IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Regular Second Appeal No.50 of 1996 alongwith Cross Objection No.32 of 1997. Judgment Reserved on: 25.11.2008. Date of decision: 15.12.2008. Harnam Singh ….Appellant Versus Harbans Singh & Others ….Respondents Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 For the Appellant: Mr.B.S. Attri, Advocate. For the Respondents: Mr.K.D. Sood, Advocate. Dev Darshan Sud,J. This is the plaintiff’s appeal against the judgment and decree of the learned appellate Court partly modifying the judgment and decree of the learned trial Court in the suit instituted by the plaintiff Harnam Singh praying for decree for possession on the ground that the plaintiff is in possession of the suit land as mentioned in the head note of the plaint. The learned trial Court on the settled issues that the plaintiff and defendants No.22 to 25 before the trial Court are owners to the 1 Whether the reporters of Local Papers may be allowed to see the judgement? 2 extent of 3/4th share in the land measuring 160 Kanals granted a decree for possession, as prayed for. The Court negatived the contention that the defendants were in adverse possession of the suit land or that the suit was barred by the principle of res judicata or by the provisions of Order 2 Rule 2 of the Code of Civil Procedure. For reaching this conclusion, the learned trial Court relied upon the evidence of the plaintiff as PW-1, PW-2 Arjun Singh, PW-3 Dharam Singh and PW-4 Lashkari. The revenue record consisting of Jamabandies Ex.P-1 to Ex.P-13 for the years 1972-73 to 1983-84 were held to be proved the case of the plaintiff. The other contentions of the defendants were negatived and the suit was decreed accordingly. The contesting defendants in the present appeal are Harbans Singh, Karmi Devi, Durgi Devi, Amro Devi, Shankari Devi, Rattni Devi and Attro Devi. The learned District Judge, after consideration of the evidence, partly modified the decree reversing the finding on issue No.1 holding the plaintiff and defendants No.22 to 25 as joint owners of the suit land but not to the extent of 3/4th share. The findings on issues No.2 and 3 were reversed and on issue Nos.4 to 8 were affirmed. This appeal has been admitted on 30.7.1997 on the following substantial questions of law:- 3 “1. Whether the record of rights showing the plaintiff and proforma defendants No.22 to 25 as owners to the extent of 3/4th share carries presumption of correctness under Section 45 of H.P. Land Revenue Act and as such admissible in evidence? 4. Whether the findings of facts given by Lower Appellate Court based on mis-reading of evidence and ignored the oral and documentary evidence and findings is based on surmises? 6. What is effect of non impleading of Legal Representatives of defendant No.3.? Question No.6: This question need not be taken up as the deceased Mohinder Singh did not file any written statement before the trial Court and was proceeded ex-parte before the learned appellate Court. He did not participate in the proceedings and chose to remain absent despite service. In the circumstances, this question is answered against the appellant. Questions No.1 and 4: Questions No.1 and 4 are taken up for decision as they both are inter-related. The learned District Judge has considered the evidence in detail. In-fact, reading of the judgment of the trial Court shows that it has merely mentioned the revenue record 4 without in any manner stating as to how ownership and shares of the plaintiff are established. The learned District Judge, while deciding the appeal, has not only considered the evidence, but the pleadings of the parties. The learned Court holds that the plaintiff had approached the Court on the pleadings that he and defendants No.22 to 25 are owners to the extent of 3/4th share of the suit land and that the entries in the revenue papers showing defendants Karmi Devi, Durgi Devi, Attro Devi and Gopi etc., as owners and Harnam Singh and Kamla Devi etc. as in possession are wrong and contrary to the factual position. The learned Court has considered in detail the pleadings alongwith the evidence of the parties. On issues No.1, 2 and 3 namely, “(1) Whether the plaintiff and defendants No.22 to 25 are owners of the land in suit i.e. 3/4th share in the land measuring 160 Kanals as alleged?, (2) Whether the entries in the revenue record showing Karmi Devi,Durgi Defvi, Atro Devi, Gopi etc. as owners and Harnam Singh and Kamla Devi etc. as in possession, are wrong, illegal and against the facts? And (3) Whether the plaintiff is entitled to the relief of possession prayed for”, the learned Court holds that the oral evidence of the plaintiff as PW-1, Arjun Singh PW-2, Dharam Singh PW-3 and Lashkari PW-4 does not in any manner establish the case of the 5 plaintiff. The Court holds that from the statement of the plaintiff none of the facts as pleaded in paragraphs 2 to 6, which are the very foundation for the claim of ownership and possession, have been proved. The Court on appreciation of evidence holds that the witnesses of the plaintiff have given evidence inconsistent with the pleadings of the plaintiff. PW-4, according to the learned Court below, has introduced a new version which has never been pleaded by the plaintiff. On consideration of Jamabandies Ex.P-1 to Ex.P-13 the learned Court holds that these do not specifically show the share of the plaintiff. Learned counsel for the appellant urges that Ex.P-3 conclusively establishes the case of the plaintiff. This is a Jamabandi for the year 1978-79 which purportedly incorporates mutation No.630, dated 6.10.1979 in support of the plea of the plaintiff for ownerhip. It need not be reiterated that mutation is not a document of title and that the inheritance has to be established by evidence aliunde. I am unable to persuade myself that the learned District Judge has misread or misconstrued the evidence or has misinterpreted the revenue record. It was for the plaintiff to have established by clear and cogent evidence as to whether he is the owner of the land and to the extent as specified. These two questions are, therefore, answered against the appellant. 6 Although in second appeal it was not within the jurisdiction of this Court to have entertained a question of fact but still the appeal having been admitted on the question which requires re- appreciation, I have gone through the evidence, but do not find any infirmity in the findings of the learned District Judge. This appeal is accordingly dismissed. Parties to bear their own costs. Cross Objection No.32 of 1997. I also find from the record that the plaintiff has laid his claim to the land on the basis of a will having been made in his favour by one Gopi. The will has not seen the light of the day and mutation proceedings cannot be treated as satisfactory proof of the execution of a valid will. Cross objections are dismissed. December 15, 2008. (Dev Darshan Sud) (aks) Judge.