CHANDA Vs. RAM CHANDER

JUDGEMENT

(1.) This appeal is by one Chanda, the unsuccessful plaintiff, whose suit was dismissed by the trial Court and that judgment and decree was confirmed by the lower appellate Court. It has arisen in the circumstances mentioned hereafter.

(2.) The plaintiff-appellant claimed himself to be a co-sharer of the Shamlat Thola Surjan in village Jashai, wherein a joint parcel of land stands in the name of Shamlat Thola Surjan. According to him, he brought the suit land under cultivation and was in possession thereof for more than 10 years when the defendant got the Khasra Girdawari made in his name for the preceding two years in collusion with the Patwari and then forcibly ejected him in June 1965. This was the cause for suit filed on December 20, 1965. The allegations made in the plaint were denied by the defendant by cross-asserting that he was in possession of the suit land for a very long time and that it was he who had brought it under cultivation. He also averred that the girdawari had correctly been recorded in his name and the application of the plaintiff for the correction of the girdawari had been rejected by the Tehsildar concerned. The pleadings of the parties gave rise to the following issues :-

(3.) Before the motion Bench it was contended that the lower appellate Court did not advert to the evidence of the plaintiff at all and thus an error of law was apparent. It appears from the judgment of the learned District Judge that the major part of the documentary evidence of the plaintiff was taken into consideration, discussed and explained. The learned counsel for the appellant made an effort to get the jamabandi for the year 1958-59 (Exhibit P.2) re-read in this Court wherefrom it is patent that the plaintiff was shown as a sub-tenant under 4 others, Chandgi, Prithi, Jai Lal and Chandan. The lower appellate Court has also read the said entry in this light. One thing is obvious that as a sub-tenant, the plaintiff was shown to be in possession of the land in 1958-59 in the cultivation column. However, one important document Exhibit P-5, the preceding khasra girdawari for the years 1954 to 1958, was completely ignored by the lower appellate Court. It is clear from those entries, which are otherwise relevant under Section 35 of the Evidence Act, that Chanda son of Teku, Lahore the plaintiff had entered upon Banjar Qadim land in Rabi 1955 and had not been paying any rent to Chandgi and others, because he had brought the land under cultivation. It is patent that precedent thereto, the land was recorded as Banjar Qadim, but thereafter has been under crops. However, for the first time in the jamabandi for the year 1958-59 Exhibit P-2, the plaintiff has been shown as a sub-tenant and to be paying 1/3rd share of the produce; an arrangement contrary to the situation reflected in the khasra girdawari. On reading of the aforesaid two documents together, it becomes crystal clear that whether the plaintiff brought the land under plough as a co-sharers in the Thola Surjan or he is reflected as a sub-tenant under the possessors, Chandgi and others, he alone was in actual physical possession of the land in either capacity. The learned lower appellate Court took into account from the copy of the order Exhibit P-3, in which the Assistant Collector Ist Grade refrained from correcting the khasra girdawaris, the factum of jamabandi for the year 1963-64 appearing on the scene. But during this interregnum, the khasra girdawaris Exhibits P-6 and P-7 make interesting reading inasmuch as from Rabi 1962 the defendant-respondent comes in place of Chandgi and others in possession without payment of rent and on account of brotherly relations, ousting them altogether as a substitute, but actual possession of the plaintiff-appellant continues on the payment of 1/3rd share of the produce as before. It is in Kharif 1962 that the name of the plaintiff-appellant gets completely wiped out. However, despite these khasra girdawaris being relevant, no presumption of truth attaches to them. The presumption of truthfulness can only be raised in favour of the jamabandi entries as provided for in Section 44 of the Punjab Land Revenue Act, 1887 . In the absence of the jamabandi for the year 1963-64 on the record, it is difficult to see how the presumption arising in favour of the jamabandi for the year 1958-59 (Exhibit P-2) could be taken away for the purposes of the suit. Their Lordships of the Supreme Court in Durga v. Milkhi Ram and others, 1969 PunLJ 105, have recognised the principle that the later revenue entries prevail over the earlier ones in relation to the jamabandis, but when change is made in the later revenue entries without any mutation or an order of the revenue authorities showing how the change was made, the presumption in favour of the later revenue entries cannot be raised under Section 44 of the Punjab Land Revenue Act, 1887 , but proceeds back to the earlier entries. The presumption of truthfulness raised to 54th record-of-rights remains in either situation rebuttable. In the instant case, in the absence of the jamabandi for the year 1963-64 being on the record, (Exhibit P-3) the order of the Assistant Collector being silent as to how the change got effected, the khasra girdawaris Exhibits P-6 and P-7 casting a shadow on the possession of the plaintiff for no rhyme or reason unsupported by any document, mutation or an order of a competent officer effecting change, there is no option but to fall back on the jamabandi for the year 1958-59 Exhibit P-2. The lower appellate Court did not raise the requisite presumption that the plaintiff was in possession of the suit land; rather it straightaway held that the possession reflected was not that of a co-sharer. The claim of the plaintiff in his plaint was not dependent solely on the basis of co-sharership, but it contained an all comprehensive plea that he be granted a decree for possession and such other relief which may emerge appropriate in the circumstances. At least on the presumption raised in favour of the entries contained in Exhibit P-2, the plaintiff was entitled to a decree for possession on the basis of being a sub-tenant over the land in dispute. A sub-tenant is at par with a tenant for all practical purposes under the Punjab Security of Land Tenures Act, 1953, and has assertable rights.