IN THE HON’BLE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA 106 of 1995. Judgment Reserved on 11.3.2008 Date of decision March 20, 2008. Bhagat Singh …..Appellant. Versus Dayal Singh and another ….Respondents. Coram: The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 No. For the appellant: Mr. H.S.Giani, Advocate. For the respondents: Mr. K.D.Sood, Advocate. Dev Darshan Sud, J. This is the plaintiff’s second appeal against the judgment and decree of the learned District Judge affirming the judgment and decree passed by the learned Sub Judge Ist Class, Nalagarh dismissing the suit preferred by the appellant- plaintiff. The necessary facts for the disposal of this appeal are that the plaintiff instituted a suit for declaration that he is the co sharer and co owner in possession of the suit land as described in the plaint and that the revenue record to the contrary which does not recognize his title 1 Whether Reporters of Local Papers are allowed to see the judgment? Yes. - 2 - and possession is illegal, void; a consequential relief in the nature of a decree for permanent prohibitory injunction was also prayed for. The suit was resisted by the defendants, who pleaded that they were the owners of the suit land. On the pleadings of the parties, the learned trial Court framed ten issues. The crucial issues for determination were as to whether the plaintiff is the co owner/co sharer of the suit land and that the revenue entries to the contrary are illegal; whether the plaintiff is entitled to the consequential relief of permanent prohibitory injunction and in the alternative, a decree declaring him to be the owner by way of adverse possession. One other issue which was tried was as to whether the sale deed(s) executed by defendants 1 and 2 Babu Ram and Sita Ram in favour of defendants 3 and 4 Dayal Singh and Ramji Dass were illegal. All these issues were decided against the plaintiff and the suit was dismissed. An appeal preferred before the learned District Judge has also proved unsuccessful. This appeal was admitted on substantial question of law No. 1 which reads: 1. Whether the matter in dispute with respect to acquiring right of ownership by occupancy tenancy as claimed by the appellant- plaintiff under the provisions of Pepsu Occupancy Tenancy (Vesting & - 3 - Proprietary Rights) Act, 1954 / and H.P. Tenancy and Land Reforms Act, 1972, are required to be determined by the Revenue Court/ by Ld. Land Reforms Officer under the provisions of aforesaid Act and the Civil Court has jurisdiction to entertain and try and decide the dispute or title, more especially in view of authoritative decision of the full bench of Hon’ble Court in case ‘Chunia Devi …..V/S….Jindu’. reported in Vol. 2 1991- SLJ-1082 and the Civil Court has jurisdiction to decide the same by consent or acquiescence of the parties even where it lacks inherent jurisdiction to decide the same? Learned counsel appearing for the appellant has urged that both the learned Courts below were wrong in assuming jurisdiction in deciding the case more especially when the record itself shows that the father of the plaintiff had acquired proprietary rights under the Pepsu Occupancy Tenancy (Vesting & Proprietary Rights) Act, 1954. He submits that the exclusive jurisdiction for determining this question was with the revenue officers designated by the Statute and not with Court. This is indeed a very strange plea which has been taken by the appellant-plaintiff. He had approached Civil Court for declaration that he was the owner in possession of the suit land. After - 4 - having invited a finding to the contrary, he now seeks a declaration by this Court that the decree of both the learned Courts below is without jurisdiction. In any event, the appeal having been admitted on this question, it is to be seen as to whether the question of law as raised actually arises for determination. This plea was raised before the learned trial Court which, after a detailed consideration of evidence and on reading of the entire revenue record, came to the conclusion that Jiwanu, father of the plaintiff-appellant was never inducted as occupancy tenant in the suit land. The plaintiff never produced any evidence on record to show that there was any payment of rent by Jiwanu. The bald statement of the plaintiff to the contrary was considered insufficient by the learned trial Court to have rebutted the presumption of truth which attached to the revenue record and to grant the relief as prayed for by the plaintiff-appellant. When this plea was raised again before the learned District Judge, on a detailed consideration of the evidence before it, the learned Court came to the conclusion that the revenue record clearly established the possession of the defendants and that there was nothing on record to show that Jiwanu had acquired proprietary rights. The appellate Court as also the trial - 5 - Court have held that there is no evidence to establish the claim of the appellant- plaintiff. Consolidation proceedings took place in the year 1961-62 during which the entire revenue record was revised and after revision it clearly established possession of the defendants. No material was brought on record to show that this revision was not in accordance with law or that the record was manipulated. The Courts below held that no revenue record was produced from the year 1941-42 to 1961- 62. There was no plea that this record was not available. Therefore, the requirement under the Pepsu Act for acquiring proprietary rights had not been established on record. The learned Court also held that presumption attaching to the latest jamabandis (revenue records) is rebuttable, but no evidence had been produced to show that such revenue record was not prepared in accordance with law or that the entries made therein are incorrect. So much so, the plaintiff admitted in his cross examination that he was not even born at the time when his father is supposed to have been inducted as a tenant. Learned counsel for the appellant has placed reliance on a number of judgments to submit that the presumption of truth to the entries made in the revenue record are rebuttable, the civil Court has no jurisdiction to deal with the matter - 6 - relating to conferment of proprietary rights and that the plaintiff has been the victim of fraud. These judgments need not be noticed as the courts below have held that the factual foundation for the basis of urging these points of law have not been pleaded or proved. In second appeal, the plaintiff-appellant cannot be allowed to urge anything more than what is necessary and essential for determining the question of law. Questions of fact cannot be reagitated or evidence reappreciated at the mere asking of the appellant unless it is shown that the findings are perverse. I cannot find anything in the evidence oral or documentary which points to any perversity. Both the courts below having held against the plaintiff on sound appreciation of evidence, I cannot persuade myself to take a different view. It needs no reiteration that questions of law are answered on established facts and not as a mere academic exercise. Both the learned Courts having held that there is no factual foundation(s) for the assertion that the father of the appellant was a tenant of the land, the question of his acquiring proprietary rights will not arise at all. Further, the learned Courts below have consistently held that the revenue record which was thoroughly revised during the settlement in 1961-62 is contrary to the assertions which have been made by - 7 - the plaintiff. It is also established as a fact that from 1941-42 till the year 1961-62, i.e. for a period of more than 20 years, there is no revenue record and no explanation as to why it has not been produced in evidence. The bald statement of the plaintiff that his father was a tenant on the suit land was not sufficient to rebut the presumption of truth attaching to the revenue record, more especially when the plaintiff was not even born when his father was allegedly inducted as a tenant on the land. There is also no evidence on record to suggest that the plaintiff has been a victim of fraud. In the facts and circumstances of the case, the question is answered against the appellant. It is held that the facts on record do not establish the claim of the plaintiff. This appeal is accordingly dismissed. There shall be no order as to costs. March 20, 2008(PC). (Dev Darshan Sud), J.