IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 448 of 2000 Reserved on: 28.09.2011 Decided on: 13.10.2011 Chet Ram …Appellant. Versus Jai Dei & others …Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting?1 Yes. For the appellant: Ms. Seema Guleria, Advocate. For the respondents: Mr. Bhupender Gupta, Senior Advocate, with Ms. Charu Gupta, Advocate. Deepak Gupta, J. This Regular Second Appeal by the plaintiff was admitted on the following substantial question of law: “1. Whether there is any presumption of truth attached to the revenue entries prepared by the revenue officials without following procedure laid down for preparing record under Section 35, 36, 37 & 38 of the H.P. Land Revenue Act, 1953 (Act No. 6 of 1954)?” 2. Briefly stated, the facts of the case are that the plaintiff, Hari Dass, filed a suit claiming that he is in possession of the suit land measuring 12 bighas as a tenant and the factum of his tenancy was recorded in the jamabandi for the year 1988-89 and by 1 Whether the reporters of local papers may be allowed to see the Judgment? Yes. -: 2 :- virtue of the Tenancy Law, he has become owner of the same. According to him, the defendants, including defendant No. 1, Chet Ram, had no right, title or interest in the suit land, but were trying to interfere in his possession. 3. Defendants No. 4 and 5, who were the widow and daughter of Jiwanoo, admitted the claim of the plaintiff. Defendant No.1, Chet Ram, however, contested the suit. According to him, Dhunder and Jiwanoo were real brothers, who owned 12 bighas of land and Dhunder had gifted his share in the suit land measuring 6 bighas to Chet Ram. Plaintiff, Hari Dass, was interested in purchasing the share of Dhunder. He got annoyed when Dhunder gifted his share to Chet Ram and, thereafter, got a false entry recorded in his name. It was alleged that this entry was got recorded illegally in the year 1985. It was also alleged that the change in the revenue record, whereby Hari Dass was shown to be a tenant on the suit land, was made without any authorization and by an authority not competent to make such a change in the revenue record and as such, was illegal and without any authority. A counter claim was filed and it was prayed that a decree of declaration be passed that defendants are owners in possession of the suit land and the orders whereby entry showing the plaintiff to be a tenant were wrong and it was further prayed that the plaintiff be restrained from interfering in the possession of the defendants. In the alternative, relief of possession was prayed for. 4. The undisputed facts are that prior to the year 1985, the plaintiff was never shown to be either a tenant or in possession -: 3 :- of the suit land. For the first time, such an entry was incorporated in the revenue records on 22.05.1985 in Khasra Girdawari recorded for Rabi crop. 5. The main question is whether reliance should be placed on the earlier revenue record or on this entry. In the jamabandi for the year 1982-83, the heirs of Jiwanoo and Dhunder were shown in cultivating self-possession of the 12 bighas of land. In Ex. DC, which is the Khasra Girdawari, it is recorded that vide report No. 235, dated 22.05.1985, plaintiff, Hari Dass, was shown to be in possession of the suit land. It would be pertinent to mention that the suit land was recorded as ghasni in Ex. DB and was shown as ghasni up to 22.04.1985, but only thereafter it is shown to have been cultivated. This clearly indicates that prior to 22.04.1985, the suit land was not being cultivated. On the basis of this report made in the Khasra Girdawari, the entries continued in the subsequent Khasra Girdawaris and were incorporated in the jamabandi for the year 1988-89, Ex. PW-1/A. 6. The law is well settled that a presumption of truth is attached to Jambandis. The question that arises is whether in the present case, the long standing entries prior to 1985 should be relied up or it is the later entries, which should be relied up. 7. Para 8.15 of the Himachal Pradesh Land Records Manual provides that the status of a landowner or tenant cannot be altered except by agreement of all the parties or in consequence of a decree or order or in accordance with facts proved or admitted to -: 4 :- have occurred in accordance with Section 38 of the Himachal Pradesh Land Revenue Act, 1954. 8. Para 9.8 of the Himachal Pradesh Land Records Manual reads as follows: “9.8 The crops will be entered in the Khasra girdawari, as the inspection proceeds, in the column provided for the purpose. The changes in rights, rents and possession will be noted in the appropriate column in pencil. And, where the boundaries or area of a field have changed in such a manner as to require a correction of the field map, the patwari will make a rough measurement, sufficient for the crop entries. All changes in rights, rents and possession shall be recorded by the patwari in pencil and by putting a cross in pencil in columns 12, 16, 20, 24 and 28 of Khasra girdawari in accordance with Govt. instructions issued vide letter No. 10-5/73-II, dated 4.9.80. As per these instructions, the patwari will given information of such changes to the Tehsildar/Naib -Tehsildar as the case may be. The Tehsildar/Naib Tehsildar will inquire and give reasonable opportunity of being heard to the parties. The inquiry should be completed within 3 months and the entries will be made in Khasra girdawari according to the orders passed by the Revenue Officers after entering in his diary.” A bare reading of this provides that all changes should be recorded by the Patwri in pencil and by putting a cross in pencil in columns 12, 16, 20, 24 and 28 of the Khasra Girdawari. The Patwari is to then give the information of such changes to the Tehsildar/Naib – Tehsildar, who will inquire into the matter and after giving reasonable opportunity of being heard to the parties, complete the inquiry and then pass an order after entering it in the diary. 9. Section 38 of the Himachal Pradesh Land Revenue Act, 1953, reads as follows: “38.Restrictions on variations of entries in records. - Entries in records-of-rights or in [periodical] records, except entries made in [periodical] records by patwaris under clause (a) of section 36 with respect to undisputed acquisitions of interest -: 5 :- referred to in that section, shall not be varied in subsequent records otherwise than by- (a) making entries in accordance with facts proved or admitted to have occurred; (b) making such entries as are agreed to by all the parties interested therein or are supported by a decree or order binding on those parties; and (c) making new maps where it is necessary to make them.” This Section also makes it clear that entries in the revenue record can be changed only on the basis of admitted facts or facts proved and, therefore, hearing is necessary before making a change in the revenue record. 10. In the present case, Ex. DA and Ex. DB are the jamabandis for the year 1982-83. The names of the plaintiff do not figure in these entries and there is a note that vide mutation No. 382, Dhunder has gifted his land in favour of Chet Ram, which has been entered in his favour. Similarly, there is another note No. 408, whereby khasra No. 308/42 measuring 6 bighas has been given to the heirs of Jiwanoo and khasra No. 307/42 measuring 6 bighas has fallen to the share of Chet Ram. Thus, partition took place before the change in Khasra girdawari was made. 11. Chet Ram examined DW-5 Lal Singh, Patwari of the concerned area, who brought the record. He stated that in their record, there is no report No. 235 dated 22.05.1985. Similarly, there is no report No. 352 of the same date. He also admitted that after 1985, no entry of tenancy can be recorded without orders of the Court or the Tehsildar. -: 6 :- 12. The learned trial Court decreed the suit of the plaintiff for the relief of injunction and also dismissed the counter claim filed by the defendant. The parties filed appeal and the learned District Judge came to the conclusion that the plaintiff is in possession of the suit land as a tenant and upheld the judgment and decree of the learned trial Court. While doing so, he has relied upon the suggestions put to the plaintiff that his name has been shown as tenant for the last 20-25 years. Hence, this appeal by the defendant Chet Ram. 13. I have heard Ms. Seema Guleria, learned counsel appearing for the appellant and Mr. Bhupender Gupta, learned senior counsel appearing for the contesting respondent. I am of the considered view that both the Courts below have gravely erred in holding that the revenue records showing the plaintiff, Hari Dass, to be in possession, must be believed. When there is a change in the long standing revenue entries, the person relying upon the changed revenue entries must show how this change has been made. In the present case, even the reports, on the basis of which change was made in the Khasra girdawri, have not been found in the record. 14. The Apex Court in Raja Durga Singh of Solon versus Tholu and others, AIR 1963 Supreme Court 361, has held that when there is conflict between the earlier entries and the later entries, the later entries must prevail. However, the observations of the Apex Court were distinguished by Justice -: 7 :- Grover, J., of the Punjab and Haryana High Court in the following terms: “It is clear from the pedigree-table set out in its judgment that Mathar Mal had three sons Jiwan, Amin Chand and Relu. Durga and Sidhu are the descendants of Jiwan whereas the plaintiff and defendant No. 3 are the descendants of Amin Chand and Relu. Now, in the entries prior to 1929-30 each one of the descendants of the three sons of Mathar Mal had been shown to have 1/3rd share and without any mutation the entries were changed in 1929-30. Admittedly there is no order of the revenue authorities showing how the change was made. Thus although the presumption would be in favour of the later entries but that presumption was a rebuttable one and it would stand rebutted by the fact that the alternation in the entries in 1929-30 was made unauthorisedly or mistakenly, there being no material to justify the change of entries.” Grover, J. distinguished Shri Raja Durga Singh of Solan v. Tholu ((1963) 2 S.C.R. 693, 700=1962 P.L.J. 88) thus: “There is nothing to indicate that in the case decided by their Lordships such was the position. Moreover, the decision in that case proceeded largely on the finding of fact arrived at by the District Judge on a consideration of the evidence being not open to interference in second appeal. The finding in the present case of the lower appellate Court is also based on evidence from which it has been inferred that the later entries re not the correct ones.” The Apex Court in Durga (deceased) and others versus Milkhi Ram and others, 1969 P.L.J. 105 agreed with the observations of Grover, J., meaning thereby that where the entries in the revenue record are changed without proper authority or authorization then the latter entries will not prevail. 15. In Harbans Singh and others versus Karam Chand and another, 1992 PLJ 616, a learned Single Judge of this Court held as follows: -: 8 :- “It is well settled that where the earlier revenue entries were changed in the later revenue entries and the change was effected without any mutation and there was no order of the Revenue Authorities showing how the change was made, although the presumption ordinarily would be in favour of the later entries, yet that presumption is rebuttable one and it would be deemed to have been rebutted by the fact that the alterations in the later entries are found to have been made unauthorisedly or mistakenly, their being no material to justify the change of entries. This is what has been found to have been done in the instant case while the entries recording the plaintiffs to be the owners in possession of the suit land have been recorded in the later Khasra Girdawari. In fact, the Financial Commissioner has prescribed the mode for effecting changes in the existing Khasra Girdawaris. According to the Instructions, it is the duty of the Patwari before making any change in the existing entry at the time of harvest inspection, to notify in writing the person or persons likely to be adversely affected by such a change of the entries and retain on record proof of the notifications. Further, the changes so made should be attested by the Lambardar or the Panch of the village. It is further stated in the Instructions that entries made in violation of the said Instructions shall be treated null and void at the time of attestation of the Jamabandi or at any earlier stage.” 16. This Court in Tulsa Singh versus Agya Ram and others, 1994 (2) CLJ 584, held that if the proper procedure for making the change in the entries in the revenue record is not followed, then the subsequent entries cannot be relied upon. 17. In the present case also, there is no material to justify the change in the revenue record. There is nothing material to show that any rent was paid to Chet Ram or that Chet Ram ever inducted the plaintiff as his tenant. Therefore, the presumption attached to the later revenue entries stands rebutted and no reliance can be placed upon the same. At best, Hari Dass may have become a tenant on the land originally owned by Jiwanoo, since his legal heirs have not contested his suit, but as far as the land originally -: 9 :- owned by Dhunder, later gifted to Chet Ram is concerned, in my view, there is no manner of doubt that there is no material to show that Hari Dass was ever inducted as a tenant on the same. As noted above, partition between Chet Ram and the heirs of Jiwanoo had taken place prior to 1985 and, therefore, they could not have inducted Hari Dass as tenant on the entire land holding. 18. It is, however, apparent that Hari Dass is in possession of the suit land as this is a concurrent finding of fact recorded by both the Courts below. 19. In view of the above discussion, the appeal is allowed and the judgments and decrees of both the Courts below are set aside. The suit filed by Hari Dass is dismissed and the counter claim filed by Chet Ram is decreed and it is declared that he is owner of khasra No. 307/42, measuring 6 bighas and is entitled to possession thereof. Decree sheet be prepared accordingly. No costs. (Deepak Gupta) Judge October 13, 2011 (rajni)