1 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA. RSA. No. 360 of 1999. Judgment Reserved on: 13.7.2009 Date of Decision: 18.8.2009 Jallu …Appellant Versus Sabaloo and Ors. .. Respondents Coram The Hon’ble Mr. Justice Kuldip Singh,Judge Whether approved for reporting? Yes For the appellant: Mr. Navlesh Verma, Advocate. For the respondents: Mr. D.N. Ronta, Advocate, Kuldip Singh, J This appeal has been directed against judgment, decree dated 26.3.1999, passed by learned Addl. District Judge, Shimla in Civil Appeal No.41-S/13 of 1997, reversing judgment, decree dated 26.3.1997, passed by learned Sub Judge Ist Class, Theog, in Case No.203/1 of 92. The plaintiff has come in second appeal. 2. The pleaded case of the appellant is that in a private partition, Maghu, Runu and Shoju had got land measuring 6-10 bighas _____________________________ whether reporters of Local Papers may be allowed to see the Judgment?Yes 2 comprised in Khata No.21, Khatauni No.25, khasra No.117, situated in Chak Kunjala vide jamabandi for the year 1955-56. Maghu, Runu and Shoju about 40 years back inducted the appellant as tenant on the suit land in lieu of services and on payment of land revenue. The appellant had been coming in possession of the suit land since then and had become owner thereof under the H.P. Tenancy and land Reforms Act, 1972. The alternative case of the appellant is to the effect that if he is found to be in possession of the suit land as mortgagee then he has become owner of the same as 30 years period has lapsed and the land has not been redeemed prior to the institution of the suit. The respondents caused interference on the suit land in August and September, 1992 and therefore, the plaintiff had filed the suit for permanent prohibitory injunction and recovery of Rs.500/- on account of damages caused by the respondents by destroying the grass by the cattle of respondents by grazing the same on the suit land. 3. The suit was contested by the respondents. They denied that partition had taken place among the co-sharers of the suit land as alleged by the appellant. It was also denied that Maghu, Runu and Shoju had inducted the appellant as tenant on the suit land. The possession of appellant on the suit land has been denied. It has also been denied that appellant has become owner of the suit land under the H.P. Tenancy and Land Reforms Act, 1972. The entries in favour of appellant of the suit land are wrong and illegal. The appellant had filed replication. 3 4. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiff is owner in possession of the suit land, as alleged? OPP 2. whether the plaintiff was inducted as tenant over the suit land as alleged? OPP 3. Whether the suit land was mortgaged with possession with the plaintiff, as alleged in the alternative? OPP 4. Whether the plaintiff is entitled for suit amount as alleged? OPP 5. Whether the defendants interfered with the possession of plaintiff over the suit land as alleged? OPP 6. Whether the suit is bad for non-joinder of necessary parties as alleged? OPD 7. Relief The issues No.1,2,4 and 5 were answered in affirmative and issues No.3 and 6 in negative by the trial court and the suit was decreed on 26.3.1997. The respondents had filed appeal which was allowed by Addl. District Judge on 26.3.1999 and the suit was dismissed. The appeal has been admitted on the following substantial question of law:- “Whether the first appellate Court has mis-read and mis- appreciated the oral and documentary evidence on record for setting aside the findings of the trial Court on issues No.1,2, and 4 to 6 as a result of which the suit of the appellant- plaintiff is dismissed”? 5. Heard and perused the record. The learned counsel for the appellant has submitted that Addl. District Judge has mis- appreciated the oral and documentary evidence on record and therefore, findings recorded by Addl. District Judge on issues No.1,2 and 4 to 6 are liable to be set aside. The learned counsel for the 4 respondents has submitted that the Addl. District Judge has rightly appreciated the material on record; he has supported the impugned judgment, decree. 6. The case of the appellant is to the effect that suit land at one point of time was joint land which was partitioned among the co-sharers and suit land fell to the shares of Maghu, Runu and Shoju who inducted the appellant as tenant on the suit land about 40 years ago in lieu of services and on payment of land revenue. On coming into force of H.P. Tenancy and Land Reforms Act, 1972, the appellant has become owner of the suit land. The alternative case of the appellant is that the suit land was mortgaged with him with possession, the mortgage was not redeemed within 30 years upto the filing of the suit and therefore, he has become owner of the suit land. The trial court has decided issue No.3 of mortgage against the appellant. The appellant was respondent in the First Appellate Court but he did not file any cross-objection in the lower appellate Court against the findings recorded by the trial court on issue No.3. There is no reference of issue No.3 in the substantial question of law on which the appeal has been admitted. Therefore, the alternative case of the appellant that he has become owner of the suit land as respondent has failed to redeem the alleged mortgage is not available to him. The question left in the appeal is whether appellant was inducted as tenant and he is owner in possession of the suit land? 7. The pleaded case of the appellant is that at one point of time suit land was owned by co-sharers and in partition, it came to 5 the shares of Maghu, Runu and Shoju who gave the suit land to him 40 years ago. PW-1 Jallu in his statement has nowhere stated that the suit land fell in the shares of Maghu, Runu and Shoju and it was given to him by Maghu, Runu and Shoju on tenancy. Once the land was owned by Maghu, Runu and Shoju and others PW-1 has not explained how Maghu, Runu and Shoju had given the suit land to him. There is nothing in the statement of PW-1 that Maghu, Runu and Shoju gave the suit land to him with the consent of other co-sharers. PW-1 has not stated that Maghu, Runu and Shoju had given the suit land to him in presence of some persons. In cross-examination he has stated that no partition took place in his presence. 8. PW-2 Ganga Ram has not stated that the appellant was inducted as tenant on the suit land by Maghu, Runu and Shoju . PW-3 Deep Ram has also not stated that the suit land was given to appellant by Maghu, Runu and Shoju on tenancy. DW-1 Sablu son of Runu has asserted his possession on the suit land. He has denied the possession of appellant on the suit land. He has denied that this land was ever partitioned among the co-sharers. 9. Ex.P-1 is the jamabandi for the year 1951-52 of khasra No.117, measuring 13 bighas owned and possessed by the owners. Ex.P-2 is the jamabandi for the year 1955-56 regarding khasra No.117, measuring 6-10 bighas, in the column of possession, name of Jallu has been shown as gair morusi. In the rent column the entry is Billa lagan Bawaja Rehan. In jamabandi Ex.P-3 for the year 1963-64, Ex.P-4 jamabandi for the year 1973-74, Ex.P-5 6 jamabandi for the year 1983-84, Ex.P-6 jamabandi for the year 1988-89, the entries with respect to status of appellant is the same as shown in Ex.P-2 jamabandi for the year 1955-56. 10. The learned counsel for the appellant has submitted that the possession of appellant on the suit land has been continuously recorded in the jamabandies Ex.P-2 to Ex.P-6. He has submitted that presumption of truth is attached to jamabandies and therefore, appellant is entitled to injunction against the respondents. 11. There is no denial of the legal proposition that presumption of truth is attached to entries in the jamabandies but that presumption is rebutable. Ex.P-1 jamanadi for the year 1951-52 indicates whole of the khasra No.117, measuring 13 bighas in possession of the owners. In Ex.P-1 the name of appellant has not been recorded on khasra No.117 in any capacity. However, in jamabandi Ex.P-2 for the year 1955-56 the name of the appellant has first time appeared. In these circumstances there was heavy burden on the appellant to show how his name appeared in Ex.P-2 jamabandi for the year 1955-56. In the column of rent in Ex.P-2 and subsequent jamabandies the entry is Billa Lagan Bawaja Rehan, the plea of appellant that the suit land was mortgaged with him has been rejected by the court below and the appeal has not been admitted on substantial question of law regarding mortgaged, therefore, entries of Billa Lagan Bawaja Rehan in jamabandies Ex.P-2 to Ex.P-6 are wrong. It is not the case of the appellant that entry in his favour in jamabandi Ex.P-2 for the year 1955-56 was made on the basis of some order of competent authority nor he has 7 explained how his name appeared in jamabandi Ex.P-2 for the year 1955-56 and subsequent jamabandiies. The entries of non- occupancy tenant in column No.5 of jamabandies and entries against rent column in the jamabandies regarding the status of appellant are mutually contradictory. In column No.5, the appellant has been shown non-occupancy tenant and in column No.9 it has been recorded Billa Lagan Bawaja Rehan, in other words on account of mortgage. In Durga and others vs. Milkhi Ram and others PLJ (1969) 105, the Supreme court has held that if change has not been explained then the presumption of truth is not attached to the latest jamabandi. In that situation, the presumption will go back to the earlier record. The appellant has failed to prove that he is in possession of the suit land and he has become owner thereof. In fact the appellant has failed to prove his possession of the suit land. The lower appellate court has rightly appreciated the material on record in returning findings on issues No.1,2 and 4 to 6. There is no perversity in the impugned judgment, decree, hence the aforesaid substantial question of law is decided against the appellant. 12. No other point was urged. 13 The result of above discussion, appeal fails and is accordingly dismissed. No costs. ( Kuldip Singh) Judge August 18, 2009 (sks)