State of H.P. vs Manmohan Singh and Others

A.L. Vatdya, J.—Both these appeals are being disposed of by a common, Judgment, as these appeals have arisen out of the same judgment dated 13.12.1985, passed by the District Judge, Una, whereby the appeal preferred by Shri Manmohan Singh was accepted and the judgment and decree dated 10th December, 1979 passed by Senior Sub Judge, Una was set aside and as a consequence thereof, the suit for declaration and permanent injunction, preferred by '' Manmohan Singh, was decreed.

The case of the Plaintiff, as pleaded before the trial Court, had been that Bakhshish Singh had been recorded as owner in possession of 70 kanals of land described in the plaint as ''hissedar'' in the revenue record and out of the said land, he sold the suit land measuring 37 kanals 18 marlas, detailed in the plaint, in favour of Manmohan Singh, Plaintiff, through a registered sale deed dated 3rd February, 1970 for a consideration of Rs. 700/- and also was alleged to have handed over the occupation of the said land and in this behalf, mutation No. 2925 dated 20th January, 1971 was sanctioned in favour of the Plaintiff. According to the Plaintiff, he came to occupy the suit land as owner, and Defendants were making threats to take forcible possession of the suit land without any right whatsoever, hence the suit for declaration and permanent prohibitory injunction pertaining to the suit land was filed.

Defendants 1 to 3, who happened to be S/Sh. Milkhi, Dharam Singh and Tarsem Singh, contested the suit and pleaded in the written statement that Bakhshish Singh had absolutely no title or interest in the suit land and he was not at all entitled to sell the same. They further pleaded that they and their ancestors have been in occupation of the suit land for more than 100 years and have acquired ownership rights by adverse possession it was also pleaded that the entries, if any, in the name of the Plaintiff and Shri Bakhshish Singh in the revenue record, have been made un-authorisedly in the occupation column. According to these Defendants, the remaining Defendants 4 to 7 had nothing to do with the suit property and as such, the suit was alleged to be bad for mis-joinder of parties. The other averments made in the plaint have been denied and an additional plea has been taken in the written statement by these three Defendants that the state Government was recorded as owner in the revenue papers, therefore, the State of H.P. was a necessary party.

Defendant No. 6 also filed a separate written statement, wherein it had been pleaded that he never threatened to interfere with the Plaintiff''s possession over the suit land and that suit land was admitted to have been sold by Bakhshish Singh and mutation to that effect had been sanctioned. According to this Defendant, Defendant No. 1 has wrongly got himself recorded as non-occupancy tenant, though the land was ''banjar qadim'' and the land measuring 15 kanals 19 marlas, as detailed in this written statement was in occupation of this Defendant No. 6. He has very specifically pleaded that the question of Defendant No. 1 to be in adverse possession, does not arise at all, and according to this Defendant, Defendant No. 1 was definitely interfering in the possession.

The parties were put to trial by the trial Court on the following issues:

Whether the Plaintiff is the owner and in possession of the land in dispute as alleged ? OPP.

Whether Defendants 1 to 3 are in adverse possession of the land in dispute for the last more than 100 years, if so, to what effect ? OPD.

Whether the Plaintiff is entitled to the injunction prayed for ? OPP.

Whether the suit is bad for non-joinder and mis-joinder of parties ? OPD.

Relief

These issues were decided in favour of the Defendants and the trial Court held that Defendant No. 1 had become owner of the suit land by adverse possession. Issue No. 3 was decided against the Plaintiff, as he has been held to be out of possession. Under this issue, the trial Court held that prima-facie, the suit land stood vested in the Gram Panchayat and then in the State under the provisions of H.P. Village Common Lands Vesting and Utilisation Act, 1974 (hereinafter to be called as "Act of 1974"). However, it was further observed by the trial Judge that the State was the proper party to decide the case effectively and that the decree between the parties shall not bind or affect the rights of the State, if any. Regarding mis-joinder of parties, the trial Court held that the suit was not bad for mis-joinder of parties. The suit of the Plaintiff, as such, was dismissed.

The aforesaid judgment and decree were assailed by the Plaintiff before the first appellate Court on various pleas.

The first appellate Court, after hearing the arguments, came to the conclusion that the matter could be finally disposed of and it was to be decided whether or not the suit land had vested in the panchayat and subsequently in the State of H.P. The learned Judge also observed that the decision of the appeal was likely to effect the interests of the State of H.P and consequently, the Collector, Una was ordered to intervene and to state whether or not the State Government was interested to contest the question of vestment in the State.

The State, after having been issued notice, appeared before the first Appellate Court through the District Attorney and put in the written statement with the pleas that neither the Plaintiff nor the Defendants were in possession of the suit land and that the suit land being ''shamlat deh'' had vested in the Panchayat under the Punjab Village Common Lands (Regulations) Act, 1961 (hereinafter called as "the Act of 1961") and that subsequently it vested in the State of H.P., free from all encumbrances under the Act of 1974. It was pleaded on behalf of the State that Bakhshish Singh had no title or interest in the suit land and that he could not transfer the said land in favour of the Plaintiff. The Defendants'' possession was denied. It was specifically pleaded that since Bakhshish Singh was not in possession of the suit land before 26th January, 1950 as co-sharer, the suit land vested in the panchayat and, therefore, Bakhshish Singh could not alienate the suit land in favour of the Plaintiff.

The first Appellate Court formulated the following points for determination of the appeal:

Whether the suit land had vested in the panchayat under the Act of 1961 and subsequently in the State of H.P., under the Act of 1974 ?

Whether the Defendants have become owners of the suit land by way of adverse possession ?

Final order

The first Appellate Court decided points 1 and 2 in the negative and as a consequence thereof, accepted the appeal and decreed the suit of the Plaintiff.

The aforesaid Judgment, and decree passed by the first Appellate Court have been assailed in the present appeal on various grounds.

I have heard the learned Counsel for the parties and have also gone through the record.

The State of H.P. will come to the picture only in case the suit land, at first instance, vested in panchayat under the Act of 1961 and later on in the State of H.P. under the Act of 1974.

Notice was issued to the State of H.P. by the first Appellate Court in order to find out whether the suit land had vested in the State or not, as referred to earlier. It may be pointed out here that it was only an objection taken by Defendants 1 to 3 in their written statement that State Government was recorded as owner in the revenue papers, therefore, the State of H.P. was a necessary party. There is no dispute to the proposition that necessary party means, in whose absence the relief, asked for, cannot be granted. In the present case, the case of the Plaintiff, as pleaded had been that he was owner in occupation of the suit land. There is no allegation in the plaint that the suit land has vested in the panchayat and thereafter, in the State of H.P. and some entries have been made to that effect in the revenue record. In case such an allegation had been there, it could be said that as per allegation made in the plaint the Plaintiff was assailing the right of ownership vested in the State and, therefore, with that background, the relief asked for by the Plaintiff, in the absence of State of H.P., could not be granted. But it is not a case of that nature. Otherwise also, as has been pleaded by Defendants 1 to 3 that State of H.P. has been recorded as owner in revenue record, therefore, State was a necessary party. There is again no dispute in case State is recorded in the record of rights as owner of the suit land and as Plaintiff was claiming himself to be the exclusive owner in possession of the suit land, such a declaration of ownership could not be granted behind the back of State of H.P. It is specifically pointed out that the plea of the Defendants 1 to 3 that State of H.P. was recorded as owner in record of rights has not been established at all. The latest entry in the record of rights pertaining to the suit land at the time of the filing of the suit, was pertaining to the year 1963-64 which has been adduced in evidence as Ex.P-3. In this copy, the panchayat or State has not been entered as owner of the suit land. The latest entry in the record of rights which has been produced in this Court pertains to the year 1981-82. In this copy also, the entry remains the same as had been shown in the earlier record of rights. In the column of ownership, it has been recorded as ''shamlat hardo atarf majkoor'' and in the column of occupation, the entry runs ''Bakhshish Singh hissedar vendor, Manmohan Singh S/o Bakhshish Singh vendee''. Even earlier record of rights filed during the trial of the suit nowhere recorded the State of H.P. to be the owner in possession of the suit land. Thus, State of H.P. or even panchayat was not at all necessary parties to the present suit.

Learned District Judge, as a matter of precaution, impleaded the State of H.P. as an intervener, so as to find out whether the suit land had vested in panchayat and later on in the State of H.P. as referred to above. In so far as the entries in the record of rights are concerned, admittedly, such a vesting is not there at all However, on the other hand, the learned District Judge has dealt with this aspect of the matter in his Judgment, after referring to various provisions of the Act of 1961 and Act of 1974 and has come to the conclusion that'' under the provisions of the aforesaid Acts, the vesting, as being pleaded on behalf of the State, was not there. If such a vesting was there, definitely, the same Would have been reflected in the -entries made in the record of rights.

Learned Deputy Advocate General, on behalf of the State, has submitted that on account of the provisions of Act of 1961, the suit land stood vested in panchayat and later on in State of H.P. on the basis of provisions of Act of 1974. It has further been contended that no doubt, the factum of vesting is not reflected from the entries in the record of right, but that will not, in any way, adversely affect the right of the State having become owner of the suit land by the operation of the aforesaid Acts. In order to appreciate this argument, the relevant provisions of the two Acts, referred to above, have to be gone into.

The entry in the record of rights for the year 1913-14 (Ex.D-1) pertaining to ownership column was ''shamlat deh majkoor''. However, in the copy of record of rights pertaining to the year 1917-18 (Ex.D-2), the entry in the ownership column was recorded as ''shamlat hardo taraf hasab rasad aj khewat''. This entry continued so far as the ownership column was concerned till today, and was there when Act of 1961 came into force and also when Act of 1974 came into being.

Section 3(1) of the Act of 1961 reads as under:

3 (1)This Act shall apply, and before the commencement of this Act, the shamlat law shall be deemed always to have applied, to all lands which are shamlat deh as defined in Clause (g) of Section 2.

''shamlat deh'' includes -

(1) lands described in the revenue records as shamlat deh excluding abadi deh;

(2) shamlat tikkas;

(3) lands described in the revenue record as shamlat tarafs, patties, pannas and tholas and used according to revenue records for the benefit of the village community or a part thereof or for common purposes of the village;

(4) lands used or reserved for the benefit of village community including streets, lanes, playgrounds, schools, drinking wells or ponds within abadi deh or gorah deh, and;

4(a)vacant land situate in abadi deh or gorah deh not owned by any person-in Hr only);

lands in any village described as banjar qadim and used for common purposes of the village according to revenue records;

Sub-section (3) referred to above, can be taken note of, for disposing of the controversy in this case. The suit land has not at all been recorded in the revenue record to be used for the benefit of the village community or a part thereof or for common purposes of the village. The suit land is ''banjar qadim'' and again, if Clause (5) above is made applicable, this ''banjar qadim'' land has not been shown in the revenue record to be used for common purpose of the village. In the column of occupation since 1912 till today, some individual persons have been recorded to be in actual occupation. So, on the basis of the entries in the record of rights, the suit land could not be declared as ''shamlat deh'' and as such, it did not come within the ambit of Act of 1961 and rightly so, it had not been entered in the record of rights to have vested in panchayat. The learned District Judge has rightly appreciated the law in this behalf. Otherwise also, the suit land comes within exception (v) of Clause 2(g) of the Act of 1961, which reads as under:

(i) ...

(ii)...

(iii )...

(iv)...

(v) but does not include land which is described in the revenue records as shamlat taraf, patti, panna or thola and not used according to revenue records for the benefit of the village community or a part thereof or for common purposes of the village:

Section 3 of Act of 1974 is very much relevant in order to find out whether the suit land stood vested in the State of H.P. or not, which is being reproduced hereunder for the sake of convenience:

VESTING OF RIGHTS IN THE STATE GOVERNMENT

(1) Notwithstanding anything to the contrary contained in any other law for the time being in force or in any agreement, instrument, custom or usage or any decree or order of any court or other authority all rights, title and interests including the contingent interest, if any, of the landowner in the lands in any estate-

(a) vested in a panchayat u/s 4 of the Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961) as in force in the areas added to H.P. u/s 5 of the Punjab Re-organisation Act, 1966 (31 of 1966) except lands used or reserved for the benefit of village community including streets, lanes, playgrounds, schools, drinking wells or ponds within abadi deh or garah deh;

(b) described in the revenue records as shamlat taraf, pattis, pannas and thola and not used according to revenue records for the benefit of the village community or a part thereo (sic) for common purposes of the village in the areas added to H.P. u/s 5 of the Punjab Re-organisation Act, 1966 (31 of 1966) and

(c) described in revenue records as shamlat, shamlat deh, shamlat taraf, shamlat chak and patti in the areas comprised in H.P., immediately before 1st November, 1966;

shall stand extinguished and all such rights, title and interests shall vest in the State Government, free from all encumbrances.

(2)The provisions of Sub-section (1) of this Section shall not apply to lands described in Clauses (b) and (c) of that Sub-section if, before the date of commencement of this Act-

(a)partition of such land is made by the individual co-sharers through a process of law by a competent Court or authority, (b) transfer of such lands is made by the land-owner by way of sale, gift or exchange, (c) such land built upon by an inhabitant by raising a residential house or cow-shed.

(3)The State Government shall be liable to pay, and the land owners whose rights have been extinguished under Sub-section (1) of this Section shall be entitled to receive the amount in lieu thereof at the following rates:

(i) for the land reserved for grazing and other common -purposes under Clause (a) of Sub-section (1) of Section 8, five times the annual land revenue including rates and cesses chargeable thereon; and

(ii)for the remaining land, fifteen times the annual land revenue including rates and cesses chargeable thereon; Provided that where the land vested in the State Government under this Act is not assessed to land revenue, the - same shall be construed to be assessed as on similar land in the estate and if not available in the estate, then in the adjoining estate or estates as the case may be.

(4) The amount paid to a panchayat u/s 7 shall be deemed to be the Sabha fund and shall be utilised for such purposes as are mentioned in Section 40 of the H.P. Panchayati Raj Act, 1968 (19 of 1970).

(5) The Collector may, by order in writing, at any time after the land vested in the State Government, direct the land owners to deliver possession thereof within 10 days from the service of order to such person as may be specified in the order.

(6) If the landowners refuse or fail without reasonable cause to comply with the order made under Sub-section (5), the Collector may take possession of the land and may for that purpose use such force as may be necessary.

Sub-Section 2(b), referred to above, excludes the applicability of Sub-section (1) of Section 3, in case it is proved that transfer of such land as made by the land owner by way of sale, gift or exchange.

In the present case, Bakhshish Singh, a land owner in the concerned revenue estate, transferred his interests in the land duly described in the revenue record as ''shamlat taraf through a sale deed dated 03.02.1970, i.e. before the commencement of Act of 1974. The registered-sale deed on record, in this behalf, is-Ex.P-1. It is being contended that the sale deed was in favour of his son, therefore, it should be ignored on that account. I think, there is no legal bar to effect sale by a person in favour of his son in case it is a valid and legal sale. In the present case, the registered sale deed and other evidence examined clearly established all legal aspects which makes this sale to be a valid one.

Milkhi Ram Defendant, while appearing as DW-1, has admitted that Kishan Singh, Bishan Singh and Bakhshish Singh were the original owners in the village and were having shares in the shamlat. However, the witness betrayed his ignorance as to the factum of purchase made by Bakhshish Singh pertaining to the shares of Bishan Singh and Kishan Singh. Moreover, from the entries in the record of rights, it is reflected that earlier one Pirthu was in occupation of the suit land and thereafter, one Pohlo and Gangu, sons of Prithu were recorded in occupation of the said land in Ex.D-2, copy of jamabandi for the year 1917-18 and this entry was repeated in Ex.D-3, copy of jamabandi for the year 1921-22 and in Ex.D-4, copy of jamabandi for the year 1925-26, the name of Partap Singh, Jai Singh and Narain Singh'' hissedars'' appeared in the column of occupation through Pohlo and Gangu and this entry was repeated in jamabandi for the year 1929-30(Ex.D-5). The names of Gurbax Singh and Smt. Mahanti appeared in the column of possession in the jamabandi of 1937-38 (Ex.D-6). This very entry was repeated in the jamabandi of 1946-47(Ex.D-7) and 1954-55 (Ex.D-8) and the name of Bakhshish Singh was recorded in the Khasra Girdawari during the year 1956 in respect of 70 Kanals of land. In jamabandi of 1959-60, the name of Bakhshish Singh, Kishan Singh and Bishan Singh co-sharers is entered in the column of possession qua 70 Kanals of land as comprised in Khasra No. 3727 min, and the name of Manmohan Singh has been duly entered in the column of possession as vendee under Bakhshish Singh, co-sharer. Copy of mutation No. 2925, dated 20.01.1971, shows that the suit land was duly mutated in favour of the Plaintiff on the basis of registered sale deed dated 03.02.1970. Copy of mutation No. 2557, dated 28.11.1963, reflected that 70 Kanals of land comprised in Khasra No. 3727 was sold by Kishan Singh, Bishan Singh, co-sharers for a consideration of Rs. 80/-. The copies of the mutations also showed that the land sold was also subject to payment of land revenue. There is no evidence on record to show that the aforesaid transaction of sale qua 70 kanals of land by Kishan Singh and Bishan Singh in favour of Bakhshish Singh was a fictitious transaction and that similar transaction of sale by Bakhshish Singh in favour of the Plaintiff was also of that nature.

Thus, on the basis of the aforesaid provision of law and the facts examined during the trial, the suit land never vested in panchayat or State of H.P. and in this behalf, the findings of the first Appellate Court requires no interference whatsoever, as the same have been arrived at after correctly appreciating the facts and law on record.

The sole remaining point to be inquired into in the present appeal pertains to the scope of issue No. 2. The trial Court came to the conclusion that Defendant No. 1 had become owner of the suit land by adverse possession, which finding was set aside by the first appellate Court by appreciating the evidence and law in this behalf.

In order to appreciate the pleadings and evidence examined for establishing the factum of adverse possession, it has to be ascertained what "adverse possession" means ? Possession can be adverse against a person only when he is entitled to possession. In this behalf, an owner would be deemed, always in the eyes of law, in possession so long as there was no intrusion. The owner will not at all be affected by simple non-user of any length of time so long as there has been nobody in actual possession. But the position is altogether changed when Anr. person takes possession of the property and asserts a right to it. This term of "adverse possession" has been used sometimes as an expression to illustrate possession in favour of which the statute is running. This adverse possession means the actual and exclusive possession with the intention to hold for himself as an owner. The line of demarcation between possession and adverse possession is very fine, but the question in each case, would be the burden of proof. Needless to say, permissive possession is not at all adverse possession. Adverse possession is essentially a hostile possession, i.e. in denial of the title of the true owner. The person claiming adverse possession must have animus to claim such a possession, not only in its hostility, but also to the knowledge of the true owner. Thus, adverse possession can be claimed against a true owner, who, as such, was entitled to possession of the property which is the subject matter of the suit. Adverse possession cannot be claimed against a person who is not at all entitled for the possession of that property.

So, in order to appreciate this plea of adverse possession, the written statement put in, by the contesting Defendants in this behalf has to be referred.

Defendants 1 to 3 pleaded that the Plaintiff was not the owner nor in possession of the suit land, meaning thereby the ownership of Plaintiff over the suit land has not been admitted to be there at any stage. It has further been pleaded that Bakhshish Singh, who sold the suit land in favour of the Plaintiff, according to Defendants, had no right, title or interest in the suit land nor he was entitled to sell the suit land. This pleading also reflected that Bakhshish Singh''s alleged ownership in the suit land had also not been admitted. The further pleadings of the Defendants recorded that they and their ancestors have been in possession of the suit land for more than 100 years and have acquired ownership rights by adverse possession, and the entries, if any, in the name of the Plaintiff and Bakhshish Singh, have been made un-authorisedly in the possessory column.

As pointed out earlier, the plea of adverse possession has to be taken against a person who was entitled for the possession of the suit land. In the case of an owner, who is legally entitled to the possession of the property, plea of adverse possession can definitely be taken. In the present case, Plaintiff claimed himself to be owner in possession of the suit land. So far as the Plaintiff''s or his predecessors'' ownership rights are concerned, they have not at all been admitted by the contesting Defendants. Had the ownership rights of the Plaintiff or Bakhshish Singh been admitted, plea of adverse possession against them was clearly avai Table to the Defendants. But, in the present case, there is nothing in the pleadings of the contesting Defendants as to against whom the adverse possession has been claimed. Until and unless, specific pleadings to that effect are reflected in the written statement, the plea of adverse possession, taken in a very general manner, will not help the case of the Defendants, in any manner whatsoever.

Even if for arguments sake, the alleged plea of adverse possession is taken note of, the evidence examined in this behalf has to be appreciated.

While describing the entries in the record-of rights pertaining to the suit land, the entry in the column of possession has already been referred to earlier. In Ex.D-1, copy of jamabandi for the year 1913-14, Pirthu has been recorded in occupation of the suit land as non-occupancy tenant but in the column of rent, the entry runs "bila lagan bawaja lailmi malkan" (without payment of rent as owners were not known). This entry only reflected that Pirthu was in actual occupation of the suit land. As there was no entry regarding rent, tenancy cannot be inferred at all from this entry. Because Pirthu was in occupation and he was not paying the rent as owners were not known to him, this entry will not even reflect adverse possession. When the owners were not known, the animus for adverse possession, wi11 not start. Similar is the entry in Ex.D-2 for the year 1917-18. In Ex.D-4, copy of jamabandi for the year 1925-26, Partap Singh, Jai Singh and Narain Singh, co-sharers in equal shares have been recorded in occupation of the suit land but the same has been recorded in actual possession of Pohlo and Gangu, as non-occupancy tenants. In the column of rent, the entry was "bila lagan tasabur marusiat khud". This entry only meant that no rent was being paid as the actual occupiers considered themselves to be occupancy of this land. In the copy of jamabanbdi for the year 1937-38, Gurbax Singh, Smt. Mahanti Devi have been recorded as co-sharers and their names have been entered as such in the column of occupation while Pohlo and Gangu have been recorded as non-occupancy tenants and the entry in the column of rent remains the same as referred to earlier. In the copy of jamabandi for the year 1959-60, Bakhshish Singh, Kishan Singh and Bishan Singh have been recorded to be in actual occupation of the suit land, measuring 70 kanals. Similar is the entry in the copy of jamabandi for the year 1963-64 wherein Bakhshish Singh has been recorded as co-sharer to be in actual occupation of land measuring 70 kanals. The copy of jamabandi for the year 1981-82 which was filed during the present proceedings recorded Bakhshish Singh as co-sharer to be vendor and Manmohan Singh to be the vendee, in actual occupation of the suit land. In the jamabandi for the years 1925-26, the Defendants have been recorded in actual occupation under Partap Singh, Jai Singh and Ors. . It has come in evidence and as reflected in the entries in the record of rights, the suit land has been described as ''banjar qadim''.

There is no dispute to the preposition that legal presumption of truth is attached to the latest entries in the record of rights, but presumption, no doubt, is rebuttable and in the present case, it has been in favour of the Plaintiff. There is Anr. presumption in favour of the latest record of rights, in case there has been some substitution in between, it would be presumed that the later entries have been legally substituted.

In case of substituted entry, it is proved that the substitution was made un-authorisedly, the later entry, in that event, can be said to have been rebutted. But the facts in each case, have to be appreciated in its own background.

In the present case, it is being contended on behalf of the Appellants that the name of Bakhshish Singh was recorded in the khasra girdawari during the year 1956 in respect of 70 kanals of land, which change was made un-authorisedly and, therefore, the later entries in his favour and in favour of the present Plaintiff, stood rebutted automatically. It is not so simple a matter as has been contended on behalf of the Appellants.

It has come in evidence that the Plaintiff and his predecessors were the owners in the estate and on that account, they had occupied the suit land. It has never been the case of the Defendants that they being also the owners in the estate, were occupying that land as owners. Their simple case for possessing the suit land has been on the basis of adverse possession, which according to them, had matured into their title.

The entire suit land is ''banjar qadim. The entries in the record of right, as discussed, above, do not at all support the case of adverse possession being pleaded and argued on behalf of the Appellants. Admittedly, the Defendants claim themselves to be in occupation un-authorisedly, but they claim the same possession to be adverse. They do not admit Plaintiff or his predecessors to be owners of the suit land. Their un-authorised possession, in case has been changed in the revenue record and recorded in favour of the persons legally entitled for the same, the change, in this background so made by the revenue officers, cannot be said to be un-authorised. But, on the other hand, it has to be accepted as correct, inasmuch as the person legally entitled, who happens to be the owner in) the estate, has been recorded in actual occupation of the said land. Moreover, the entry substituted in the year 1956 continues to exist in the record of right until today, as has, already been discussed above.

The Defendants'' oral evidence can be scrutinized at this stage to prove the plea of adverse possession taken by them. Milkhi Ram, Defendant No. 1, who is the main contesting Defendant, appeared as DW-1 and stated on oath that he was in possession of the land in dispute for the last more than 100 years and even at present he was in occupation of the same. He further added that he considered himself to be the owner of the land in dispute and he did not pay anything to anyone. According to him, he was never ejected from the land in dispute by anyone. He also stated that Bakhshish Singh never sold or gifted the land to the Plaintiff and he was having no right to alienate the land in dispute. During cross-examination, he stated that the suit land measured 37 kanals 18 marlas and this property was his ancestral property. He admitted that the entire land was ''banjar'' and there was spontaneous growth of grass over it. He also admitted that Kishan Singh, Bishan Singh and Bakhshish Singh were the original owners in the village and were having shares in the ''shamlat''. He denied the suggestion that Bishan Singh, Kishan Singh and Bakhshish Singh have been coming in ''hissedari'' possession of the land in dispute. He stated that he did not know whether Bakhshish Singh had purchased the shares of Bishan Singh, Kishan Singh and he also did not know whether Bakhshish Singh had sold the land to the Plaintiff.

DW-2 is one Tilak Raj, who stated that he had seen the suit land which measured 37 kanals 18 marlas and Defendant Milkhi Ram was in possession thereof, since the time of his forefathers. He also stated that even now, he was in possession at the spot and he was selling the grass of the land in dispute. According to this witness, resin was also being got extracted by him. He admitted that the entire suit land was ''bandar'' and the entire area concerning the suit land was also ''bahjar''. He could not tell the khasra number or length and breadth of the land in dispute. He stated that he had never purchased the grass of the land in dispute. He also stated that the Defendants nad never sold the grass to anyone in his presence. He made a general statement that Milkhi Ram was in occupation as an owner. He denied the suggestion that Kishan Singh, Bishan Singh and Bakhshish Singh were the owners in possession and that the Plaintiff was in possession of the land in suit.

The aforesaid witnesses were examined by the Defendants. These two witnesses nowhere could legally prove the actual occupation of the Defendants over the suit land, what to speak of the possession being of adverse nature. DW-1 made a general statement that he was in occupation of the suit land for the last more than 100 years. As has already been pointed out, adverse possession has to be claimed against a person who was entitled to get the possession of the land in dispute, who could be owner also. Possession, howsoever long, will not make it adverse until and unless it qualifies the essential ingredients of an adverse possession. This DW-1 stated that the suit land was ancestral property, meaning thereby, it was owned by his ancestors, which has not been the case of the Defendants disclosed in the written statement. The defence only rests upon the plea of adverse possession. The land is ''banjar'' and as stated by the witnesses, there is spontaneous growth of grass over the same. If it is so, in order to exercise the right of adverse possession over such a land, the person claiming such a possession, has to prove legally some qvert acts to have been done in exercise of that right. In a case of present nature, the evidence could be that Defendants were cutting the grass of this land for the last so many years and utilising the entire produce of the same. The evidence could be that the Defendants were having the ownership control of the grass, growing on the suit land and they had been selling the same to various persons. The Defendant, Milkhi Ram, has not stated even a single word in this behalf. The version given by DW-2 will not carry any weight whatsoever, especially when this witness admittedly did not purchase any grass from the Defendants nor any grass was sold in his presence by the Defendant No. 1 to some third person. This sort of evidence being led, assailing the entries in the record of rights, will not be legally competent to rebut those entries which, in the present case, are in favour of the Plaintiff. In this view of the matter also, the plea of adverse possession does not stand legally proved.

The learned Counsel for the Defendant-Appellants has tried to find support from some case laws and in that attempt also, the Defendants will not derive any help whatsoever.

In 1969 CLJ (S.C.) 162, Durga (deceased) and Ors. v. Milkhi Ram and Ors., it has been held that although presumption would be in favour of the latter revenue entries but that presumption was rebuttable one and it would stand rebutted by the fact that the alteration in the latter entries was made unauthorisedly or mistakenly, there being no material to justify the entries. The legal proposition laid down, is not at all in dispute. Factually, in the present case, the person who was legally entitled to the possession has been entered to be in actual possession, instead of an un-authorised person, who was claiming adverse possession. In that background, the change cannot be said to be unauthorised and otherwise also, on factual side, as discussed above, Defendants have been found to be out of possession and Plaintiff in actual occupation.

In Shri Bhimsehwara Swami Varu Temple Vs. Pedapudi Krishna Murthi and Others, , it was held that the presumption arising from several entries in the revenue records of large number of years in respect of ownership and possession of land with certain persons does not stand rebutted by the mere stray entries in favour of Ors. when the evidence is of uncertain character and is inadequate. Again, there is no dispute to this proposition. The law laid down is riot at all applicable to the facts of the present case, wherein the case is not of stray entries, but, on the other hand, since 1956 till today, the owner/owners have been recorded to be in actual occupation of the suit land and prior to that, under the owners, Defendants or their predecessors were recorded in un-authorised possession which, on merit, has not been found to be existing after 1956 till today. 1987 P.L.J. 155 Onkar and Ors. v. Birbal and Ors. and 1993 (1) Sim.L.C. 169, Ram Lok v. Dhani Ram and Ors., do not, in its strict sense, apply to the facts of the present case. However, it may be referred here that in Ram Lok''s case (supra), it has been held that presumption of correctness which attaches to entries in revenue records is with respect to those entries which are regularly made by the revenue officials in the discharge of their day-to-day functions and not to those entries which on the face of it are of suspicious character and appear to have been made subsequently by either making cuttings or over-writing on the earlier entries. I think, the present case is not of that nature. In the present case, after 1956 onwards till today, Plaintiff/his predecessor have been recorded to be in actual occupation of the suit land'' regularly.

Thus, on the basis of the circumstances, discussed hereinabove, the plea of adverse possession, at first instance, as per pleadings, was not legally available to the Defendants, but even on merit, the same has not been validly established. The first Appellate Court''s findings, in this behalf, arrived at after correctly appreciating the law and facts, do not require any interference whatsoever.

In view of the fore-going reasons, both the appeals are dismissed, being devoid of any merit. However, the parties are left to bear their own costs.