HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No.: 61 of 1996. Reserved on: 30.6.2008. Decided on: 16.7.2008 Partap Chand & others ………Appellants. Versus Gayatri Devi and others. ………Respondents. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the appellants: Mr.Dushyant Dadwal, Advocate. For the respondents: Pt.Om Parkash, Advocate. V.K. Ahuja, J.: This is a regular second appeal filed by the appellants/defendants against the judgment and decree passed by the learned District Judge, Kangra at Dharamshala, dated 17.10.1995, vide which he reversed the findings of the learned Sub Judge(II), Palampur, dismissing the suit of the respondents/plaintiffs. Briefly stated the facts of the case are that the respondents as plaintiffs filed a suit for possession by way of partition. The suit was originally filed by one Gorakh Ram, now represented by his legal representatives, alleging that the ___________ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. - 2 - land comprised in Khasra Nos.553 and 555, measuring 0-04-04 hectares, consisting of a double storeyed house, courtyard and cowshed, was owned and possessed by the parties in equal share. It was alleged that on account of the jointness of the property, there remained a dispute between the parties. On 15.1.1990, the defendant started digging the joint land for raising a permanent structure, hence the suit filed by the plaintiff for partition. The defendant pleaded that he was in exclusive ownership and possession of the property in dispute having purchased the same from one Uttam Singh on 20.10.1955. He pleaded that he constructed the house on the land so purchased by him. It was alleged that the plaintiff got himself recorded to be the co-owner of the property in dispute during the settlement operation in connivance with the revenue staff. On the pleadings of the parties, the issues were settled by the learned trial Court. The main issue was as to whether the plaintiff was entitled for possession, by way of partition, of half share of the suit property. The learned trial Court held that the plaintiff has failed to prove his ownership over the suit land while the defendant has proved that he had purchased the suit property from one Uttam Singh and accordingly the suit of the plaintiff was dismissed. On appeal, these findings were reversed by the learned First Appellate Court, who decreed the suit of the plaintiff for possession by way of partition. I have heard the learned counsel for the parties and have gone through the record of the case. The appeal has been admitted on substantial questions of law No.1 and 2. The first substantial question was as to whether the learned Appellate Court - 3 - was right in holding that Ext.D-5 was inadmissible in evidence ignoring the provisions of Section 53-A of the Transfer of Property Act and Section 49 of Registration Act. The second substantial question of law formulated was as to whether the learned First Appellate Court was right in holding that one mere stray entry in the revenue record was sufficient to confer ownership rights on the plaintiff ignoring the revenue entries existing in favour of the defendant since 1955. The arguments advanced by the learned counsel for the parties have to be considered in the light of these two substantial questions of law, which arise for determination on which the appeal was admitted. The submissions made by the learned counsel for the appellants were that the learned trial Court had rightly held that Ext.D-5 proved that it was the sale deed effected for the suit land and since it was not compulsorily registrable and, therefore, it clearly proved the ownership of the defendant over the suit land. It was also submitted that the learned First Appellate Court had wrongly held that the documentary evidence proved the ownership and possession of the plaintiff over the suit land ignoring the earlier revenue entries and the presumption of correctness attached to the old revenue record was not rebutted by the latest entry showing the ownership and possession of the plaintiff also over the suit land. On the other hand, the learned counsel for the respondents had submitted that the findings of the learned First Appellate Court decreeing the suit of the respondents are based upon the correct appreciation of evidence and law and no substantial question of law arises for reappraisal of the evidence. - 4 - On appraisal of the record of the case, it is clear that the learned trial Court did make a reference to the copies of revenue record placed on record by the parties, but it had wrongly relied upon the copy of the sale deed Ext.D-5 to hold that the defendant was owner in possession of the suit land, which findings, to my mind, cannot be said to be correct. A perusal of the earliest copy of jamabandi placed on record, Ext.D-4 (wrongly marked as Ext.P-4), of the year 1960-61 shows that the land comprised in Khasra Nos.232 and 233 corresponding to previous Khasra Nos.343 and 344 is recorded under the ownership of Gram Panchayat and in possession of defendant as non-occupancy tenant. Ext.D-3 (wrongly marked as Ext.P-3) jamabandi of the year 1965-66 shows the similar entries as in Ext.D-4 . In the Missal Haqiat for the year 1973- 74, Ext.D-2 (wrongly mentioned as Ext.P-2), the land comprising present Khasra Nos.553 and 555 corresponding to Khasra Nos.232 and 233 is recorded under the ownership of Gram Panchayat and in possession of the parties as non- occupancy tenants to the extent of half share each. In the jamabandi for the year 1983-84, Ext.P-3 and Ext.D-1, the parties are recorded to be the owner in possession of the property in dispute to the extent of half share each. The remarks column of Ext.P-1 Missal Haqiat prepared after settlement shows that the land comprising in Khasra Nos.553 and 555 were first mutated in the name of State as owner and thereafter the same came to be mutated in the name of the parties to the extent of half share each. It also shows that the mutation in favour of the Panchayat was firstly entered on 24.1.1976 and then in the name of both the parties, in equal share, vide mutation No.29, on 24.1.1971, mentioned in Ext.P-1. - 5 - The defendant had nowhere challenged these entries vide which proprietary rights were conferred upon the State and then on both the parties in equal share and he has simply pleaded that these entries were got wrongly attested by the plaintiff in connivance with the revenue officials. Some assertions made in this behalf are not sufficient to prove that these entries are wrong since these entries in Missal Haqiat Bandobast Jadeed appeared to have been entered on the basis of mutation of ownership entered in the name of both the parties in equal shares. Thus, there is nothing on the record to show that the defendant ever challenged the mutation or the revenue entries subsequently entered into in favour of both the parties, which clearly shows that the plaintiff was owner to the extent of half share. On the other hand, the defendant had relied upon the copy of the sale deed Ext.D-5 (wrongly mentioned as Ext.P-5), which was neither registered nor properly stamped, but the learned trial Court relied upon the same holding that it was a document executed 30 years ago which did not require any formal proof and the contents of it could be admitted in evidence since it has come up from proper custody i.e. the alleged purchaser. However, a perusal of this document will show that the defendant had purchased only the possessory rights since the Shamlaat land was in his possession and it was alleged therein that the land was government land. Thus, there was no transfer of ownership but of possessory rights only and once the State was the owner, the said Uttam Singh could not have transferred the land in favour of the defendant. There is nothing on record to show that there was any revenue entry in favour of the said Uttam Singh showing him to be owner of the suit land and, therefore, even if this - 6 - document was executed, it does not confer any right in favour of the defendant since there is nothing to show that it was ever acted upon by the parties as this entry by way of this sale deed was never brought in the revenue record at any time by lodging any report with the Patwari or getting the entries corrected accordingly. The learned First Appellate Court had rightly held that there is nothing to show that this document did not require registration and was a document inadmissible in evidence and it was for the defendant to prove that the document did not require compulsory registration at that time since the provisions of Transfer of Property Act were not applicable to the suit land and, therefore, it had rightly disbelieved the document. Coming to the evidence, the learned First Appellate Court had referred to the testimony of defendant, who has admitted that the plaintiff was owner in possession to the extent of half share. A perusal of the statement of DW-1 Ram Saran shows that he has stated that in the disputed house, 3 rooms belong to him and 3 rooms belong to the plaintiff. He has stated that earlier, he was having two rooms, while plaintiff was also having two rooms and thereafter one room was added by both the parties and at that time, they were living jointly. He has nowhere stated that the land belonged to him and he had permitted the defendant to make construction or that the possession of the plaintiff over the suit land was permissive or in what capacity. He further stated that after 5-6 years of their separation, the settlement took place and he was present at that time and the settlement was effected in his presence. He, therefore, does not state that he had no knowledge as to what happened during the settlement or - 7 - he was away in service at the time of settlement. His subsequent statement that he is not aware if the plaintiff is in possession shows that he has deposed falsely. DW-2 Aming Chand has also stated that both the parties are having three rooms each and also admitted that one room was added after the parties separated. This clearly shows that the statement of the defendant himself was sufficient to prove the possession of the plaintiff over the half portion of the suit land, which was not permissive but appears to be in his own right. The findings of the learned trial Court are incorrect that no reliance can be placed upon the later entries since it was not proved that these were effected in accordance with the procedure since the origin of the entry in favour of the plaintiff can be said to be the mutation of ownership to which reference has been made in the remarks column in the copy of jamabandi which clearly shows that on that basis the name of the plaintiff came in the ownership column. The said entry was never challenged by the defendant at any time and he led no evidence to show that the said entry was without any basis or cannot be given effect to. Therefore, presumption of correctness attached to the latest jamabandi entries showing the ownership and possession of both the parties does not stand rebutted. The findings recorded by the learned First Appellate Court can be said to be in accordance with law and the evidence has been properly appreciated by the learned First Appellate Court which findings do not call for an interference by this Court and as such are liable to be affirmed. - 8 - In view of the above discussion, I accordingly hold that there is no merit in the appeal filed by the appellant which is dismissed accordingly. Parties are left to bear their over costs. July 16, 2008. (V.K. Ahuja), (TILAK) Judge.