IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 259 of 1998. Judgement reserved on: 1.9.2011. Date of decision: 2.9.2011. Mehar Singh & anr. ….. Appellants. Vs. Piar Singh & ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the Appellants : Mr. Dushyant Dadwal, Advocate. For the Respondents : Mr. T.S.Chauhan, Advocate, for respondents No. 1(a) to 1(e) and 2(a) to 2(f). Kuldip Singh, Judge. The contesting defendants No. 1 and 3 have filed second appeal against judgement and decree dated 1.4.1998 passed by learned District Judge, Bilaspur in Civil Appeal No. 263 of 1986/85 reversing judgement, decree dated 29.6.1985 passed by learned Sub Judge Ist Class, Ghumarwin, in Suit No. 108/1 of 1981. The suit was filed by Nikku predecessor-in-interest of respondents No.1(a) to 1(e) and respondents No. 2(a) to 2(f). The other contesting defendant was Lachhman Ram respondent No. 17. The parties in the judgement are referred to as plaintiff(s) and defendant(s). Whether the reporters of the local papers may be allowed to see the Judgment? Yes …2… 2. The facts in brief are that Nikku plaintiff real maternal uncle of defendants No. 1 to 3 a recorded co-sharer in the suit land filed a suit on the allegations that defendants in collusion with revenue staff got their possession wrongly recorded, the entry of “Billa lagan bavajah parvarish” is illegal and void. The plaintiff never inducted defendants No. 1 to 3 as tenants on the suit land. On 20.12.1980, the defendants No. 1 to 3 tried to forcibly dispossess him. The plaintiff filed the suit for declaration, permanent prohibitory injunction and for possession in alternative, if during the pendency of the suit the plaintiff is dispossessed forcibly. 3. The defendants No. 1 and 3 have contested the suit and filed joint written statement. They took preliminary objections of limitation, maintainability and estoppel. They pleaded that they were residents of village Bhapral, but plaintiff their maternal uncle requested them to cultivate his land, they came to village Sumari and started cultivating the suit land as tenants on payment of 1/4th produce of the suit land. They have constructed house on the suit land in the year 1967. The defendants No. 1 and 3 have pleaded adverse possession in alternative. The replication was filed in which averments made in the plaint were reiterated. 4. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiff is owner in possession of the suit land? OPP. 1A. Whether the defendants are in possession of the suit land as tenants? OPD 2. Whether the suit is time barred? OPD. …3… 3. Whether the suit is not maintainable in the present form? OPD. 4. Whether the plaintiff is estopped by his act and deed? OPD. 5. Whether the suit is liable to be stayed? OPD. 6. Whether the revenue entries are wrong? OPD. 7. Whether the defendants are owners by virtue of adverse possession in the alternative if tenancy is not proved? OPD. 8. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD. 9. Relief. The issues No. 1 and 6 were decided accordingly, issues No. 1A, 2, 4, 5, 7,8 in the negative and issue No. 3 in affirmative and the suit was dismissed on 29.6.1985. In appeal, the learned District Judge set-aside the judgement, decree dated 29.6.1985 of the trial court and decreed the suit of the plaintiff after holding that plaintiff is owner in possession of the entire suit land and defendants are threatening to dispossess him on the basis of wrong revenue entries. 5. The second appeal was admitted on substantial questions of law No. 2, 3 and 4 framed at page-9 of the paper book. At the time of hearing of the appeal, the learned counsel for the appellant, has not pressed substantial questions of law No. 3 and 4. Now, the only substantial question of law survives for determination, is as follows:- Whether the judgement/ decree passed by the learned first appellate court has been passed by misreading and overlooking cogent and convincing evidence i.e. oral as well as documentary evidence produced on record of the case? …4… 6. I have heard the learned counsel for the parties and have also gone through the record. The learned counsel for the appellants has submitted that learned trial court has given detailed reasons while dismissing the suit. The learned lower appellate court has not marshaled the evidence, the reversal of judgement and decree by the learned lower appellate court is based on misreading and overlooking the oral and documentary evidence on record. The learned counsel for the appellants has relied judgement dated 10.12.2009 in RSA No. 171 of 1996, titled Dev Raj and another vs. Jeeta and others, in support of his submissions that first appellate court is required to give detailed reasons for disagreeing with the findings of the trial court and for that matter the lower appellate court should discuss whole evidence led by both the parties. 7. The learned counsel for the respondents No. 1(a) to 1(e) and 2(a) to 2(f) has supported the impugned judgement and decree. He has submitted that a specific finding has been given by the learned lower appellate court that plaintiff is owner in possession of the entire suit land. The defendants are threatening to dispossess the plaintiff on the basis of wrong revenue entries. He has submitted that no fault can be found with the impugned judgement, decree. He has prayed for dismissal of the suit. 8. The aforesaid substantial question of law is taken up for determination. In the written statement, the defendants have pleaded that plaintiff had gifted the land measuring 8-19 bighas to them and to their brother Jai Singh. At that time, the defendants were living at …5… village Bhapral. The plaintiff requested the defendants to cultivate his land in village Sumari as gair-moursi on payment of 1/4th produce. After the gift, Mehar Singh in the year 1964 shifted to village Sumari and in the year 1965 Bali Ram also joined him. Mehar Singh and Bali Ram are cultivating the suit land as non-occupancy tenants on payment of 1/4th produce. Mehar Singh and Bali Ram constructed their house in village Sumari in the year 1967. In alternative, the defendants have pleaded adverse possession of the suit land since the year 1964. 9. DW 1 Mehar Singh has stated that plaintiff is his real maternal uncle (mama). They used to cultivate the land before the gift on payment of 1/4th produce to the plaintiff. In the year 1958 plaintiff had gifted 8 bighas 19 biswas land to the defendants. They are in open and hostile possession. In cross-examination, he has stated that in girdawari in the year 1971 their name was recorded on the basis of report made by the plaintiff to the Patwari. DW 3 Sunder Singh has stated that plaintiff has gifted some land to defendants and some land was otherwise handed over to them. Ex. D 4 is jamabandi for the year 1971-72 in which defendants are recorded as tenants under Nikku, and in the rent column, it has been recorded as “Billa lagan bavajah parvarish”. Ex. D 3 is the copy of girdawari from 22.10.1983 to 4.8.1984 showing defendants as tenants on the suit land under Nikku. Ex. D 2 is the copy of jamabandi for the year 1982- 83, which is similar to Ex. D 4. 10. The further case of the defendants No. 1 and 3 is that plaintiff invited them to cultivate his land in village Sumari. DW 1 …6… Mehar Singh has stated that they are cultivating the land of plaintiff on payment of 1/4th produce before the gift of other land, which was made in the year 1958 by the plaintiff. In the written statement, the defendants have pleaded that Mehar Singh and Bali Ram are cultivating the land as non-occupancy tenants and paying 1/4th produce. Mehar Singh shifted in village Sumari in 1964 and Bali Ram in the year 1965. There is variance in the pleadings and proof regarding the creation of tenancy by the plaintiff in favour of defendants No. 1 and 3. The tenancy is a creation of contract, which is to be pleaded and proved. The defendants No. 1 and 3 have failed to prove their tenancy under plaintiff on the suit land. 11. DW 1 Mehar Singh has stated that girdawari was made in their favour in the year 1971 of the suit land on the basis of report made by the plaintiff to the Patwari. In these circumstances, it can be safely inferred that before 1971 the entries were in favour of the plaintiff of the suit land. The defendants have not produced any report of the plaintiff made to Patwari on the basis of which the entries were changed, as claimed by them. It is not the case of defendants No. 1 and 3 that change of revenue entries is based upon some order of competent authority. In absence of material to support the change in revenue entries in favour of defendants in the year 1971, such change is unauthorized and no presumption of truth is attached to such unauthorized revenue entries. 12. The cultivation of land by some person under the control and supervision of the owner cannot be construed that said person is in possession of such land. There is nothing on record that plaintiff …7… was not in control over the possession of the suit land. In absence of cogent proof of possession of defendants No. 1 and 3 on the suit land, the plaintiff being the owner of the suit land can be safely presumed to be in possession of the suit land. The cultivation of suit land by defendants No. 1 and 3 under the control and supervision of plaintiff cannot be construed that defendants No. 1 and 3 are in possession of the suit land. The defendants No. 1 and 3 have miserably failed to prove their possession over the suit land, therefore, there is no question of adverse possession of defendants No. 1 and 3 on the suit land. 13. The defendants No. 1 and 3 are asserting their possession on the suit land, which is clear from their stand, therefore, threat of dispossession to the plaintiff from the suit land is obvious. The judgement dated 10.12.2009 in RSA No. 171 of 1996 (supra) is not applicable to the facts of the present case. The learned District Judge has considered the entire material on record properly. The view taken by the learned District Judge emerges from the evidence on record. There is no merit in the contention that learned District Judge has misconstrued and misinterpreted the oral and documentary evidence on record. The substantial question of law, referred above, is decided against the appellants. There is no merit in the appeal. 14. In view of above discussion, the appeal fails and the same is accordingly dismissed with no order as to costs. September 2, 2011. ( Kuldip Singh ), (Hem) Judge. …8…