Shri Kailash Chand and Others vs Shri Ramesh Chand

V.K. Ahuja, J.—This order shall dispose of the review petition filed by the petitioners/plaintiffs under Order 47 C.P.C. read with Section 114 C.P.C. against the judgment and decree dated 28.10.2010 passed by this Court in RSA No. 501 of 2000 titled Kailash Chand and others Vs. Romesh Chand. A notice of the petition was issued to the respondent.

I have heard the Learned Counsel for the parties and have gone through the record of the case.

Briefly stated, the facts of the case are that the petitioners, hereinafter referred to as the plaintiffs, filed a suit for declaration and injunction as against respondent Romesh Chand, hereinafter referred to as the defendant. It was alleged by the plaintiffs that they are owners in possession of the land comprised in Khasra No. R 63/14 as detailed in the plaint and the alleged entry in the name of the defendant in Rabi 1976 in the Khasra Girdawari and subsequently thereof in the jamabandi 1981-82 and further showing him as tenant at will is absolutely wrong, incorrect, illegal, inoperative and not binding on the rights of the plaintiffs being owners in possession. The relief of permanent injunction was also sought by the plaintiffs accordingly as against the defendant.

The defendant pleaded that he is tenant of the suit land and had been coming in possession as such. It was also pleaded that the matter was brought to the notice of the Revenue Authorities, who after due spot inspection and verification, recorded the defendant as tenant of the suit land in the presence of the plaintiffs and now the defendant has become owner in possession of the suit land.

The suit was tried by the learned trial Court and the same was dismissed accordingly vide impugned judgment and decree dated 29.5.1996. On appeal, those findings were upheld by the learned Appellate Court vide his judgment and decree dated 20.6.2000.

this Court decided the second appeal u/s 100 C.P.C. vide judgment and decree dated 28.10.2010 and the appeal filed by the petitioners/plaintiffs was dismissed.

The plaintiffs preferred Special Leave to Appeal before the Hon''ble Supreme Court and during the pendency of the said petition, the following order was passed by the Hon''ble Supreme Court:-

Learned Senior counsel appearing for the petitioners wants to withdraw this petition in order to file a Review Petition before the High Court. Leave, as prayed, is granted. This SLP is dismissed as withdrawn.

Thereafter, the present review petition was filed by the petitioners.

The submissions made by the Learned Counsel for the petitioners were that there were long standing entries in favour of the plaintiffs showing them as owners in possession and to substantiate his plea, he placed reliance on the copy of jamabandi Ext. P-1 for the year 1966-67 and copy of jamabandi Ext. P-2 for the year 1973-1974. It was also argued during the course of arguments that the defendant had not specifically pleaded that since when he is in possession as tenant and when the tenancy was created by the owners and who had inducted him as tenant.

I have gone through the written statement filed by the defendant and this plea has not been specifically taken as to when he was inducted and in case, there was no plea in the written statement, the plaintiffs could have asked for better particulars of the case and the facts could have been pleaded by the defendant accordingly. However, no such prayer was made and the suit proceeded on the basis of the pleadings of the parties, as were before the learned trial Court.

It was not been disputed that there are entries in favour of the defendant showing him as tenant in Ext. P-3 same as Ext. D-2 for the year 1981-82 and thereafter in Ext. D-1 for the year 1994-95 apart from the copy of Khasra Girdawari placed on the record. All these points have been considered by this Court while deciding the appeal in question and I may reproduce the observations made in Para-17 as under:-

Coming to the change effected in the entries, the presumption of correctness is attached to the later jamabandi entries until and unless it is shown that the later entries were changed in the revenue record without any basis. Initially, the burden is upon the plaintiffs to show that the change was effected without any basis. It was for the plaintiffs to have rebutted the presumption of correctness attached to the later jamabandi entries showing the defendant as tenant for which he has failed for the reasons given here-in-below. It is clear that on the basis of the change incorporated in the Khasra Girdavari, the later entries were changed and it was for the plaintiffs to have shown that there was no basis for the change. The entries incorporated during settlement also show the defendant in possession as a tenant and not without any status. The proceedings during settlement are conducted in detail and thereafter the entries are recorded, which shows that the defendant was in possession of the suit land. Therefore, it cannot be said that one entry showing the plaintiff in possession does not stand rebutted by the later entries right from the year 1981-82 upto the year 1993-94. The said entries were never challenged by the plaintiffs at any time.

Thus, it has been clearly laid down by this Court as to how the later jamabandi entries will prevail and how the presumption attached to the earlier jamabandi entries will stand rebutted which were in favour of the plaintiffs. The case for review would have been made out in case there was some judgment of the Hon''ble Supreme Court applicable to the facts of the case that had not been taken into account by the Court while deciding the appeal. In view of the above discussion, no such case is made out for reappraisal of the judgment or re-writing of the judgment based upon the submissions made by the Learned Counsel for the petitioners/ appellants and, therefore, I am of the opinion that there is no merit in the review petition filed by the petitioners, which is dismissed accordingly, so also the pending miscellaneous application(s), if any.