In the High Court of Punjab and Haryana at Chandigarh ...... R.S.A. No.1758 of 2005 ..... Date of decision:12.5.2008 Mahabir .....Appellant v. Siri Pal and another .....Respondents .... Present: Mr. Shilak Ram Hooda, Advocate for the appellant. ..... S.S. Saron, J. (Oral) This appeal has been filed by plaintiff-appellant Mahabir against the judgment and decree dated 2.2.2005 passed by the learned Additional District Judge, Sonepat whereby the appeal filed by defendant No.1-vendee against the judgment and decree dated 22.11.2003 passed by the learned Civil Judge (Junior Division), Sonepat has been accepted and the suit of the plaintiff-appellant has been dismissed. The plaintiff filed a suit seeking a decree for possession by way of pre-emption of the land detailed in para 1 of the plaint on payment of sale consideration. It is alleged by the plaintiff-appellant that Joginder alias Kallu (defendant No.2) was the owner of the land measuring 1 Bigha 14 Biswas situated in the revenue estate of Village Patti Jattan, Sonepat as shown in the Jamabandi for the year 1986-87. Joginder alias Kallu (defendant No.2) sold the land to Siri Pal (defendant No.1) for an ostensible consideration of Rs.21,000/- in terms of registered sale deed dated 7.10.1993. The plaintiff-appellant, it is claimed, had been and was tenant over the suit land under Joginder alias Kallu (defendant No.2) and after the R.S.A. No.1758 of 2005 [2] sale of the land by defendant No.2 to defendant No.1, the plaintiff continued as a tenant. In the circumstances, being a tenant the plaintiff claimed a superior right of pre-emption against the vendee Siri Pal (defendant No.1). As such he was entitled for the possession of the land because no notice of sale was given to him. The stand taken by defendants No.1 and 2 was that the plaintiff had never been a tenant under defendant No.2 nor he cultivated the suit land at any time before the purchase by defendant No.1. The entry in the Khasra Girdawri for the year 1992, it was alleged, was got recorded by defendant No.2 in collusion with the revenue officials. The same was not binding on the valuable rights of defendant No.1. Defendant No.2 before the trial Court was proceeded against ex parte. The learned trial Court vide its judgment and decree dated 22.11.2003 decreed the suit of the plaintiff and held that he was entitled to possession of the land. It was observed by the learned trial Court that the plaintiff-appellant has a superior right of pre- emption as he was a tenant in the land. Strong reliance was placed on the order dated 27.5.1992 passed by the learned Assistant Collector 2nd Grade, Sonepat which was recorded in the Roznamcha Waqiati (Ex.P.9). In terms of the said order Khasra Girdawris were corrected in favour of Mahabir- plaintiff from the year 1987 till the date of the order i.e. 27.5.1992. It is also claimed that the report had been implemented in the Khasra Girdawri (Ex.P.1) and it continues to be recorded as such. The learned lower appellate Court set aside the findings of the learned trial Court. It was held that the said order dated 27.5.1992 passed by the Assistant Collector 2nd Grade was not binding on the vendor Joginder alias Kallu (defendant No.2) because he was not a party in the said petition R.S.A. No.1758 of 2005 [3] despite the fact that his name had come in existence in the revenue records by that time. It was further observed that in the column of Jamabandi, Rup Chand alias Chand Rup son of Ram Nath was recorded to be owner in possession of the suit property. In terms of mutation No.5043 (Ex.P.2) the names of Joginder and Dharambir were recorded as owners on the basis of Civil Court decree dated 19.2.1991. Thereafter, in the Jamabandi for the year 1991-92 (Ex.P.6) Joginder and Dharambir are recorded to be owners in possession of the suit property. In all the said records there is no reference to any tenant. Plaintiff-appellant Mahabir had filed an application for correction of Khasra Girdawri before the Assistant Collector 2nd Grade, Sonepat on 7.4.1992 which was corrected in his favour vide order dated 27.5.1992 (Ex.P.10) i.e. within one month. The order dated 27.5.1992 shows that Joginder and Dharambir who were recorded as owners were not parties to the application that was filed for correction of the Khasra Girdawri. The mutation No.5043 (Ex.P.2) had been sanctioned prior to the institution of the application for correction of Khasra Girdawri. Vide order dated 27.5.1992 (Ex.P.10) Rup Chand is shown to be the owner of the suit property. Even from the perusal of the order dated 27.5.1992 (Ex.P.10) it was observed that no notice had been given to the respondents and rather, the Assistant Collector 2nd Grade opted to summon the respondents directly through `Munadi' (beat of drum). It was also observed that the order had been passed for correction of Khasra Girdawri since Kharif 1987. In other words, correction of even those Khasra Girdawri entries were ordered which had been entered in the Jamabandi (record of rights). The entries in the Jamabandi can only be corrected by way of a suit for declaration. It was R.S.A. No.1758 of 2005 [4] observed that a perusal of the Khasra Girdawri (Ex.P.9) shows that Mahabir-plaintiff was put in possession of the suit land on the basis of Rapat Roznamcha which had been withheld by him (plaintiff). It was also noticed that there was no reference of any `Batai Tihai' in the column of Khasra Girdawri. Therefore, the order dated 27.5.1992 was held to be an ex parte order. The suit of the plaintiff was dismissed by allowing the appeal against the judgment and decree of the trial Court. During the hearing of the case, it was contended by the learned counsel for the plaintiff-appellant that the tenancy of the appellant has been admitted by the defendants in paragraph 3 of the written statement and, therefore, he was entitled to a decree for pre-emption. A perusal of the plaint and the written statement as available from the brief of the learned counsel would show that in para 3 of the plaint it has been pleaded that the plaintiff had been and is tenant over the suit land under defendant No.2 and after the sale under defendant No.1 since time immemorial. In reply to the said pleadings in the plaint, it has been stated that the contents of para 3 of the plaint are totally wrong and denied and that the plaintiff never remained tenant from 7.10.1993 or thereafter nor he cultivated the suit land under defendant No.2 at any time. It was also stated that the entries in the alleged Khasra Girdawri were wrong, illegal, null and void ab initio and were recorded in collusion with the revenue officials as well as defendant No.2 and had prejudiced the valuable rights of defendant No.1. Learned counsel for the appellant has contended that the contention was raised in view of the observations of the learned lower appellate Court as recorded in para 12. Be that as it may, it is now accepted R.S.A. No.1758 of 2005 [5] that defendant No.1 does not accept the plaintiff to be the tenant of Joginder alias Kallu (defendant No.2) or that of Siri Pal (defendant No.1). Learned counsel for the plaintiff-appellant has then referred to the soil testing report (Ex.P.1) in respect of field No.423 and submitted that the soil of the said field No. which is part of the suit property was got tested from the Soil Testing Laboratory. A reference has also been made to the Roznamcha Waqiati for the year 1992-93 (Ex.P.9) to contend that in pursuance of the order dated 29.10.1992 the plaintiff-appellant was put in possession. A further reference has been made to order dated 27.5.1992 (Ex.P.10) and also to the Jamabandi for the year 1996-97 (Ex.P.11) where the appellant is recorded as `Gair Marausi' on one third `Batai' of the suit land. After giving my thoughtful consideration to the contentions of the learned counsel for the appellant, it may be noticed that the records as referred to by the learned counsel have been duly considered by the learned lower appellate Court. The fact that was taken into consideration and is not in dispute is that the order dated 27.5.1992 (Ex.P.10) is an ex parte order and neither of the defendants was a party to the same. Persons other than the defendants have been impleaded as parties. It is also not in dispute that defendant No.2 was recorded as owner in possession of the suit land. Therefore, the said order being an ex parte order qua defendant No.2 would not affect his rights as has rightly been concluded by the learned lower appellate Court. Another fact that has been noticed is that the said order dated 27.5.1992 (Ex.P.10) changes the Khasra Girdawri entries in the record which have been entered in the record of rights (Jamabandi). Section 45 of the Punjab Land Revenue Act, 1887 envisages that if any person considers R.S.A. No.1758 of 2005 [6] himself aggrieved as to any right of which he is in possession by an entry in a record of rights or in an annual record, he may institute a suit for a declaration of his right under Chapter VI of the Specific Relief Act, 1877. Therefore, the entries which have been entered in the record of rights could be got corrected only by way of a civil suit. In this regard the learned lower appellate Court placed reliance on the case of Jagpal Singh and others v. Pal Singh, 1984 PLJ 38 to hold that when corrections in the columns of Khasra Girdawris seem to have been made by mischief, then the same should not be relied upon by the Civil Court. Therefore, the findings and conclusions reached at by the learned lower appellate Court are based on appreciation of the evidence and material on record. The appellant in para 13 of the memo of appeal has formulated the questions of law. A perusal of the same in fact would show that these are merely in the nature of issues between the parties rather than being questions of law muchless substantial questions of law. In the afore-noticed circumstances, there is no merit in this appeal and the same is accordingly dismissed. May 12, 2008. (S.S. Saron) Judge *hsp* NOTE: Whether to be referred to the Reporter or not:Yes/No