R.S.A. No. 1352 of 2009 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH R.S.A. No. 1352 of 2009 (O&M) Date of Decision : 27.3.2009 Patram .......... Appellant Versus Jhabar Mal & others ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Sudhanshu Makkar, Advocate for the appellant. **** VINOD K. SHARMA, J. (ORAL) This regular second appeal is directed against the judgment and decree dated 31.1.2009 passed by the learned lower appellate Court vide which suit filed by the plaintiff / respondents for declaration that plaintiff / respondents were in joint cultivating possession with defendant No.1, the appellant herein, in the suit land being Gair Marusi tenant stands decreed. The plaintiff respondent also challenged the entries made in the revenue record showing the appellant / defendants to be in exclusive possession vide rapat No. 81 to be null and void and not binding on the rights of the plaintiff /respondents and also permanently restraining the defendants from taking forcible possession of the suit land. The suit was brought on the plea that one Ladhu Ram son of Shyama alias Shambu, who had five sons i.e. plaintiffs No. 1 to 3, defendant No.1 and Puran, was Gair Marusi tenant over the suit land on payment of R.S.A. No. 1352 of 2009 2 nominal rent to the State of Haryana. The plaintiffs claimed to have inherited the tenancy rights from their father. It was also the case set up by the plaintiffs that defendant No.1 by playing mischievous act upon his remaining brothers succeeded in getting the entries of girdawari incorporated in his own name alone by virtue of Rapat No. 81. No notice of said change was ever issued to the plaintiffs though they were affected persons. The plaintiffs claimed that it was only a month back that they came to know about the mischievous act of defendant No.1. Thereafter, they along with other defendants requested defendant No.1 to get the revenue entries corrected in their favour but he refused to get the same corrected and hence the suit. The suit was contested by the defendant / appellant by taking various preliminary objections i.e. maintainability, locus standi, cause of action, limitation, estoppel and that the suit was based on false and frivolous grounds. On merits, it was claimed that defendant No.1 was in cultivating possession of the suit land as lease-holder under the State of Haryana, who was said to be owner. He claimed that he did not inherit the tenancy rights from his father as alleged. It was claimed that his father Ladhu was also in possession of the land as lease holder under the State Government and that the defendant took the property on lease even during the life time of his father. The learned trial Court dismissed the suit by holding therein that by virtue of Rapat No. 81 entered in the revenue record it was R.S.A. No. 1352 of 2009 3 defendant No.1, who was put in possession of the property as lease holder and the Rapat No. 81 was held to be legal and valid, thus, binding on the rights of the plaintiffs. In view of the finding, referred to above, it was held that the plaintiffs were not entitled to declaration prayed for. The plaintiffs were also not held entitled to injunction. The suit was also held to be barred by limitation. The learned trial Court also held that the appellant / defendant was able to rebut the presumption of truth attached to the revenue entries prior to his taking the property on lease. In appeal the learned lower appellate Court has reversed the finding by holding that once it was proved on record that Ladhu Ram was the original tenant over the suit property and after his death in 1969 it was to be inherited by all the legal heirs. The learned lower appellate Court also held that the entries in favour of the appellant were only w.e.f. 9.11.1972. However, no material was placed on record to show as to when the rights of the plaintiff / respondents were surrendered as the tenancy was heritable by all the legal heirs in equal share. The learned lower appellate Court by relying upon the judgment of this Court in the case of Arjan Singh and others Vs. Hari Singh and others 2007(3) RCR (Civil) 50 held that Roznamcha and Girdawari entries recorded by the Patwari which was not based on any order or document of title, were required to be ignored. The learned lower appellate Court further held that the entire R.S.A. No. 1352 of 2009 4 revenue record since 1972 onwards shows the respondent No.1 Pat Ram to be the tenant under the State of Haryana qua the suit property, without any basis as no lease deed or order giving him tenancy right was placed on record. The learned lower appellate Court also held that the learned trial Court totally ignored as to how the appellant-defendant No.1 came in possession of the property as lease holder to the exclusion of his brothers. The document Ex. D3 was not believed as it did not show the manner of his induction as tenant. The contention of the learned counsel for the appellant is that it was on the basis of the order of Collector, the appellant acquired the lease, however, as no order has been placed on record passed by the Collector appointing him as a tenant, the contention of the learned counsel for the appellant cannot be accepted. The finding of the learned trial Court that the suit was barred by limitation was reversed by the learned lower appellate Court by holding that the tenancy was inheritable therefore the possession of the defendant No.1 was to be on behalf of the persons entitled to inherit tenancy and, therefore, it could not be said that the suit was barred by limitation, consequently the suit was decreed. The learned counsel for the appellant contends that this appeal raises the following substantial questions of law for consideration by this Court :- 1, Whether the judgment and decree passed by the learned lower appellate Court on the face of it is perverse having ignored the documentary R.S.A. No. 1352 of 2009 5 evidence? 2. Whether the learned lower appellate Court ignored the admission of plaintiff / respondents admitting that their father was holding the land on lease ? In support of the substantial questions of law the learned counsel for the appellant contends that once by way of documentary evidence it was proved on record that the defendant / appellant was inducted as tenant by the Collector the learned lower appellate Court committed an error in rejecting the said evidence. Admittedly no order of Collector leasing out the property in favour of the plaintiffs has been shown. The State cannot act orally, a specific order is required to be passed and there has to be a lease deed duly executed by the State in favour of the persons. Mere entries by the Patwari which are contrary to the record without showing as to how the possession was surrendered by other tenants though the tenancy was inheritable could be accepted or believed. The learned lower appellate Court rightly rejected the plea that the defendant / appellant was exclusive tenant over the property in pursuance to the order of Collector. The contention of the learned counsel for the appellant is that there was admission by father of lease over property in dispute the learned lower appellate Court has committed an error in decreeing the suit against the admission made. However, this plea of the learned counsel for the appellant is also misconceived. Admittedly their father was tenant over the property in R.S.A. No. 1352 of 2009 6 dispute and the tenancy was inheritable, therefore, after his death unless it was shown that the tenancy rights were given up, the defendant / appellant could not claim or come in possession in exclusive right on the basis of an order which is not proved on record. The learned counsel for the appellant finally contended that the suit was barred by limitation as the revenue entries were made in 1972 and continued as such and further there was clear admission about the knowledge of the entries. This contention of the learned counsel for the appelalnt is misconceived as the entries in revenue record do not create right in favour of anybody. In any case, once the plaintiff was to inherit the tenancy right along with other brothers the learned lower appellate Court rightly held that his possession was on behalf of all other brothers, who were to inherit tenancy right along with defendant / appellant. The finding of the learned trial Court thus was rightly reversed on the question of limitation. The substantial questions of law raised do not arise for consideration in this appeal. No merit. Dismissed. 27.3.2009 ( VINOD K. SHARMA ) 'sp' JUDGE