A. He had stated that at the time when Ex.AW-1/A has been reduced in writing, none of the landlords were present. However, DW-1 had stated that his father was a Patwari and none of the witnesses belonged to village Goju Roori. He also admitted that Ex.AW-1/A was attested by the Pradhan on 19.4.1973. If the document was reduced into writing on 25.8.1972, what was the need to get it attested from the Pradhan on 19.4.1973? It is clear from the discussion made hereinabove that the plaintiff has not made any relinquishment deed qua the suit land and the execution of Ex.AW-1/A is itself doubtful. Question No.3: DW-2 Sh. Budhi Singh has stated that an application for correction of revenue record was sent to him by Tehsildar for conducting inquiry. He visited the spot on 6.6.1986. The defendant had examined him as AW-2 before the appellate court. He had proved on record the copy of rapat Ex.AW-2/A. However, in his cross-examination, he has stated that in the order i.e. Ex.AW-2/A, he has not specifically mentioned whether the plaintiff was specifically 6 summoned by him to appear on the spot. Ex.D-2 is the copy of the Jamabandi for the year 1983-84 which reflects the same entries as recorded in Ex.P-1. In Ex. D-1 i.e. copy of Missal Girdawari for the period 21.4.1973 to 14.4.1978, the defendant is shown in possession of the suit land as tenant under the landlords on payment of rent. In this document also Ramesh Chand i.e. plaintiff has been shown in possession of the suit land till 21.4.1974. It is only from 1973 Kharif that Kewal Kumar son of Jagat Ram has been shown in possession of the suit land. The defendant has failed to substantiate how the entries were abruptly changed without following due process of law. Moreover, the defendant has failed to establish who has inducted him as tenant. Ex.AW-2/A was prepared in the year 1986. Ex.AW-2/A was subject to decision of the Revenue Officer of competent jurisdiction as held by this Court in Union of India versus Nand Kishore and others, AIR 1966 (HP)-54. Learned Courts below have correctly appreciated Ex.AW-2/A as well as revenue record i.e. Ex.D-1 and D-2. These findings are sustained by this Court. The plaintiff has produced on record the copy of jamabandi for the year 1967-68 as Ex.P-9 in which his father Sh. Jaisi Ram had been recorded in possession of the suit land as tenant on payment of rent. Similarly, in the copy of jamabndi for the year 1971-72 (Ex.P-8) Sh. Ramesh Chand plaintiff had been shown as tenant under the landlords. In the jamabandi for the year 1983- 84, Ex.P-1 and P-6 for the year 1971-72, Ex.P-5 jamabandi for the year 1988-89, Ex.P-7 jamabandi for the year 1979-80 and copy of 7 Khasra Girdawari Ex.P-10 with effect from 25.10.1989 to 20.8.1992, copy of Khasra Girdawari Ex.P-3 with effect from 18.10.1980 to 12.4.1985 and another copy of Khasra Girdawari Ex.P-4 with effect from 22.4.1985 to 17.4.1986, the plaintiff has been shown in possession of the suit land as tenant on payment of rent. Their Lordships of the Hon’ble Supreme Court in Sir Bhimeshwara Swami Varu Temple versus Pedapudi Krishna Murthi and others, AIR 1973 Supreme Court 1299 have held that the presumption arising from several entries in the revenue records of large number of years in respect of ownership and possession of land with certain person does not stand rebutted by mere stray entries in favour of others when the evidence is of uncertain character and is inadequate. Their Lordships have held as under: “It is true that the name of the appellant is recorded as a ''ryot" in 3 entries in the revenue account, Exhibits A-9, A-10 and A-11. Exhibit A-9 is an extract from the settlement Register of the village of Vungutur and is referred to as No. 10 account of Vungutur village. Exhibits A-10 and A-11 are extracts from the Diglet Register. It has however to be remembered that as against these stray entries almost the entire revenue record is in favour of the Archakas. For example, Exhibit B-39 which is an extract from the Resettlement Register of the year 1866 shows that old survey No. 256 corresponding to R. S. No. 1057, with which we are concerned, stood in the name of "Kottalanka Ramanna Ganganna" as the pattadar. Ramanna and Ganganna were brothers, both being Archakas of 8 the temple. Exhibit B-2 of the year 1896 which is celled a "Keroyati Patta" also shows that old survey No. 256 was granted to Kotta Lanka Bupanna, who was the Archaka of the temple. The rough patta Exhibit B-15 dated June 4, 1900 and the fair patta Exhibit B-43 of the year 1902 are also in the name of Kothalanka Bapanna. The long course of entries which were consistently in favour of the Archakas cannot be ignored in preference to the entries in favour of the temple for a solitary year. No useful purpose will be served by discussing the oral evidence led by the parties. That evidence is of an uncertain character and is inadequate to displace the presumption arising out of the several entries spread over a large number of years showing that R.S. No. 1057 belonged to the Archakas and was in their possession in their own right.” In the present case also, the revenue entries earlier were in the name of father of the plaintiff and thereafter the same were changed in favour of the plaintiff. The plaintiff had been shown as tenant on payment of rent. The defendant cannot take advantage of stray entry to claim possession in view of the overwhelming evidence produced by the plaintiff to the contrary. Question No.4: The suit was filed by the plaintiff only for permanent injunction since the defendant had started interference. The landlords were neither necessary nor proper parties for the adjudication of the suit preferred by the plaintiff for injunction, more particularly, when he 9 was not claiming any title against the defendant. It is settled by now that the suits for injunction are concerned primarily with the factum of possession and not with the nature or character of the possession or the capacity of the possessor. Question No.5: The plaintiff had clearly mentioned in his plaint that the value of the suit land was about 15-16 thousands. The Court is of the opinion that the relinquishment of tenancy of the value of Rs. 100/- and more was required to be registered in view of the provisions of section 17 of the Indian Registration Act. The document Ex. AW-1/A, purported relinquishment deed could not be read in evidence if it purported to extinguish right in the immovable property of the value more than Rs. 100/- under the Indian Registration Act. Consequently, it is held that the plaintiff has not relinquished the tenancy rights in favour of the defendant. The Courts below have correctly construed the relinquishment deed Ex.AW-1/A with other revenue record i.e. Ex.D-1 and D-2. The owners were neither necessary nor proper parties. The document i.e. purported relinquishment deed was required to be registered under the provisions of the Indian Registration Act. There is no question much less any substantial question of law involved in the second appeal and this Court will not interfere with the concurrent findings of the facts recorded by the courts below. 10 In view of the observations made hereinabove, there is no merit in the appeal and the same is dismissed. There shall be no order as to costs. (Rajiv Sharma), Judge May 30, 2008 *Awasthi*