POORAN SINGH Vs. MANGALIA

JUDGEMENT

(1.) This is defendant's appeal. The suit was dismissed by the Court below, but the lower appellate Court having decreed the same, the defendant has assailed the decision rendered in appeal.

(2.) ALTHOUGH long arguments are made in this matter, the law has to be appreciated properly which exercise was not undertaken erroneously by the Court below. Because I have taken the view that on a misappreciation of the correct legal position, the Court below erroneously reversed the decree passed by the trial Court, I have no hesitation to say that the long arguments of counsel has a short answer in law. Appellant's counsel Shri K. N. Gupta has made a short submission to the effect that the lower appellate Court, even after holding that the defendant, on plaintiff's own admission, was in possession of the suit land since 1963 and also bolding that the defendant had paid rent for the suit land for one year, failed to bold that the plaintiff lost his right, title and interest in the suit land in virtue of the provisions contained in sections 168 (1), 169 (1), 250 (1 -A), 190 (2 -A) and 190 (3) of the Madhya Pradesh Land Revenue Code, for short, the 'Code'.

(3.) COUNSEL bas relied on a decision of their Lordships of the Supreme Court in Beohar Rajendra Singh v. State of M.P. 1970 RN 16. He has relied on the observation in that case that where the owner is shown in the Khasra as the State 'Milkiyat Sarkar', the column regarding tenancy right is blank, but a person is enterd as in possession in the remarks column, the possession cannot be attributed to ownership or tenancy of the property. I do not see how this holding can at all be pressed in service in this appeal merely because in the khasra, according to learned counsel, the name of the defendant is shown in the Remark column to be "in possession of the land". Counsel was asked to look at the khasras himself and to point out to me if the entry was positive that defendant was shown as "trespasser". But, after looking at the khasras, he could only submit that there was no such positive entry naming the defendant as "trespasser" while the entry, admittedly, was that the defendant was "in possession" of the suit land. In that view of the matter, reliance on the decision cited would evidently not avail learned counsel. Merely because the entry is in Remark column showing defendant as to be "in possession" of the suit land and that he has not been shown in the khasras as a "tenant", would not establish, according to me, positively and affirmatively that the defendant was not "tenant" of the suit land and oral evidence and admission to the contrary cannot be looked into and that the Court below committed a grave error of law in relying on the oral evidence. Indeed, the holding of the Court below cannot at all be said to be contrary to what is to be found in Ex. D -1 and D -2. Because, the khasras do Dot positively negative the position that the defendant was "tenant" inasmuch 'as "possession" of the defendant is nevertheless recorded in the khasras and even more than that is recorded there in that the defendant was not recorded as a "trespasser'. I think that is too much for the day on this contention of learned counsel to satisfy him that the decision cited bas little relevance to the contention.