IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 146 of 1999. Date of decision: 8.4.2009. Gita Devi wd/of Lala Ram and ors. ….. Appellants. Vs. Roshan Lal …. Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the Appellants : Mr. K.D. Sood, Advocate. For the Respondent : None. Kuldip Singh, Judge (Oral). This appeal is directed against the judgement, decree dated 12.1.1999 passed by learned District Judge, Bilaspur in Civil Appeal No. 6 of 1991 affirming the judgement, decree dated 11.10.1990 passed by learned Senior Sub Judge, Bilaspur in Civil Suit No. 25/1 of 1989, whereby the suit of respondent Roshan Lal was decreed. 2. The facts in brief are that respondent Roshan Lal had filed a suit for declaration and possession against Lala Ram, predecessor-in-interest of the appellants regarding land comprised in khasra No. 127/10, Khewat No. 28, Khatoni No. 34, measuring 6-2 bighas, village Batoli, Pargana Bahadarpur, Tehsil Sadar, District Bilaspur vide jamabandi for the years 1984-85. The pleaded case of Whether the reporters of the local papers may be allowed to see the Judgment? …2… respondent was that suit land was allotted as nautor to his mother Smt. Ram Dei about 12-13 years ago and the possession was also delivered to her. Smt. Ram Dei died a few months after the allotment of the suit land and thereafter respondent inherited the suit land and became owner thereof. Lala Ram was an influential person and he got khasra girdawari entries changed in his favour and took possession on 6.8.1987 of the suit land forcibly in absence of respondent, who was working at Rajban in District Sirmour. Lala Ram had no right, title or interest in the suit land. The revenue entries showing Lala Ram in possession as tenant are factually incorrect inasmuch as Lala Ram was never inducted as tenant on the suit land. In these circumstances, the suit was filed. 3. The suit was contested by Lala Ram by filing written statement in which he took preliminary objections of maintainability, jurisdiction, necessary parties and estoppel. On merits, it was denied that khasra girdawari entries were got changed by Lala Ram, it was pleaded that Lala Ram was tenant on the suit land. The respondent filed replication to the written statement and reasserted his case. On the pleadings of the parties, the following issues were framed: 1. Whether the plaintiff is owner of the suit land as alleged? OPP. 2. Whether the revenue entries showing the defendant as tenant are wrong and illegal? OPP. 3. Whether the defendant forcibly entered into the suit land as alleged? OPP. 4. Whether the plaintiff is entitled for possession? OPP. 5. Whether the suit is not maintainable in the present form? OPD. 6. Whether this court has no jurisdiction to entertain and try the suit? OPD. …3… 7. Whether the State of HP is necessary party, as such the suit is bad for non-joinder? OPD. 8. Whether the plaintiff is estopped from filing the present suit from his act and conduct? OPD. 9. Relief. The issues No. 1, 2 and 4 were decided in favour of the respondent, issues No. 5 to 8 were decided against Lala Ram, issue No. 3 was also decided in favour of the respondent and the suit was decreed. The appeal filed by Lala Ram was dismissed. In these circumstances, Lala Ram filed second appeal, which was admitted on the following substantial questions of law:- 1. Whether the oral and documentary evidence on record especially the statement of DW 1 Lala Ram, DW 2 Shiv Ram, DW 3 Puran Chand, documentary evidence Ex. DA Khasra Girdwari Ex. DB Jamabandi 1988-89 have been mis-construed and omitted to be appreciated in its proper perspective? 2. Whether the presumption of truth attached to the subsequent revenue entries stood rebutted by the earlier onus to draw an adverse inference? 3. Whether the mere entries relating to possession of the defendant as reflected in the revenue record would constitute adverse possession in law, and if so, whether the same had matured into ownership? 4. Whether in the facts and circumstances of the case defendant- appellant had acquired title by way of adverse possession or in any event tenancy rights by adverse possession and the suit of the plaintiff was liable to be dismissed? Lala Ram died during the pendency of the appeal and his legal representatives were brought on record. 4. I have heard Mr. K.D. Sood, learned counsel for the appellants and have also gone through the record. None appeared …4… on behalf of the respondent. Mr. Sood, learned counsel for the appellants has submitted that two courts below have erred in decreeing the suit of the respondent. It has been proved on record that Lala Ram was inducted as tenant on the suit land. He has submitted that Ex. DA copy of jamabandi 1988-89, Ex. DB copy of khasra girdawari 1989-90 and the statements of DW 1, DW 2 and DW 3 have been misconstrued. The presumption of truth is attached to the subsequent revenue entries. In alternative, Lala Ram had acquired title on the suit land by way of adverse possession or of tenancy rights by adverse possession. Substantial questions of law No. 1 to 4: 5. The substantial questions of law No. 1 to 4 are interconnected, therefore, all of them are being taken up together for disposal. In the written statement, plea of tenancy has been taken on the suit land, but contract of tenancy has not been pleaded. It has not been pleaded that who inducted Lala Ram as tenant on the suit land and on what terms and when. The statement of Lala Ram was recorded on 26.6.1990 and in his statement, he has stated that he had taken the land from Ram Dwi about 14 years ago, he used to pay 1/4th of produce to Ram Dei and after her to Roshan Lal. In cross-examination, he has stated that he has no rent receipt to show that he had paid 1/4th produce. He had given an application to Tehsildar for entering his name. Ram Dei had died at that time and Roshan Lal was not called by the Tehsildar. 6. DW 2 Shiv Ram has stated that land in dispute was being cultivated by Lala Ram. He has not stated that Ram Dei or …5… Roshan Lal had inducted Lala Ram as tenant on the land in dispute. He has rather stated that Roshan Lal had sold his land and had settled at Sirmour. DW 3 Puran has stated that Ram Dei had given the land in dispute to Lala Ram for cultivation. He has not stated that the suit land was given by Ram Dei or Roshan Lal to Lala Ram on rent or Lala Ram was inducted as tenant on the suit land. 7. In Ex. PA copy of jamabandi 1983-84, the suit land has been shown in ownership and possession of Roshan Lal. In Ex. PB, copy of khasra girdawari from 20.10.1988 to 20.8.1989, the suit land has been shown in ownership and possession of Roshan Lal. In Ex. DA copy of jamabandi 1988-89 the suit land is shown in ownership of Roshan Lal but in possession of Lala Ram without indication of payment of any rent. Similar is the position in Ex. DB copy of khasra girdawari for the period from 10.7.1989 to 21.3.1990. No doubt, in Ex. DA and Ex. DB the name of Lala Ram has been shown in the column of possession but appellants have failed to show how the name of Lala Ram came in column of possession in two documents Ex. DA and Ex. DB. The entry of Lala Ram in the column of possession in Ex. DA and Ex. DB is without any foundation and explanation. No value is attached to such an unauthorized entry. The presumption of truth continued to be in favour of earlier entry recorded in copy of jamabandi Ex. PA for the years 1983-84, which is in favour of Roshan Lal. In Durga (deceased) and others vs. Milkhi Ram and others, 1969 PLJ 105, the Hon’ble …6… Supreme Court has approved the following observations of the High Court:- “It is clear from the pedigree-table set out in its judgement that Mathar Mal had three sons Jiwan, Amin Chand and Relu. Durga and Sidhu are the descendants of Jiwan whereas the plaintiff and defendant No.3 are the descendants of Amin Chand and Relu. Now, in the entries prior to 1929-30 each one of the descendants of the three sons of Mathar Mal had been shown to have 1/3rd share and without any mutation the entries were changed in 1929-30. Admittedly there is no order of the revenue authorities showing how the change was made. Thus although the presumption would be in favour of the later entries but that presumption was a rebuttable one and it would stand rebutted by the fact that the alteration in the entries in 1929-30 was made unauthorisedly or mistakenly, there being no material to justify the change of entries.” 8. DW 1 Lala Ram has stated that he submitted an application to Tehsildar for changing the entry in girdawari in his favour but no order of Tehsildar ordering the change in favour of Lala Ram has been placed on record. The appellants have failed to make out any case of misreading of statements of DW 1, DW 2 and DW 3 as well as the documentary evidence Ex. DA and Ex. DB by the two courts below. In the written statement, there is no plea of acquiring either title or tenancy by way of adverse possession on suit land nor there is any evidence to this effect, even there is no issue on the point of adverse possession. Therefore, substantial questions of law pertaining to acquiring of ownership by way of adverse possession or tenancy by way of adverse possession do not emerge from the case set up by the appellants or their predecessor Lala Ram. The appellants have not made out any case for interference. The two courts below have rightly appreciated the material on record. The …7… substantial questions of law No. 1 to 4 are decided against the appellants. The appeal is liable to be dismissed. 9. No other point was urged. 10. The result of the above discussion, the appeal fails and is accordingly dismissed. April 8, 2009. ( Kuldip Singh ) (Hem) Judge.