PETITIONER:
HARISH CHANDER & ORS.
Vs.
RESPONDENT:
GHISA RAM AND ANR.
DATE OF JUDGMENT18/12/1980
BENCH:
KOSHAL, A.D.
BENCH:
KOSHAL, A.D.
ISLAM, BAHARUL (J)
CITATION:
1981 AIR 695 1981 SCR (2) 405
1981 SCC (1) 431
ACT:
Punjab Land Revenue Act, Section 44 and Rule 1
contained in Section 109 Evidence Act-Scope of-Suit of pre-
emption of land on the ground that the plaintiff was a
tenant-Presumption of truth of entries in favour of the
revenue records like Jamabandi and Khasra Girdawaris.
HEADNOTE:
Dismissing the defendant’s appeal and affirming the
decree in favour of the plaintiffs, the Court.
^
HELD: A presumption of truth attaches to the entries in
the Jamabandi for the year 1959-60 showing the defendant-
respondents as a tenant, in view of the provisions of
Section 44 of the Punjab Land Revenue Act. That presumption
is no doubt rebuttable, but, in the instant case, no attempt
has been made to displace it. [407C-D]
Further, once that presumption is raised, still another
comes to the aid of respondent No. 1 by reason of the rule
contained in Section 109 of the Indian Evidence Act, namely,
that when two persons have been shown to stand to each other
in the relationship of landlord and tenant, the burden of
proving that such relationship has ceased, is on the party
who so asserts. It may, therefore, be legitimately presumed
that the plaintiff continued to possess the land as a tenant
till the institution of the suit. [407D-E]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2150 of
1970.
Appeal by Special Leave from the Judgment and Order
dated 27-7-1980 of the Punjab and Haryana High Court in R.S.
No. 737/70
Harbans Singh for the Appellant.
Hardayal Hardy and B. Datta, for the Respondent.
The Judgment of the Court was delivered by
KOSHAL, J.- This appeal by special leave is directed
against the judgment dated July 27, 1970 of the High Court
of Punjab and Haryana affirming the decrees passed by the
trial court and the first appellate court in a suit for
possession by way of pre-emption of the land in dispute in
favour of plaintiff-respondent No. 1 on the ground that he
was a tenant of the disputed land when it was sold to the
appellants by respondents Nos. 2 to 4 through a registered
sale deed dated September 29, 1967.
406
2. The suit was resisted by the appellants with the
counter-claim that they, and not respondent No. 1, were in
possession of the land on the relevant date as tenants
inasmuch as it had been leased out to them by their vendor
Kanti Prasad two years prior to the sale, i.e., in the year
1965. The decrees passed by the courts below proceed on the
basis of evidence to the effect that the name of respondent
No. 1 was recorded as a tenant in the Jamabandi for the year
1959-60 (Ex. P. 1) and consistently thereafter till the year
1968 (Khasragirdawaris Exs. P. 2 to P. 7). Apart from the
oral evidence there is no material on the record which may
indicate the falsity of any of the entries in the revenue
records and we are of the opinion that the lower courts were
fully justified in relying on them.
Learned counsel for the appellants relies upon three
documents in support of his contention that the Khasra-
girdawaris should not be believed. First in point of time is
an application (Ex. A31) which was sent to the concerned
Deputy Commissioner through the military authorities by one
of the appellants who was an army hand. That application is
dated December 11, 1967 and states that the land in dispute
was taken by him on lease from Kanti Prasad in the year 1965
and prays that the Khasra-girdawari should be corrected
accordingly. The second is the sale-deed itself in which
appears a recital to the effect that on the date of the sale
the vendors had been in possession of the land covered by it
for the preceding two years. The third is the plaint itself
which seeks “possession by way of pre-emption”. None of
these documents is of any help to the case of the
appellants. The recital in the plaint is easily explained.
It is no more than the usual prayer made in suits for
preemption and may well be interpreted to mean that
possession be granted to the plaintiff by the decree in his
capacity of a pre-emptor (and not that of a mere tenant). It
cannot be implied therefrom that the plaintiff was out of
actual possession. In fact the case made out in the plaint
was specifically founded on the plea that the plaintiff had
been in possession of the land in dispute as a tenant right
upto the date of the institution of the suit. Paragraph 4 of
the plaint reads:
“4. The plaintiff has been continuously
cultivating the aforesaid land mentioned in para No. 1
of the plaint, for a long time as non-occupancy tenant
and I, the plaintiff, have been cultivating the same
even uptil now. The Vendees are outsiders, therefore,
I, the plaintiff have the preferential right of pre-
emption.”
This plea clearly negatives the contention based on the
recital contained in the prayer clause of the plaint.
407
The averments appearing in the sale deed and
application Ex. A. 31 (which was made about 2/1/2 months
later) to the effect that the appellants had been in
possession of the land as tenants since 1965 appears to have
been falsely made in an attempt to defeat prospective
preemptors. Had it been a correct statement of fact, there
is no reason why it should not have found a place in the
agreement of sale which is dated the 24th April, 1967 but in
which no mention of delivery of possession of the land to
the appellants is made. Nor is any cogent explanation
forthcoming for the fact that no attempt was made by any of
the appellants to have their possession over the land as
tenants made the subject-matter of an entry in the relevant
records at any time before the sale deed was registered.
No suspicion can attach to the entries in the jamabandi
for the year 1959-60, nor have the contents of that document
been assailed before us. A presumption of truth attaches to
those entries in view of the provisions of s. 44 of the
Punjab Land Revenue Act. That presumption is no doubt
rebuttable but no attempt has been made to displace it.
Further, once that presumption is raised, still another
comes to the aid of respondent No. 1 by reason of the rule
contained in s. 109 of the Indian Evidence Act, namely, that
when two persons have been shown to stand to each other in
the relationship of landlord and tenant, the burden of
proving that such relationship has ceased, is on the party
who so asserts. It may therefore be legitimately presumed
that the plaintiff continued to possess the land as a tenant
till the institution of the suit.
Even though the question of possession of the plaintiff
as a tenant is a question of fact which is concluded by
concurrent findings arrived at by the courts below, we
confirm these findings after consideration of the relevant
material.
3. The decree passed in favour of respondent No. 1 is
not challenged on any other ground. The appeal is
accordingly dismissed with costs. All mesne profits
deposited by respondent No. 1 in the courts below shall be
paid back to him forthwith.
V.D.K Appeal dismissed.
408