IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No.68 of 1999. Judgment Reserved on: 05.05.2011 Date of decision: 24.06.2011 Mangsharoo … …Appellant Versus Sarfu … …Respondent Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1yes. For the Appellant: Mr.Bhupender Gupta, Senior Advocate with Ms.Charu Gupta, Advocate. For the Respondent: Mr.G.D. Verma, Senior Advocate with Mr.Romesh Verma, Advocate. Dev Darshan Sud,J. This is the plaintiff’s appeal against the judgment and decree of the learned appellate Court reversing the judgment and decree of the learned trial Court which had partly decreed the suit of the plaintiff declaring him to be the owner of the suit land and declining decree for possession and further declaring that the defendant is in occupancy of the land in his capacity as non-occupancy tenant. 2. The plaintiff instituted the suit, out of which this appeal arises, for the relief of declaration 1 Whether the reporters of Local Papers may be allowed to see the judgement?yes. 2 and possession of the land comprised in Khasra No.70, Khata-Khatauni No.54 min/153 min, measuring 0-18-60 hectares, situated in Chak Bahali, Tehsil Chirgaon, District Shimla. The land was previously described as situated in Khasra No.59, Khata-Khatauni No.15 min/29 min, measuring 15-19 bighas in Chak Dugyani, Tehsil Chirgaon, District Shimla, H.P. 3. The plaintiff pleaded that in the old revenue record, the suit land was shown in possession of defendant Sarfu as non-occupancy tenant without payment of any rent under the ownership of Amerpur which entry was challenged being wrong and illegal as the defendant was neither non-occupancy tenant nor in possession of the suit land. It is pleaded that though as per Jamabandi for the year 1979-80, the land bearing old Khasra No.59, Khata-Khatauni No.15 min/29 min, measuring 15-19 bighas, situated in Chak Dugyani, shown to be in possession of the defendant Sarfu as “Gair Maurusi Bila Adaye Lagan” (non-occupancy tenant without payment of any rent) under its owner Amerpur yet this entry is wrong and contrary to the factual position. 4. It was pleaded that it was Amerpur who was in possession of the suit land. During the settlement operation and thereafter, the suit land was allotted new Khasra No.70, measuring 1-17-15 hectares in Khata Khatauni No.64 min/153 min and included in Chak Bahali vide mutation No.6318. It was during these operations and on the inspection by the revenue staff on the spot, 3 it was found that the defendant is not in possession of the suit land in any capacity and then the old entry showing him as “Gair Maurusi” was deleted and was accordingly corrected. Amerpur was recorded as owner in possession of the suit land in 1989. The plaintiff purchased the land from its owner Amerpur for a sum of Rs.16,000/- vide sale deed Ex.PW-1/A dated 30.8.1999. It was pleaded that the previous owner was recorded as owner in possession of the land according to the Misalhaquiat Ex.PW-2/B and mutation thereof was incorporated vide Ex.PW-2/C. It is further pleaded that the plaintiff had planted an apple orchard over the land putting in considerable amount of physical and economic inputs. The defendant has accepted the sale deed without challenging it in any Court etc. 7. A suit being Civil Case No.95/1 of 1989 under Section 6 of the Specific Relief Act was instituted in the Court of Sub Judge Ist Class(I), Rohru by the defendant herein (plaintiff in that Civil Suit) which was decreed against him vide judgment dated 30.8.1999 (Ex.PW-2/D) calling upon the plaintiff Mangesaroo to deliver the possession of the suit land to him. This order was challenged in the High Court in Civil Revision No.203 of 1992 (Ex.PW-2/E) where the Court held that the appropriate remedy for the plaintiff herein would be to prove his title by filing a regular suit in Civil Court of competent jurisdiction and the findings recorded in the suit supra would not 4 constitute res-judicata. The plaintiff thereafter proceeded to file the present suit claiming a decree for possession of land bearing Khasra No.59, now new Khasra No.70, measuring 1-19-60 hec. Karali comprised in Khata/Khatauni 64min/153min, situated in revenue Chack Bahali, Tehsil Chirgaon, District Shimla, H.P. 8. The suit was resisted by the defendants herein on five preliminary objections which are without any substance. On merits, the defendant-respondent alleged that the suit land is coming in possession of the defendant as non-occupancy tenant. Amerpur, who is the alleged vendee, had executed one affidavit acknowledging therein the possession of the defendant. On the basis of that evidence the suit for specific relief of the defendant was decreed. The sale deed was not challenged specifically but it was denied that the plaintiff herein is the lawful owner of the suit land. 9. On the pleadings, the learned trial Court settled five issues, the last relating to the relief to which the plaintiff was entitled. Issue Nos.1 and 4 were taken up together for adjudication. These were; (a) as to whether the plaintiff had become owner of the suit land by virtue of the registered sale deed? (b) whether the defendant was in possession of the suit land as non-occupancy tenant of Amerpur? Two other issues relating to limitation and res-judicata, burden of which is on the defendant, were decided in favour of 5 the plaintiff and against the defendant as no evidence has been led by the defendant. 10. Adverting first to Issues Nos.1 and 4, the learned Court holds on the evidence on record that Ex.PW-1/A, sale deed of the suit land dated 30.8.1999, has been executed by Amerpur in favour of the plaintiff for a consideration of Rs.16,000/-. Amerpur was being recorded as owner in possession of the suit land, according to Misalhaquiat Ex.PW-2/B and Mutation Ex.PW- 2/C. The sale deed was proved by PW-1 Shri B.L. Rana, who was the Sub Registrar. Further the plaintiff appeared as PW-2 reiterating his pleadings in the plaint. 11. The evidence of PW-3 Amerpur requires notice. He appeared as PW-3 and admits having sold the land vide Ex.PW-1/A for a consideration of Rs.16,000/-. Although an attempt was made to have the sale deed set aside on the ground of fraud etc., but there was no evidence on the record. In fact, fraud was never played nor was any challenge made to the correctness of the sale deed. 12. The defendant only claimed possession as non- occupancy tenant which finds mention in the revenue record prior to the settlement as per Jamabandi (Ex.PW- 2/A) for the year 1979-80. The Court holds that presumption of truth attaches to the revenue entries which continuously since 1961 till 1979-80 for 20 years during settlement purportedly showing the possession of 6 the defendant as non-occupancy tenant. The Court holds that on the basis of sale deed and affidavit Ex.PW-1/B executed by the defendant and Ex.DA executed by Amerpur, the plaintiff herein, was held to be a true owner and the defendant is in lawful possession of the land. 13. Aggrieved by the judgment appeal was preferred by the plaintiff before the learned District Judge, Shimla and Cross Objections were preferred by the defendant herein. The learned District Judge dismissed the appeal allowing the Cross Objections declaring the plaintiff to be the owner of the suit land. In order to reach this conclusion, the learned District Judge holds that when the defendant was in possession of the suit land at the time of execution of the sale deed Ex.PW-1/A, the affidavit Ex.PW-1/B cannot be looked into stating that possession had been surrendered to Amerpur. The learned appellate Court, on the basis of the Jamabandies Ex.DW-1/C for the year 1960-61, Ex.DW-1/B, for the year 1964-65, Ex.DW-1/D, for the year 1969-70, Ex.DW-1/E, for the year 1974-75 and Ex.DW-1/A, for the year 1979-80, held the defendant as a non-occupancy tenant, without payment of rent. The entry in the column regarding rate of rent is “Bila Adaya Lagan”. The Court finds that no doubt this entry negatives the plea of tenancy, but other evidence shows that Amerpur had been acknowledging the defendant not only as a tenant on the suit land, but even as its 7 owner. The affidavit Ex.DA was intended to be presented to the Compensation Officer, Rohru, in connection with the proceedings of the conferment of proprietary rights upon one Mangal Dass and defendant Sarfu, in respect of the suit land. In this affidavit, Amerpur had declared that he has no objection to the conferment of the proprietary rights in respect of the suit land on Sarfu and Mangal Dass. 14. The plaintiff is now in appeal. This appeal was admitted on 26.3.1999 on the following substantial questions of law:- “1. Whether the findings of both the Courts below are vitiated on account of misreading the material documents particularly Exhibit PW-1/B and Exhibit DA? 2. Whether on the basis of the respective stand of the parties the entries in the Revenue Records lost their significance? Have not both the Courts below wrongly applied the principles of law regarding the change in the revenue entries? 3. When the revenue entries stood corrected on the basis of the admissions of the Defendant-Respondent himself contained in Exhibit PW-1/B, having not been in possession of the suit property, was it still open to the Courts below to have held that the entries in the revenue record were changed unauthorisedly? 4. Whether the exhibit PW-1/B contained the admissions of defendant- respondent, which were binding on him, acknowledging the plaintiff-appellant to be in possession of the suit property, whether the Courts below could have rejected such admissions merely on the ground, that such admissions lost significance by 8 subsequent decree restoring the possession to the defendant-respondent under the provisions of Section 6 of the Specific Relief Act? 5. When the Defendant-Respondent pleaded himself to be a non-occupancy tenant over the suit property, was not incumbent for the defendant-respondent to have proved the contract of tenancy as well as led evidence to prove the payment of rent to the plaintiff- appellant or his predecessor, in the absence of the basic ingredients of the tenancy having pleaded and proved, was it not incumbent for both the learned Courts below to have established the status of the defendant-Respondent to be that of a tenant over the suit property? 6. Whether the lower Appellate Court has in a highly illegal, perverse and erroneous manner declined to hold the title of the plaintiff which was not disputed by the defendant-respondent? 7. Could the suit of the plaintiff- appellant for possession on the basis of the title be dismissed merely on the ground of the assumed facts of the existence of alleged tenancy of the defendant-respondent on the suit land?” 15. I have heard learned counsel appearing for the parties and have gone through the record. Questions No.1: 16. Adverting to the first question dealing with the affidavit Ex.PW-1/B and Ex.DA, a number of submissions have been made by the learned counsel appearing for the parties. The sale deed has been upheld by the learned trial Court and I do not see any cogent reason to differ with that finding. In-fact, it is a registered document and there is nothing on record 9 to establish/show that the plaintiff is not owner of the suit land. Ex.PW-1/A which is same as Ex.DA, is an affidavit executed by Amerpur before the Compensation Officer, Rohru. It states that Amerpur son of Sarnu in some proceedings, titled: Madan son of Mangal Dass son of Usfu and Sarfu son of Karmu. I find that it does not talk about tenancy rights or all that it records is that Sarfu has given 15 bighas 19 biswas of land in Khasra No.59, Khata-Khatauni No.15/28 to Mangal Dass. How and in what circumstances the Court used this as interpreting to mean that there was actually tenancy on the land, is not clear. Adverting to the sale deed Ex.PW-1/A it shows that the possession of the land sold has been delivered to the plaintiff herein. In these circumstances, I find that two Courts below have been remiss in holding that this document itself constitutes the starting point/creation of any tenancy. Question Nos.2 and 5: 17. In question No.2, both the parties have cited a number of judgments in support of their contentions. Before adverting to the facts, the law cited by learned counsel may be considered. Learned counsel for the appellant relies upon the decision of the Lahore High Court in Girdhari Ram and others vs. Qasim and others, AIR 1936 Lahore 461, holding:- “… … … … … … … … I am aware of the fact that it is the practice of revenue authorities in this province to record a person, who is in possession of land 10 without any ostensible title thereto, in the column of cultivator describing him as a tenant-at-will, and that sometimes a remark is added mentioning the grounds on which the person in possession claims to be in possession. No presumption of tenancy necessarily arises in such cases, but in the present case there is something more than that.” (p.462) 18. In Relhu Ram vs. Than Singh and others, 1966(LXVIII) P.L.R.866 again the Court holds:- “5. Mr.Nehra then sought to contend that the defendants had established on the present record that they were the tenants of the land in dispute. Again on this matter there is a concurrent decision on a question of fact by the courts below which is binding on me in second appeal. Moreover, there is no evidence that any rent was being paid by the defendants to the plaintiffs. As a matter of fact the entry is that they are paying no rent because of assertion of ownership. Therefore, the documentary evidence clearly shows that the entry that the tenants are non occupancy tenants is clearly erroneous. It is well known that the revenue authorities when they find a person in possession of the land without any right normally record him as a tenant irrespective of the fact whether he is a tenant or not. Non-payment of rent negatives existence of relationship of landlord and tenant. This was so held in Kanwar A. Ahmed Khan v. The Union of India, (1954)56 P.L.R.468:- 11 “The relationship of landlord and tenant comes into existence as the result of an agreement, express or implied. It may be implied from the acts and conduct of the parties which indicate that the landlord intended to divest himself of the possession of the premises and that the tenant intended to assume possession thereof. One of the most important circumstances from which this inference may be drawn is the payment of rent, for although rent is not an essential, it is a normal incident of tenancy, and the fact that a person in possession of the premises paid rent to the owner thereof indicates to an extent at least that the relationship of landlord and tenant exists between the parties. On the other hand the fact that no rent was paid would lead one to a contrary conclusion and negative the existence of such relationship.” (pp.868-869) 19. In Maman Singh vs. The Resident Magistrate, Gohana and others, 1965(LXVII) P.L.R. 161, the Court holds:- “5. … … … … … … … … … It is well-settled that in deciding whether a person is a tenant, we have not to look to the entries in the column of cultivation in the jamabandi because that column only gives the name of the person in occupation, irrespective of the capacity in which he is occupying the land. On the contrary we have to look to the column of rent because it is the entries in that column which go to show as to whether the person is occupying the land as a tenant, and if so, on how much rent, or whether he is occupying the land in any other capacity. See Ghulam Murtaza v.Nagina, A.I.R.1930 Lah.991, Puran v.Kure, 57 P.L.R.,57 and 12 Sher v.Phuman Ram, 1942 P.L.R. 497. …. … … … … … …” (p.163) 20. To similar effect is the judgment of the Punjab High Court in Shri Tarlok Singh vs. Shri Harnam Singh and Another, 1974 P.L.J. 396, holding that the non-payment of rent negatives the existence of relationship of landlord and tenant, the entries in cultivation column and in the rent column are to be read together in order to ascertain the rights of the parties, entries in Khasra Girdawari do not attach presumption of truth and in case of any conflict in the entries in the copies of Khasra Girdawari with the copies of Jamabandi, the Patwari has to be examined for explaining the discrepancy. Similar is the decision in Ajmer Singh and Another vs. Surjit Singh and Others, 1992 PLJ 311, holding that a person reflected in cultivating possession of the suit land in the revenue record without mentioning any rent being paid does not establish the relationship of landlord and tenant. In fact, the Court held:- “7. … … … … … … … Non-payment of rent negatives the existence of relationship of landlord and tenant. Thus, the case set up by the first appellate Court that the defendants were in permissive possession cannot be sustained either on facts or in law.” 13 21. Last case relied upon by the appellant is Kanshi Ram and Others vs. Rawat Singh and Others, 1972 P.L.J. 580. The Court holds:- “2. … … … … … … … It was nobody’s case that these vendees were setting up any adverse possession or hostile title. The vendees were not claiming any better rights than those of tenants and they had actually paid a substantial amount to the owner in acknowledgement of his superior title or right of ownership in the land. The simple fact that the column of rent does not mention any lagan or rent would not imply that we can force on these persons who have been described as muzaras ghair maurusi the superior title or the ownership rights that they had never claimed. The expression “muzaras ghair maurusi” has to be given its ordinary meaning unless the entries in the column of rent were found to be inconsistent with the meaning to be assigned to the entries in the column of occupation. All the rulings cited before me by the counsel for the plaintiff- pre-emptor are on altogether different facts. In Maman Singh v. The Resident Magistrate, Gohana and others, 1965 P.L.R. 161, Rulhu Ram v.Than Singh and others, 1966 P.L.R. 866 and Annamalai Goundan v.Venkatasami Naidu and others, A.I.R. 1959 Madras 354, the person who was in possession and who was described as a tenant-at-will in the column of cultivation was claiming better rights and could show entries in the column of rent in support of his plea of prescriptive title or better rights and could show entries in the column of rent in support of his plea of prescriptive 14 title or better rights in the land. The entries in the column of rent in our case do not suggest that the person in possession was anything over and above a tenant-at-will as described in the column of cultivation and the person in possession does not claim any rights which could be described as hostile to the true owner. The words `muzaras’ or `ghair maurusi’ or `tenant-at-will’ in the column of cultivation have, therefore, to be given their ordinary meaning and there is nothing in the entries in the column of rent to suggest that this description of the person in possession was incorrect. In fact, the person in possession does not claim to have any better rights than that of a tenant-at-will. The Courts are not entitled to make out a case for the parties which had not at all been pleaded by them. … … … … …” (pp.582-583) 22. Lastly, learned counsel emphasises that the mere fact that a person has been recorded as “Gair Maurusi” is not sufficient to establish tenancy on the record. (See: Jit Singh vs. Bhupinder Pal Kaur and Others, 1993 PLJ, 53). 23. As opposed to this, learned counsel appearing for the respondent submits that the jurisdiction is limited and it cannot reopen the question of fact arrived at by both the Courts below. The first decision relied upon is that of Dharam Kaur vs. Mukhtiar Singh vs. Mukhtiar Singh, (2001)9 SCC 719 holding:- 15 “4. The second aspect sought to be agitated by the appellant is that the courts had rested their finding as regards tenancy of the respondent only on the production of khasra girdwari by the respondent which showed that the respondent was in possession of the land in dispute as a tenant. He has relied upon the decision in Nantha Singh and Ors. v. The Financial Commissioner, Taxation, Punjab and Others reported in [AIR 1976SC 1053] to contend that mere production of khasra girdwari was insufficient in the absence of proof of payment of rent. In that case, there was no evidence of a contract of tenancy or of payment of rent. In the case before us, on the other hand, all the courts have concurrently found as a matter of fact that rent had been paid by respondent no. 1 to his landlord. It may be that the respondent was unable to produce any rent receipt. Nevertheless, on an assessment of the evidence including the evidence given by the respondent no. 1 and other witnesses on oath, a firm conclusion was arrived at that the respondent had occupied the land as a tenant on payment of rent to the landlord”. (p-712) (emphasis supplied) 24. Learned Senior Counsel submits that the decision in Christopher Barla vs. Basudev Naik (Dead) by LRs. (2005)9 SCC 207, bars jurisdiction of this Court for entering into re-appreciation of the factual 16 position. The Court while considering the controversy before it, held:- “9. The sole question, therefore, which fell for consideration was whether in the partition of the year 1941 the plot in question fell to the share of Kunu as claimed by the defendant, or to the share of Benudhar as claimed by the appellant. Such a question has necessarily to be decided on the basis of evidence on record and, therefore, the High Court was justified in holding that the finding of fact recorded by the District Judge namely, that the appellant had failed to prove that the plot in question fell to the share of Benudhar and, therefore, he derived no valid title from him, was a pure finding of fact based on evidence on record which did not deserve interference in second appeal. We find no reason to take a different view”. (p.210) 25. He emphasizes that this is the settled law as reiterated by the Supreme Court in Satya Gupta (Smt.) Alias Madhu Gupta vs. Brijesh Kumar, (1998)6 SCC 423, holding:- “16. At the outset, we would like to point out that the Findings on facts by the lower appellate court as a final court of facts, are based on appreciation of evidence and the same cannot be treated as perverse or based on no evidence. That being the position, we are of the view that the High Court. after reappreciating the evidence and without finding that the conclusions reached by the lower appellate court 17 were not based on the evidence, reversed the conclusions on facts on the ground that the view taken by it was also a possible view on the facts. The High Court, it is well settled, while exercising jurisdiction under Section 100 CPC, cannot reverse the findings of the lower appellate court on facts merely on the ground that on the facts found by the lower appellate court another view was possible. 19. In the light of the above exposition of law by this Court and in the light of the findings of the lower appellate court, the judgment of the High Court, on reappreciation of evidence, cannot be upheld. We have noticed earlier the vagueness in the plaint about non- disclosure of how and on what basis the plaintiff claimed