IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA 377 of 1998 Date of Decision: 16th November, 2010 __________________________________________________________________ Dhaju Ram & others ….Appellants. Versus Ramsa ….Respondent. __________________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 No. __________________________________________________________________ For the Appellants: Mr. Karan Kanwar, Advocate. For Respondent: Mr. Yash Chauhan, Advocate. __________________________________________________________________ Dev Darshan Sud, J (oral). This is the defendants’ appeal against the concurrent findings of the two Courts below decreeing the suit of the plaintiff/respondent Ramsa by declaring that he is owner in possession of the suit land and that entries in the revenue record purportedly showing the defendants as Gair Mourusi Awal and Gair Maurusi Doam are illegal, void and do not in any manner affect the ownership rights and interest of the plaintiff. 2. The plaintiff instituted the suit, out of which this appeal arises, on the allegations that he was non-occupancy tenant over Khasra No. 1122 measuring 14-7 bighas situated in 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes. 2 mauja Kunth. On 29.6.1993 he was granted a Patta of Khasra No. 1122 and 1123 and whereafter he became owner in possession of this land. 3. In the month of Baisakh, a Bissu fair is celebrated in every village for which purpose some land was required by the villagers for celebration/festivity. On the request of the villagers, the plaintiff allowed the use of three bighas of land comprised in Khasra No. 1122/1 (suit land) for festivity of Bissu about forty years back. But about 19/20 years prior to the institution of the suit, there was some quarrel between the rival groups celebrating Bissu fair resulting in the death of one person. Consequently, celebration of this fair was stopped and the plaintiff took possession of the suit land since that time. He was exercising all the rights of ownership. The plaintiff continues that 3/4 months back defendant Baru tried to interfere in the possession of the plaintiff and threatened that he would dispossess the plaintiff forcibly if so required. The plaintiff was surprised when he came to know that an entry had been manipulated by the defendants in the revenue record showing them as Gair Maurusi Awal and doam of the suit land. The plaintiff pleads that this entry is illegal and not binding on his interest. 4. Amongst the other grounds taken in defence, one primary ground urged was that the plaintiff had sold the land to the predecessors of the defendants in 1954 for a consideration of ` 400/- and as such they continued in possession ever since as owners. This was sought to be substantiated by Ext.DW3/A dated 14th Baisakh 1954. 3 5. Seven issues were settled by the learned trial Court. The first related to the ownership and possession of the plaintiff. Second with respect to the wrong revenue entries recorded by the defendants as tenants etc., the third as to whether the plaintiff had sold the suit land to the predecessors of the defendants for a sum of ` 400/-. 6. These three issues were taken up together for determination by the learned trial Court. Adverting to Ext.DW3/A which was the primary document relied upon by the defendants to establish their ownership, the learned trial Court, on the evidence of DW3 Nain Singh who was examined by the defendants to prove this document in the nature of an entry in a Bahi (account book), held that the document contained the signatures of more than 15 persons but this witness has been unable to mention the names of any of these persons who were present at that time when this writing was executed. According to him, the only surviving person before whom this writing was prepared is Shri Jalam Singh, but his name is not mentioned in the list of these 15 persons. The Court holds that this document was introduced at a very late stage and was never relied upon by the defendants in their pleadings. The Court on the interpretation of this document and also on the evidence concluded that it did not transfer any ownership to the defendants. Appeal carried to the learned District Judge by the appellants-defendants was dismissed by re-affirming the findings of the trial Court. 7. The defendants are now in appeal. This appeal was admitted on the following substantial questions of law: 4 1. Whether respondent who claimed himself to be a Morusee and Gair Morusee on the suit land and having admittedly surrendered possession of suit land about 40 years ago of the filing of the suit in favour of Mani Ram, Sher Singh, predecessors of appellants could remain tenant on suit land and acquire ownership in the year 1963? 2. Whether the learned District Judge has mis- construed, misinterpreted writing Ext.DW3/A dated 14 Baisakh 1954? 3. Whether the Courts below have misconstrued and misinterpreted the pleadings of the parties and the view taken by them is not the proper one which could have been arrived at on the basis of material on record? 8. Adverting to questions No. 2 and 3, which are taken together for decision, I find that there is no error committed by the two Courts below. The learned Appellate Court considered the stand of the defendants-appellants that the suit land is alleged to have been sold by Ramsa plaintiff in favour of Mani Ram predecessor in interest of the defendants for a sum of ` 400/- in the year 1954. The learned Court holds that this document cannot be relied upon. This agreement is supposed to have been recorded in the Bahi (ledger) of Basti Ram. The Court holds that there is no explanation co ming forth as to why this agreement was recorded in a Bahi (ledger) which does not have any page number(s) and this writing/agreement is shown to have been recorded on a blank paper, whereas many other pages were left blank in the Bahi before the disputed agreement is recorded. The learned Court 5 also notices and holds that the agreement has been scribed by one Chandan Singh and witnessed by 15 persons. The executant, Ramsa and all these 15 persons had thumb marked this agreement and none of them had signed it. The scribe of the document was not examined in Court. The document was not set up in defence by the defendants in pleadings, but produced at a later stage. When coupled with the fact that the document records for a contingency of the stoppage of Bissu fair in future, the Court holds that it could not be contemplated in the year 1954 that such celebration of the fair would be stopped 15/20 years prior to the institution of the suit i.e. about 20 years subsequent to the writing of the agreement. The Court concludes that the writing has possibly been forged. 9. On the question of possession, the Court relied upon the evidence of plaintiff as supported by two witnesses PW3 Jagat Singh and PW2 Sher Singh. On the revenue record, the Court holds that there is no material on record to establish the change in the entries which were consistantly in favour of the plaintiff. In fact the Court records that it was not disputed before it that the plaintiff Ramsa was owner of the disputed land at one point of time. This fact was not only recorded in jamabandi for the year 1992-93 Ext.P8 but has been admitted by the defendants in their own pleadings. When coupled with the unproved defence taken by the defendants that they have purchased this land and perfected their title, the Court disbelieves this aspect and the appeal was dismissed. 10. Learned counsel appearing for the appellant submits that both the Courts below were wrong in misreading 6 Ext.DW3/A which was conclusive of the title of the defendants. Reliance placed by the learned counsel on the possessory rights as evidenced by the entries in the revenue record cannot be accepted for the reason that it is now well settled that revenue records are not documents of title. I need not reiterate what the Courts below have recorded as their findings on this issue. A Bahi is hardly a document which can be pleaded as the foundation of sale and exchange. I am in agreement with the findings of the learned Appellate Court that possibility of forging of Ext.DW3/A cannot be ruled out. The Bahi cannot be relied upon for the reason that it is neither paged nor serialy paged/numbered. There are blank pages. The scribe has not been produced and even the witnesses produced to establish the veracity of this document has not supported the case of the defendants. In these circumstances, I hold that both the Courts below were correct in holding that Ext.DW3/A does not in any manner constitute a document of title. I also hold that the Courts below have not misconstrued or mis-appreciated the pleadings and evidence of parties on record. The defendants have to succeed on their own strength of pleadings and evidence. Their entire case being based on ownership does not stand proved. These questions are therefore answered in favour of the respondent and against the appellants. The concurrent findings of fact before the Court below cannot be disturbed. 11. Adverting to question No. 1, what I find is that the defendants have to succeed on their own pleadings. Having failed to do so, it was not within their domain or right to question the title of the plaintiff-respondent. Having unsuccessfully taken 7 up the plea of ownership which plea has failed and which was the only plea available to them to establish their superior right over the plaintiff, they cannot question the occupation of the land as tenants and subsequent grant of ownership rights to the plaintiff/respondent. This question is also decided against the appellants. 12. This appeal fails and dismissed. All interim orders are vacated. Parties to bear their own costs. (Dev Darshan Sud) Judge November 16th , 2010(ms)