IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.255 of 1999 Date of decision : March 22, 2010 Thakar (dead) through LRs and others …Appellants. Versus Charan Dass and others …Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Appellants : Mr. N.K. Sood, Advocate. For the Respondents : Mr. Bhupinder Gupta, Senior Advocate, with Mr. Neeraj Gupta, Advocate. Surjit Singh, J (Oral) The present Regular Second Appeal was admitted on the following substantial questions of law, vide order dated 10th August, 1999: “1. Whether the presumption of truth attached to the long standing revenue entries having been carried forward continuously and constantly for years together recording the parties to the suit as cosharers is legally and sufficiently rebutted to hold that parties are separate in ownership and possession barely on solitary oral statement of the plaintiff? 2. Whether the findings of the learned appellate court below are vitiated for mis- construction and mis-interpretation of the mutation Ex. PD and mutation Ex. D1 to base its findings of partition between the parties when such mutations reflected a position contrary to the claim of the plaintiff? Whether reporters of the local papers may be allowed to see the judgment? …2… 3. Whether in law any adverse inference can be drawn against defendant in not appearing as a witness to return findings in favour of the plaintiff when otherwise sufficient oral as also documentary evidence produced and proved during the trial is available supporting the claim of the contesting defendants?” 2. Facts relevant for the disposal of appeal may be noticed. Late Shri Chinu Ram, father of present respondent Charan Dass, filed a suit for declaration that he was in exclusive ownership and possession of land bearing Khasra No.694, measuring 2-13-12 bighas, situated in Village Kehar, Illaqua Rajgarh, Tehsil Sadar, District Mandi, H.P., and that entries in the revenue papers, showing Sidhu, Thakar and Parvati, all now dead and represented by the their Legal Representatives (appellants herein), were illegal and of no consequence upon his rights. 3. It was pleaded that the plaintiff and defendants No.1 to 3 were initially joint owners of land measuring 12-2 bighas, bearing Khasra Nos.694, 641, 656, 657, 658, 660 and 667, and that about 70-80 years prior to the institution of the suit, a partition had taken place amongst the predecessors of the parties, in which Khasra No.694, i.e. the suit land, fell to the share of the plaintiffs’ predecessor Belu Ram. It was stated that ever since the plaintiff and prior to him his predecessors had been in exclusive possession of the suit land as exclusive owners. It was further pleaded that rest of the joint land, described …3… hereinabove, fell to the share of the predecessor of defendants No.1 to 3, who inducted the predecessor of defendants No.4 to 15 as tenants and that by virtue of the operation of Section 104 of the H.P. Tenancy and Land Reforms Act, defendants No. 4 to 15 acquired the proprietary rights, in respect of the land that fell to the share of defendants No.1 to 3. 4. Suit was contested by defendants No.1 to 3 as also by defendants No.4 to 15, by filing separate written statements. Trial Court dismissed the suit, holding that the entries in the revenue papers negatived plaintiffs’ plea of partition. Plaintiffs went in appeal to the first Appellate Court, i.e. the Court of District Judge. Accepting the appeal, learned District Judge vide impugned judgment, dated 16th March, 1999, decreed the suit of the plaintiffs. 5. I have heard the learned counsel for the appellants (defendants) as also the learned counsel for the respondents (plaintiffs) and perused the record. 6. It is not in dispute that as per entries in the revenue papers, right from the beginning, both the plaintiffs and defendants No.1 to 3 are being recorded as joint owners of the suit land. The earliest entry from revenue papers placed on record by the parties is copy of Jamabandi for the year 1971-72, Ex. D-2, in which the suit land is shown in joint possession of the plaintiff and the defendants, as occupancy tenants under one Pohla. On …4… account of their being occupancy tenants, the plaintiff and defendants No.1 to 3 were conferred proprietary rights, by virtue of the provision of Section 94 of the H.P. Tenancy and Land Reforms Act, vide mutation order dated 29th July, 1975, copy Ex. D-1. Next Jamabandi is for the year 1981- 82, in which Khasra No.694 is recorded in exclusive possession of the plaintiff, while the rest of the land is recorded in occupation of Brikam, the predecessor of defendants No.4 to 15, as non-occupancy tenant. 7. Under the provision of Section 104 of the H.P. Tenancy and Land Reforms Act, non-occupancy tenants acquire proprietary rights, on payment of certain amount of money, as compensation, to the land owner. So, mutation, copy Ex. PD, was attested in favour of Brikam, conferring the proprietary rights, in respect of the land, other than the suit land land, comprised in Khasra No.694. Mutation order as also the previous Jamabandi for the year 1981-82 copy Ex. PA do not indicate that Brikam was a non-occupancy tenant only under defendants No.1 to 3 and not the plaintiff. On the contrary, entries indicate that Brikam was a non-occupancy tenant under all the joint owners, including plaintiff, others being defendants No.1 to 3. 8. There is absolutely no documentary evidence, supporting the plea of partition raised by the plaintiff or that he is exclusive owner of the suit land. The entries are that the plaintiff and defendants No.1 to 3 are the joint owners, …5… though the plaintiff is in exclusive possession of the suit land, which fact is not denied even by the defendants. 9. Oral evidence led by the plaintiff consists of the testimony of one of them. PW-1 Charan Dass has stated that partition had taken place about 70-80 years back. He was himself 46 years old when he made the statement to the aforesaid effect. He did not explain how could he have been in the know of a fact, which took place about 25 years prior to his birth. Otherwise also, his statement being in conflict with the entries in the revenue papers, it could not have been given precedence over the entries in the revenue record, especially the record-of-rights to which presumption of truth attaches. It is now well settled that very cogent, convincing and reliable evidence is required to rebut the entries in the record-of-rights, which is lacking in the present case. 10. For the foregoing reasons, substantial question of law No.1 is answered in favour of the appellants. 11. As regards substantial question of law No.2, neither the order of mutation Ex. PD nor the order of mutation Ex.D-1 suggests, even remotely, that any partition had taken place between the plaintiff and the defendants or that the plaintiff was acknowledged by the defendants as exclusive owner of Khasra No.694. So, this question of law is also answered in favour of the appellants. …6… 12. In view of what has been discussed hereinabove, especially the observation that very cogent, convincing and reliable evidence is required to be adduced to rebut the statutory presumption attaching to the record- of-rights, substantial question of law No.3 is also answered in favour of the appellants and against the respondents. 13. As a result of the findings and the answers to the substantial questions of law, on which the appeal was admitted, appeal is allowed, judgment and decree of the lower Appellate Court, decreeing the suit of the plaintiffs, declaring them as exclusive owners in possession of the suit land, are set aside. However, decree of permanent prohibitory injunction, restraining the defendants-appellants from interfering in the exclusive possession of the plaintiffs, is passed, in the following terms: Defendants-appellants shall not dispossess plaintiffs from Khasra No.694, except by due process of law. Appeal stands disposed of. March 22, 2010(sd) ( Surjit Singh ), J