Uttam Singh vs Des Raj

S.S. Grewal, J.—This Regular Second Appeal is directed aginst the judgment and decree passed by the Additional District Judge, Ropar, dated 24th December, 1988, whereby, the judgment and decree dated 2nd June, 1988, passed by the Sub-Judge 1st Class, Anandpur Sahib, against the plaintiff-respondent was set aside, and, the suit of the plaintiff was decreed with costs throughout.

Des Raj, plaintiff filed the present suit on the averments; that since the death of his father Nankoo, he is in possession of the suit land as an owner, and, prior to that his father was owner in possession of the, suit land, which, was donated to him (Nankoo) by Raja Ram, original owner of the suit land. It was further pleaded that in the Jamabandis prior to 1983-84, entries concerning possession where in favour of Des Raj, or, his father Nankoo as a tenant Bita Lagan Bawajah Dharam Arth. It was also pleaded thatUttam Singh, defendant-appellant, in connivance with the revenue officials got these entries changed by deleting the name of the plaintiff* and, instead wrong entry as Khudkashi Magbuza Malak was made in the Jamabandi for the year 1983-84.,,. On the basis of the said entry the defendant threatened to forcibly dispossess the plaintiff

The defendant in his written statement denied that the landin-dispute was donated by Paja Ram to Mankoo, or, that Nankoo, or, the plaintiff remained in possession of the suit-land as a tenant. It was also pleaded that some land, including the land-in-suit, was sold by Raja Ram in favour of the defendant, for a sum of Rs. 500/vide registered sale-deed, dated 2nd December, 1963. and, since then he had been in. possession of the land in suit as its owner.

4 From the pleadings of the parties; following issues were framed :-

"1. Whether the suit land was "donated by Raja Ram to the father of the plaintiff about 50/60 years back and delivered the possession to him ? O.P.P.

Whether after the death of Nankoo, the plaintiff is coming in possession of the suit land and is entitled to the injunction preyed for? O.P.P.

Whether Raja Ram sold the suit land in favour of the defendant vide sale deed dated 2-12-1963? O.P.D.

Whether Raja Ram was in possession, of the suit land and delivered its possession to the defendant at the time of sale ? O.P.D.

Relief."

Under issue Nos 1 and 2 the trial Court held that the land in suit was not donated by Raja Ram to Nankoo, and, that the plaintiff, has failed to prove his possession over the suit land. Under issue Nos 3 and 4 it was held that the land in suit was sold by Raja Ram to the defendant, who, was in possession of the land in suit since the date of sale. On appeal the learned Additional District Judge Reversed the findings of the trial Court, and, decreed the plaintiff''s suit in toto.

Counsel for the parties were heard.

On behalf of the defendant-appellant it war mainly .submitted that there is no legal, cogent, or, reliable evidence on the, record that Raja Ram had either gifted the land in suit to Nankoo, or, that, the latter remained in possession of the suit land as, its owner, It was further submitted that Nankoo died on 12th April, 1957. Jamabandi for the year 1954-55 (Exhibit Pw1) does show that Nankoo, was in possession of the suit land as tenant at ;will on the basis of Chair Marusi Bite Lagan Bawajah Dharm Arth. The said entry would not, per se, be sufficient to hold that Nankoo had became owner of the suit land, or, that the same had been donated to him. The oral evidence led by the plaintiff would indicate that the said land had been donated in-between the period 1926 to 1936, or, thereabout. In, the absence of any proof, or, gift deed, or, mutation concerning, gift, or, donation, neither the entry in the Jamabandi for the year 1954-55, or, subsequent entries in the Jamabandis right upto the year 1973-74, showing Nankoo to be in possession of the land in suit as tenant at will, on the basis any alleged gift, or, donation, or, otherwise, for religious purposes, and, without payment of any rent, would not be sufficient to prove affirmatively, that, either the plaintiff, or, his predecessor-in-f interest Nankoo had remained in possession as an owner, or, even as a tenant at will, or, otherwise, over the suit land during the entire period.

On the other hand, the evidence produced by the defendant- appellant that he became owner of the land in suit, and, on the basis of the sale deed dated 2nd December, 1963, executed by Raja Ram, original owner of the land in suit, in his favour, coupled, with the latest Jamabandi entry for the year 1983-84, shewing the defendent- appellant in possession of the land in suit, as its owner, would be sufficient to rebut the evidence produced by Des Raj plaintiff in this suit.

In order to resolve the conflict between the earlier, and, later entries in the revenue record, the later Jamabandi entry for the year 1983-84 would prevail against the earlier Jamabandi entries relied upon by the plaintiff. I find support on this point from the Division Bench authority of this Court in Mahant Gurdit Singh v. Shiromani Gurdwara Parbandhank Committee, Amritsar 1972 P.L.R. 379.

Apart from that, the revenue entries in the name of Nankoo, which, continued even after his death in the year 1957 till 1973-74, cannot be legally relied upon, inasmuch as, the said entries, which are palpably wrong, have no evidentiary value, whatsoever, nor. such entries can be legally relied upon in favour of the plaintiff. The first appellate Court has gravely erred in law in relying upon the revenue entries in the name of Nankoo even after his death.

Faced with this situation, it was submitted on behalf of the plaintiff that this Court had no jurisdiction to entertain the second appeal on the ground of erroneous finding of fact. However gross the error may seem to be, the finding of the first appellate Court, which, is based on documentary evidence, would only be considered as finding of fact. Reliance to this respect was placed on the authority of the Apex Court in Deity Pattabhiramaswamy v. S. Hanymayya AIR 1959 S.C. 57.

There is no dispute with the proposition of law enunciated in the aforecited Supreme Court authority. However, the fact remains that in the instant case, apart from the fact that the revenue entries for about 30 years, concerning the land in dispute, have to be considered, substantial point of law is involved about the weight to be attached to most of these entries, which, continued for a sufficiently long period in the name of Nankoo, even after his death. Thus, it is not a case where the first appellate Court had merely given erroneous finding of fact. Rather, in view of the substantial point of law involved in this case, there does not seem to be any bar to consider the finding given by the first appellate Court, referred to above.

For the foregoing reasons, the judgment and decree passed by the first appellate Court in favour of the plaintiff cannot be legally sustained. The same is hereby reversed, and, the judgment and decree passed by the trial Court is, hereby, restored. In view of the fact that substantial point of law was involved in the instant case, both the parties shall bear their own costs throughout.

This appeal is, accordingly, allowed.