IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA R.S.A. No: 87 of 1998 Date of decision:13.08.2008 Sant Ram Appellant Vs. Chandermani and others Respondents Coram: The Hon’ble Mr. Justice: R.B.Misra, Judge Whether approved for reporting?1 For the Appellant: Mr. Ashwani Kumar Sharma, Advocate. For the respondents: Mr.B.K.Malhotra, Advocate. R.B.Misra, J. (Oral) Heard learned counsel for the parties. 2. The present Regular Second Appeal has been preferred against the judgment and decree dated 24.5.1997 passed by the learned Additional District Judge, Mandi, dismissing the Civil Appeal No. 111 of 1990 (Sant Ram Vs. Chandermani and others), affirming the judgment and decree dated 31.8.1990 passed by the learned Sub Judge Ist Class (Court No. III), Mandi in Civil Suit No. 122 of 1988 filed by the plaintiff-appellant for declaration and consequential relief. 3. For appreciation of the appeal, it is necessary to go into the background of the case. Chandermani, respondent No.1 herein, had given land comprising of khasra No. 38, measuring 2-19-15 bighas situated in village Chowari, to Sant Ram for Rs. 1 Whether reporters of local papers are allowed to see the judgment? Yes. 2 1200/- on 5.4.1970 on mortgage since he wanted not to keep the land on mortgage, therefore, preferred an application under Section 4 of the Redemption of Mortgages (Himachal Pradesh) Act, 1971 (hereinafter referred to as Act No. 13 of 1971) before the Collector, Sadar, Sub Division, Mandi for redemption of mortgage of said land. The said application was said to be submitted on 19.9.1988 as file No. 23 whereby issues were framed by the Collector and keeping in view the submissions of the present plaintiff-appellant that the said land in question was taken on mortgage by one Shri Baldev, who was predecessor- in-interest of Chandermani, the Collector, Sadar, Mandi after hearing and taking into consideration the material on record, has observed that no material or evidence or any record was produced on behalf of Sant Ram that he was ever tenant over this land. Taking into consideration the witnesses produced by Sant Ram and perusing the copy of jamabandi, the Collector has observed that in the jamabandi for the year 1977-78, Sant Ram has been recorded in the column of possession as “Gair Marusi” and in the column of rent “Villa Lagan Bavajah Rehan Mublig Rs.1200/-”. The Collector has arrived at a fact finding indicating that Sant Ram has been in possession of the land in question not as a tenant, but has a mortgagee. After adjudicating the application, the Collector has arrived at a definite fact of finding that the land in question was mortgaged by Chandermani from Sant Ram on 5.4.1970 at the rate of Rs.1200/- and Chandermani was entitled to redeem it. Accordingly redemption was allowed by Collector under 3 Section 10 of Act No. 13 of 1971 and mortgagor Chandermani was put in possession of the land in question by order dated 19.9.1988. 4. The said order of Collector, Sadar, Sub Division, Mandi, dated 19.9.1988 was challenged by way of Civil Suit No. 122 of 1988 before the Sub Judge Ist Class, Court No. III, Mandi on the following grounds:- “(a) That the plaintiff was tenant of late Shri Baldev, predecessor-in-interest of the defendants and was paying him rent @ 1/4th gala batai. IN respect of the mortgage he has got a legal right to be declared as such. (b) That Collector, Sadar Sub Division, in fact had no jurisdiction to hear and determine the application of defendant No.1 under Section 4 of H.P.Act No. 13 of 1971 and as such its order dated 19.9.1988 is void. (c) That inspite of redemption the plaintiff would continue to be a tenant in the land and order of the Collector, Sadar Sub Division, Mandi, dated 19.9.1988 is illegal and without jurisdiction because mortgage was never created by defendant No. 1 on 5.4.1970 rather much earlier by late Shri Baldev. The application was also not legally maintainable before the Collector, Sadar Sub Division, Mandi.” 5. The above suit in question preferred by the plaintiff-appellant, Sant Ram, was contested by the defendants, respondents herein, by joint written statement challenging the maintainability of the said suit as well as asserting that the plaintiff-appellant was not a tenant of the suit land and was 4 never inducted as a tenant by the defendants-respondents and as such the order of Collector, dated 19.9.1988 was legal and valid. 6. The following issues were framed by the trial court:- 1. Whether the order of Collector dated 19.9.1988 is illegal and without jurisdiction, as alleged ? OPP 2. Whether the suit is within time ? OPP 3. Whether the suit is not maintainable in the present form ? OPD 4. Whether the court has no jurisdiction to entertain the present suit ? OPD 5. Relief. 6. After examining six witnesses brought for and on behalf of the plaintiff-appellant and placing reliance upon the copy of jamabandi for the year 1982-83 (Ex.PA), copy of the order of Collector, Sadar, Sub Division, Mandi, dated 19.8.1988 (Ex.PC), copy of jamabandi for the year 1971-72 (Ex. PB) and keeping in view the two defence witnesses and after placing reliance on the copy of Rapat Roznamcha Wakyati (Ex.PW12/A), the learned trial court has analyzed that in view of the statements of PW-1 Sant Ram, he has taken the land in question from Baldev on rent about 27-28 years back and was producing the crop, but such land was mortgaged by Baldev to him after 5-6 years for Rs. 1200/-, but he did not take any receipt from Baldev. The learned trial court has taken into consideration the testimony of PW-2 Kanhaiya and PW-6 Indru 5 who have stated that the land in question was cultivated by the plaintiff-appellant for the last 27, 28 and 30 years respectively. However, PW-3 Chuhru and PW-4 Achhar have not supported the case of the plaintiff-appellant. PW-5 Jadia Ram has stated that the land in question was in possession of the plaintiff- appellant for the last 25-30 years. 8. On the other hand, DW-1 Chandermani and DW-2 Halqua Patwari have stated that the land in question was mortgaged to the plaintiff-appellant for Rs.1200/-. DW-2 has proved copy of Rapat Roznamcha (Ex.DW-2/A). 9. The learned trial court while adjudicating the issues in the above civil suit No. 122 of 1988 has observed that nothing was brought on the record by the plaintiff-appellant to show that he was ever inducted as a tenant by Baldev and there was no documentary evidence in his favour. No record has been produced by the plaintiff-appellant except saying that the land was being cultivated for more than 2 decades, whereas, defendants have placed on record copy of rapat-roznamcha to show that the suit land has been mortgaged to plaintiff- appellant for Rs. 1200/- on 5.4.1974. Copy of jamabandis for the year 1971-72 and 1982-83 were analyzed by the learned trial court and it was found that in the column of lagan, it is mentioned “Villa Lagan Bavajah Rehan Mublig Rs.1200/-”. As such entries were analyzed and it was found that there was nothing to show that such entries were wrong. As nothing was reflected from the rapat-roznamcha that Shri Baldev had ever given the said land on mortgage to the plaintiff-appellant, 6 otherwise something could have been indicated in the jamabandi and khasra girdauri prior to 1971-72. Therefore, in absence of any documentary evidence produced on behalf of the plaintiff-appellant, however, on the available documents, records and keeping in view the witnesses, i.e. PWs 1, 2, 3, 4 and 6 as well as DWs 1 and 2, the Sub Judge Ist Class, Court No.III, Mandi dismissed the suit in question vide judgment dated 31.8.1990. 9. Against the above order of the Sub Judge Ist class, Court No.III, Mandi, the plaintiff-appellant preferred Civil Appeal No. 111 of 1990 under Section 96 of the Civil Procedure Code read with Section 21 of the H.P. Courts Act, 1976 before the learned Additional District Judge, Mandi. The learned first Appellate Court has analyzed the material on record and has scrutinized the evidences as well as order dated 19.8.1988 of the Collector. The learned Additional District Judge has observed that the order dated 19.8.1988 of the Collector was legally correct, however, if the plaintiff-appellant aggrieved with the said order could have filed an appeal, as such the civil suit No. 122 of 1988 was not maintainable. 10. The learned Additional District Judge has, however, placed reliance on Section 45 of the Himachal Pradesh Land Revenue Act, 1953 regarding presumption of correctness attached to the entries of jamabandi which form part of the record of rights. For convenience Section 45 of the Himachal Pradesh Land Revenue Act, 1953 is reproduced as below:- 7 “Sec.45. Presumption in favour of entries in records of rights and [periodical] records.- Any entry made in a record-of-rights in accordance with the law for the time being n force, or a [periodical] in accordance with the provisions of this chapter and the rules thereunder, shall be presumed to be true until the contrary is proved or a new entry is lawfully substituted therefore.” 11. Learned Additional District Judge has rightly observed that the presumption attached to the entries recorded in the record of rights are rebuttable one and can be rebutted if a new entry is substituted lawfully for the old entry or if the contrary is proved by the person assailing such an entry. The learned Additional District Judge/learned First Appellate Court, however, on analyzing the copy of jamabandis for the year 1971-72 (Ex.PB) and for the year 1982-83 (Ex.DW-1/A) has rightly observed that the land was in the form of mortgage in possession of the plaintiff-appellant and in the column of rent it was recorded as “Villa Lagan Bavajah Rehan Mublig Rs. 1200/-.” Accordingly, the plaintiff-appellant was shown to be as mortgager and not as a tenant and learned Additional District Judge/First Appellate Court has rightly appreciated that there was no entry of tenancy in the revenue record. More so, the only oral evidences were brought for and on behalf Sant Ram/plaintiff/appellant herein who had not even specifically indicated that the plaintiff-appellant was tenant. The learned Additional District Judge/First Appellate Court has rightly, on the basis of the testimony of PWs 1 to 6 and DWs 1 and 6 and on the basis of the records, has analyzed that the plaintiff- 8 appellant was recorded as a mortgagor in the land in dispute and not as a tenant. 12. I have heard learned counsel for the parties and perused the documents. I have gone carefully through the order of Collector, dated 19.8.1988 as well as the order of Sub Judge Ist Class, Court No.III, Mandi dated 31.8.1990 as also the impugned order dated 24.5.1997 passed by the learned Additional District Judge, Mandi in Civil Appeal No. 111 of 1990. I have also carefully gone through the rapat roznamcha wakayat as well as the copy of jamabandi for the year 1971-72 (Ex.PB), jamabandi for the year 1982-83 (Ex.PW-1/A). On analysis, I find that there is an entry in the column of possession “Villa Lagan Bavajah Rehan Mublig Rs.1200/-”. No specific material document or evidenciary has been brought which may support the assertion of the plaintiff-appellant. From the testimony of the record it could be said that before filing of the case of redemption by respondent/Chandermani/plaintiff- appellant was in possession of the suit land, however, the mortgage was only created at Rs.1200/- by Chandermani in favour of the plaintiff-appellant on 5.4.1970. No other material is available whereby it could be held that the plaintiff-appellant was tenant of the said land in question. The issues have been properly dealt with by the learned trial court as well as by the First Appellate Court/Additional District Judge and in my respectful consideration the fact findings arrived at are legally correct. I find no occasion to interfere in the fact finding. Therefore, I am of the considered view that the questions of law 9 framed earlier are not substantial questions of law where present second appeal could be adjudicated upon. Therefore, the matter of fact finding arrived at concurrently by both the courts below cannot be interfered with. 12. In view of the above observations, there is no merit in the present appeal which is accordingly dismissed. August 13, 2008(K) ( R. B. Misra ), J.