IN THE HON’BLE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Regular Second Appeal No.284 of 1996. Date of decision : 01.07.2008. Bali Ram ….Appellant. Versus Pritam ….Respondent. Coram: The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 For the Appellant: Mr.Bimal Gupta,Advocate. For the respondent: Mr.Haresh Sood vice Mr.K.D. Sood, Advocate. Dev Darshan Sud, J. This appeal has been preferred by the plaintiff against the concurrent findings of the two Courts below dismissing his suit for declaration that he has become the owner of the land comprised in Khasra Nos.468/1 and 468/2, measuring 13 biswas and 10 biswas respectively by way of an oral sale. A further prayer for possession on the plea that during the pendency of the suit, defendant No.1 has dispossessed the plaintiff from Khasra No.468/2, a decree for possession be also passed in his favour. 1 Whether Reporters of Local Papers are allowed to see the judgment? 2 Consequential relief of permanent prohibitory injunction has also been prayed for. The suit is contested by the respondents- defendants where the possession of the plaintiff was denied as also the factum of his dispossession. The sale on the basis of which title is claimed by the plaintiff is denied. On the pleadings of the parties the learned trial Court settled 8 issues, onus of each of them being on the plaintiff. Each issue was decided against the plaintiff that is to say the purchase of 1 bigha 3 biswas of land from Kami, as claimed, for a consideration of Rs.185/- on 29.8.1962 from a portion of Khasra No.468, was held against the plaintiff. Sale of 3 biswas of land for Rs.210/- by Telu in favour of the plaintiff on 8.12.1979 was also held against the plaintiff. On the question of recovery of the land and the defendants interfering on the suit land the issues were again decided against the plaintiff. In appeal, the learned appellate Court has affirmed the findings of the learned trial Court and has further held that the revenue record is contradictory. Two witnesses, Nem Chand (PW-3) and PW-2 Jagdish have admitted the possession of the defendants on the suit land. 3 This appeal was admitted by this Court on 26.12.1996 on the following substantial questions of law as filed with the appeal:- 1. “Whether Ext.PW-2/A dated 29.8.62 and Ext.PW-3/A dated 8.12.79 on the basis of which the appellant is claiming the suit land can be looked into for collateral purposes in order to show nature of possession of the appellant on the suit land? 2. Whether even if the appellant is held to be mortgaged on the suit land still he is entitled to maintain his possession on the suit land as no suit for redemption of the suit land has been filed against him and period of limitation for filing such suit has already expired? 3. Whether change in revenue entries in favour of appellant on the suit land are duly explained on the basis of Ex.PW- 2/A dated 29.8.62 and Ext.PW-6/A dated 5.3.63? 4. Whether the appellant is entitled to decree of possession of land measuring 10 biswas comprised in Khasra No.468/2 from where he was dispossessed during the pendency of the suit? 5. Whether in alternative plea of adverse possession is available to the appellant in case he fails on the plea that he has purchased the suit land?”. The first three questions are taken for discussion together. Learned counsel appearing for the appellant urges that the Courts below were in error in ignoring the evidence on the record which 4 establish the title of the plaintiff. Two documents Ex.PW-2/A and Ex.PW-3/A have been relied upon by the counsel to urge that the land had in-fact been sold to the plaintiff. Ex.PW-3/A is a receipt issued by Telu Ram in favour of Bali Ram stating therein that he has sold a portion of his land to the plaintiff. The description of the land, its situation, Tatima (spot map) have not been mentioned therein. Similar is the position of receipt Ex.PW-2/A which accepts the payment of Rs.185/- and handing over possession of some land which is again not described. These documents can in no case be treated as title deed(s) of the land as even admitting them for collateral purposes that is to establish the possession of the appellant-plaintiff, the identity of the land remains obscure and beyond general recitals that the possession of the land has been handed over, no description of the land or its situation as a particular field/revenue estate has been established in evidence on the record. Learned counsel appearing for the appellant, has placed reliance on the judgment of the Supreme Court in P.Chandrasekharan and Others vs. S.Kanakarajan and Others, (2007)5 SCC 669 to urge that misreading of a document which goes to the root of the matter constitutes a substantial question of law. This proposition is not disputed and is now an established proposition of law. However, in order 5 to see as to whether these two documents change the case of the appellant, all that need be said is that a detailed reading of both these documents does not at all establish the identity of the land. On the question of revenue record on which learned counsel places reliance to show that the entries therein were consequential to these documents and therefore, clearly establish title, all that need be said, is that the learned District Judge, while dealing with this aspect has held that the revenue record is not consistent. The Jamabandies do not show consistent entries regarding the status of the appellants. The learned Judge rightly observes that there has been a change in the cultivation column and that the Jamabandies for the years 1988-89 and 1983-84 Exts.P5 and P6 show the plaintiff in possession as a mortgagee. This is again repeated in the Khasra Girdawari for the year 1991-92 Ex.P-7, although in the previous years 1973- 74 Ex.P6 and 1978-79 Ex.P4, the status of the plaintiff has been shown to be in possession as an owner. The change in nature of the possession remains obscure from the record. How this came to be, has not been explained on the record of the case. The learned appellate Court rightly holds that Jagdish (PW-2) has admitted in cross- examination that the defendants are in possession of the land. Nem Chand (PW-3) has admitted that 6 sometimes it is the plaintiff and sometimes it is the defendants who are in possession. This is apart from the fact that Jamabandies are no documents of title. (See: Corporation of the City of Bangalore vs. M.Papaiah and another, AIR 1989 SC 1809, Guru Amarjit Singh vs. Rattan Chand and Others, AIR 1994 SC 227, Jattu Ram vs. Hakam Singh and Others, AIR 1994 SC 1653, Swarni (Smt.) vs. Inder Kaur (Smt.) and Others, (1996)6 SCC 223, State of H.P. vs. Keshav Ram & Others (1996)11 SCC 257, Baleshwar Tewari (Dead) by LRs and Others vs. Sheo Jatan Tiwary and Others, (1997)5 SCC 112 and State of Himachal Pradesh vs. Keshav Ram and Others, AIR 1997 SC 2181). This is a case where the observations of the Supreme Court in Baleshwar Tewari’s case:- “15.............Entries in Revenue records is the paradise of the patwari and the tiller of the soil is rarely 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 ….....” (Page No.119) are squarely attracted. The oral evidence brought on the record is contradictory to the revenue record that is to say the evidence of the plaintiff himself belies his case when two witnesses, as rightly noticed by the 7 learned appellate Court, have stated that the plaintiff is out of possession. The revenue record, in these circumstances, cannot be relied upon. In the totality of the circumstances, the case put up by the plaintiff has not been proved before both the Courts below:- (a) The identity of the suit land has not been established. The revenue estate, Khasra number or field number, Khewat number, has not been identified in evidence. The two documents referred to above, do not in any manner establish the case of the appellant. (b) The revenue record is inconsistent showing that the entries have been changed from that of being in possession as owner to that of being in possession as a mortgagee. How and under what circumstances this change has occurred is unclear. The record cannot be relied upon. On the question of possession, the oral evidence produced by the plaintiff contradicts the revenue record. (c) Ex.PW-6/A, which forms the basis of the right of the appellant, cannot be relied upon for the reasons that the appellant’s own evidence does not support his 8 case for possession in any capacity whatsoever. Sweeping generalizations cannot take the place of establishing the particularity of a fact. In these circumstances, I hold that on all the three questions, the appellant has not been able to establish his case. These questions are, therefore, answered, against the plaintiff that is to say the two documents in question neither establish the nature of possession of the plaintiff nor the identity of the land. The appellant cannot be held to be a mortgagee as there is no evidence to establish this fact. The document Ex.PW-6/A cannot be relied upon. On questions No.4 and 5, since the Courts below have held against the plaintiff on the point of possession, and from the record I do not find any basis to hold otherwise, no case for adverse possession is made out and the plaintiff is not entitled to any decree. At the cost of repetition, it may be said that the plaintiff’s own witnesses have belied his case. This appeal is accordingly dismissed. There shall be no order as to costs. July 1, 2008 (Dev Darshan Sud) (aks) Judge.