IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 363 of 2001 Date of decision: 14.09.2011 Parkash Chand ... Appellant Versus Smt. Udhami and others … Respondents Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellant: Mr. H.K. Bhardwaj, Advocate. For the respondents: Mr. Romesh Verma, Advocate, for respondent No. 1. V.K. Ahuja, J. (Oral): This Regular Second Appeal has been filed by the appellant/defendant against the judgment and decree dated 24.4.2001 of the Court of learned District Judge, Una, vide which he dismissed the appeal filed by the appellant against the judgment and decree dated 29.8.1996 of the Court of learned Sub Judge 1st Class, Court No. 2, Una, decreeing the suit of the respondent for declaration and permanent injunction. 2. Briefly stated, the facts of the case are that respondent No. 1, hereinafter referred to as the plaintiff filed a suit for declaration and permanent injunction as against the appellant, hereinafter referred to as defendant No. 1 and respondent No. 2 Lekh Raj, hereinafter referred to as the proforma defendant. It was alleged by the plaintiff 1Whether reporters of Local Papers may be allowed to see the judgment? 2 that she is owner in possession of land measuring 6 Kanal 15 Marlas as detailed in the plaint and is also owner in possession alongwith defendant No. 2 of land measuring 1 Kanal 0 Marla as detailed in the plaint. It was alleged that father of defendant No. 1 as well as defendant No. 1 in connivance with defendant No. 2 and the revenue staff got incorporated wrong entries in the revenue record showing him as tenant on the basis of oral sale. It was alleged that neither any land was sold to the defendant by the plaintiff and defendant No. 2 and nor defendant No. 1 was inducted in possession of the suit land by the plaintiff. The plaintiff is in exclusive possession of the suit land comprised in sub-head (a) and since defendant No. 1 has started interfering in the possession of the plaintiff on the basis of the wrong entries, hence the suit for declaration and permanent injunction filed by the plaintiff. 3. Defendant No. 1 pleaded that his father had purchased the suit land in the year 1972 for ` 2500/- by an oral sale and thereafter, the entries came to be recorded in the name of defendant’s father showing him in possession since Rabi 1978. In the alternative, defendant No. 1 also claimed that he is in adverse possession of the suit land and has become owner thereof and hence, the suit is liable to be dismissed. 4. On the pleadings of the parties, the following issues were settled by the learned trial Court:- 1. Whether the plaintiff is owner in possession of the suit land comprised in Khasra Nos. 74, 90, 223, 255, 246 measuring 6 Kanals 15 Marlas as alleged? … OPP 2. Whether the plaintiff is also joint owner in possession alolngwith defendant No. 2 of suit land 3 comprised in Khasra No. 209, measuring 1 Kanal as alleged? … OPP 3. Whether the revenue entries contrary to the plaintiff’s right, title and interest in the suit land are illegal, null and void as alleged? … OPP 4. Whether the suit is not maintainable as alleged? … OPD 5. Whether the suit is barred by limitation as alleged? … OPD 6. Whether the defendant has become owner of the suit land by way of adverse possession as alleged? … OPD 7. Whether the plaintiff’s suit is without any cause of action as alleged? … OPD 8. Relief. 5. Parties led their evidence and the learned trial Court vide its judgment dated 29.8.1996 decreed the suit of the plaintiff in full. Vide order dated 19.5.2000 passed by the learned District Judge, Una, the case was remanded to learned trial Court to give its findings on Issue No. 6. Thereafter vide judgment and decree dated 30.6.2000 passed by the Court of learned Sub Judge Court No. 2, Una, the suit of the plaintiff was decreed. On appeal, those findings were upheld by the learned District Judge vide judgment and decree dated 24.4.2001. Being aggrieved, the appellant has come up in second appeal. 6. I have heard the learned counsel for the parties and have gone through the record. 7. The appeal in question was admitted by this Court on the following substantial question of law:- “Whether the findings of the courts below are based on no evidence?” 4 8. The submissions made by the learned counsel for the appellant were that the entries were changed by the Patwari in Rabi 1978 and the said entries were duly attested by the Tehsildar and thereafter in the subsequent copies of Khasra Girdawaries, name of defendant has been recorded in possession earlier as a tenant. Thus, it was submitted that on the basis of those entries, the defendant had been able to rebut the evidence led by the plaintiff orally as well as documentary that he was owner in possession and as such, the conclusion arrived at by both the Courts below are incorrect and are liable to be set aside. 9. During the course of arguments, the learned counsel for the appellant had placed reliance upon some of the documents proved in evidence by the defendant. The first document referred to during the course of arguments was Ext.DW3/A, which is copy of rapat dated 21.4.1977, had referred to Note No. 368, entries by the Patwari was that there was a change in entry in regard to this Khasra Number, which has been mentioned in Part-A of the suit land. The second copy of rapat is dated 12.4.1978 Ext. DW3/C, which refers to a note under the initials of Tehsildar, which refers to the fact that possession at the spot was found to be that of Prithi, father of defendant No. 1. Reference has also been made to the disputed Khasra Numbers. These are two documents mainly relied upon during the course of arguments and as submitted, there are other documents also. Copies of rapats referring to the possession of the father of the defendant firstly as a tenant and thereafter a correction was made and as is apparent from remarks column, Ext. D-14 copy of Missal Haquiat, which shows that the name of Prakash Chand is recorded as in possession and as per the 5 note in remarks column as per order dated 21.9.1989 of Land Reforms Officer in place of Gair Morousi, the defendant was recorded as Kabij. These documents have been duly considered by both the Courts below and the appeal was admitted on the question as to whether there is no evidence led by the plaintiff to substantiate her case. 10. A perusal of the statement of defendant as DW-1 will show that he never filed an application for correction, nor any notice was issued to the plaintiff nor any order was passed by any Revenue Officer ordering the correction in favour of the defendant. My attention has been drawn to the Himachal Pradesh Land Records Manual 9.8, which lays on the procedure for correction of the entries. These provisions were considered by the learned Single Judge of this Court in Sh. Tulsa Singh Vs. Sh. Agya Ram and others, 1995(1)S.L.J. 428, and in Para-26 of the judgment, he made the following observations, which are relevant and may be reproduced below:- “26. The aforesaid procedure has not been followed in the present case while changing the entry in favour of the defendant-appellant after deleting the name of the plaintiffs who have been recorded as tenants since 1955-56. There appears to be some motive to effect such a change in the year 1975-1976 as by that time the tenancy rights had acquired much value in view of the Land Reforms Legislation coming in favour of the tenants. Had there been any inquiry as envisaged in the aforesaid instructions, the present plaintiffs could have been associated in that inquiry and the change if any could have been effected after giving them reasonable opportunity of being heard. In this view of the matter also the change in Khasra girdawari of the tenancy rights in favour of the defendant 6 could not legally create any tenancy rights in favour of defendant-appellant especially when the change of girdawari in his name depicting him as tenant was illegal, unsustainable and against the mandatory instructions issued by the Government in this behalf. Otherwise also the tenancy rights in favour of a person cannot be taken away, and cannot be created in favour of other person in the manner it has been so done in the present case. It requires some legal procedure to be followed which in the present case has not at all been complied with.” 11. It is clear from a discussion of the oral evidence led by the parties that no application for correction was filed and no order was passed by any of the Revenue Officer after notice to the plaintiff ordering change in favour of the defendant. The Patwari himself made the entry, which was later on attested allegedly by the Tehsildar and the entries were corrected without there being any legal order passed in favour of defendant No. 1. Therefore, no reliance can be placed on these copies of Khasra Girdawaries, which have not been relied upon by the learned Courts below in coming to its conclusion. 12. On the other hand, the plaintiff had placed on record Exts. P-4 and P-5 copies of jamabandis for the year 1975-76 showing the plaintiff as owner in possession of the suit land. The plaintiff has also placed on record copy of Khasra Girdawari Ext. P-6 from Rabi 1976 to Rabi 1980 and as per note dated 12.4.1978, the entry was made in the Khasra Girdawari in favour of the defendant and reference was that no rent is being paid. The presumption of correctness was attached to the copies of jamabandies showing the plaintiff as owner in possession and this entry was not rebutted by any Revenue Officer legally in favour 7 of the defendant and copy of Khasra Girdawari referred to above are not sufficient. The presumption of correctness was attached to copies of jamabandies showing the plaintiff as owner in possession. There are no legal or any other order passed in favour of the defendant for correction and as such, it cannot be said that there was no evidence led on behalf of the plaintiff to substantiate her case. Apart from this, the plaintiff had also examined PW-1 Mukhtyar of the plaintiff and other witnesses, which have not been discussed boy both the Courts below and both the Courts below had come to the conclusion on the basis of the evidence that the plaintiff had been proved to be owner in possession of the suit land. The plea firstly taken by the defendant was based upon oral sale and the sale had to be in writing by a registered document, which was not there and as such, it could not have been relied upon. The entry in question showed the plaintiff as owner and defendant No. 1 firstly as a tenant and then in possession, but that was not on the basis of any registered sale deed in favour of defendant No. 1. The defendant in the alternative had taken the plea of adverse possession, which did not found favour with the Courts below and they had come to a right conclusion that the plaintiff had been able to prove that she is owner in possession of the suit land. There is no necessity for reappraisal of the whole evidence led by the parties, which has been duly considered by the Courts below. 13. In view of the above discussion, I accordingly hold that the findings of the Courts below do not call for an interference by this Court and as such, are liable to be affirmed, which are affirmed accordingly. Therefore, there is no merit in the appeal filed by the 8 appellant, which is dismissed alongwith costs. The decree sheet be prepared accordingly. Interim order, if any, stands vacated. The record be returned to the Courts below. ( V.K. Ahuja ), September 14, 2011 Judge (BSS)