Jai Singh vs Biru Ram

Chet Ram Thakur,

In this revision the short point for decision is whether the onus of the issue placed by the trial Court on the plaintiff is correct or not.

The plaintiff has filed a suit for declaration that he is in exclusive possession of the land in Khasra Nos. 22, 24 and 25 as recorded in the Jamabandi for the year 19GG-67 right from the year 1964 as a co-sharer and that defendant No. 1 has got no concern, nor any possession on the land nor he is entitled to interfere in the exclusive possession of the plaintiff. The defendant No. 1 has somehow got entries of possession made in the Khasra-Girdawari in his favour which are against the factual position at the spot and he, therefore, prayed for a consequential relief of an injunction restraining the defendants from interfering in the exclusive possession of the plaintiff and defendants Nos. 2 to 4. The defendant averred in his reply that he too had his joint possession with defendants Nos. 2 to 4 and that the plaintiff and defendants Nos. 2 to 4 had in the absence of the defendant No. 1 wrongly got their exclusive possession entered in the Jamabandi and, therefore, he had got the same corrected by making an application before the revenue authorities. They had made a thorough inquiry into the matter and it was only thereafter that they corrected the revenue entries in the Khasra Girdawari. The plaintiff went to the Assistant Collector but there he was unsuccessful. In his replication the plaintiff reiterated the same facts as earlier pleaded in the plaint about the correction of the Khasra Girdawari. He averred that he had got the same made in collusion with the revenue staff. He admitted that he had gone in appeal to the Assistant Collector against the decision of the Revenue Officer lout he withdrew and got the appeal dismissed as he had simultaneously filed the present suit also. The Court framed the following issue as under:

Whether the plaintiff is in sole possession of the suit land to the exclusion of defendant No. 1 O.P.P. The submission made by the plaintiff is that the Jamabandi entries to which the presumption of correctness attaches u/s 44 of the Punjab Land Revenue Act showed the plaintiff and defendants Nos. 2 to 4 in exclusive possession of the suit property viz., Khasra Nos. 22, 24 and 25 and, therefore, on the basis of the entries in the Jamabandi it was for the defendant to rebut the presumption of correctness attaching to the Jamabandi by showing that the entries made in the Jamabandi were wrong and against the factual position at the spot. Further the trial Court on the basis of the Jamabandi taking it to be correct had also issued a temporary injunction in favour of the defendant. Therefore, there is no valid reason why he should have framed the issue in such a manner whereby the plaintiff was put to proof. He has also relied on two cases. The first is Roop Singh v. Nirmoo (1971 H.L.R. 168) and the other is Smt. Nirmala Devi etc. v. Gurdit Singh 1967 LTT XLVI 70. In the first authority the principle laid down is that : "party seeking interim injunction must show that his claim is founded on a prima facie case and further that irreparable injury will accrue to him if the injunction is not : granted to him. The cummulative effect would be that the balance of convenience is in his favour so that the injunction prayed for is a sine qua non to protect his rights.

The learned Counsel's submission is that in view of the fact that there was a prima facie case in the sense that the Jamabandi entries were in favour of the plaintiff, therefore, the Court had granted an injunction and on that account the onus also should have been placed on the opposite party to show that the revenue entries showing the exclusive possession were incorrect or wrong and in fact it was the defendant who was in possession.

In the second authority the principle laid down is that where entries in the Jamabandi are different from the entries in the Khasra Girdawari, the Jamabandi entries will prevail, as presumption of truth is attached to them according to Section 44 of the Land Revenue Act.

Admittedly in the latest Khasra Girdawari the defendant has been incorporated in possession on an application being made by the defendant in that behalf. The plaintiff went in appeal to the Assistant Collector who dismissed the same. In view of these facts we have to see whether these authorities are applicable to the facts of the present case.

It cannot be denied that u/s 44 of the Punjab Land Revenue Act, which is applicable to the territorial area from which this revision has arisen, presumption of correctness attaches to the entries in the record of rights and annual record. The defendant admits that there are entries in favour of the plaintiff. The Plaintiff has also filed Jamabandis right from 1954-55 to 1966-67 which go to show that the plaintiff along with defendants 2 to 4 is recorded in exclusive possession of the suit land. The defendant has not been recorded in possession and the reply of the defendant is that the entries were wrong and, therefore, he had got the entries in the Khasra-Girdawari corrected on an application being made to the revenue authorities. The plaintiff had also gone in appeal to the Assistant Collector, but the same had been dismissed. It is undisputed that the entries in the Khasra-Girdawaries do not have the same presumptive evidentiary value as it attaches to the rights of record and the annual record. The entries in the Jamabandis, therefore, would definitely prevail over the entries in the Khasra-Girdawari as has been held in Smt. Nirmala's case (supra). It is also true as has been argued by the learned Counsel for the Plaintiff that there was a prima facie case inasmuch as there existed entries in the revenue record in favour of the Plaintiff to which presumption of correctness attached and it was on that basis that the temporary injunction was granted and that also necessitated that the onus should have been placed on the defendant who asserted that the revenue entries had been got effected by the Plaintiff in his own favour to the exclusion of the defendant. Therefore, it was for the defendant to show that the revenue entries as existed in the record of rights were wrong and incorrect. If the defendant had not adduced any evidence, the Plaintiff was entitled to succeed merely on the basis of the entries in the revenue record to which presumption u/s 44 of the Punjab Land Revenue Act attaches and it was for the defendant to have discharged the onus by showing that the entries existing in the revenue record were wrong and incorrect and against the factual position at the spot. No doubt, he has got the entries about his possession corrected in Khasra Girdawari but the entries in the Khasra Girdawari will not prevail over the entries in the record of rights, i.e., the Jamabandi which consistently right from 1954 show the plaintiff and defendants Nos. 2 to 4 in exclusive possession of the suit land. Prima facie there is nothing in the Jamabandi to show that there is anything adverse to the interest of the Plaintiff.

In these circumstances there appears to be force in the contentions raised by the plaintiff that the trial Court has erred in the exercise of its jurisdiction by not placing the onus rightly on the defendant to show that dicentrics in the revenue record or the Jamabandi showing the plaintiff were wrong and incorrect and that the defendant was also in joint possession with the Plaintiff and defendants Nos. 2 to 4. Consequently the revision must succeed and the onus of the issue must be placed on the defendant to show that he is in joint possession of the land with the defendants and that the revenue entries showing the plaintiff and defendants Nos. 2 to 4 in exclusive possession are wrong.

The revision, therefore, is allowed. However, I leave the parties to bear their own costs.