IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.271 of 1997 Reserved on: 21.12.2009 Decided on: 8.1.2010 Sh.Bhagat Ram & another …..Appellants VERSUS Sh.Brahma Nand and others …..Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting?Yes For the appellants: Mr.Bhupinder Gupta, Sr.Advocate with Ms.Charu Gupta, Advocate. For the respondents: Mr.O.P.Sharma, Senior Advocate with Mr.K.S.Thakur, counsel for respondent No.1. Deepak Gupta,Judge This Regular Second Appeal is directed against the judgment and decree dated 4.9.1997 passed by the learned District Judge, Bilaspur whereby he has dismissed the appeal filed by the appellants (hereinafter referred to as the ‘plaintiffs’) …2… and confirmed the judgment and decree dated 24.5.1988 passed by the Sub Judge, 1st Class, Ghumarwin dismissing the suit of the plaintiffs. Briefly stated the facts of the case are that the plaintiffs filed a civil suit for declaration and permanent injunction and in alternative for possession. According to the plaintiffs, they were owner in possession of three parcels of land measuring 87-14 bighas, 12 biswas and 5-1 bighas respectively in Village Nagian Pargna Bachhretu Tehsil Ghumarwin, District Bilaspur. According to the plaintiffs, plaintiff No.1 is the owner in possession to the extent of half share and plaintiff No.2 alongwith other proforma defendants is owner in possession of the remaining half share of this property. The plaintiffs alleged that plaintiff No.1 got her land cultivated through Thanu, father of Brahma Nand, defendant No.1 and she used to pay labour charges for the same. It was alleged that Thanu who was the Lumbardar mis-utilized his position and got the revenue entries changed and possession of the suit land was shown to be that of his son, Brahma Nand, defendant No.1 as non-occupancy …3… tenant. The plaintiffs came to know about this fact only during consolidation proceedings and thereafter she laid a challenge to the same. The Director, Consolidation vide his order dated 5.2.1980 held that defendant No.1 was a non-occupancy tenant over the share of the plaintiff which order was incorrect and therefore, this suit. Defendant No.1 in his written statement took preliminary objections. According to him, plaintiff No.1, Kirpo had created a tenancy to the extent of her share in his favour on payment of 1/4th of the total produce as rent. Reliance was placed on the order passed by the consolidation authorities. Both the Courts below have held that the plaintiff has failed to prove her case and dismissed her suit. Hence the present Regular Second Appeal which was admitted on the following questions of law:- “1. Whether it is permissible to hold a person to be a tenant on cultivated land particularly Kharetar land? 2. Whether the courts below have erroneously held the defendant to be tenant over the suit land, when the …4… plaintiffs were even put in actual possession of land which according to the classification was a grassy land and not capable of cultivation, could the entries of payment of rent, i.e., 1/4th produce be relied upon that the tenant was inducted as a tenant? 3. Whether merely on the basis of the report Rojnamcha made by Patwari, who has no authority to determine the status, could it be held that the defendant was inducted as a tenant with the consent of the plaintiff, in the absence of any statement made by the plaintiff before the competent Revenue Authority? 4. Whether the orders of the Director of Consolidation which is based merely on the revenue entries ignoring the investigation made by the Assistant Consolidation officer holding the Kharetar land to be in possession of the plaintiffs, hold the defendant to be a tenant, was not such order without jurisdiction, void and illegal and unworthy of any credence? Though four questions have been framed, the basic legal questions which arise are: …5… 1. Whether the order of the Director, Consolidation is binding on the civil Courts? 2. Whether the learned Courts below have misread the evidence in holding that the defendant was a tenant over the suit land? My attention has been drawn to para 279 of the Punjab Settlement Manual which provides that the existing entry standing in the annual records can only be varied in subsequent records by making entries in accordance with the facts proved or admitted to have occurred or by agreement of all the parties or on the basis of a decree or other order binging on the parties. My attention has also been drawn to the instructions relating to the preparation of khasra girdawari register which provides for the manner of making correction in the khasra girdawari. It is contended by Sh.Bhupinder Gupta that this entry was made at the back of the plaintiff Kirpu because if he had been present, the Patwari would have got her signatures on the Rojnamcha …6… Baquiti. He has placed reliance on a number of judgments in this regard. In Maman Singh Vs. The Resident Magistrate, Gohana and others, 1965. Vol.LXVII, PLR 161, The Punjab High Court held that the question whether a person is a tenant or not has to be decided not by looking at the column of cultivation of the Jamabandi because that column only relates to the name of the person in occupation irrespective of the capacity in which he is occupying the land. It was held that tenancy must be determined with reference to the entry made in the column of rent. In Rulhu Ram Vs. Than Singh and others, 1966, Vol.LXVIII, PLR 866 held that the revenue entries when they find a person in possession normally enter his name as a tenant irrespective of the fact whether he is a tenant or not. It was held that non-payment of rent negative the existence of relationship of landlord and tenant. In Sh.Tarlok Singh Vs. Sh.Harnam Singh and another, 1974, PLJ 396, it was held that to determine whether a person is a tenant over the …7… land, the entries in the column of cultivation and column of rent have to be read together. It was also held that no presumption of truth is attached to the Khasra Girdawaries. In Amal Kumar and others Vs. Bhupinder singh and others, 1976, PLJ, 26, it was held that in case the mode prescribed for making changes in the Khasra Girdawari entries is not followed then no reliance can be placed on the same. The Punjab High Court further held that before changing the Khasra Girdawari entries and making an entry in favour of a new tenant, the patwari must inform the landlord so that he can come and contest the same. A learned Single Judge of this Court in Tulsa Singh Vs. Agya Ram and others, AIR 1994 (81) 167 held that change in the entries in revenue records can only be made after following instructions in the Land Revenue Manual. To the similar effect, reliance has also been placed on the judgments of this Court in Shyam Lal vs. Johli and others, 1995 (1) CLJ (HP) 635, Lal Chand and others vs. Pala, 1999 (2) Cur.L.J. (HP) …8… 415, Smt.Kukhtiar Devi and others, vs. Smt.Gauran and others, 2000 (2) Cur.L.J. (HP) 158 and Surat Singh vs. F.C. (Appeals) and another, Latest HLJ 2008 (HP) 20. It is in the light of this law that the evidence has to be appreciated. DW6/A is the copy of the Rojnamcha Baquiti which shows that the Partari had visited the spot on 4th October, 1960. The Rojnamcha Baquiti reads as follows:- “That on 4th October, 1960, the undersigned (Patwari) visited the spot and conducted the Girdawari of the various Khasra numbers. It is lastly contended that the previous entries were found to be correct and continued as such.” While appearing as DW/6, the Patwari stated that he had made entry in favour of the defendant showing him to be a tenant on the basis of the statement of Smt.Kirpu. It appears that both the Courts below only went through the statement of Patwari DW/6 but did not care to read the document Ext.DW6/A. This document clearly shows that the previous entries were found to be correct …9… and were not disturbed. Prior to this Khasra Girdawari, there is no entry in the revenue record showing defendant No.1 to be a tenant. It is allegedly on the basis of this Rojnamcha that the entries in the Khasra Girdawari were changed. Once the Rojnamcha Vaquiti is read, it is apparent that the previous entries were continued. Thus there is no explanation how in the Khasra Girdawari a change was recorded when in the Rojnamcha Vaquiti, it was clearly stated that the previous entries were maintained. Furthermore, according to the tenant, he was paying 1/4th of the total produce as rent. In the first Khasra Girdawari in which the change is recorded as Ext.D/1, the rent shown is half. Later on this rent was reduced to 1/4th. In what circumstances, the rent was reduced from half to 1/4th has not been explained. It would be pertinent to mention here that the land in question was admittedly ‘Kharytar’, i.e., uncultivable land. Both sides admit that only grass was growing on the land. If only grass was growing on the land, no cultivation could have …10… been carried out and the question of inducting a tenant did not arise. Furthermore, Kirpu has clearly stated that she used to sell the grass which used to grow on the land. If the statement of defendant No.1 is read, he himself states that he does not remember when he lastly paid rent to Kirpu. He does not even remember that for how many years, he gave rent to Kirpu. It is apparent that no tenancy was created and the change in the revenue entries is totally illegal and not based on properly recorded change. No reliance can be placed on the entry showing the defendant to be a tenant. It is also on record that for the last many years, the land is lying uncultivated. This also lends support to the preposition that defendant No.1 was not inducted as a tenant and never cultivated the land. Reliance placed by the defendant on the alleged statement of Kirpu before the Director, Consolidation is totally misconceived. Kirpu denied having made such statement. The original record was never summoned and the statement of Kirpu was not proved in accordance with law. Similarly …11… reliance placed on the order of the Consolidation Officer dated 5.2.1982 as upheld by the Director, Consolidation is totally misconceived. All that the Consolidation Officer held was that the land was already entered in the tenancy of tenant Brahma Nand prior to consolidation proceedings and since the H.P Tenancy and Land Reforms Act, 1972 came into force w.e.f. 21.2.1974 the applicant might have become owner of the land. In fact, the Consolidation Officer had found Kirpu to be in possession of the land. The Director, Consolidation has not decided any issue at all. In view of above discussion, I am of the considered view that the findings given by both the Courts below are perverse since they have totally misread the document especially the Rojnamcha Vaquiti Ext.DW6/A. They have also misread the orders of the Consolidation Officer and the Director of Consolidation. Both the Courts below have also erred in relying upon the alleged statement of Kirpu which has not been proved in accordance with law. Therefore, the findings recorded are perverse …12… and against the evidence on record. The same are accordingly set aside. In view of what I have held above, it is apparent that the plaintiff Kirpu and now her L.Rs are in possession of the suit land as owners thereof. Consequently, the judgment and decree of both the Courts below are set aside. The suit of the plaintiff is decreed and the plaintiff is held to be owner in possession of the suit land as described in the plaint. The defendant is restrained from in any manner from interfering in the same. The decree sheet be drawn up accordingly. The parties are left to bear their own costs. January 8, 2009 ( Deepak Gupta ) (m) Judge