1 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 152 of 2000 Reserved on:11th August, 2011 Date of Decision:18th August, 2011 Harmesh Chand and others Appellants Versus Madan Lal and others Respondents Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? Yes. For the appellants: Mr.Bhupender Gupta, Sr. Advocate, with Mr. Neeraj Gupta and Ms. Charu Gupta, Advocates. For the respondents: Mr.G.D.Verma, Sr. Advocate, with Mr. B.C.Verma, Advocate, for respondents No.1 to 4 and 6. Mr.Pawan Gautam, Advocate, for respondents No.7(a), 7(b), 8(a) and 8(b). Sanjay Karol, J. This is defendants’ Regular Second Appeal filed under Section 100 of the Code of Civil Procedure, 1908 against concurrent findings of fact recorded by the Courts below. Judgment and decree passed by the Court below have been assailed. 2. Plaintiffs filed a suit praying for the following reliefs:- Whether the reporters of Local Papers are allowed to see the Judgment? 2 “That the plaintiffs pray that a decree for declaration to the effect that land measuring 11K-05M, bearing Khewat No.108, Khatoni No.184, Khasra No.226, as entered in jamabandi 1982-83, situated in Village Katohar Khurd H.B. No.152, Tehsil Amb, Distt. Una, be passed in favour of the plaintiffs against the defendant No.1 with costs. In the alternative a decree for joint possession be passed. OR the plaintiffs may be granted any such other relief to which he (sic - they) be found entitled on the facts of the case.” 3. It is categorically pleaded that plaintiff No.1 Amar Singh, plaintiff No.2 Gusain Dass, defendant No.1 Munshi Ram, defendant No.2 Kishan Dass, defendant No.3 Bir Singh, are sons of Ram Ditta, who was tenant in possession to the extent of half share in the suit land. By virtue of the provisions of the H.P. Tenancy and Land Reforms Act, 1972 (hereinafter referred to as the Act) sons of Ram Ditta became co-owners of the suit land. Neither was Ram Ditta ever ejected from the tenanted land during his life time nor did his legal heirs relinquish their share in favour of any person. After the death of Ram Ditta joint possession and ownership of all of his legal heirs continued throughout. However, some time prior to 1986, defendant No.1 Munshi Ram started asserting his exclusive ownership and possession over the suit land. As such plaintiffs made inquiries and obtained revenue 3 record, which revealed that in the year 1971-72 defendant No.1, got his name exclusively entered in the possessory column alongwith other co-owners i.e. defendants No.4 and 5. Defendant No.1 was alone shown to be owner in possession to the extent of half share even in the revenue record pertaining to the year 1982-83. It was pleaded that revenue record from the year 1971-72 onwards was wrongly prepared by the revenue officials, behind the plaintiffs’ back and against the provisions of law. In order to prove their case, plaintiffs placed on record revenue record pertaining to the year 1966-67 showing Ram Ditta to be sole tenant in possession of the suit land. 4. Suit was primarily resisted by defendant No.1, who took up a plea that his brothers were settled outside the village and as such they never cultivated the land. He alone did so. This position was so even during the life time of Ram Ditta. Rent was paid by him alone to the owner Gurdass Ram. 5. Based on the pleadings of the parties, trial Court framed the following issues:- 1. Whether the suit is not maintainable in the present form? OPD. 2. Whether the suit is within time? OPD 3. Whether the plaintiffs are estopped by their act and conduct from filing the present suit? OPD 4 4. Whether the plaintiffs and defendants No.1 to 3 are in possession of suit land to the extent of ½ share? OPP. 5. Whether the defendant No.1 is in exclusive possession of suit land to the extent of ½ share previously as tenant and now as owner? OPD1 6. If issue No.4 fails, whether the defendant No.1 is in adverse possession of suit land to the extent of ½ share? OPD 6. Trial Court decreed the suit in terms of judgment and decree dated 15.6.1995 passed by Sub Judge, Ist Class, Amb, District Una, H.P. in Civil Suit No.424 of 1986, titled as Amar Singh and another vs. Munshi Ram and others, holding that all the legal heirs of Ram Ditta were owners in joint possession to the extent of half share in the suit land. Specific plea of tenancy and exclusive possession taken by defendant No.1 was turned down. 7. Aggrieved of the same, defendant No.1 alone preferred an appeal before the District Judge, Una. During the pendency of appeal his legal heirs were brought on record and the appeal pursued by them. In terms of judgment and decree dated 23.2.2000 passed in Civil Appeal No.115 of 1995, titled as Munshi Ram (deceased substituted by LRs.) Jagan Nath & others vs. Amar Singh, even the appeal stands dismissed by 5 the District Judge and findings of trial Court affirmed. 8. The present appeal is admitted on the following substantial questions of law:- 1. Whether the jurisdiction of the Civil Court was ousted on account of the order of Land Reforms officer granting proprietary rights exclusively in favour of Shri Munshi Ram? Could the Courts below presume the jurisdiction of the Civil Court without proper pleading or basis set out in the plaint? Are not the findings of both the Courts below contrary to the decision of the Full Bench rendered by the Hon’ble High Court of Himachal Pradesh in case titled Chuniya vs. Jindu Ram? 2. Whether both the courts below have wrongly relied upon the inadmissible evidence i.e. Exhibit PX which was not proved on record in accordance with law? Could Exhibit P-I and Exhibit PX be held to be binding on the defendant- appellants when the alleged admissions, if any, stood explained by the statement of tenant Shri Munshi Ram, having provisions of Evidence Act been misapplied in relying on such inadmissible evidence which has materially affected the decision. 3. When the revenue entries showing the exclusive tenancy in favour of Shri Munshi Ram continued for a period of more than a decade, without change, 6 ultimately culminating into the mutation of conferment of proprietary rights, could the suit of the plaintiff- respondents be held to be within the period of limitation? 4. Whether the courts below have wrongly exercised the jurisdiction in ignoring from consideration the relevant and material evidence of DW-2, Shri Gurdass Ram, previous owner affirming the creation of tenancy exclusively in the name of Shri Munshi Ram, was there any justification for the courts below to have presumed the succession of tenancy rights in favour of the plaintiff- respondents which is neither supported from the revenue record nor there was any other evidence available on the record, particularly when Shri Munshi Ram proved the payment of the rent to the owners from the year 1970 onwards evidenced by Exhibits DW-2/A to Exhibit DW-2/G? 9. Mr. Gupta, Senior Advocate, has made several contentions in favour of the appellants. On behalf of respondents Shri G.D.Verma, Senior Advocate, has made submissions. Learned senior counsel have cited several decisions and invited my attention to the relevant portion of the record in support of their respective pleas. 10. Relationship between the parties is not in dispute. That the contesting parties are legal heirs 7 of Ram Ditta is not in dispute. The exact date of death of Ram Ditta is not evident from the record, but, however, it is undisputed fact that he was tenant on the suit land at least till the year 1966-67, which fact in any event stands proved from the revenue record (Ext.P-6). Position with regard to tenancy between the years 1966-67 and 1971-72 is not reflective from the documentary evidence placed on the record. But, however, defendant No.1/plaintiffs has placed on record Girdwari (Ext.P7) pertaining to the year 1971-72 showing his name in the possessory column to the exclusion of all other legal heirs of Ram Ditta. Parties have also proved on record revenue record pertaining to the year 1971-72 (Ext.P-2), 1977- 78 (Ext.P-3), 1982-83 (Ext.P-4) and Ext.P-5 reflecting the same position. These documents are not disputed by the parties. 11. Revenue entries are not documents of title and title cannot be ousted on the basis of wrong revenue entries. [Smt. Bhekhalu Devi vs. Smt. Ram Ditti and others, 2008 (2) Shim.LC 412]. 12. Defendant No.1 has stepped into the witness box as DW-1 and has deposed that he alone was tilling the land even during the life time of his father and that he alone paid the rent. In support of his claim he has also examined original landlord/owner Shri Gurdass (DW-2). Rent receipts (Ext.DW-2/A to Ext.DW- 8 2/G) are also placed on record. Bare perusal of the same would make anyone believe that defendant No.1 alone was the tenant and by virtue of the provisions of the Act he alone was entitled to be owner thereof. 13. However, the matter is not as simple as it appears to be. Plaintiff has produced on record judgment dated 7.10.1975 (Ext.P-1) passed by the Sub Judge, Ist Class, Una in Case No. 245/71, titled as Munshi and others vs. Khushia. Perusal of the same would show that defendant No.1 herein, as plaintiff No.1 alongwith all other legal heirs of Ram Ditta, instituted a suit on 14.6.1971 by taking a common plea to the effect that the instant suit land was tilled by their father as a tenant and after his death, all of his legal heirs as tenants cultivated the same jointly. The said suit was filed against the parties claiming to be in joint possession of the entire land holding. The said suit was dismissed to the following effect:- “In view of my finding on issues above, I hold that the defendants are in possession as tenants of the suit land to the extent of their shares and they cannot be restrained to interfere in it as they are tenants and have every right to enjoy their share. Therefore, the suit of the plaintiffs is dismissed with costs. A decree sheet be prepared accordingly and the file be consigned to the record room after its completion.” 9 14. As such, the plea taken by defendant No.1 in the present suit is totally contradictory. Noticeably earlier suit was instituted on 14.6.1971 and dismissed on 7.10.1975. Statement (Ext.PX) of the present defendant No.1 was recorded in the said suit on 28.12.1972 on the basis of which the Court also made the following observations:- “Sh. Munshi Ram plaintiff has examined himself as PW-1 and he has stated that previously their father were to cultivate it and now they are cultivating after his death and that the defendants never remained in possession of any share of this land.” 15. Undisputedly this judgment and decree have attained finality. 16. Now, noticeably in the said suit defendant No.1 did not place on record any of the documents i.e. Ext.P-2, Ext.P-3, Ext.P-4, Ext.P-5, Ext.P-7 or Ext. DW-2/A to Ext. DW-2/G to prove his exclusive tenancy, possession or ownership over the suit land by virtue of the provisions of the Act. The provisions of the Act and the Rules framed, conferring title of ownership upon tenants, had already come into force as on 3.10.1975. Hence, by virtue of the plea already taken by defendant No.1 all the legal heirs of Ram Ditta, as tenants had become owners over the suit land. 10 17. In Court, defendants No.1 and 2 have nowhere deposed as to how, when and in what manner the tenancy of Ram Ditta was either surrendered or had come to an end during his life time. 18. The Apex Court in Baleshwar Tewari (dead) by LRs. and others v. Sheo Jatan Tiwary and others, (1997) 5 SCC 122, has held as under:- “……….Entries in Revenue records is the paradise of the patwari and the tiller of the soil is rearely concerned with the same. So long as his possession and enjoyment is not interdicted by due process and course of law, he is least concerned with entries.” 19. There is nothing on record to show that before entries were effected in revenue records (Ext.P-2 to Ext.P-5 and Ext.P-7) notices were ever issued to the concerned parties. Undisputedly as per revenue entry (Ext.P-6) Ram Ditta was recorded in possession of the suit land as tenant. How and in what manner names of other legal heirs of Ram Ditta were excluded is not explained. No doubt plaintiffs and defendants No.2 and 3 were not residing in the village but then it is not the proven case of either of the parties that Ram Ditta, during his life time had either surrendered his tenancy in favour of defendant No.1 or that he had separated his sons. Parties were residing jointly as there is no proof of separation. It may be true that defendant No.1 alone 11 was tilling the land but then it was for and on behalf of his father during his life time and on behalf of his brothers thereafter. 20. The Apex Court in State of Himachal Pradesh v. Keshav Ram and others, AIR 1997 SC 2181, has held as under:- “4. …… The question, therefore, arises as to whether the entry in the settlement papers recording somebody's name could create or extinguish title in favour of the person concerned? It is to be seen that the disputed land originally stood recorded in the name of Raja Sahib of Keonthal and thereafter the State was recorded to be the owner of the land in the record of right prepared in the year 1949-50. In the absence of the very order of the Assistant Settlement Officer directing necessary correction to be made in favour of the palintiffs, it is not possible to visualize on what basis the aforesaid direction had been made. But at any rate such an entry in the Revenue papers by no stretch of imagination can form the basis for declaration of title in favour of the plaintiffs. To our query as to whether there is any other document on the basis of which the plaintiffs can claim title over the disputed land, the learned counsel for the plaintiffs-respondents could not point out any other document apart from the alleged correction made in the register pursuant to the order of the Assistant Settlement Officer. In our considered opinion, the 12 Courts below committed serious error of law in declaring plaintiff's title on the basis of the aforesaid order of correction and the consequential entry in the Revenue papers. In the circumstances, the appeal is allowed and the judgment and decree passed in all the three forums are set aside. The plaintiffs' suit dismissed. There will be no order as to costs. 21. In this background, mere entries in the revenue record would not confer any title upon defendant No.1 in the absence of any material to show that he alone was the tenant with respect to the suit land. Statement of DW-2 to my mind does not inspire confidence in this regard. He has issued rent receipts, which as noticed earlier, were not placed on record by defendant No.1 in the earlier litigation. Possibility of the same being procured subsequently, with a prior date cannot be ruled out. The rent receipts are in continuation on same piece of paper. Even this witness could not depose as to when and how defendant No.1 alone became tenant on the suit land. He also admits that Ram Ditta was the original tenant. Even he is silent about the date and the manner of surrender of earlier tenancy. 22. In the instant suit, there is no dispute about tenant- landlord relationship, inter se between the plaintiffs and defendants and as such it cannot be said that jurisdiction of the Civil Court was barred 13 in view of the law laid down by the Full Bench of this Court in Smt. Chuhniya Devi Vs. Jindu Ram, 1991 (1) Sim.L.C. 223. 23. Conferment of tenancy in favour of defendant No.1 alone was not in accordance with the provisions of the Act. As such, plaintiffs’ suit was maintainable in view of the law laid down by the Apex Court in Dhulabhai etc. vs. State of Madhya Pradesh and another, AIR 1969 SC 78. 24. The plea with regard to limitation is also misconceived. Plaintiffs have sufficiently proved that they were kept in dark about the entries made in the revenue record. It was only when defendant No.1 started asserting his exclusive right, title and possession over the suit land that the plaintiffs made inquiries and discovered the fraud. It is not shown from the record that the entries made in the year 1971-72 were actually to the knowledge of the plaintiffs. No doubt, in the earlier litigation, Ext.P-7 was produced on record by the defendants therein, but then defendant No.1 himself had made a statement on oath, which was accepted to be true and correct, contrary to the record prepared by the revenue authorities. As such, it cannot be said that the suit is barred by limitation. It was only when defendant No.1 asserted his exclusive claim, 14 plaintiffs discovered the factual position and immediately filed the instant suit. 25. Ext.PX is the statement of defendant No.1 in the earlier proceedings proved by Shri Ram Parkash (PW-4) who was working as a Civil Ahlmad at the relevant time. In no uncertain terms he has deposed that the statement was recorded by Shri O.P.Sharma, District Judge, in Civil Suit No. 245/71, who was Sub Judge at the relevant time. Significantly when the document was exhibited no objection was taken by defendant No.1. Additionally this witness has proved and identified the handwriting of the Judge as he worked as Ahlmad under him at the relevant time. Thus, at this stage it cannot be said that the document cannot be looked into as having not been exhibited in accordance with law. Even if this document is not considered, even otherwise findings returned by Civil Court in Ext.P-1 can be taken note of. 26. It is urged that Ram Ditta was old, infirm and unable to cultivate the land, which in fact was done by the appellant and as such he became tenant. That fact by itself would not confer any right of tenancy upon defendant No.1. Ram Ditta still continued to be tenant under the Punjab Tenancy Act, 1887 and even a son can till the land on behalf of his father. There is no bar with respect thereto. 15 27. It is urged that entries Ext.P-7, reflecting the true and existing state of affairs on the spot were made after consolidation proceedings were over by the Settlement Officer. This would in no manner strengthen the appellants’ case in view of judgment (Ext.P-1) and own admission made in the earlier litigation. 28. Entry reflected in the revenue record pertaining to the year 1966-67 (Ext.P-6) raises a presumption in favour of continuance of events unless there is something on record to prove to the contrary, which in the instant case is lacking. 29. In my considered view, defendant No.1 has been taking contradictory pleas as per his convenience. In the earlier suit (Ext.P-1 judgment) he took up a plea of joint tenancy and ownership whereas in the instant suit, his plea is that of exclusive tenancy even during the life time of his father. Strangely he has taken yet another contradictory plea of adverse possession. The pleas taken are thus mutually destructive. 30. In my considered view, Courts below have rightly not accepted the plea of defendant No.1. 31. From the perusal of record, it cannot be said that concurrent findings of fact returned by the Courts below are either perverse or based on erroneous 16 appreciation of material on record resulting into travesty of justice. 32. Questions of law are answered accordingly and the present appeal is dismissed. 18th August, 2011 (Sanjay Karol) (C) Judge.