IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 401 of 2001. Judgement reserved on: 16.9.2010. Date of decision: 19.10.2011. Surinder Singh & ors. ….. Appellants. Vs. Gurmeet Singh & ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the Appellants : Mr. Sanjeev Kuthiala, Advocate. For the Respondents : Mr. N.K. Thakur, Advocate, for respondents No. 1(a) to 1( c), 3 and 4. Kuldip Singh, Judge. The defendants have come in second appeal against the judgement, dated 27.6.2001, passed by learned District Judge, in Civil Appeal No. 61 of 1997, reversing the judgement and decree, dated 4.4.1997, passed by learned Sub Judge Ist Class, Court No. 2, Amb, in case No. 175/94. Some deaths have taken place during the pendency of the litigation, therefore, parties are referred in the judgement as plaintiffs and defendants. 2. The brief facts of the case are that plaintiffs filed a suit that land measuring 33 kanals 14 marlas, comprised in khasra No. 2380 (new) and khasra Nos. 2483 to 2486 (old), village Saloh Beri is shamlat land and has been coming in possession of Nanak Chand, Whether the reporters of the local papers may be allowed to see the Judgment? Yes …2… Rajinder Pal and Khushia co-shares before the year 1954. Nanak Chand was predecessor-in-interest of the defendants, who died about 15 years back and Khushia was predecessor- in-interest of plaintiffs, who died about 20 years back. Kashmir Singh was the father of plaintiff Rajinder Pal. The plaintiffs are in exclusive possession of the suit land as co-sharers since long not exceeding their shares in the shamlat land though it has been mutated in the name of State of Himachal Pradesh being shamlat land. The defendants are threatening to interfere in possession of the plaintiffs over the suit land. The suit was filed for permanent injunction restraining the defendants from interfering in the suit land. 3. The suit was contested by the defendants. The preliminary objections of maintainability, suppression of material facts, estoppel, lack of cause of action, have been taken. On merits, it has been stated that after the death of Nanak Chand, defendants have been coming in joint possession of the suit land alongwith other co- sharers. The plaintiffs are not in exclusive possession of the suit land. Nanak Chand, Khushia, Kashmir Singh were in possession of the land less than their shares in the shamlat land. Kashmir Singh has also died and his son Rajinder Pal has succeeded his estate alongwith other heirs. Kashmir Singh was the Pradhan of Gram Panchayat, who, in connivance with revenue staff got the entries changed in the name of plaintiff No. 4 and Khushia showing them to be in exclusive possession of the suit land. It has been denied that plaintiffs are in exclusive possession of the suit land. …3… 4. The replication was filed and case set up in the plaint was reasserted. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiffs are entitled to the relief of injunction as prayed for? OPP. 2. Whether the suit is not maintainable? OPD. 3. Whether the plaintiffs are estopped by their acts and conduct to file this suit? OPD. 4. Whether the plaintiffs have no cause of action to file this suit? OPD. 5. Relief. The trial court on 4.4.1997 answered issues No. 1 and 3 in negative and issues No. 2 and 4 in affirmative and dismissed the suit. The learned lower appellate court on 27.6.2001 allowed the appeal, set- aside the judgement, decree dated 4.4.1997 of the trial court and decreed the suit, hence second appeal, which has been admitted on the following substantial questions of law:- 1. Whether under the provisions of the Specific Relief Act, a co-sharer is entitled to injunction to restrain another co-sharer from executing his rights with respect to the property in dispute to the detriment of the co-sharers? 2. Whether the exclusive possession of two co- sharers can be construed over the share of the third co-sharer in contradiction to the revenue entry …4… of the possessory column whereby the possession is shown “Ba-hisa gair marusi kast sam bhag”? 3. Whether the earlier entries changed by the latter entries without any material to justify the change on basis of any order of a competent court, officer, or agreement of the parties can be justified and the presumption of correctness attached to the revenue record is rebutted and as such, the earlier entries are to prevail? 4. Whether a person not having a complete legal right to exclusive possession of land has a right to file a suit for the discretionary relief of injunction against the another co-sharer, moreso, when no allegations of detriment to his rights have been alleged by the person seeking the discretionary relief? 5. I have heard the learned counsel for the parties and have also gone through the record. It has been submitted on behalf of the defendants that learned District Judge has misconstrued, misinterpreted the concept of co-sharers. The earlier entries were changed without an order of competent authority; therefore, no presumption of truth is attached to later entries. The presumption of truth in that situation shall continue in favour of old entries. It has been submitted that well reasoned judgement of the trial court has been wrongly reversed by the learned District Judge. The prayer has been made for acceptance of appeal and setting-aside of impugned judgement and decree. …5… 6. The learned counsel for the plaintiffs has supported the impugned judgement and decree. It has been submitted that learned District Judge has rightly appreciated the material on record and recorded the findings that copies of jamabandies Ex. D-1 and Ex. D-2 have been wrongly and incorrectly prepared, only Khushia predecessor-in-interest of plaintiffs No. 1 to 3 and Kashmir Singh predecessor-in-interest of plaintiff No. 4 are recorded in exclusive possession of the suit land in the original record of rights. This has been established by Ex. C 1 and Ex. C 2 copies of jamabandies got prepared under the directions of the learned District Judge. The learned trial court was misled by the entries in Ext. D 1 and Ex. D 2 to hold that parties are in joint possession of the suit land. Only plaintiffs are in possession of the suit land. 7. The substantial questions of law No. 1 to 4 are interconnected, therefore, all of them are taken up collectively for determination. In paragraph-21 of the impugned judgement, the learned District Judge has stated that in order to remove the doubt, he called for the original jamabandies from the office of Sadar Kanungo, Una and obtained attested copies of jamabandies for the years 1952-53 and 1956-57 pertaining to the suit land, Ex. C-1 and Ex.C-2. He has also observed that in Ex.C 1 and Ex.C 2 possession of Khushia and Kashmir Singh over the suit land has been recorded during the period to which these entries relate. The learned trial court had been misled by entries Ex.D 1 and Ex.D 2 to hold that the parties are in joint possession of the suit land. The defendants manipulated the entries in Ex. D 1 and Ex. D 2 and their oral version cannot also …6… be relied upon simply because if they can manipulate entries in the revenue record, they can manipulate oral evidence also in the court. 8. I have perused the record of learned lower appellate court. The learned District Judge on 5.4.2001 adjourned the appeal for arguments on 27.6.2001. The appeal was taken on 27.6.2001 and in the zimini order, it has been stated `heard, the appeal is accepted vide separately dictated judgement’. The learned District Judge on 27.6.2001 recorded the statement of Subhash Chand, Patwari Inspection Moharar Sadar, who produced attested copies of jamabandies for the year 1952-53 Ex. C 1 and for the year 1956-57 Ex. C 2 pertaining to the suit land. Ex. D 1 is also copy of jamabandi for the year 1952-53 of the suit land, similarly Ex. D 2 is the copy of jamabandi for the year 1956-57 of the suit land. The learned District Judge found difference in the jamabandies Ex. C-1 and Ex. C-2 in one hand and Ex. D-1 and Ex. D-2 on the other hand. It is not understandable how on 27.6.2001 the appeal was heard by the learned District Judge and on 27.6.2001 itself in order to `remove the doubt’ the learned District Judge recorded the statement of Subhash Chand, Patwari Moharar Sadar and took on record copies of jamabandies Ex. C 1 and Ex. C 2 and dictated the judgement on 27.6.2001. On 5.4.2001 there was no order to Patwari Inspection Moharar Sadar to produce the relevant record on 27.6.2001. 9. This apart once learned District Judge found that copies of jamabandies Ex. D 1 and Ex. D 2 are not matching with copies of jamabandies Ex. C 1 and Ex. C 2 then minimum required from learned District Judge was to give an opportunity to the …7… defendants to explain the difference, which the learned District Judge had found in copies of jamabandies Ex. D 1 and Ex D 2 in one hand and Ex. C 1 and Ex C 2 on the other hand. The learned District Judge did not give an opportunity to the defendants to explain the difference in jamabandies Ex. D 1, Ex. D 2 and Ex. C 1, Ex. C 2. It also does not emerge from the impugned judgement that copies of jamabandies Ex. C 1 and Ex C 2 were taken on record with the consent of the defendants. In these circumstances, the learned District Judge has erred in relying copies of jamabandies Ex. C 1 and Ex C 2 against the defendants. 10. In any case, even if it is assumed that in copies of jamabandies Ex. C 1 and C 2 possession of Khushia and Kashmir Singh over the suit land has been recorded during the period to which these entries relate, this does not improve the case of the plaintiffs, inasmuch as, it is the pleaded case of the plaintiffs in the plaint that the suit land was coming in possession of Nanak Chand, Rajinder Pal and Khushia being co-sharers in the shamlat before 1954. It is significant to note that plaintiffs No. 1 to 3 are sons of Khushia. The defendants No. 1 to 3 are sons of Nanak Chand. Plaintiff No. 4 is the son of Kashmir Singh In other words in the plaint itself, the plaintiffs have stated that parties or their predecessors had been coming in possession of the suit land before 1954. This what has been exactly recorded in the column of possession in copy of jamabandi for the year 1952-53 Ex. D 1 and copy of jamabandi for the year 1956-57 Ex. D 2. The only difference is that instead of Rajinder Pal plaintiff No. 4 the name of his father Kashmir Singh has been recorded …8… alongwith Nanak Chand and Khushia in the column of possession in jamabandies Ex. D 1 and Ex. D 2. 11. However, in the copy of jamabandi for the year 1961-62 Ex. P 6, the suit land has been shown under cultivation of Kashmir Singh and Khushia. The name of Nanak Chand has been deleted in the jamabandi for the year 1961-62. The deletion of the name of Nanak Chand from the column of cultivation in jamabandi for the year 1961-62 Ex. P 6 has not been shown to be based upon the order of some competent authority. The later revenue record after 1961-62 of the suit land is based upon entry recorded in jamabandi for the year 1961-62 Ex. P 6. 12. In Durga (deceased) and others vs. Milkhi Ram and others 1969 PLJ (SC) 105, it has been held that where the change was effected without any order of competent authority showing how the change was made, then presumption in favour of later entries would stand rebutted by the fact that the alteration in later entries was made unauthorisedly or mistakenly. In these circumstances, no presumption of truth is attached to the entry of possession in favour of plaintiffs of the suit land in the jamabandi for the year 1961-62 Ex. P 6 and subsequent jamabdies. On the contrary, presumption of truth shall remain with respect to entry of possession of parties or their predecessors as recorded in jamabandi for the year 1952-53 Ex. D 1 and jamabandi for the year 1956-57 Ex. D 2, which has also been pleaded by the plaintiffs in the opening of the plaint. 13. The learned District Judge has misconstrued, misinterpreted the material on record in returning the findings that …9… plaintiffs are in exclusive possession of the suit land as co-sharers and are entitled to the relief of prohibitory injunction against the defendants. On the contrary, it has been proved that parties are in possession of the suit land as co-sharers. The substantial questions of law No. 1 to 4 are decided in favour of the appellants. The impugned judgement and decree are liable to be set-aside. 14. In view of above discussion, the appeal is allowed. The impugned judgement and decree are set-aside and the suit of the plaintiffs is dismissed with no order as to costs. October 19, 2011. ( Kuldip Singh ), (Hem) Judge.