IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.: 143 of 2000. Date of decision: 01.09.2010. Sh. Hans Raj and others. … Appellants Versus Sh. Ram Lal. … Respondent Coram: The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No For the appellants: Mr. Neeraj Gupta, Advocate. For the respondent: Pt. Om Parkash Sharma, Advocate. V.K. Ahuja, J (oral). This is a regular second appeal under section 100 of the Code of Civil Procedure filed by plaintiffs/appellants against the judgment passed by learned Additional District Judge, Kangra dated 17.12.1999, reversing the judgment and decree passed by learned Sub Judge, Nurpur, dated 1.9.1998, decreeing the suit of the plaintiffs for possession of the land in dispute. 2. Briefly stated, the facts of the case are that the appellants (herein after also referred to as plaintiffs) filed a suit for possession of the land comprised in Khasra No. 1431 measuring 0-39-06 HM against the respondent (herein after also referred to as defendant). The plaintiffs alleged that they alongwith other co-sharers are owners of the suit land and they never inducted the defendant as tenant over the suit land. It was also alleged that during settlement operation, defendant got himself recorded as Kabaz of the suit land in the month of November, 1990 and 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 took illegal possession of the suit land. Hence the suit for possession filed by the plaintiffs. The defendant took up the plea that he was Gair Marrusi prior to coming in force of H.P. Tenancy and Land Reforms Act and now he has become owner of the suit land. It was further pleaded that the revenue record wrongly shows the plaintiffs and other co-sharers as owners of the suit land. Defendant was Gair Marusi on payment of Galla Battai and has become owner by virtue of provisions of H.P. Tenancy and Land Reforms Act. It was denied that the defendant took forcible possession of the suit land in the month of November, 1990. 3. On the pleadings of the parties, the following issues were settled by the learned Trial Court:- 1. Whether the plaintiffs are entitled to recover the possession of the suit land? OPP 2. Whether the suit is not maintainable? OPD 3. Whether the defendant was in possession of the suit land as tenant and become owner under H.P. Tenancy and Land Reforms Act? OPD 4. Relief. 4. On conclusion of the trial, the learned Trial Court decided issue No. 1 in favour of the plaintiffs and issues No. 2 and 3 against the defendant and consequently decreed the suit of the plaintiffs for possession. 5. On appeal, these findings were reversed by learned First Appellate Court, who allowed the appeal and the suit for possession filed by the plaintiffs was accordingly dismissed. 6. I have heard learned counsel for the parties and have gone through the record of the case. 7. The appeal was admitted on two substantial questions of law. First one being in regard to the question as to whether the learned Appellate Court has misread the basic principles of law, since it was incumbent upon the plaintiffs to prove their dispossession from the suit 3 land. The appeal was also admitted on the ground as to whether the learned First Appellate Court has wrongly rejected in evidence, the copies of Rapat Rojnamcha Ex. P-5 and Ex. P-6. 8. On appraisal of the record of the case, it is clear that the earliest copy of jamabandi on record is Ex. P-4 for the years, 1967-68. A perusal of the same shows that the land is entered in the ownership column in the name of Jagtu and Lal Chand, who are entered in possession column also. Thereafter the next copy of jamabandi on record is Ex. D-2 for the years 1970-71, which shows that Lal Chand and others are entered in ownership column, but defendant Ram Lal has been entered as Gair Marrusi on payment of lagan in the shape of 1/3 of the produce. The next copy of jamabandi on record is Ex. P-2 for the year 1975-76, in which the name of Baldev etc. is entered in the ownership column as well as the name of the present plaintiffs, who are sons of Rijhu Ram have been entered in the ownership column, while the possession is shown to be with Sh. Rijhu Ram, the predecessor-in-interest of the plaintiffs as Gair Marrusi. According to the entry in the remarks column, 1/3 of the produce was being paid as rent. There is nothing on record to show as to how the entry in the name of defendant appearing in the earlier revenue record as Gair Marrusi was changed and the predecessor-in-interest of the plaintiffs has been recorded as Gair Marrusi under his own sons. The next copy of jamabandi on record is Ex. P-1, for the year 1981-82, in which again defendant Ram Lal has been shown in possession and there is no entry in the column No. 7 pertaining to lagan. The present plaintiffs continued to be entered in the ownership column alongwith one Baldev Singh. The entry shows the defendant only as Kabaz, but his status has not been mentioned therein. There is no other copy of jamabandi on record after Ex. P-1 for the year, 1981-82 and on the basis of this entry, the plaintiffs have filed the suit for 4 possession, since they are entered in ownership column, while defendant is entered in possession without any status. 9. From the above discussion of the evidence, it is clear that there was no basis for the entry in favour of predecessor-in-interest of the plaintiffs as entered in jamabandi Ex. P-1 for the year 1981-82. No copy of order passed by any Revenue Officer has been placed on record, vide which the entry in favour of the defendant as Gair Marrusi was deleted and the name of predecessor-in-interest of the plaintiffs was entered in possession as Gair Marrusi. The plaintiffs have relied upon copies of Rapat Roznamcha Ex. P-5 and P-6 to show that there was some change and those copies of Rapat Roznamchas were not rightly been relied upon by the learned First Appellate Court below. These copies according to law were relevant, but not per se admissible in evidence, until unless Patwari concerned is examined alongwith the original Rapat Roznamchas. The appeal was admitted on this substantial question of law also, but this conclusion drawn by learned First Appellate Court that these documents are not per se admissible is correct. 10. Coming to this question that the learned First Appellate Court had relied upon the copy of sale deed mark-A dated 18.10.1973 that it was per se admissible in evidence, since it is a document of 30 years old. This observation was made by learned first Appellate Court on 17.12.1999 and the sale deed was of dated 18.10.1973 and therefore, 30 years would have been completed only on 18.10.2003 and this 30 years period is to be calculated from the date of sale deed till the date when the document was tendered in evidence and on that date it should have been of 30 years document before relying upon the same without a formal proof. However, 30 years period has not expired even when the judgment was pronounced by the learned First Appellate Court and by a wrong calculation, it was held that this was a document of 30 years old, which observation was made wrongly by the learned Additional District 5 Judge. The document was not legally proved and having been only marked and as such could not be read in evidence. Thus, in the absence of the copies of Rapat Roznamchas Ex. P-5 and P-6 having not been proved legally and the copy of sale deed having not been proved legally, these could not be considered. The net conclusion that can be drawn is that there was no basis for the change in the entry in favour of plaintiffs in the jamabandi Ex. P-2 for the year 1975-76 and therefore, in the absence of any order having been legally passed by any Revenue Officer in the event of change of the entry in favour of Sh. Rijhu Ram, predecessor-in-interest of the plaintiffs, the court has to revert back to the original entry Ex. D-2 in the jamabandi for the year 1970-71, sowing the defendant as Gair Marrusi over the suit land. Once a tenant is duly recorded in possession of the suit land and until unless there is relinquishment or abandonment in favour of the owner or there is any specific order passed by any competent officer, the presumption of correctness is attached to such copy of jamabandi, which does not stand rebutted by a stray entry in the jamabandi Ex. P-2 for the year 1975-76. Thereafter again the defendant was recorded in possession during the settlement operation and his status has to be considered as shown in earlier copy of jamabandi for the year 1970-71 Ex. D-2, which shows that he was entered as non occupancy tenant. 11. Apart from the above, there is nothing on record to show that the plaintiffs ever challenged the entry in favour of defendant in copy of jamabandi for the year, 1970-71 Ex. D-2 or in subsequent copy of jamabandi Ex. P-1 for the years 1981-82 and as such presumption of correctness is attached to copy of jamabandi for the years 1970-71 Ex. D- 2, which does not stand rebutted. The oral evidence consisting of the statement of previous owner Sh. Lal Chand, can not be said to be material. He will not be interested to favour a tenant recorded in possession. The admissions made by the plaintiffs to some extent in 6 regard to the possession was rejected by the learned First Appellate Court and I do not think that said observation was wrongly made and does not establish that the defendant was not in possession of the suit land. 11. In view of above discussion, findings recorded by the learned First Appellate Court, dismissing the suit for possession and accepting the appeal, reversing the findings of learned Trial Court do not call for an interference by this court and as such the appeal being devoid of merits is dismissed. Parties are left to bear their own costs. Decree sheet be prepared accordingly. Record of the courts below be returned. (V.K. Ahuja), September, 01, 2010 Judge (KRS)