Vidya Devi & Ors. v. Loza Ram (deceased)

It is the case of the plaintiff that late Jant and heirs of Chetu were not the tenants over the suit land, but they wrongfully got their names entered as tenants over the suit land. The said change is illegal and without any basis as there is no order of any competent authority to enter the names of late Jant, Bakshi and Brahma, sons of Chetu in the column of possession over the suit land replacing the name of late Khajana. The plaintiff and his brothers were cultivating the suit land as tenants on the payment of same rent, as was being paid by their father and had become owners of the suit land by operation of law in the year 1975 and remained in possession of the suit property as owners. 5 It is further case of the plaintiff that late Munshi, Bakshi and Brahma on the basis of wrong and illegal revenue entries in their favour were conferred proprietary rights regarding the suit land on the basis of notification No. 6/7, dated 26.05.1976 under Section 104 of H.P. Tenancy and Land Reforms Act, which are wrong and illegal, as they were 4 never in possession of the suit property. Therefore, under such circumstances, the plaintiff filed a suit for declaration to the effect that late Khajana predecessor in interest of plaintiff and proforma defendants was tenant in possession of the suit land on payment of rent in the shape of GALLA BATTAI WA HISSA NISAF under Badri, son of Gopalu and remained in cultivating possession of the same till his death in the year 1971 and thereafter plaintiff and his brother inherited the tenancy rights and have become owner in possession of the same by operation of law and late Khazana never abandoned or surrendered the tenancy rights in favour of Badri and the revenue entries showing Jant, Bakshi and Brahma as tenants over the suit land and thereafter the conferment of proprietary rights in favour of Jant, Bakshi and Brahma and subsequent revenue entries in favour defendants are wrong, illegal, null and void, and not binding upon the rights of the plaintiff and proforma defendants. Decree for permanent prohibitory injunction was also sought restraining the defendants from interfering or forcibly dispossessing the plaintiff from the suit land or alienating the same on the basis of wrong and illegal revenue entries in their favour. 5 6 The suit was resisted by the defendants No. 1 to 16 by filing written statement, wherein preliminary objections qua maintainability, limitation, cause of action, estoppel etc. were raised. On merits, it was averred that the defendants are the exclusive owners in possession of the entire suit land and the plaintiff has got no right, title or interest whatsoever in any manner over the suit land. As per the defendants, late Khajana was never inducted as tenant by deceased Badri, who himself was tenant over the suit land. In fact, Jant and Chetu were non occupancy tenants under Badri, therefore, question of Khajana being tenant does not arise at all. 7 Defence was raised by the defendants that during the year 1954-55, when regular settlement was carried out by the Government of H.P., the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953 was made applicable to the suit land. The State of H.P. was recorded as owner of the suit land and Jant and Chetu were recorded as non-occupancy tenants under late Badri. Thereafter under the aforesaid Act Badri was made owner of the suit land and late Jant and Chetu were recorded as non occupancy tenants of the suit land. Thus, it was averred that defendants No. 1 to 16 are in exclusive possession of the suit land and long 6 standing entries in the revenue record prove this fact that late Khajana as well as plaintiff were not in actual possession of the suit land. The defendants No. 1 to 16 refuted the averments as made in the plaint and sought dismissal of the suit. 8 The plaintiff filed replication to the written statement, wherein the contents of the plaint were reiterated. 9 On the pleadings of the parties, the learned trial court on 15.11.2012 framed the following issues:-

#1. Whether Late Sh. Khajana (predecessor-in- interest of plaintiff and proforma defendants) was tenant in possession of the suit land, as alleged? OPP.

#2. Whether the plaintiff and proforma defendants have inherited the tenancy rights of the suit land from Khajana and thereby have become owners in possession of the suit land by operation of law, as alleged? OPP.

#3. Whether the revenue entries showing Jant and Chetú as tenants over the suit land and thereafter the conferment of proprietary rights in favour of Sh. Munshi to the extent of half share and Bakshi and Brahma to the extent of half share and subsequent revenue entries favour of defendants are wrong, illegal, null and void and 7 not binding upon the rights of plaintiff and proforma defendants, as alleged? OPP.

#4. Whether the plaintiff is entitled for decree of permanent prohibitory injunction, as prayed for? OPP

#5. Whether the suit is time barred, as alleged? OPD

#6. Whether the suit is without cause of action, as alleged? OPD.

#7. Whether the plaintiff is estopped by his own act and conduct to file the present suit, as alleged OPD?

#8. Whether the suit is bad for non-joinder of necessary party, as alleged? OPD.

#9. Whether the suit is not maintainable, as alleged? OPD.

#10. Whether this court has no jurisdiction to entertain the present suit, as alleged? OPD.

#11. Relief? 10 The learned trial court directed the respective parties to adduce evidence in support of their contentions to corroborate their respective case. The learned trial court vide its judgment and decree dated 18.10.2014 decreed the suit of the plaintiff for declaration to the effect that he alongwith proforma defendants is owner in possession over the suit land alongwith consequential relief of permanent prohibitory 8 injunction restraining the defendants causing interference over the suit land. The entries showing defendants No.1 to 20 to be owners in possession over the suit land and conferment of proprietary rights in favour of predecessor-in-interest of defendants No. 1 to 20 by virtue of section 104 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972 were held to be illegal, null and void and not binding upon the rights of plaintiff. 11 Feeling dissatisfied by the judgment and decree, dated 18.10.2014, the defendants preferred an appeal before the learned first appellate Court on 22.11.2014, which came to be dismissed vide judgment and decree dated 28.11.2015. 12 Still feeling aggrieved by the aforesaid judgments and decrees, the appellants/defendants have preferred the present regular second appeal. 13 With the consent of the parties, the instant appeal finally heard at admission stage on the following substantial question of law:- Whether the judgments and decrees of both the learned Court below are based on mis-appreciation and misinterpretation of the oral as well as documentary evidence placed on record. 9 14 It is contended by Vikas Rathore, learned counsel for the appellants/defendants that the impugned judgments and decrees, as passed by the learned courts below, are erroneous and are liable to be quashed and set aside. He has submitted that the learned courts below have not taken into consideration the material placed on record in its right perspective. He has further contended that since the plaintiff has not entered into the witness box, therefore, adverse inference was required to be drawn against the plaintiff and the suit filed by him could not have been decreed. 15 On the other hand, Mr. Sanjay Jaswal, learned counsel for the plaintiff/respondents No. 1 (a) to 1(e), has defended the impugned judgments and decrees as passed by the learned courts below. He has submitted that this Court while invoking provisions of Section 100 of CPC will not interfere with the concurrent findings, as rendered by the learned Courts below, thus, has prayed for dismissal of the instant appeal. 16 I have heard the learned counsel for the parties and have also gone through the material available on the case file. 10 17 The plaintiff had approached the learned trial court seeking declaration on the ground that late Khajana, predecessor-in-interest of plaintiff and proforma defendants was tenant in possession over the suit land on payment of rent in the shape of “GALLA BATTAI WA HISSA NISAF” under Badri, son of Gopalu, who remained in cultivating possession of the same till his death in the year 1971 and thereafter plaintiff and his brothers inherited the tenancy rights and have become owners in possession of the same by operation of law. As per the case set up by the plaintiff, late Khazana never abandoned or surrendered the tenancy rights in favour of Badri and the revenue entries showing Jant, Bakshi and Brahma as tenants over the suit land, conferment of proprietary rights and subsequent revenue entries in favour of defendants are wrong, illegal, null and void, and not binding upon the rights of the plaintiff and proforma defendants. 18 On the other hand, defendants have stated that they are exclusive owners in possession of the entire suit land. As per the case projected by defendants, late Khajana was never inducted as tenant by deceased Badri, and in fact, Jant and Chetu were non occupancy tenants under 11 Badri, therefore, question of Khajana being tenant does not arise at all. 19 In order to substantiate his case, the plaintiff examined Arjun Singh, as PW1, who stated in his deposition that he is special power of attorney holder of plaintiff being his son. The suit land was being cultivated by his grandfather, who was tenant under Badri. In lieu of tenancy, his grandfather used to pay revenue to Badri. His grandfather died in the year 1971 and till his death, the suit land was in his exclusive possession. He further deposed that after death of his grandfather, Khajana, his father Loza Ram along with his brothers started cultivating the suit land. Even today, the suit land is being possessed and cultivated by them. He further stated that in the month of April, 2011, the defendants started interference in the peaceful possession of the plaintiff and thereafter, the plaintiff obtained the revenue papers and it came to their knowledge that wrong entries have been incorporated at the back of the plaintiff. He prayed that the suit as filed by the plaintiff be decreed. 20 In his cross-examination, he admitted that his grandfather, Khajana was survived by his sons, Loza Ram, 12 Ziddi, Jaimal and two daughters. Name of one daughter is Brahmi however, he does not know name of other daughter. He denied that his father is not physically weak. Self stated that his father had pains in his legs. Though, this witness was cross-examined at length, however defendants could not extract anything material from him. 21 Mahajan, appeared in the witness box as PW2 and reiterated the stand as taken by the plaintiff. 22 In order to rebut the case of the plaintiff, Surya Prakash entered the witness box as DW1 and tendered in evidence his affidavit, Ext. DW1/A, wherein he stated that the defendants are owners in possession of the suit land. The plaintiff has got no right, title or interest over the suit land. He stated that Khajana never remained as tenant over the suit land under Badri and in fact Jant and Chetu were tenants over the suit land. In his cross-examination, he admitted that when the suit land was entered in the name of predecessor-in-interest of the defendants, in that regard no rapat was prepared by the concerned Department. He stated that he does not know that the predecessor in interest of the plaintiff, Khajana, was cultivating the suit land and he never 13 surrendered the suit land in favour of late Badri or the defendants. 23 DW2, Chain Singh, also tendered in evidence his affidavit as Ext. DW2/A and reiterated the contents of the written statement as filed by the defendants and stated that the plaintiff has got no right, title or interest over the suit land. 24 Karnail Singh appeared in the witness box as DW3 and tendered in evidence, his affidavit, Ext. DW3/A and deposed on the same lines as that of DW2 Chain Singh. 25 Ext. PW1/A is copy of the jamabandi, which depicts Khajana to be the tenant under Badri over the suit land bearing Khasra Nos. 1118 and 1123. The plaintiff has laid challenge to the entries as made in favour of the predecessor in interest of defendants in Ext. PW1/B, whereby Khasra No. 1118 was shown to be in possession of Jant as non-occupancy tenant. Similarly, in Ext. PW1/C, Khasra Nos. 1118 and 1123 are being shown under tenancy of Jant, Chetu and Brahma. It is the case of the plaintiff that prior to reflection of names of predecessor-in-interest of defendants, his predecessor-in-interest Khajana was being 14 reflected in the column of possession under Badri as non- occupancy tenant over the suit land. 26 Undisputedly, when there is variance between earlier and the later entries, presumption of truth is attached to the later entries till such presumption is rebutted. The Hon'ble Supreme Court in Raja Durga Singh of Solan vs. Tholu and others 1962 PLJ (SC) 88 has held that the provisions of Land Revenue Act give presumptive value to the entries in the revenue record and when there is a conflict, it is the later entry which must prevail. It was further held that from the language of the Section itself it follows that where a new entry is substituted from old entry it is the new entry which will take the place of the old one and will be entitled to presumption of correctness until and unless it is established to be wrong and substituted by another entry. 27 Similarly, while dealing with the similar provisions contained in Section 44 of Punjab Land Revenue Act, the Hon'ble Supreme Court in Dugra (deceased) and others vs. Milkhi Ram and others 1969 PLJ 105 observed as follows: “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, 15 although presumption (under Section 44 of the Punjab Land Revenue Act) would be in favour of later entries, but that presumption was a rebuttable one and it would stand rebutted by the fact that alteration in the later entries was made unauthorisedly or mistakenly, there being no material to justify the change of entries.” (Emphasis supplied) 28 To the Similar effect, it has been held by this Court in Chaudhary Sada Ram and others vs. Chaudhary Amarnath ILR 1984 H.P. 509 and in Jahlu Ram vs. Major Lal Singh (1998) 1 Sim. L.C. 343. 29 As held by the Hon'ble Supreme Court, the abrupt change in the revenue record without any order of the competent Court of law does not contain any sanctity and authenticity. 30 The learned Courts below have rightly come to the conclusion though predecessor-in-interest of appellants were in possession of the suit land as non occupancy tenants under Badri, but the said change in the revenue record was done at the back of the plaintiff and there is no order for effecting such change by any competent court of law. It has come on record that an abrupt change in favour of predecessor in interest of the defendants/appellants has been reflected without any order of the competent authority 16 or competent court of law. Thus, as rightly held by the learned Courts below, this change in entry is void, ab initio and illegal. 31 As held by the Hon’ble Supreme Court in its various decisions that in case changes are made with respect to tenancy of a person, the said changes should be duly incorporated on the basis of the order as passed by the competent authority or Court of law. 32 In the present case, the appellants have failed to establish that on what basis entry of non occupancy tenancy in favour of their predecessor in interest came to be incorporated in the revenue record all of a sudden that too ignoring earlier entry in favour of predecessor in interest of plaintiff in the column of possession under Badri qua the suit land. 33 The learned Courts below have rightly decreed the suit as filed by the plaintiff by declaring the plaintiff alongwith proforma defendants to be owner in possession over the suit land and the revenue entries contrary to the record to be illegal, null and void and not binding upon the rights of plaintiff. 17 34 The appellants/defendants have not been able to point out any illegality or infirmity in the impugned judgments and decrees, as concurrently passed by the learned Courts below. 35 As far as contention raised by the learned counsel for the appellants/defendants that the plaintiff has not entered into the witness box and an adverse inference should have been drawn against him is concerned, the same does not hold good on account of the fact that entire case is based upon documentary evidence as placed on record by the respective parties. Precise case of the plaintiff is that revenue entries have been changed at his back and without any order of the competent Court, therefore, changes as made in the revenue record are null and void. Since the entire case hinges around the revenue entries, therefore, non appearance of the plaintiff in the witness box cannot be held to be adverse towards the plaintiff. 36 The Hon’ble Supreme Court in catena of judgments has held that the first appellate is the final court of the fact. No doubt, second appellate court exercising the power under Section 100 CPC can interfere with the findings of fact on limited grounds such as - (a) where the finding is 18 based on inadmissible evidence; (b) where it is in ignorance of the relevant admissible evidence; (c) where it is based on misreading of evidence; (d) where it is perverse, but that is not case in hand. 37 The Hon’ble Supreme Court while dealing with scope of interference under Section 100 in Hero Vinoth (minor) vs. Seshammal, (2006) 5 SCC 545 has held as under: “18. It has been noted time and again that without insisting for the statement of such a substantial question of law in the memorandum of appeal and formulating the same at the time of admission, the High Courts have been issuing notices and generally deciding the second appeals without adhering to the procedure prescribed under Section 100 of the CPC. It has further been found in a number of cases that no efforts are made to distinguish between a question of law and a substantial question of law. In exercise of the powers under this section in several cases, the findings of fact of the first appellate court are found to have been disturbed. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add or to enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts will not be disturbed by the High Court in exercise of the powers under this section. Further, a substantial question of law has to be distinguished from a substantial question of fact. This 19 Court in Sir Chunilal V. Mehta and Sons Ltd. v. Century Spg. & Mfg. Co. Ltd. (AIR 1962 SC 1314) held that : "The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law. " 19. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences of fact are possible, one drawn by the lower appellate court will not be interfered by the High Court in second appeal. Adopting any other approach is not permissible. The High Court will, however, interfere where it is found that the conclusions drawn by the lower appellate court were erroneous being contrary mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at by ignoring material evidence. 20. to 22 xx xx xx xx 20

#23. To be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis.” 38 The Hon’ble Supreme Court in Annamalai vs. Vasanthi, 2025 INSC 1267, has held as follows:- “16. Whether D-1 and D-2 were able to discharge the aforesaid burden is a question of fact which had to be determined by a court of fact after appreciating the evidence available on record. Under CPC, a first appellate court is the final court of fact. No doubt, a second appellate court exercising power(s) under Section 100 CPC can interfere with a finding of fact on limited grounds, such as, (a) where the finding is based on inadmissible evidence; (b) where it is in ignorance of relevant admissible evidence; (c) where it is based on misreading of evidence; and (d) where it is perverse. But that is not the case here. 21

#17. In the case on hand, the first appellate court, in paragraph 29 of its judgment, accepted the endorsement (Exb. A-2) made on the back of a registered document (Exb. A-1) after considering the oral evidence led by the plaintiff-appellant and the circumstance that signature(s)/thumbmark of D-1 and D-2 were not disputed, though claimed as one obtained on a blank paper. The reasoning of the first appellate court in paragraph 29 of its judgment was not addressed by the High Court. In fact, the High Court, in one line, on a flimsy defense of use of a signed blank paper, observed that genuineness of Exb. A-2 is not proved. In our view, the High Court fell in error here. While exercising powers under Section 100 CPC, it ought not to have interfered with the finding of fact returned by the first appellate court on this aspect; more so, when the first appellate court had drawn its conclusion after appreciating the evidence available on record as also the circumstance that signature(s)/thumbmark(s) appearing on the document (Exb.A- 2) were not disputed. Otherwise also, while disturbing the finding of the first appellate court, the High Court did not hold that the finding returned by the first appellate court is based on a misreading of evidence, or is in ignorance of relevant evidence, or is perverse. Thus, there existed no occasion for the High Court, exercising power under Section 100 CPC, to interfere with the finding of the first appellate court regarding payment of additional Rs. 1,95,000 to D-1 and D-2 over and above the sale consideration fixed for the transaction.

#18. Once the finding regarding payment of additional sum of Rs.1,95,000 to D-1 and D-2 recorded by the first appellate court is sustained, there appears no logical reason to hold that the plaintiff (Annamalai) was not ready and willing to perform its part under the contract particularly when Rs. 4,70,000, out of total consideration of Rs. 4,80,000, was already paid and, over and above that, additional sum of Rs.1,95,000 was paid in lieu of demand made by D-1 & D-2. This we say so, 22 because an opinion regarding plaintiff’s readiness and willingness to perform its part under the contract is to be formed on the entirety of proven facts and circumstances of a case including conduct of the parties. The test is that the person claiming performance must satisfy conscience of the court that he has treated the contract subsisting with preparedness to fulfill his obligation and accept performance when the time for performance arrives.” 39 No other point was urged by the learned counsel for the parties. 40 Both the Courts below have rightly appreciated the point in controversy after considering the oral as well as documentary evidence placed on record and this Court does not find any illegality or perversity in the impugned judgments and decrees, as passed by the learned Courts below, and the same are upheld. Substantial question of law is answered accordingly. 41 In view of above, the present appeal being devoid of any merit deserves to be dismissed. Ordered accordingly. Pending application(s), if any, also stands disposed of. 30th June, 2026 (pankaj) (Romesh Verma) Judge