IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 496 of 2000 Reserved on : 25.10.2010. Date of decision : 03.11.2010. Laturia Ram (dead) through LRs …Appellants. Versus Punnu Ram …Respondent. Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting?1 Yes. For the Appellants: Mr. Lovnesh Kanwar, Advocate. For the respondent: Mr. B.K.Malhotra, Advocate. Deepak Gupta, J. 1. This second appeal is directed against the judgement and decree dated 27.6.2000 passed by the learned District Judge, Mandi whereby he allowed the appeal and decreed the suit of the plaintiff and set-aside the judgement and decree dated 1.1.1996 passed by the learned Sub Judge 1st Class, Sarkaghat, District Mandi whereby he had dismissed the suit of the plaintiff. 2. This appeal was admitted on the following questions of law:- 1. Whether the presumption of truth to the long standing entries in the record of right since 1 Whether the reporters of the local papers may be allowed to see the Judgment? 2 1966 attached under Section 45 of the H.P.Land Revenue Act can be said to have been rebutted by the oral evidence? 2. Whether the first Appellate Court has misread and mis-appreciated the revenue record produced on behalf of the defendants which has resulted in upsetting the judgement and decree of the trial Judge? 3. Briefly stated the facts of the case are that the plaintiff filed a suit claiming that he is owner of the suit land measuring 0-00-82 hect., as detailed in the plaint. According to the plaintiff he had permitted the defendant to use the suit land as a licensee in the year 1965 due to family and domestic circumstances. The plaintiff claimed that the entries in the revenue record showing the defendant to be in occupation as Ghair Maurusi are wrong and illegal and no tenancy was ever created by him. The plaintiff further averred that in October, 1992 he revoked the license and requested the defendant to hand over possession but the defendant refused to do the same and started claiming proprietary rights in the suit land. In fact, the plaintiff was summoned by the Tehsildar Sarkaghat in this context and therefore, the plaintiff 3 was compelled to file the suit for possession. The defendant contested the suit on various grounds but the main ground raised was that the respondent was a tenant which was reflected in the revenue record. It was alleged that the plaintiff is entitled to get proprietary rights under the provisions of the H.P. Tenancy and Land Reforms Act, 1972. The learned trial Court came to the conclusion that the defendant was a tenant and not a licensee over the suit land and therefore, the plaintiff did not have the right to take possession of the suit land. He dismissed the suit of the plaintiff. 4. The plaintiff filed an appeal. The learned lower Appellate Court allowed the appeal. According to the learned lower Appellate Court there was no admission by the plaintiff and as per his findings no relationship of landlord and tenant existed. The learned lower Appellate court also held that adverse inference had to be drawn against the defendant since he did not step into the witness box and decreed the suit of the plaintiff. Hence, this appeal by the defendant. 5. I am aware that this appeal is under Section 100 of the CPC and normally finding of facts cannot 4 be disturbed in second appeal but if the finding of facts are arrived at on total mis-appreciation of the evidence and by ignoring entire revenue record then the finding of facts being perverse can be set- aside. 6. I have heard Shri Lovnesh Kanwar, learned counsel for the appellant and Shri B.K.Malhotra, learned counsel for the respondent. The contention of Shri Lovnesh Kanwar is that long standing revenue entries clearly show that the defendant was a tenant on the land in question. He further submits that even the plaintiff has made an admission that the defendant was in occupation of the land as ‘ Ghair Maurusi ‘ which means tenant. He submits that the plaintiff has to stand on his own feet and merely because the defendant did not appear in the witness box did not mean that the plaintiff had proved his case. On the other hand Shri B.K.Malhotra, learned counsel for the respondent submits that mere entry in the column of cultivation showing a person to be a tenant is not sufficient to hold that he is in fact a tenant and there must be some evidence to show that such person has entered into possession of the land 5 pursuant to some agreement whereby tenancy was created. 7. To appreciate the rival contentions of the parties, it would be pertinent to refer to definition of tenant as given in the H.P.Tenancy and Land Reforms Act, 1972. Under Section 2(17) tenant has been defined as follows:- “tenant” means a person who holds land under a land owner and is or but for a contract to the contrary would be liable to pay rent for that land to that land-owner, and includes – (i) a sub tenant ; and (ii) the predecessors or successors in interest of a tenant or a sub-tenant, as the case may be, but it does not include- (a) a mere mortgagee of the rights of landowner, or (b) a person to whom a holding has been transferred or an estate or holding has been let in farm under the Himachal Pradesh Land Revenue Act, 1954 (6 of 1954), or the Punjab Land Revenue Act, 1887 (17 of 1887), as the case may be, for the recovery of an arrear of land revenue or of a sum recoverable as such an arrear.” 8. A bare perusal of this definition shows that tenant is a person who holds land under the land owner and who is liable to pay rent but there can 6 be contract to the contrary whereby the rent is not charged from the tenant. 9. It would be appropriate to understand what is the meaning of the phrase ‘Ghair Maurusi’. As per para 285 of the Punjab Settlement Manual the standing record of rights should consist of certain documents one of the which documents is the jamabandi or register of the holdings of owners and tenants showing the fields comprised the revenue for which each owner is responsible and the rent payable by each tenant. In the column of ownership the owner, father’s name, tribe or caste or sub tribe and residence of the owner has to be given. In the case of tenant or cultivator his complete description has to be given and also his status i.e. whether he is a occupancy (Maurusi) or non-occupancy (Ghair Maurusi). Tenant at will is also entered as Ghair Maurusi. 10. Coming to the evidence in the present case. First of all, we may make reference to the documents placed on record Ext.P-1 is the jamabandi for the year 1991-92 in which the plaintiff is shown to be the owner and the defendant is shown to be in occupation in the status 7 of Ghair Maurusi and in the column of rent it is mentioned that land revenue is paid in lieu of the rent. It would be pertinent to mention that this status is also reflected in the Missal Haquit Ext.D-1, in the jamabandi for the year 1966-67 Ext.D-2, jamabandi for the year 1972-73 Ext.D-3, jamabandi for the year 1987-88 Ext.D-4 and in jamabandi for the year 1991-92 Ext.D-5. Thus the long standing revenue record clearly shows that defendant is in occupation of the land and his status is mentioned as Ghair Maurusi. 11. It is well settled law that presumption of truth is attached to the record of rights including the jamabandi. No doubt, this presumption is rebutable but the question which arises is whether the plaintiff has led sufficient evidence to rebut this evidence. As stated here-in-above in the suit the plaintiff claimed that he had inducted the defendant as a licensee some time in the year 1965. However, while appearing in the witness box the plaintiff has maintained a studied silence in this regard. In fact his statement is that when he joined the army he handed over the land to the tenant for cultivation. He does not state as to on what terms 8 and conditions he handed over the land to the defendant. According to him, when he retired from the army and returned to his village he got the land back from the defendant but in the next breath he states that he asked the defendant to vacate the land. He has made only a bald statement that the entry in the revenue record showing the tenant to be in occupation as Ghair Maurusi is incorrect. However, in cross-examination he admitted that in the revenue record the status of the cultivator is mentioned as per the actual situation. He stated that he retired from the army in the year 1974. He has clearly stated that when he returned from the army the defendant was cultivating the land as Ghair Maurusi and was in possession of the land as such. This is a clear cut admission made by the plaintiff. In villages Ghair Maurusi is clearly understood to be the tenancy. The landlord while appearing in the witness box has not stated that the defendant was a licensee. He in fact is totally silent as to in what capacity he handed over the land to the defendant. It cannot be believed that a person would hand over his entire cultivable land to somebody else on a license without any other 9 condition. The plaintiff has to prove his own case and I am afraid that in this case the plaintiff has miserably failed to prove that the defendant was a licensee and not a tenant on the suit land. 12. Reliance placed by Shri B.K.Malhotra, learned counsel for the respondent, on the judgement of the Punjab and Haryana High Court in Jagjit Singh vs. The Financial Commissioner, Haryana and others, 1981 Revenue Law Reporter, 509, is totally misplaced. In that case there was only one entry in the jamabandi and some Khasra Girdawaris which were relied upon by the tenant. The learned Court held that the respondents were not paying any rent and therefore they were not tenants. Here, we are concerned with long standing entries which continued for about 30 years and even as per the case of the plaintiff the land was handed over by him to the defendant in the year 1965. 13. I also find that the judgement of the Apex Court in Guru Amarjit Singh vs. Rattan Chand and others, AIR 1994 SC 227 is not applicable to the facts of the present case. Shri B.K.Malhotra also relied upon the judgement of the Calcutta High Court in A.E.G. Garapiet vs. A.Y.Derderian, AIR 1961 Calcutta 359 and submits that a party should put 10 his case in cross-examination to the witnesses of the other party. According to him no suggestion was put to the plaintiff that the tenant was paying any rent to him and therefore, according to Shri Malhotra the defendant cannot be permitted to urge that he is a tenant. I see no merit in this argument because on a specific question put in cross- examination the plaintiff admitted that the defendant was in occupation as Ghair Maurusi which means tenant and thereafter why should the tenant ask any further questions. 14. Shri B.K.Malhotra, learned counsel for the respondent, relied upon the judgement of the Apex Court in Vidhyadhar vs. Mankikrao and another AIR 1999 SC 1441 to buttress his argument that since the tenant-defendant did not step into the witness box adverse inference should be drawn against him. The suit was filed by the plaintiff and it was the plaintiff who alleged that the entries in the revenue record were wrong. The onus was on the plaintiff to prove that these revenue entries were wrong. If the plaintiff did not lead sufficient evidence to prove his case why should the defendant enter the witness box? 11 15. The last submission by Shri B.K.Malhotra, Advocate, was that the admission made by the plaintiff in his cross-examination cannot be used against him and the admission is not conclusive proof. In this behalf he has relied upon the judgement of the Apex Court in Sita Ram Bhau Patil vs. Ramchandra Nago Patil (dead) by LRs and another, AIR 1977 SC 1712. Here again, I feel that this argument is totally misplaced. The whole dispute in the present case was whether the defendant was a tenant under the plaintiff or not. The record of rights shows the defendant to be a tenant. The plaintiff admitted that the defendant was in possession. Once the defendant was in possession of the land as tenant the defendant was not required to lead any other evidence. 16. In view of the above discussion, I am of the considered view that the learned lower appellate Court totally misconstrued the law and misread the evidence. The presumption of truth which was attached to the long standing entries had not been rebutted by any oral evidence. In fact the admission of the plaintiff in cross-examination supported what was mentioned in the revenue record. I, therefore, decide both the substantial 12 questions of law in favour of the appellant and against the respondent. 17. As a result of the above, the judgement and decree of the learned lower Appellate Court is set- aside. The judgement of the learned trial Court is restored and the suit of the plaintiff is dismissed with costs throughout. Decree sheet be drawn up accordingly. 3rd November, 2010 ( Deepak Gupta ) ™ Judge.