LAWS(P&H)-1973-12-22

PURAN Vs. CHANDAN

Decided On December 07, 1973
PURAN Appellant
V/S
CHANDAN Respondents

JUDGEMENT

(1.) The only question for decision in this regular second appeal filed by the defendant-vendees in a pre-emption case is whether they were in possession of the land sold as tenants of the vendor at the time of the sale.

(2.) The trial Court had found that the vendees had been able to prove that they were in possession of the land as tenants under the vendor on the crucial date. The finding was based on the entries in the khasra girdawaris. This finding of fact of the trial Court was, however, upset by the learned Court of first appeal on the grounds, inter alia, that the khasra girdawaris had not been proved by examining the Patwari who had made the crop inspection and that the sale deed recited that vendees had been put in possession at the time of the sale and not on any earlier date. The lower appellate court had failed to take into consideration the entry made by the Patwari in his daily diary at the time of the crop inspection more than a month before the execution of the sale deed. Khasra girdawaris prepared by the Canal authorities had also been allowed to be produced as additional evidence in the lower appellate Court when there was no satisfactory explanation why this piece of evidence could not be proved at the trial.

(3.) A Single Bench decision of this Court in Khiali Ram etc. v. Sant Lal, 1972 CurLJ 402, has been relied upon by Shri Jain, the learned counsel for the appellant, in this connection. This ruling may suggest that all the reasons given by the lower appellate Court for disturbing the findings of fact of the trial Court are unsustainable. The khasra girdawaris prepared by the Revenue authorities may not have any presumption of correctness under the land Revenue Act but they are valuable evidence in view of Section 35 of the Indian Evidence Act. The same would be true about the entry in the Patwari's roznamcha made a number of weeks before the execution of the sale deed. A formal recital about the delivery of proprietary possession is generally made in a sale deed and does not necessarily imply that the vendee could not have been in possession of the land sold as a tenant from any earlier date. The ruling goes on to say that it is not necessary that the entries in the khasra girdawari should be proved by producing the Patwari who made those entries. The Patwari, who is at present in-charge of the Circle, has been examined in the case now before me. He had proved the entries in the official records in his custody. The Patwari, who had made the relevant entries, had apparently been transferred to some other Circle. He could not be examined for that reason but the entries in the khasra girdawaris had been proved by the Patwari who had the custody of the official records and who had been examined by the plaintiff-respondent. To my mind, the judgment and decree of the trial Court had been set aside by the lower appellate Court without any cogent reasons and by ignoring reliable documentary evidence on record.