RSA No.379 of 2005 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No.379 of 2005 Date of Decision: 7.9.2009 Hardev Singh @ Dev Raj (died) through .....Appellant his legal representatives Vs. Chanan Singh and others ....Respondents .... CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA **** Present : Ms. Jyoti Sareen, Advocate for the appellant. Mr. Sanjay Gupta, Advocate for the respondent no.2. .... RAJIVE BHALLA, J (Oral) The appellant challenges the judgement and decree dated 17.8.2004, passed by the Additional District Judge,Hoshiarpur, accepting the appeal filed by the respondents and setting aside the judgement and decree dated 6.5.2002, passed by the Civil Judge (Junior Division), Hoshiarpur. The plaintiff-appellant filed a suit for declaration that he is owner of the suit property having inherited it from his forefathers. In the year 1984, when the suit property was included in the lal lakir of village, he inducted Chanan Singh-respondent no.1 as a licencee on the assurance that he would vacate the property on 25.7.1990. The appellant was surprised when he received information that respondents no.3 to 5 had sold the suit RSA No.379 of 2005 2 land to respondent no.2, vide sale deed dated 17.8.1990. It is averred that as respondents no.3 to 5 have no right, title or interest in the suit property, the sale deed dated 17.5.1990 is null and void. The defendant-respondent no.1 was proceeded against ex-parte, whereas defendant-respondents no.2 to 5 filed a joint written statement denying the averments in the plaint and asserting that the appellant be put to strict proof of his ownership. It was further pleaded that as respondents no.3 to 5 were owners in possession of the suit property, they had every right to sell the suit land to respondent no.2. On the basis of the pleadings, the trial court framed the following issues :- “1. Whether the sale deed dated 17.8.90 executed by defts. No.3 to 5 in favour of the deft No.2 is illegal null and void ? OPP. 2. Whether the property in dispute is the ownership of the plaintiff ? OPP. 3. Whether the plaintiff is entitled to the possession of the suit property with consequential relief of permanent injunction ? OPP. 4. Whether the plaintiff have not come to the court with clean hands ? OPD." After considering the pleadings, the evidence adduced and the arguments addressed, the trial court decreed the suit by holding that the document Ex.PW-4/B records that the suit land is the ownership of Ram Singh, the grandfather of the appellant and, therefore, as respondents no.3 to 5 have no right, title or interest in the suit property, they could not have RSA No.379 of 2005 3 sold the suit land to respondent no.2, by way of sale deed dated 17.8.1990. Aggrieved by the aforementioned judgement and decree, respondent no.2 filed an appeal. Vide judgement and decree dated 17.8.2004, , the Additional District judge, Hoshiarpur, accepted the appeal, set aside the judgement and decree passed by the trial court and dismissed the suit. The first appellate court held that the trial court had misread Ex.PW-4/B, as it is in Urdu script. It was held that Ex.PW-4/B titled as “Khasra Paimish Mal”, prepared in the year 1884 during the settlement of the revenue estate, is irrelevant for deciding ownership of the suit property. It was further held that though the name Ram Singh, appears in column no.4 of Ex.PW-4/B it could not be relied upon to hold that Ram Singh referred to in Ex.PW-4/B is the same Ram Singh, who is an ancestor of the appellant. The first appellate court also held that the appellant had introduced a false story that he leased out the land to one Chanan Singh. It was further held that as ownership of land falling within the lal lakir follows possession and as the appellant has failed to prove his ownership or his possession, the trial court committed an error in decreeing the suit. Counsel for the appellant submits that though six questions of law have been framed but the questions that arise for adjudication are questions no.3,4 and 6. It is argued that the document Ex.PW-4/B and the pedigree table Ex.PW-4/C clearly establish the appellant's ownership of the suit land. A presumption of truth attaches to revenue entries and the onus to rebut this presumption lies upon the party who alleges otherwise. In the absence of any evidence to rebut the presumption of truth attached to the document Ex.PW-4/B, the first appellate court committed an error in rejecting this document. It is further submitted that in response to the RSA No.379 of 2005 4 averment of the appellant's ownership, as set out in the plaint, the averment in the written statement is evasive. The first appellate court should have, therefore, held that the respondents have admitted the ownership of the appellant. The last argument pressed into service by counsel for the appellant is that ownership of the appellant's apart, respondents no.3 to 5 have failed to prove their ownership and as a consequence, their right to sell the suit land to respondent no.2. It is submitted that in view of the errors committed by the first appellate court, the following substantial questions of law arise for consideration :- “1. Whether a document like sale deed Ex.D1 is illegal, null and void, as the executor of the same has no title over the suit property ? 2. Whether the approach of Ld. Lower Appellate Court in not appreciating the presumption of truth attached to jamabandi as pr Section 42 of the Punjab Land Revenue Act, is illegal and erroneous ? 3. Whether the approach of lower appellate court in not appreciating the settled principle of law, that if the denial of the fact is not specific but evasive, the said fact shall be taken to be admitted and no other proof is necessary, is erroneous and illegal ?” Counsel for respondent no.2, on the other hand, submits that the document Ex.PW-4/B is neither a document of title nor a part of the revenue record. It is a document prepared during the settlement of the revenue estate in the year 1884 and is, therefore, irrelevant. It is argued that a presumption of truth attaches to a jamabandi prepared after a settlement RSA No.379 of 2005 5 and not to interim documents prepared during a settlement. It is further submitted that if the written statement is read in its entirety, it discloses a clear and unequivocal denial of the appellant's ownership. It is further submitted that as ownership of land that falls within abadi deh follows possession and as respondents no.3 to 5 were in possession of the suit property, they were legally entitled to sell the suit land to respondent no.2. I have heard learned counsel for the parties, perused the impugned judgement and considered the substantial questions of law framed by counsel for the appellant but express my inability to hold that these questions of law arise for adjudication or that the first appellate court has committed any error of law, as would raise a substantial question of law. The document Ex.PW-4/B bears the title “khasra paimaish mal”. During the settlement of a revenue estate, various documents are prepared relating to ownership, possession, rights of tenants, nature of land, measurement of land, division of land etc. A khasra paimaish mal is one such document. After conclusion of the settlement of a revenue estate, a record of rights, known in common parlance, as a jamabandi is drawn up. A jamabandi records khewat and khatauni khasra nos, the name of owner of the land, the person in possession, the nature of his possession, measurement of land, the nature of land, the rate of rent, the rate of land revenue etc. A rebuttable presumption of truth attaches to an entry in a jamabandi and the onus to rebut this presumption lies upon the party that alleges that the entries in the jamabandi do not reflect the true position with respect to the fact it seeks to record. The appellant has failed to place on record any jamabandi recording his ownership or the ownership of his ancestors. As referred to herein above, the document Ex.PW/4-B is an RSA No.379 of 2005 6 interim document prepared during settlement of a revenue estate. It would also be necessary to mention here that the document Ex.PW/4-B records the name of one Ram Singh. The appellant alleges that Ram Singh is his forefather. In the absence of any record as to the father's name of Ram Singh and failure of the appellant to trace a lineal ascent to Ram Singh, the first appellate court rightly rejected the document Ex.PW/4-B. As regards the argument that the averments in the written statement do not disclose a specific denial of the appellant's ownership, suffice is to say that if the written statement is read in its entirety, the denial of the appellant's ownership is specific and unequivocal. The last argument is that respondents no.3 to 5 have failed to prove their ownership. The argument is entirely misplaced. It would be necessary to mention here that more often than not land within the lal lakir i.e. the Abadi Deh is assigned a single Khasra number and, therefore, ownership of land that falls within the lal lakir of a village follows possession. It was, therefore, for the appellant to have proved by satisfactory evidence his possession and his ownership. In order to establish his possession, the appellant introduced a false story that he had leased out the land to one Chanan Singh in 1981. In the absence of any evidence in support of this plea, this crude attempt to establish ownership and possession was rightly rejected by the appellate court. It would be necessary to mention that before filing this suit, the appellant filed a similar suit,which was dismissed as withdrawn with liberty to file a fresh suit. In the earlier suit,the appellant did not plead that he had leased out the suit land to Chanan Singh, thus, putting paid to this false story. In view of what has been stated herein above and as no error is RSA No.379 of 2005 7 discernible in the findings recorded by the first appellate court, the appeal is dismissed with no order as to costs. 7.9.2009 (RAJIVE BHALLA) GS JUDGE