IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.: 181 of 1997. Reserved on: 02.12.2008. Decided on: 22.12.2008. Govind Ram and Others. … … Appellants. Versus Sohan Singh and Others. … … Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 Yes. For the Appellants: Mr. Ajay Sharma, Advocate. For the Respondents: Mr. Rajnish K. Lal, Advocate vice counsel for respondents No.1 to 4. Mr. Sanjeev Bhushan Advocate for respondents No.18 to 22. Rajiv Sharma, Judge: This regular second appeal is directed against the judgment and decree passed by the learned Additional District Judge (I), Kangra at Dharamshala camp at Una in civil Appeal No.102/94/92 dated 21.6.1997. Brief facts necessary for the adjudication of this regular second appeal are that the respondents/plaintiffs (hereinafter referred to as the plaintiffs for convenience sake) had filed a civil suit for declaration qua the land comprised in Khewat No.5, Khatauni No.42, Khasra No.285 Whether reporters of local papers may be allowed to see the judgment? No. - 2 - measuring 10 kanals 11 marlas, as entered in jamabandi for the year 1980-81 is situated in village Teeka Bohru, Mauja Thara, Tehsil Bangana, District Una, H.P. During the pendency of civil suit the Consolidation Operation and Settlement Operation had taken place. Consequently, new Khasra numbers were assigned to the old Khasra numbers. The suit was filed by the plaintiffs on the ground that they and proforma respondents had been coming in possession of the suit land previously as tenants and thereafter had become owners of the suit land after enforcement of H.P. Tenancy and Land Reforms Act, 1972. It was also averred that they had their abadi over the suit land. It was also pleaded that predecessor in interest of the appellants, Shri Bhagwan Singh in connivance with the revenue staff, managed to get his name incorporated in the column of cultivation since, 1980. According to plaintiffs these entries were wrong, illegal, baseless, in-operative and had no effect over the rights, title or interest of the plaintiffs over the suit land. The suit was contested by the appellant/defendant Shri Bhagwan Singh (hereinafter referred to as the defendant for convenient sake). It was averred in the written statement that neither the plaintiffs nor proforma respondents or their ancestors were ever inducted as tenants over the suit land and they or their predecessors-interest never remained in possession of the suit land. They had constructed their abadi over the suit land. The proforma respondents/defendants had also filed separate written statements. The trial Court dismissed the suit on 11.11.1992. The plaintiffs preferred an appeal before the learned Additional District Judge (I), Kangra at Dharamshala, camp at Una. The learned Additional District Judge allowed the appeal on 21.6.1997. The defendant Shri Bhagwan Singh filed this regular second appeal against the judgment and decree passed - 3 - by the learned Additional District Judge (I), Kangra at Dharamshala, camp at Una dated 21.6.1997. He died during the pendency of this regular second appeal and his legal representatives were brought on record vide order dated 19.7.2001. The regular second appeal was admitted on 12.8.1997 on the following substantial questions of law: 1. Whether document exhibit DW-6/A has wrongly been discarded by the First Appellate Court below, thereby vitiating the impugned judgment and decree? 2. Whether evidence with special reference to exhibit P-4 has been mis-appreciated by the First Appellate Court below, thereby vitiating the impugned judgment and decree? 3. Whether prior to coming into HP Tenancy & Land Reforms Act in view of the provisions of Punjab Tenancy Act, Tenant could have surrendered the tenancy orally? Mr. Ajay Sharma has strenuously argued that the judgment and decree passed by the first appellate Court is not sustainable. In other words, he has prayed for the restoration of judgment and decree passed by the trial Court dated 11.11.1992. He has strenuously argued that the first appellate Court had not correctly appreciated Ex.DW-6/A while allowing the appeal. He has also urged that the plaintiffs had relinquished/abandoned their tenancy rights. Shri Rajnish K. Lal, Advocate appearing for respondents No.1 to 4 and Shri Sanjeev Bhushan appearing for respondents No.18 to 20 have supported the judgment and decree of the learned Additional District Judge dated 21.6.1997. I have heard the learned counsel for the parties and gone through the record carefully. - 4 - Since all the substantial questions of law are inter-linked and inter- connected, they are taken up together for hearing and adjudication of this regular second appeal. The short question involved in this regular second appeal is whether the revenue record maintained since 1936-37 could be altered, changed or substituted vide Ex.DW-6/A dated 16.3.1981. Ex.P-1 is the copy of jamabandi for the year 1936-37. In the column of possession, the predecessor-in-interest of the plaintiffs, defendant Shri Bhagwan Singh and proforma respondents had been shown as non-occupancy tenants to the extent of defined shares qua the suit land on payment of 1/3rd share of the produce. The same position is reiterated in the copy of jamabandi for the year 1952-53 (Ex.P-2). In the jamabandi for the year 1956-57 (Ex.P-3), the status of the parties qua the suit land is the same as shown in Ex.P-1 and Ex.P-2, though in Ex.P-4 some change has been effected qua the ownership of suit land due to some order of the Court dated 22.10.1963 and it was transferred in the name of defendant Bhagwan Singh in place of Raja Ranza Ram on 25.2.1964 vide mutation No.33. However, the status of the plaintiffs remained the same as that of non-occupancy tenants. In Ex.P-5, Bhagwan Singh, Predecessor-in-interest of the present appellants had been shown as owner of the suit land and in the column of possession, the plaintiffs have been shown as non-occupancy tenants. The plaintiffs have also during the pendency of the appeal before the learned Additional District Judge by way of additional evidence proved Ex.A-1, i.e. copy of jamabandi for the year 1975-76. PW-1 had supported the case as projected in the plaint. He has deposed that Bhagwan Singh got the revenue entries changed in his - 5 - name in connivance with the Patwari and Tehsildar in the year 1981. PW-2 Shri Lal Singh has deposed that the plaintiffs and proforma respondents were in possession of the suit land earlier. He has denied that Bhagwan Singh is in possession of the suit land. Defendant Bhagwan Singh, Predecessor-in-interest of the present appellants had produced copy of Rapat Raznamcha Ex.DW-6/A. The Patwari has made entry with respect to the change in cultivation column of Khasra Girdawari. This entry was attested by Tehsildar, Bangana on 4.4.1981. He had also produced on record copy of Khasra Girdawari with effect from Kharif 1976 to Rabi 1981 and the copy of Khasra Girdawari from Kharif 1987 to Rabi 1990, Ex.D-6. Ex.D-4 is the copy of jamabandi for the year 1980-81, which shows Bhagwan Singh as owner in possession of the suit land. Ex.D-5 is the copy of jamabandi for the year 1986-87 also shows Bhagwan Singh as owner in possession of the suit land. He had also examined the General Power of Attorney, Shri Rattan Singh as DW-1. He has deposed that Bhagwan Singh was the owner in possession of the suit land and he had raised construction over the suit land in the year 1961. He has further deposed that in the year 1979-80 Girdawar (Kanungo) and Halqa Patwari verified the position of his father Bhagwan Singh on the spot and then found the suit land in possession of his father. He has in his cross-examination stated that his father came to know about the wrong entries in the revenue records in favour of plaintiffs and proforma respondents in the year 1960-61. However, no application for carrying out corrections was made by him. DW-2 Shri Hari Singh has deposed that the suit land was in ownership and possession of Bhagwan Singh. Shri Surjit Singh, Draftsman has been examined as DW-3. He has proved with the help of Ex.D-3 the spot map Ex.D-2. DW-4 Shri - 6 - Chanan Singh has deposed that the suit land is in ownership and possession of Bhagwan Singh. He has further stated that Bhagwan Singh has constructed his house, kitchen and a cow-shed on the suit land. The trial Court after discussing the revenue records and the statements of witnesses returned a finding that if there is conflict in the old and latest revenue entries, the latest revenue entries will prevail. Accordingly, he dismissed the suit. The first appellate Court had gone through the entire evidence including the revenue records and the statements made by the witnesses produced by the plaintiffs as well as defendant Shri Bhagwan Singh and had allowed the appeal preferred by the plaintiffs. The case hinges on Ex.DW-6/A, dated 16.3.1981. It is evident from the revenue entries contained in copies of jamabandis for the year 1936-37, for the year 1952-53, for the year 1956-57 and for the year 1975-76 that plaintiffs and proforma respondents were shown as non- occupancy tenants. This position was altered in the year 1981 when the entries to the contrary were made. Ex.DW-6/A has been prepared upon the report of Patwari Halqua. He had not been examined by defendant Shri Bhagwan Singh. Girdawar Halqua has also not been produced. How and in what manner the revenue entries have been altered in the year 1981, has not been explained by defendant Shri Bhagwan Singh. The revenue entries can be altered on the basis of specific orders. The defendant had not produced any specific order passed by the competent authority ordering changes in the revenue records. The first appellate Court has correctly discarded Ex.DW-6/A. - 7 - Their Lordships of the Hon’ble Supreme Court in Durga (deceased) and Others vesus Milkhi Ram and Others 1969 P.L.J. 105 have held that in case change is unauthorised in the later revenue entries, presumption of correctness would stand rebutted. Their Lordships have held as under:- “Where the earlier revenue entries were changed in the later revenue entries and the change was effected without any mutation and there was no order of the revenue authorities showing how the change was made, held, although the presumption (under Section 44 of the Punjab Land Revenue Act) would be in favour of the later entries but that presumption was a rebutable one and it would stand rebutted by the fact that the alteration in the later entries was made unauthorisedly or mistakenly, there being no material to justify the change or entries.” The other important aspect which is also required to be looked into in this case is whether the tenants had at any given time relinquished/abandoned their tenancy rights. No tangible evidence has been produced by defendant Shri Bhagwan Singh that the tenants have ever relinquished or abandoned their rights. The question of abandonment/relinquishment is a question of fact, which is required to be proved. The abandonment/relinquishment cannot be presumed. There can never be any relinquishment/abandonment of tenancy orally. The correction of tenancy/revenue entries is not a bilateral act. There is a set procedure the manner in which the entries are incorporated in the revenue records showing ownership and tenancy. Defendant Shri Bhagwan Singh also has not led any evidence to the effect that whether at the time of altering the revenue entries in the year 1981, the plaintiffs were heard or any notice was issued to them. The entries were effected - 8 - on the basis of Ex.DW-6/A in the subsequent jamabandis. DW-6 Ashok Kumar, Patwari had also admitted that none of the parties had been marked present in Ex.DW-6/A nor any presence of any Lamberdar or Chowkidar has been put in Ex.DW-6/A. The plaintiffs being the tenants, had become absolute owners in the year 1974 after coming into force of the H.P. Tenancy and Land Reforms Act, 1972, of course, to the extent of their defined share. Mr. Ajay Sharma had also argued that the plaintiffs have moved an application under Order 41 Rule 27 of the Civil Procedure Code, 1908 for placing on record copy of jamabandi for the year 1975-76. The defendant had filed reply to the same. According to him the application ought to have been decided at the time of hearing of appeal. He has relied upon State of Rajasthan versus T.N. Sahani and Others (2001) 10 SCC 619. It is true that it will be inappropriate for the Court to decide the application preferred under Order 41 Rule 27 of Civil Procedure Code before finally hearing the case. However, in the present case, even though the application preferred by the applicant under Order 41 Rule 27 CPC has been decided on 20.11.1995, it had no bearing on the out-come of the appeal. The plaintiffs had only placed on record the copy of jamabandi for the year 1975-76. The status of the plaintiffs in the jamabandi for the year 1975-76 remained the same which existed in Ex.P-1, Ex.P-2 and Ex.P-3. Under these entries, the plaintiffs have been shown as non- occupancy tenants. Merely placing on record the copy of jamabandi for the year 1975-76 reiterating the earlier position will not amount to any illegality/irregularity in the judgment. In view of this, the submission of Mr. Ajay Sharma merits rejection. - 9 - Consequently, in view of the observations made hereinabove, there is no substantial question of law involved in this regular second appeal and the same is accordingly dismissed. There shall, however, be no order as to costs. December 22, 2008. (Rajiv Sharma) (sck). Judge.