Ram Krishan Deceased through Lrs Geeta Devi Vs Gambaru Devi deceased through lrs. Dilla Devi

and decree dated 14.8.2007, passed by the learned Additional District Judge, Ghumarwin, District Bilaspur, H.P., (learned Appellate Court), vide which the judgment and decree dated 21.8.2004, passed by the learned Civil Judge, Senior Division

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1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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Bilaspur, District Bilaspur, H.P., Camp at Ghumarwin, (learned Trial Court) were upheld. (The parties shall hereinafter be referred to in the same manner as they were arrayed before the learned trial Court for convenience) .

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Briefly stated, the facts giving rise to the present appeal are that the plaintiff filed a civil suit before the learned Trial Court against the defendant for seeking a declaration that entries in Jamabandi for the 1990-91 regarding the column of possession in the suit land mentioned in the head note are wrong and illegal. A consequential relief of permanent prohibitory injunction for restraining the defendants from cutting the grass or changing the nature of the suit land, and an alternative relief for possession were also sought. It was asserted that the defendants are shown to be in possession of the suit land in the copy of the Jamabandi for the year 1990-91. The suit land is grassland. The husband of the plaintiff died about 40 years before filing the suit. The plaintiff used to take the assistance of various persons to cultivate the land. The defendant’s father also used to help the plaintiff, being a near relative. He took advantage of his position and got his possession recorded on the suit land. The defendants threatened

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the plaintiff to cut and remove the standing trees on the suit land. The plaintiff requested the defendants not to do so, but in vain. Hence, the suit was filed to seek the relief mentioned above.

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The suit was opposed by the defendants by filing a written statement taking preliminary objections regarding lack of maintainability, jurisdiction and locus standi , plaintiff being estopped to file the present suit by her act, conduct, commission and omissions, the suit being barred by limitation, the suit having not been properly valued for Court fees and jurisdiction, and the suit being bad for non-joinder and mis-joinder of parties. The contents of the plaint were denied on the merits. It was asserted that the defendant’s father was a non-occupancy tenant, paying 1/4^th of the produce as the rent. The defendant used to pay land revenue to the Numberdar and 1/4^th rent as and when demanded by the plaintiff. The defendants remained in possession of the suit land continuously, openly, peacefully, and adversely to the knowledge of the plaintiff, and they became the owners by way of adverse possession. It was admitted that the suit land was recorded in possession of the defendants. It was asserted that the defendants are owners-in- possession of the

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suit land and the plaintiff has no right over the suit land, hence it was prayed that the suit be dismissed.

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A replication denying the contents of the written statement and affirming those of the plaint was filed.

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Learned Trial Court framed the following issues on

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16.3.1999 and learned Appellate Court also framed an additional issue on 16.6.2003: -

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Whether the plaintiff is entitled to the relief of a permanent prohibitory injunction? OPP.

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Whether the entries in the revenue record are wrong and illegal? OPP.

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Whether the plaintiff is estopped to file the suit by her acts and conduct? OPD.

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Whether the suit is not within time? OPD.

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Whether the suit is not properly valued for the purpose of Court fee and jurisdiction? OPD.

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Whether the suit is bad for non-joinder and mis-joinder of necessary parties? OPD.

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Whether the defendant was a non-occupancy tenant as alleged? OPD.

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7A. Whether the defendants have become the owners in possession of the suit land by way of adverse possession as alleged? OPD.

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Relief.

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The parties were called upon to produce the evidence, and the plaintiff examined herself (PW1). The defendants examined defendant No.1 Ramkishan (DW1), Deep Ram (DW2),

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Sher Singh (DW3) and Rajinder (DW4). The defendants recalled themselves and examined Karam Singh (DW5), Tulsi Ram (DW6), after the framing of an additional issue by the learned Appellate Court.

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Learned Trial Court held that the plea taken by the defendants that they were in possession or had become the owners by way of adverse possession was not proved. The suit land was recorded as grassland, and the plea taken by the defendants that they were cultivating it was not acceptable. The plaintiff’s husband was earlier recorded in possession, and thereafter, the plaintiff was recorded to be in possession in the revenue record. An entry in the revenue record carries with it a presumption of correctness, and the defendants had failed to rebut the presumption attached to the revenue record. Hence, the learned Trial Court answered issue Nos. 1 and 2 in affirmative, the rest of the issues in negative and decreed the suit.

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Being aggrieved by the judgment and decree passed by the learned Trial Court, the defendants filed an appeal which was decided by the learned Additional District Judge,

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Ghumarwin, District Bilaspur, H.P. (learned Appellate Court). Learned Appellate Court concurred with the findings recorded by the learned Trial Court that plaintiff’s husband and thereafter the plaintiff was recorded to be in possession of the suit land. The defendant was recorded to be in possession, but the column of rent was silent regarding the rent paid by the defendant. The suit land was reflected as Khadetar and Gair Mumkin Bir, which meant that the suit land was not cultivable. This falsified the plea taken by the defendants that they were in possession of the suit land and they were cultivating it. The plea of adverse possession taken by the defendants was not proved, and the learned Trial Court had rightly decreed the suit. There was no infirmity in the judgment and decree passed by the learned Trial Court; hence, the appeal preferred by the defendants was dismissed.

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Being aggrieved by the judgment and decree passed by the learned Courts below, the plaintiffs have filed the present appeal, which was admitted on the following substantial questions of law on 22.12.2008: -

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Whether the judgment of both the Courts below can be sustained when the documents, Ext. PA, Ext.PB and

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Ext.PC have not been appreciated and have been misread by the Courts below?

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Whether the defendants are entitled to protect their possession over the suit land as they have been able to establish their continuous possession for a period of more than 12 years?

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I have heard Mr Neeraj Gupa, learned Senior Advocate, assisted by Mr Ajeet Pal Singh Jaswal, learned counsel for the appellant/defendant and Mr Nitin Thakur, learned counsel for respondent No.1(a).

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Mr Neeraj Gupta, learned Senior Counsel for the appellant/defendant, submitted that the learned Courts below erred in appreciating the evidence on record. The defendants were shown to be in possession in the revenue record. An entry

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in the revenue record carried with it a presumption of correctness. The plaintiff was aware of the long-standing entries in favour of the defendants and had not filed the civil suit within time. Therefore, he prayed that the present appeal be allowed and the judgments and decrees passed by the learned Courts below be set aside. He relied upon the following judgments in support of his submission:

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(i) Atma Ram Vs. Paras Ram and others AIR 1971 HP 11 (V 58 C 3);

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(ii) Partap Singh (dead) through LRs & ors. Vs. Shiv Ram (dead) through LRs (2020) 11 SCC 242;

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(iii) Anathula Sudhakar Vs. P. Buchi Reddy (dead) by LRs & ors. (2008) 4 SCC 594; and

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(iv) Savitri Bai and another Vs. Savitri Bai (2024) 4 SCC 282.

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Mr Nitin Thakur, learned counsel for the respondent,

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submitted that the plea taken by the defendants that they had become the owners by way of adverse possession is contrary to the plea that they were the tenants who were paying the share of the produce to the landowners. A person in permissive possession cannot assert his hostile title unless he renounces the possession. There is no evidence that the defendants were in possession or had asserted their hostile title to the real owner. The learned Courts below had rightly rejected the plea of adverse possession. There is no infirmity in the judgments and decrees passed by learned Courts below. Hence, he prayed that the present appeal be dismissed

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I have given considerable thought to the submissions made at the bar and have gone through the records carefully.

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Substantial Question of Law No.1:

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A copy of Jamabandi for the year 1995-96 (Ex.PA) shows the plaintiff to be the owner and the defendants to be in possession. The column of rent is blank, and the status of the defendants has not been mentioned. The copy of Jamabandi for the year 1975-76 (Ex.PB) shows the plaintiff to be the owner and Chandu, the predecessor-in-interest of the defendants, to be in possession. The copy of Misal Hakiyat for the year 1957-58 shows Durgi and Nashinu, Kirlu, Ram Dei to be the owners and the plaintiff’s husband to be a non-occupancy tenant through Chandu, son of Bardu. In the column of rent, no entry has been recorded. The Column of Remarks mentioned that Durgi and Parsinu had sold the land to Chandu. Learned Appellate Court had rightly held that the entry in the copy of Jamabandi for the year 1957-58 cannot be relied upon because nobody has claimed that Chandu had purchased the suit land. The defendants did not set up such a claim in the written statement. Ramkishan (DW1) stated that Kirlu was the owner, and Gambhru and Chandu were the non-occupancy tenants. They used to pay 1/4^th of the produce to the landowners as rent. Thus, the entry showing the

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defendants’ father to be the owner and Gambhru, plaintiff’s husband, to be the tenant under him was wrong and was rightly ignored by the learned Courts below.

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The nature of the suit land is shown to be Khadetar Gair Mumkin Bir in the copies of Jamabandi (Ex.PA) and (Ex.PB). The defendants claimed that they were cultivating the land through Deep Ram and Sher Singh. They also examined Karam Singh and Tulsi Ram, who claimed that the suit land was cultivable. Rajinder (DW4), on the other hand, claimed that he had been purchasing grass from the defendants for 12 years. Thus, the evidence of the defendants was contradictory regarding the nature of the suit land: while Rajinder claimed that he used to purchase grass from the defendants, the defendants and their witnesses claimed that the suit land was being cultivated. Therefore, learned Courts below were justified in rejecting the plea taken by the defendants. An entry in the copy of Jamabandi carries with it a presumption of correctness, which is rebuttable [please see Pratap Singh (supra)], and the evidence of the defendants rebutted the entry of possession in favour of the defendants or their predecessor. It was held in Shyam Sunder Dutta v. Baikuntha Nath Banerjee , (1994) 6 SCC 545 ,

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that the finding of possession recorded by the Courts is a pure finding of fact which cannot be disturbed in the second appeal. It was observed: -

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“5. The question of the respondents to have remained in possession cannot be gone into by the High Court, since the District Court, on consideration of the entire evidence, had categorically recorded a finding of fact that the appellant and his co-sharers remained in possession from August 1945 and that the respondents were not continuing in possession from that time. This being a finding of fact, the High Court would not have gone into the question. However, it would appear that on the question of limitation under the Bengal Tenancy Act, when the arguments were addressed, in consideration of that question, the High Court has gone into the question whether the respondents were not dispossessed from suit lands and recorded a finding that they remained in possession. That finding does not appear to be warranted in view of the fact that the evidence was not discussed and as rightly contended the only evidence the High Court had considered was that of PW 1 but the first appellate court had considered the evidence of PWs 2 to 5 and the documentary evidence and that evidence was found to be in support of the evidence given by PW 1 that the respondents did not continue in possession from August 1945. Therefore, the finding recorded by the High Court, in fact, was not necessary. Even otherwise, that finding was recorded without adverting to all the material evidence and that, therefore, the finding of possession recorded by the High Court is clearly illegal.”

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There was no misreading of the evidence or the

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documents, and this substantial question of law is answered accordingly.

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Substantial Question of Law No.2:

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The defendants claimed adverse possession of the suit land. They had initially asserted that their predecessor was a tenant. Ramkishan (DW1) specifically stated that Gambhru and his father were the non-occupancy tenants who used to pay 1/4^th of the produce as the rent. It was laid down by the Supreme Court in Brij Narayan Shukla v. Sudesh Kumar , (2024) 2 SCC 590: (2024) 1 SCC (Civ) 704: 2024 SCC OnLine SC 8 , that the possession of a tenant is permissive and cannot be called adverse. It was observed at page 593: -

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10.4. The suit of the year 1944 was for the arrears of rent and not relating to any dispute of possession. The respondent-defendants were tenants, and therefore their possession was permissive as against the then landlords. There was no question of their claiming any adverse possession from 1944.”

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In the present case, also, the defendants pleaded that

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their predecessor was a tenant of the suit land; the plea of adverse possession is not available to the defendants.

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In Atma Ram (supra), this Court had held that the plea of tenancy and adverse possession in the alternative can be taken. However, the Court had noticed in paragraph 11 of the judgment that the plaintiff had given up the plea of tenancy at

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the time of the argument. In the present case, the pleas have not been given up, and the cited judgment does not apply to the present case.

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In Anathula Sudhakar (supra), the Court had considered the circumstances when the mere suit of injunction is not maintainable, and the plaintiff is required to seek a declaration. In the present case, the plaintiff has sought a declaration, and the cited judgment does not apply to the present case.

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In Savitri Bai (supra), the Court held that a person cannot convey what he does not possess. This principle does not apply to the present case. Therefore, none of the cited judgments will apply to the present case.

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Thus, the learned Courts below had rightly held that the defendants had failed to prove their possession, and there is no perversity in this finding. This substantial question of law is answered accordingly.

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Final Order:

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