RSA No.3687 of 2006 -: 1 :- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3687 of 2006 (O&M) Date of decision: January 20, 2010. Mohan Lal ...Appellant(s) v. Union of India & Anr. ...Respondent(s) CORAM:HON'BLE MR. JUSTICE RAKESH KUMAR GARG Present: Shri Pankaj Jain, Advocate, for the applicant-appellant(s). Rakesh Kumar Garg, J. (Oral): CM No.9283-C of 2006 This application under Order 41 Rule 27 read with Section 151 CPC has been filed by the appellant for producing additional evidence in the form of jamabandi qua the suit land comprising in khasra No.1824 for the years 1974-75, 1979-80, 1984-85, 1989-90, 1994-95 and 1999-2000. In this application it has been averred by the appellant that the appellant sought declaration qua the suit property to the effect that he has become owner in possession and that revenue entries comprising in the jamabandis for the years 1994-95 and 1999-2000, wherein one Manohar Lal has been recorded in possession, are not binding on his rights and are in fact clerical mistake on the part of the revenue officers and in order to demonstrate the aforesaid mistake to have crept in due to the mistake of the RSA No.3687 of 2006 -: 2 :- revenue officials, he wanted to prove that Manohar Lal who was a different person and was in possession of khasra No.1838 and not of land comprised in khasra No.1824. However, by mistake his counsel exhibited jamabandis pertaining to khasra No.1838 on the record and inadvertently could not produce jamabandis qua suit land comprising in khasra No.1824 though the said revenue record was handed over by him to his counsel. It has been further averred in this application that the aforesaid mistake on the part of his counsel could be detected by the appellant only when he came to engage the Advocate for filing the present appeal before this court. Hence, he be allowed to produce the additional evidence in the form of jamabandis pertaining to the years 1974-75, 1979-80, 1984-85, 1989-90, 1994-95 and 1999-2000 qua suit land comprising in khasra No.1824. There is no merit in the application filed by the appellant. Right from the beginning, it is the case of the appellant/applicant that he was owner in possession of the suit land being in possession as Gair Marausi under the defendants on payment of lagan. However, it was found by the trial court that his suit was not maintainable as there were entries in the revenue record in regard to the land in dispute in favour of one Manohar Lal and his possession over the suit land was illegal and he had no right to seek such declaration under the provisions of the Punjab Tenancy Act, 1887. On appreciation of evidence, the trial court found possession of the plaintiff/appellant only for the period with effect from 1964 to 1974 and as per the jamabandis for the year 1979-80, 1984-85, 1994-95 and 1999-2000, it was one Manohar Lal who was mentioned as gair marausi tenant. Even before the trial court, the appellant/applicant claimed that these entries were wrongly made. Thus, the plaintiff knew about the alleged RSA No.3687 of 2006 -: 3 :- mistake in the revenue record and did not get it corrected in the jamabandis and, therefore, the factum of the entries in the revenue record in the name of one Manohar Lal were very much to his knowledge and not only these facts find mention in the judgment and decrees of the trial court yet plaintiff/appellant did not take any action to lead any additional evidence before the lower appellate court and has filed the present the application only after he lost before the lower appellate court. Not only this, I have perused the revenue record produced as Annexure A/1 to A/6 along with this application which is sought to be produced as additional evidence. Even if the aforesaid record is placed on record, the applicant cannot succeed for the other reasons as noticed by the courts below. I find no merit in this application and the same is dismissed. RSA No.3687 of 2006 This is plaintiff's second appeal challenging the judgment and decrees of the courts below whereby his suit for declaration to the effect that he is owner in possession of the suit land having acquired tenancy rights of the suit land in dispute being in possession for the last 50 years as gair marausi under the defendants on payment of lagan, has been dismissed. Upon notice, defendants appeared and filed written statement in which various preliminary objections were taken. On merits, it was denied that the plaintiff was owner in possession of the agricultural land. It was further submitted that he was in possession of the suit property illegally. It was denied that he was in possession of the suit property for the last more than 50 years as gair marausi on payment of lagan. Dismissal of the suit was prayed for. RSA No.3687 of 2006 -: 4 :- After perusing the file and comparative analysis of the oral as well as documentary evidence and after hearing the rival contentions, trial court came to the conclusion that the plaintiff has failed to prove his case. It was found that the plaintiff/appellant has failed to prove that he had continuously occupied the land in dispute for 30 years as per section 5(2) of the Punjab Tenancy Act, 1887 as per the revenue entries produced on the record. Moreover, his possession on the suit property was found to be illegal. In view of the aforesaid findings, the suit was dismissed. Appeal filed by the appellant against the aforesaid judgment and decree was also dismissed. The relevant observations of the lower appellate court read as follows:- “To prove his case, the plaintiff Mohan Lal appeared as PW1 and tendered his affidavit Ex.PW1/A as examination in chief reiterating the plaint allegations. He also produced various documents in evidence. The plaintiff also examined Richhpal PW2 who tendered his affidavit Ex.PW2/A affirming that the plaintiff is Gair Morusi over the suit land under defendants for the last 50 years and has now become owner thereof. He has been in continuous possession of the suit land and was never ejected therefrom. Earlier the suit land was in possession of Muslims who migrated to Pakistan at the time of partition of the country. Many other Gair Morusi tenants like Mohan Lal plaintiff have become owners in RSA No.3687 of 2006 -: 5 :- Faridabad. On the other hand, Jai Devi – Tehsildar (Sales) appeared as DW1 on behalf of defendants and tendered his affidavit Ex.D1 as examination in chief affirming the defendants version of detail. He also produced copies of jamabandis Ex..D2 to D9. Oral evidence of the parties does not carry much weight when there is revenue record regarding the suit land. Perusal of copies of jamabandis produced by both sides for 1964-65, 1969-70, 1974-80, 1984-85 and 1989-90 reveals that Mohan Lal plaintiff has been recorded to be in possession of the suit land as gair Morusi on payment of eight times lagan. His possession was recorded to be unalwful till 1974-75. In copies of jamabandis for 1994-95 and 1999-2000, one Manohar Lal has been shown to be Gair Morusi in possession of the suit land on payment of same eight times lagan. Counsel for plaintiff-appellant submitted that possession of the plaintiff over the suit land for more than 30 years since 1964-65 onwards is proved and so there is presumption under Section 5 (2) of the Tenancy Act that he has fulfilled the conditions laid down in Section 5(1)(a) of the Tenancy Act for acquiring occupancy rights. There is no dispute about legal proposition but the same RSA No.3687 of 2006 -: 6 :- is not applicable to the instant case as plaintiff's possession over the suit land continuously for more than 30 years is not proved. His possession was recorded since 1964-65 till 1989-90 only i.e. for 26 years. There is no document to show that even after 1989-90, the plaintiff continued in possession of the suit land. On the other hand, the subsequent jamabandis for 1994-95 and 1999-2000 reveal that one Manohar Lal and not the plaintiff Mohan Lal was in possession of the suit land. So, possession of the plaintiff was not for a continuous period of 30 years. Counsel for the appellant submitted that there is no person by the name of Manohar Lal as mentioned in aforesaid two jamabandis and in fact plaintiff's name has been wrongly recorded as Manohar Lal by way of clerical mistake although father's name and grand-father's name remain the same that the plaintiff. The argument cannot be accepted. There is only solitary bald and self- serving oral statement of the plaintiff in this regard. The same is not sufficient to prove this fact. He has not examined any other person as witness on this point. Even his witness Richhpal PW2 has not stated a word on this point. No Sarpanch or Member Panchayat or Lambardar of the village has been examined to show that it was only clerical RSA No.3687 of 2006 -: 7 :- mistake or that there is no other person by the name of Manohar Lal with same father's name and grand- father's name. Thus, it is not proved that Manohar Lal mentioned in aforesaid two jamabandis is not in existence or that it was only clerical mistake in mentioning the name of said Manohar Lal in place of plaintiff's name. On the contrary, the plaintiff has produced copies of jamabandis Ex.P9 to P12 of some other land (not of suit land) and in these jamabandis also, one Manohar Lal is mentioned to be allottee of said land and in possession thereof through Mohan Lal and his brothers, mother and sisters. These documents also show that Manohar Lal is very much in existence and is a different person from the plaintiff Mohan Lal. Counsel for appellant submitted that father's name and grand- father's name of Manohar Lal is not mentioned in jamabandis Ex.P9 to P12. However, these documents do show that there is some other person named Manohar Lal and it was for the plaintiff to show that his father's name and grand-father's name are different. It was also for the plaintiff to prove that his name was erroneously mentioned as Manohar Lal in jamabandis for 1994-95 and 1999- 2000 and in fact there is no person in existence by the said name of Manohar Lal. However, plaintiff RSA No.3687 of 2006 -: 8 :- has miserably failed to do so as he has not led any evidence whatsoever in this regard except his solitary oral statement which is not sufficient to prove this fact. So plaintiff's possession over the suit land is proved from 1964-65 to 1989-90 only i.e. for 26 years only and not for 30 years or more and so presumption under Section 5(2) of the Tenancy Act is not applicable. Before proceeding further, it may be noticed that the learned trial court made certain observations on the basis of jamabandis Ex.P9 to P12 but the same do not pertain to the suit land comprised by khasra No.1824. On the other hand, these jamabandis pertain to land of khasra No.1838 which is not involved in this case. So, observations of learned trial court on the basis of jamabandis Ex.P9 to P12 are erroneous, although the plaintiff cannot succeed for different reasons being recorded in this judgment.” Still not satisfied, the plaintiff has filed the instant appeal submitting that the following substantial questions of law arise in this appeal:- 1. As to whether the learned courts below have committed manifest error of law by giving findings qua suit land comprising in khasra No.1824 by relying on revenue record pertaining to khasra No.1838? RSA No.3687 of 2006 -: 9 :- 2. As to whether the stray entry in jamabandi can be relied on to hold that the plaintiff/appellant is not in possession of land when for the last 26 years, the appellant has been shown in continuous possession of suit land in the absence of any cogent evidence to that reply? 3. As to whether the findings of the lower appellate court regarding non-serving of notice qua suit land comprising in khasra No.1824 is a result of misreading/ignoring Ex.P/1 i.e., notice dated 24.1.2004 which stand fully proved on record? 4. As to whether the lower appellate court was within its jurisdiction to give finding qua maintainability of suit on the ground of non-service of the notice under section 80 CPC when the respondents have waived off this objection by non pressuring the same before the learned trial court? I have heard learned counsel for the appellant and perused the impugned judgment and decrees. The courts below on appreciation of evidence have recorded a finding of fact that the appellant has failed to fulfill the mandatory conditions as contained in section 5(2) of the Punjab Tenancy Act, 1887 for being declared as occupancy tenant. It is relevant to mention that it is not only the condition of being in possession for continuous 30 years in the land in dispute, the other condition, i.e., the tenant should not have paid rent for the land beyond the amount of land revenue thereof and the rates and cesses for the time being chargeable thereon, has not been fulfilled. As per the RSA No.3687 of 2006 -: 10 :- revenue record, eight times lagan was payable by the appellant and therefore it cannot be said that appellant was not paying amount beyond the land revenue and the charges and cess payable and not a nominal amount. Moreover, it was found that he was not a tenant on the land in dispute as he was never inducted and his possession was found to be illegal. Thus, I find no error in the judgments and decrees of the courts below. No substantial question of law arises. Dismissed. January 20, 2010. [ Rakesh Kumar Garg ] kadyan Judge