ORDER
A.K. Goel, J.
1. This Second Appeal has been filed by the defendant who is being referred to as such hereinafter in this judgment.
2. A suit was filed by the respondent-plaintiff for possession of the land as detailed in the plaint. This suit was based on title. According to the averments made in the plaint, plaintiff purchased the same from Smt. Sarita Rani, wife of Narinder Kumar. She had purchased this land from its previous owner Shri Daya Ram son of Shri Tulsi Ram. The sales are reflected in the revenue records vide mutation Ext. PW. 1/B, in favour of Smt. Sarita Rani and vide mutation Ex. PW-1/C in favour of the plaintiff. Further the case set-up by the plaintiff was that he was residing at Shimla and had been in occupation of the suit property from the time he purchased it and prior to her, it was Smt. Sarita Rani who was in its occupation. Plaintiff could not attend to the land in question for a continuous period of 4-5 months in the year 1983 due to his political pre-occupation. Further, when he went in the month of October 1983, to see the land, he found defendant having cut and removed the grass who when asked to desist from such activities refused blankly. Thereafter the plaintiff claims to have collected the copies of revenue entries. Thus, according to him since October 1983, defendant was in occupation of the suit land. Entries were made in the revenue records unauthorisedly by the Revenue Staff in connivance with the defendant. No notice of such change being made was ever served upon the plaintiff. He further stated that there is no previty of contract between him and the defendant. In this background while praying for a decree for possession, plaintiff also claimed mesne profits in the sum of Rs. 1800/- and prayed for further future mesne profits @ 1000/-per annum from the date of filling of suit till delivery of possession.
3. Defendant when put to notice contested and resisted the suit. By way of preliminary objections he questioned the jurisdiction of civil Court to try the suit which. According to him, suit was exclusively triable by Revenue Court; he also challenged the locus standi of the plaintiff and his being out of possession for more than 19 years, thus the suit being time barred. Plaintiff had no cause of action and suit being not properly valued for the purposes of court fee and jurisdiction, as also estoppel by way of plaintiffs acts, conduct, deeds silence and acquiescence were also set up as pleas to defeat the suit. On merits it was pleaded that defendant has become owner by operation of law and efflux of time. According to him, plaintiff as well as his predecessor Smt. Sarita Rani were never in possession of the suit land. While admitting that the plaintiff resides at Shimla, it was denied that Smt. Sarita Rani who was plaintiffs sister was ever in possession, as alleged prior to him (plaintiff). Defendant further pleaded that the plaintiff never visited the suit land as such there was no question of his having asked him (the defendant), not to interfere with possession as alleged at any point of time or in October 1983. Thus, he denied all the averments made in the plaint.
4. In replication claim made by the defendant in the written statement was denied. It was further pleaded that the defendant was a servant/Chowkidar who was looking after the land in dispute till October 1983. Though, till such time, the land in dispute was in possession of the plaintiff. All other pleas which were contrary to what was said in the plaint were denied and in replication averments made in the plaint were reiterated.
5. On the basis of aforesaid pleadings, Trial Court framed following issues.
1. Whether the plaintiff is entitled for possession of the suit land as alleged? .........OPP
2. Whether the plaintiff is entitled for mesne profits, as alleged ........OPP
3. Whether the defendant has become owner of the suit property by efflux of time and operation of law, as alleged?.........OPD
4. Whether this Court has no jurisdiction to entertain the suit? ..........OPD
5. Whether the suit is barred by time? ..........OPD
6. Whether the suit is without cause of action? ........OPD
7. Whether the suit is not properly valued for court fee. If so its, effect? ........OPD
8. Whether the plaintiff is estopped from filling the suit on account of his acts, conduct etc.? .........OPD
9. Relief.
6. After recording evidence and hearing the parties, suit has been decreed. When this decree was challenged in appeal before the Appellate Court below it while dismissing the appeal has upheld the decree hence this second appeal at the instance of defendant.
7. On 8th November 1994, this appeal was admitted and following orders was passed by this Court.
'............ Heard Mr. R. K. Sharmalearned counsel for the appellant. The appeal is admitted and will be heard on the substantial question of law as to whether the learned Court below erred in law in not taking into account the latest entry in the revenue record and whether the civil Court has jurisdiction to try the suit of the present nature. The appellant is allowed to urge any substantial question of law at the time of the hearing of the appeal. Call for the record. Issue usual notice....'
8. At the time of hearing learned counsel for the appellant submitted that there is overwhelming documentary as well as oral evidence on record clearly establishing the possession of her client as tenant. She further pointed out that the long standing possession of her client is established from the oral evidence produced by the defendant, as such, findings recorded were not at all possible on the basis of said evidence. Thus, according to her the judgment is perverse and it calls for interference by allowing the appeal and consequently dismissing the suit of the plaintiff with costs throughout. Reliance in this behalf was placed by her on the statement of PW-4 Patwari Halqua as well as DW-1, i.e. the plaintiff. In addition to other evidence, special emphasis was laid by her on Ex. PW-1/E, copy of Jamabandi for the years 1978-1979 as well as on Ex. PW-4/K copy of Partal-va-tasdeek jamabandi stated to have been undertaken on 20/21-2-1980 regarding the suit land for the years 1978-1979. She further stated that the provisions of law as well as the matter relating to the jurisdiction has ben completely overlooked by both the Courts below while rejecting the claim of her client.
9. On the other hand, the learned Senior Counsel while controverting all these pleas on behalf of the plaintiff submitted that the findings recorded by both the Courts below are concurrent findings of fact recorded on the basis of evidence on record produced by the parties both oral as well as documentary. He further stated that in no case, it can be said that it was possible to have arrived at on any other conclusions than those arrived at by the Courts below. According to him, this is not a case of misreading; or any evidence having been taken into account which otherwise was impermissible under law to have been looked into. Thus, he has prayed for dismissal of the present appeal. Reliance was placed by him on the statement of his client, cross-examination of PW-4 and other revenue records placed on the file by the parties. Thus, he has prayed for dismissal of the appeal with costs throughout.
10. From the materials on record one fact is clear that mutation was attended vide Ex. PW. 1/B in favour of Smt. Sarita Rani wife of Shri Narinder Kumar on January 30. 1966. Thereafter vide mutation Ex. PW-1/ C dated 13-12-1966 based on registered sale deed dated 22-11-1966, the suit property was transferred by said Smt. Sarita Rani in favour of the plaintiff. Thereafter in the revenue records entry in the column of ownership and possession continued in favour of plaintiff. In Ex. PW-1/H Jamabandi for the years 1963-1964, Shri Daya Ram predecessor of Smt. Sarita Rani was shown to be in possession of the suit land. In column of remarks mutation No. 15 of sale by Shri Daya Ram in favour of Smt. Sarita Rani; and also mutation No. 16 regarding sale by Smt. Sarita Rani in favour of Harbhajan Singh for Rs. 1500/- are reflected.
11. Ex. PW-1/G is copy of jamabandi for the years 1968-1969 regarding suit land in it plaintiff is shown to be owner and in cultivating possession of the suit land. Similarly, in Ex. PW-1/ F jamabandi for the years 1973-1974 plaintiff has again been shown to be owner in possession of the suit land.
12. It was for the first time in the Jamabandi for the years 1978-1979 Ex. PW-1/E entry was made showing defendant to be a non-occupancy tenant over the suit land whereas the plaintiff was shown to be owner in the column of ownership. In khasra Girdwari from kharif 1974 to Rabi 1984, copy Ex. PW-1 /D, defendant is shown to be a non-occupancy tenant on payment of annual rent of Rs. 80/-. Here another document that needs to be note on which emphasis was laid on behalf of the defendant is Ex. PW-4/K. When it is translated into English it reads as under :--
'........Copy of verification and attestation of Jamabandi mauja Bhyali Nichli Pargana Diwari Tehsil Arki for the years 20/21-2-1980.
To beread in headlines.
Item No.2
Jamabandi
1 to 2total 2/4
1
4
Khata
Khatauniwas undertaken.
No. 1 On the khata possession of Kanshi Ram son of Shri Durga Singh son of Bhandi resident of Kyari was attested. Persons present and Kanshi stated that Harbhajan singh owner lives in the area of Haryana, and Kanshi is a non-occupancy tenant in possession on this area for 13/14 years, and he pays lump-sum annual rent of Rs. 80/-. Accordingly entry of possession was corrected. Sir,
Item No. 1 It is hereby verified that copy is true as per original. Fee has been received from the applicant.
Signed in Hindi
(Surajarorob)
Patwari
13. At the time of hearing it was not disputed on behalf of the parties that change in the record of rights as well as periodical record is permissible, provided, if is carried out in accordance with the provisions of H. P. Land Revenue Act as well as H.P. Land Records Manual, 1954, (this case pertains to the period when this land Record Manual was inforce in the Mahasu District where this land was situate).
14. Though, learned counsel for the defendant persisted with vehemence that even translation Ex. PW-4/K (supra) was an order passed by the competent Revenue Officer under law. She was unable to explain and satisfy the Court as to how this order came to be passed and under what authority of law. To be fair to her it may also be observed that she did not dispute that this order on its reading appears to have been passed in the absence of the plaintiff. This otherwise what emanates from Ex. PW-4/ K.
15. Therefore, in the absence of any admission on the part of the plaintiff conceding the possession of the plaintiff so as to enable the Revenue Authorities to change the entries on its basis; or in the absence of any legal order from either a Revenue or Civil Court, presumption of truth attached to the entries contained in Ex. PW-1/E is not available to the defendant. Though Ms. Mehta submitted that the presumption is still available. To the specific query of the Court as to how the entries were changed as observed hereinabove for the first time in the year 1978-1979, no explanation could be given by her. In these circumstances, how the matter needs to be looked into, is no more res integra. In view of the decision of the Supreme Court in Durga v. Milkhi Ram 1969 PLJ 105. What was observed in this case and squarely covers the present case is extracted herein below :--
'.......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 rebuttable one and it would stand rebutted by the fact that the alteration in the later entries was made unauthorisedly or mistakably, there being no material to justify the change of entries.........'
17. At the risk of repetition, it may be observed that there is no lawful order on record authorising the change in entry, as such, no benefit can be derived by the defendant either from the entries contained in Jamabandi for the years 1978-1979 Ex. PW-1/E, or Ex. PW-4/K supra.
18. Faced with the situation Ms. Rama Mehta, learned counsel for the defendant submitted that from the written statement plea of adverse possession is made out which aspect of the case has been completely ignored by both the Courts below.
19. According to her she may be permitted to urge this in view of the order of extracted hereinabove. Learned Senior Counsel stated that he does not seek adjournment to argue this point as envisaged under Section 100 of the CPC. He thus, submitted that the matter may be heard today itself.
20. So far as the plea of adverse possession is concerned, it is mixed question of law and fact. The basic requirement for claiming adverse possession is that there firstly is required to be pleaded and then proved is as to from what specific point of time party claims his possession to be adverse to the true owner to his knowledge and exclusion. A person like defendant was further required to establish that his such possession was with animus hostile to the express knowledge and exclusion of the true owner, i.e. plaintiff in the present case.
21. When a reference is made to the written statement, none of these ingredients is made out. Simplicitor plea of limitation has been raised to the effect that the suit was time barred. From the documents on record and oral evidence, it is clearly made out that the plaintiff was in possession till the land came to be shown in possession of the defendant. Plaint was presented before the Trial Court on 12-7-1983. The plaintiff claimed that it was in October, 1985(sic) that he learnt about the revenue entries in favour of defendant. Thus, the suit is still within time. It is further clear from the materials on record that the plea of adverse possession is nothing but purely an afterthought to defeat the legitimate claim of the plaintiff.
22. Another reason to reject the plea of limitation urged on behalf of the defendant is that the plaintiff initially claimed to be tenant over the suit land. Thus, on his own showing his possession was never adverse with hostile animus. As according to him, he was paying Rs. 80/- per annum as fixed rent. This what is mentioned in Ex. PW-4/ K. and the khasra Girdwari Ex. PW-1 /D referred to above. It is now, well settled that where a party admits himself to be in permissive possession, then there is no question of his being in adverse possession as in the present case. For taking this view, reference can be made to Annasaheb Bapusaheb Patil v. Balwant alias Bala Sahib Babu Sahib Patil (dead) Lrs. & heirs etc. AIR 1995 SC 895, Mohan Lal (deceased) through his LRs Kachru v. Mirza Abdul Jaffar (1996) 1 SCC 639 : (AIR 1996 SC 910) Mool Chand Bakhru v. Rohan (2002) 2 SCC 612 : (AIR 2002 SC 812). In this view of the matter, the plea of adverse possession has no merits.
23. Looking over all circumstances of this case, it cannot be said that the Courts below have committed any error so as to call the Impugned Judgment and decree as perverse by ignoring the entries in the revenue records. Similar is the position regarding Ex. PW-1/E, Jamabandi for the years 1978-1979 making entries in favour of the defendant as non-occupancy tenant for the first time. At whose instance it was made and whether plaintiff was issued any notice of any such proceedings, including before passing as Ex. PW-4/K. This is the basic and minimum requirement not only of the provisions of H.P. Land Revenue Act but is also the mandate of Rule of law, i.e. H.P. Land Revenue Act and the Rules framed thereunder.
24. Learned Senior counsel referred to Chapter-9.1 of the H. P. Land Records Manual 1954, and submitted that crop inspection is permissible up to 14th May and from 1st October to 31st October of the same year. According to him there was no occasion for having carried out inspection and verification of Jamabandi for the years 1978-1979 on 20-21-12-1980 20-21-12-1980 , that too, in the absence of the plaintiff. In the context of the present case, it cannot be said that the impugned judgment and decree is either based on no evidence or any inadmissible evidence has been taken note of by the Courts below while decreeing the suit of the plaintiff.
15. Even by taking a very liberal view under Section 100, CPC as amended in the year 1976, no case for interference is made out in this appeal. So far as the matter relating to jurisdiction of the Civil Court to try the suit is concerned, again plea of the defendant urged at the time of the hearing deserves to be rejected (see in 1991 Vol-1 SLC 223 Chubniya Devi v. Jindu Ram). What was held while answering the questions by the Full Bench was as under :--
'......... (a) that an order made by the competent authority under the H.P. Land Revenue Act, 1954, is open to challenge before a Civil Court to the extent that it relates to matters falling within the ambit of Section 37 (3) and Section 46 of that Act; and
'....... (b) the civil Court has no jurisdiction to go into any question connected with the conferment of proprietary rights under Section 104 of the H.P. Tenancy and Land Reforms Act, 1972, except in a case where it is found that the statutory authorities envisaged by that Act had not acted in conformity with the fundamental principles of judicial procedure or where the provisions of the Act had not been complied with......'
26. In this view of the matter, it cannot be said that the civil Court had no jurisdiction to have entertained the suit.
27. No other point is urged. Both points referred to above, are answered against the defendant and in favour of the plaintiff. Thus there being no merit in this appeal it is dismissed. All interim orders passed in this case from time to time shall stand vacated forthwith. No costs.