R. S. A. No. 3353 of 1998 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 3353 of 1998 Date of Decision : August 11, 2010 Om Parkash .... Appellant Vs. Chaudhri Ram .... Respondent CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Ashok Aggarwal, Senior Advocate with Mr. Puneet Bali, Advocate for the appellant. Mr. Arun Jain, Senior Advocate with Mr. Vishal Goel, Advocate for the respondent. * * * L. N. MITTAL, J. : Om Parkash plaintiff, having remained unsuccessful in both the courts below, has approached this Court by way of instant second appeal. Appellant-plaintiff filed suit for possession by pre-emption of 69 kanals 10 marlas land described in the plaint being half share of 138 kanals 19 marlas land alleging that the plaintiff is tenant over the suit land on annual rent of Rs.1,000/- per acre under its owner Dayal Singh, who leased out the suit land to plaintiff about ten years prior to filing of the suit. R. S. A. No. 3353 of 1998 2 Dayal Singh sold the suit land to defendant-respondent Chaudhri Ram vide registered sale deed dated 17.11.1988 for Rs.2,50,000/- without notice to the plaintiff. Sale consideration of Rs.3,50,000/- recited in the sale deed is exaggerated to the extent of Rs.1,00,000/-. Market value of the suit land also did not exceed Rs.2,50,000/-, which was the sale consideration actually paid to vendor Dayal Singh. Plaintiff, being tenant over the suit land, claimed superior and preferential right of pre-emption. The defendant refused to accede the plaintiff's claim. Accordingly, plaintiff filed suit for possession by pre-emption. The defendant, in his written statement, admitted the factum of sale in his favour by Dayal Singh vide sale deed dated 17.11.1988. The defendant, however, denied other allegations of the plaintiff. It was denied that plaintiff was tenant over the suit land under the vendor. It was also denied that plaintiff has superior right of pre-emption. It was pleaded that there was multiple litigation between the plaintiff and the vendor and therefore, the question of the plaintiff being tenant over the suit land under the vendor did not arise. It was also pleaded that the sale was made for Rs.3,50,000/-, which amount was actually paid to the vendor and was also market price of the suit land at the time of sale. It was also pleaded that the vendor had already filed suit against the present plaintiff seeking declaration that vendor was owner in possession of the suit land and entries in revenue record depicting plaintiff as chakotedaar were obtained by the plaintiff in R. S. A. No. 3353 of 1998 3 collusion with Patwari. There was also criminal litigation between the parties. Tenancy is created by bilateral contract and tenant has to pay rent or batai, but the plaintiff never paid any rent or batai to the vendor or the vendee-defendant. During pendency of the suit, the plaintiff obtained some documents in collusion with the vendor, which are not binding on the plaintiff. In the event of decree, the defendant also claimed expenses of sale deed in addition to the sale consideration. Plaintiff filed replication repudiating the pleas raised by the defendant and reiterated the plaint allegations. Learned Sub Judge Ist Class, Jagadhri, vide judgment and decree dated 04.11.1995, dismissed the plaintiff's suit. First appeal preferred by the plaintiff stands dismissed by learned Additional District Judge, Jagadhri, vide judgment and decree dated 30.09.1998. Feeling still aggrieved, the plaintiff has preferred the instant second appeal. I have heard learned senior counsel for the parties at considerable length and also carefully perused the records. Second appeal can be entertained and adjudicated upon only on substantial question of law, if any arising in the case, as stipulated in Section 100 of the Code of Civil Procedure (in short – CPC). In the case of Gurdev Kaur and others vs. Kaki and others reported as 2006 (4) Civil Court Cases 625 (S. C.), Hon'ble Supreme Court held that High Court can intervene in second appeal only when substantial questions of law R. S. A. No. 3353 of 1998 4 are involved and the said questions have to be formulated while admitting the appeal. Similarly, in the case of Narayanan Rajendran and another vs. Lekshmy Sarojini and others reported as 2009 (2) RCR (Civil) 286, Hon'ble Supreme Court held that second appeal can be entertained by High Court only on substantial question of law and High Court has no jurisdiction to interfere with finding of fact arrived at by courts below without formulating substantial questions of law, even if the High Court believes or is satisfied that courts below have committed error in recording finding of fact. It was also observed that when findings of fact by the lower appellate court are based on evidence, the High Court in second appeal cannot substitute its own findings on re-appreciation of evidence merely on the ground that another view is also possible. Hon'ble Supreme Court went on to observe that even if the first appellate court commits an error in recording a finding of fact, that itself will not be a ground for the High Court to upset the same. Applying these principles of law, enunciated by Hon'ble Supreme Court relating to scope of interference by High Court in second appeal, to the facts of the instant case, there is concurrent finding of fact by both the courts below against the plaintiff-appellant. The said finding is based on appreciation of evidence on record. No piece of evidence has been ignored by the courts below nor irrelevant evidence has been taken into consideration. There is proper appreciation and marshaling of evidence by both the courts below. The finding that plaintiff was not proved to be tenant R. S. A. No. 3353 of 1998 5 over the suit land and therefore, the plaintiff has no superior right of pre- emption is supported by detailed cogent reasons recorded by the courts below. The said finding is fully justified by the evidence on record and cannot be said to be even erroneous finding nor any other reasonable view of the evidence on record is possible. Consequently, the said finding does not warrant interference in second appeal nor any substantial question of law within the purview of Section 100 CPC arises for determination in the instant second appeal. Learned counsel for the appellant vehemently contended that the plaintiff was recorded to be in possession of the suit land in jamabandi Ex.P-14 for 1986-87 and rate of rent is mentioned to be Rs.1,000/- per acre per year and therefore, the plaintiff is proved to be tenant over the suit land since prior to impugned sale. It was also pointed out that the same entry was repeated in next succeeding jamabandi for 1991-92 Ex.P-16. It was emphasized that entries in jamabandi carry presumption of correctness under Section 44 of the Punjab Land Revenue Act and the said presumption has not been rebutted. In support of this contention, reliance has been placed on Harish Chander and others vs. Chisa Ram and another reported as AIR 1981 Supreme Court 695, Banwari vs. Degh Ram and others reported as 1982 P. L. J. 397 and Smt. Ratni Devi vs. Chankanda Ram and another reported as 2007 (2) R.C.R. (Civil) 141. Reference was also made to copy of Raport Roznamcha dated 25.10.1984 R. S. A. No. 3353 of 1998 6 Ex.D-X regarding change in occupation of the suit land at the time of usual crop inspection. Attention of the Court was also drawn to three applications Ex.P-5 dated 17.10.1989 (same copy also Ex.P-4), Ex.P-6 dated 11.10.1990 and Ex.P-7 dated 02.04.1990 moved by the defendant before Assistant Collector against the plaintiff for appraisement of crops, which were standing in the suit land at the time of moving those applications. Learned counsel for the appellant contended that such applications could be moved under Section 17 of the Punjab Tenancy Act, 1887 either by the landlord or by the tenant against the other and therefore, moving of these applications including the one Ex.P-5 moved before the filing of the suit would depict that even the defendant admitted the plaintiff to be tenant over the suit land. On the basis of these applications and some other similar applications moved by the defendant, Local Commission made reports Ex.P-8 to Ex.P-13 regarding the quantum and value of the crops standing in the suit land in different crop seasons. Learned counsel for the appellant also referred to statement Ex.P-2 dated 19.02.1991 made by vendor in suit filed against him by the plaintiff, thereby admitting the plaintiff to be tenant over the suit land for the last eight years. On the basis of this statement, said suit was decreed vide order dated 19.02.1991 Ex.P-1 and decree Ex.P-3 of even date. The aforesaid contentions raised on behalf of the appellant appear to be forceful on first blush, but on careful consideration of the R. S. A. No. 3353 of 1998 7 evidence on record, the said contentions cannot be accepted and have been fully countered by counsel for the respondent. At the outset, it may be noticed with significance, at the risk of repetition, that both the courts below have fully considered the aforesaid contentions and have come to concurrent finding that the plaintiff is not proved to be tenant over the suit land and therefore, he does not have superior right of pre-emption. The said finding is based on appreciation of evidence on record and therefore, cannot be called in question in second appeal. Lower appellate court is the final court of fact. No doubt, if some material evidence has been ignored or if irrelevant evidence has been considered or if the finding of the lower appellate court is patently absurd, perverse or illegal, it may give rise to substantial question of law requiring the High Court to interfere in second appeal. In the instant case, however, none of the aforesaid exceptions or any other exception of the aforesaid nature exists. The courts below have duly considered the entire evidence on record and have not considered any irrelevant evidence. Appreciation of evidence by the courts below is also correct and proper and the finding recorded by the courts below is fully justified and supported by detailed reasons recorded in the impugned judgments. All the contentions raised by counsel for the appellant, as noticed herein before, relate to appreciation of evidence on record. However, in second appeal, evidence is not to be appreciated again. Consequently, the aforesaid contentions are liable to R. S. A. No. 3353 of 1998 8 rejection at the threshold as not falling within the purview of Section 100 CPC, as no substantial question of law arises for determination in the instant second appeal on the basis of said contentions. However, even on appreciation of evidence, a different finding cannot be arrived at and the finding recorded by the courts below has to be upheld. The plaintiff-appellant has tried to create evidence during the pendency of the suit with the help of the vendor and therefore, the plaintiff's claim cannot be accepted. The plaintiff has also come with different versions regarding origin of his tenancy and for this reason as well, the plaintiff's claim of tenancy cannot be accepted. In plaint dated 15.11.1989, the plaintiff alleged that he is tenant over the suit land for about ten years i.e. since the year 1979. However, in the witness-box, the plaintiff stated that his tenancy started in the year 1984. This statement was perhaps made keeping in view Report Roznamcha Patwari Ex.D-X dated 25.10.1984. In first appeal, the plaintiff came with a third version of the inception of tenancy. The plaintiff moved application for additional evidence in first appeal alleging that the vendor Dayal Singh had leased out the suit land to plaintiff's father Mihan Singh vide lease agreement dated 12.06.1975. The plaintiff sought permission to produce the said lease agreement as well as receipt regarding payment of lease money by way of additional evidence. The plaintiff alleged that after the death of his father, he i.e. plaintiff inherited the tenancy. This version is completely contradictory to the R. S. A. No. 3353 of 1998 9 averments made in the plaint. In the plaint, the plaintiff specifically pleaded that the vendor leased out the suit land to him (plaintiff) about ten years ago. Consequently, the plaintiff's version that the suit land was leased out to his father vide agreement dated 12.06.1975 and the plaintiff inherited the tenancy from his father on his death is diagonally and diametrically opposite and contradictory to his averments in the plaint. The said application was dismissed by the lower appellate court vide detailed order dated 26.07.1997 and Civil Revision preferred against the same by the plaintiff was dismissed by this Court vide order dated 26.10.1997, as mentioned in paragraph 16 of the judgment of the lower appellate court. When said order dated 26.07.1997 was passed, it was not disputed that plaintiff's father Mihan Singh had died in the year 1992. It would mean that the plaintiff allegedly inherited the tenancy from his father in the year 1992 i.e. during pendency of the instant pre-emption suit filed by the plaintiff. In other words, the plaintiff, according to his said version, was not tenant over the suit land either on the date of impugned sale or on the date of filing of pre-emption suit and therefore, the plaintiff cannot succeed in pre-empting the sale. The plaintiff has also come with a fourth version regarding his tenancy. During pendency of the pre-emption suit, the plaintiff, in another suit filed by him against the vendor, obtained statement Ex.P-2 dated 19.02.1991 from the vendor asserting that the plaintiff was tenant over the suit land for the last about eight years i.e. since about February 1983. This R. S. A. No. 3353 of 1998 10 is the fourth version of the plaintiff regarding his tenancy. So many contradictory versions asserted by the plaintiff make it abundantly clear that the plaintiff was never inducted as a tenant over the suit land. It may be added that in statement Ex.P-2, the vendor stated that he had received chakota money up to date i.e. up to February 1991. It is beyond comprehension as to how the plaintiff could pay lease money to the vendor till February 1991, when the plaintiff very well knew that vendor Dayal Singh had already sold the suit land to the defendant vide sale deed dated 17.11.1988. It thus becomes abundantly clear that the aforesaid statement was obtained by the plaintiff from the vendor to create false evidence in order to buttress the plaintiff's claim in the instant pre-emption suit. Even otherwise, the aforesaid statement has no evidentiary value as it was made by the vendor during the pendency of the instant suit, long after the vendor ceased to have any right, title or interest in the suit land, having already sold it to defendant vide sale deed dated 17.11.1988. This statement is thus of no help to the plaintiff-appellant and rather, this statement depicts the crude manner, in which the plaintiff tried to create evidence in support of his version of being tenant over the suit land. There is another crude attempt by the plaintiff to create evidence of his tenancy. He has produced three rent receipts i.e. Mark-A dated 10.11.1986, Mark-B dated 30.11.1987 and Mark-C dated 20.12.1988 to depict that the plaintiff had paid lease money of the suit land for the years R. S. A. No. 3353 of 1998 11 1986, 1987 and 1988 respectively to the vendor through the said receipts. The plaintiff also made statement to this effect in the witness-box. However, a bare glance of these receipts leaves no manner of doubt that these have been obtained by the plaintiff during the pendency of the instant suit and all the three receipts purporting to be executed in three different years were in fact prepared at one and the same time. Receipts Mark-B and Mark-C are both carbon copies of receipt Mark-A. All the three receipts were typed at the same time with one being of original type and the other two being carbon copies thereof. Years 1986, 1987 and 1988 have been typed in the body of the receipts, but the figure `19' therein was typed at the same time appearing as carbon copies in the other two receipts, whereas the figures `87' and `88' were separately typed thereafter in the said two receipts. Space for writing date was left blank in all the three receipts and the dates were handwritten. It is thus manifest that these receipts have been fabricated by the plaintiff to create false evidence in connivance with the vendor, with whom the plaintiff admittedly effected compromise in civil and criminal litigation. Since the vendor having sold the suit land was left with no interest in the said litigation with the plaintiff, the vendor effected compromise with the plaintiff to buy peace and to terminate the criminal litigation initiated against him by the plaintiff and in consideration thereof, the vendor might have executed the aforesaid antedated receipts and also made statement Ex.P-2 in the civil suit regarding alleged tenancy of plaintiff R. S. A. No. 3353 of 1998 12 over the suit land in order to help the plaintiff in the instant pre-emption suit. The plaintiff extracted this evidence from the vendor as consideration for compromise and thus created this fable evidence which can be of no help to the plaintiff. Thus, the plaintiff has adopted all tactics to create false evidence to support his plea of tenancy over the suit land. Much emphasis laid by counsel for the appellant on applications Ex.P-5 to Ex.P-7 moved by the defendant for appraisement of standing crops is also completely misplaced. These applications, in no way, depict that defendant admitted the plaintiff to be tenant over the suit land. It has nowhere been mentioned in these applications that plaintiff was tenant over the suit land. On the other hand, in application Ex.P-7 dated 02.04.1990, it was specifically mentioned that plaintiff herein was in illegal possession of the suit land. Even in the other two applications, there is no reference of any tenancy of the plaintiff over the suit land. Consequently, on the basis of these applications, no inference of tenancy of the plaintiff over the suit land can be drawn. On the other hand, these applications were made by the defendant to secure his rights for recovery of mesne profits for illegal use and occupation of the suit land by the plaintiff because later on, it would have been difficult to lead evidence regarding quantum and value of the crops grown by the plaintiff in the suit land. These applications, in no way, go in favour of the plaintiff to prove his plea of tenancy. Rather these applications depict that the plaintiff was not tenant over the suit land. R. S. A. No. 3353 of 1998 13 In addition to the aforesaid, it has to be noticed that plaintiff filed suit against the vendor on 15.06.1987 for permanent injunction claiming his tenancy over the suit land for the first time. Immediately on coming to know of it, the vendor moved application Ex.DW-5/1 on 24.06.1987 for correction of khasra girdawari alleging that wrong entry was made in khasra girdawari since kharif 1984 onwards in favour of the plaintiff. Thus, immediately after jamabandi for 1986-87 came into existence and the vendor came to know of the wrong entry in favour of the plaintiff, the vendor filed application for correction of khasra girdawari which had apparently been made in favour of the plaintiff on the basis of Report Ex.D-X dated 25.10.1984 regarding crop inspection. The vendor categorically alleged in the application for correction of khasra girdawari that the plaintiff had no concern with the suit land. The vendor also filed suit against the plaintiff on 27.11.1987 vide plaint Ex.D-1 seeking declaration that vendor was owner in possession of the suit land and plaintiff was not even in possession thereof, much less tenant thereon. The vendor also sought permanent injunction against the plaintiff in the said suit. Thus, long before the impugned sale made by vendor Dayal Singh in favour of the defendant, the vendor had made application for correction of khasra girdawari and also filed suit against the plaintiff alleging inter alia that the plaintiff was never inducted as tenant in the suit land and in fact, the plaintiff was not even in possession of the suit land. The vendor even R. S. A. No. 3353 of 1998 14 appeared as witness in his aforesaid suit and made statement Ex.D-2 in support of averments made in the plaint and he was subjected to cross- examination on behalf of the present plaintiff, who was defendant in the said suit. The vendor in the said statement dated 15.09.1988, made before the impugned sale, also stated that he was owner in possession of the suit land and present plaintiff was not in possession thereof and khasra girdawari entries in favour of the plaintiff were wrong. The vendor also produced jamabandis for 1976-77 and 1981-82 in evidence in that suit depicting his ownership and possession over the suit land. The said statement can be used as evidence because Dayal Singh – maker of the statement was subjected to cross-examination on behalf of the present plaintiff. However, statement Ex.P-2 made by vendor in the suit, instituted by the present plaintiff, cannot be used as evidence as the vendor was not subjected to cross-examination on behalf of the present defendant, who was not even party to the said suit. It may be added that even ignoring statement Ex.D-2, the plaintiff's case is not proved at all. As noticed herein above, the plaintiff pleaded in the plaint that he was tenant over the suit land for ten years i.e. since the year 1979. However, the plaintiff produced in evidence jamabandi for 1986-87 Ex.P-14 only and has not produced any revenue record prior to 1986-87 in support of his plea of tenancy over the suit land. If plaintiff was tenant over the suit land since the year 1979, the plaintiff could very well produce the R. S. A. No. 3353 of 1998 15 relevant revenue record. Non-production of the said record gives rise to strong adverse inference against him. It may be mentioned that subsequent jamabandi Ex.P-16 for 1991-92 is of no help to the appellant as this jamabandi was prepared during pendency of the instant suit and entry of previous jamabandi was simply repeated in it. However, there is no explanation as to why any revenue record either prior to jamabandi for 1986-87 or even thereafter till before filing of the suit in November 1989 has been withheld by the plaintiff. On account of withholding the said material evidence, adverse presumption arises against the plaintiff. From Report dated 25.10.1984 Ex.D-X, it appears that for the first time, entry in khasra girdawari was made in favour of the plaintiff in kharif 1984 crop. This fact is also evident from application moved by vendor for correction of khasra girdawari, wherein also it was mentioned that khasra girdawari was wrongly entered in favour of plaintiff since kharif 1984 crop. However, even the said khasra girdawari has not been produced on record to depict that the plaintiff was recorded as tenant over the suit land on payment of rent or lease money. On the contrary, Report Ex.D-X dated 25.10.1984 regarding crop inspection at the spot specifically records rent or lease money to be `Nil'. There is cross-mark below the word `lagaan' (rent or lease money) in Report Ex.D-X dated 25.10.1984. Thus, even the said Report, which has been heavily relied on by counsel for the appellant, depicts that no rent was payable by the plaintiff. It would lead to R. S. A. No. 3353 of 1998 16 the inference that there was no tenancy in favour of the plaintiff and at best, even according to this Report,