OM PARKASH Vs. RAMJI LAL

JUDGEMENT

(1.) THIS is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity 'the Code'), challenging the view taken by learned Lower Appellate Court in its judgment and decree dated 6.10.2005. It has been held that the suit of the plaintiff-respondents, for possession by way of pre-emption deserves to be decreed partially as he has been found to be a tenant in possession on the land to the extent of 4 kanal 11 marlas, out of the total land of 8 kanals 0 marlas. The trial Court has non-suited the plaintiff-respondent by concluding that there was abrupt change in the jamabandi for the year 1997-98 (Ex. D-5) in favour of the plaintiff- respondent, which was liable to be ignored and presumption of continuity of possession was raised in favour of the defendant-appellants. However, the learned Lower Appellate Court has allowed an application under Order 41, Rule 27 of the Code to adduce additional evidence. Accordingly, a copy of the entry in daily diary register No. 316 dated 4.4.1984 (Ex. P-6) and copies of khasra girdwari for the year 1983-84 to 1987-88 (Ex. P-7) were allowed to be brought on record. On the aforementioned basis the learned Lower Appellate Court has recorded the finding by accepting the explanation for change of entry in the jamabandi and the same reads as under :-

(2.) IT is appropriate to mention that with regard to sale consideration of Rs. 55,000/-, the findings recorded by the trial Court were affirmed holding that the land in dispute was sold to defendant-appellants.

(3.) THE judgments of the Supreme Court in the cases of Durga (deceased) and others v. Milkhi Ram and others, 1969 PLJ 105 and Mansu v. Shadi Ram, 1996(3) RCR(Civil) 438 : 1996 PLJ 215, would not require any detailed consideration because both the judgments proceed on the basis of presumption raised by illustration appended to Section 114 of the Evidence Act, 1872 read with Section 44 of the Punjab Land Revenue Act, 1887. The aforementioned presumption is not un-rebuttable or a conclusive proof of the existence of a fact concerning possession. The aforementioned presumptions are in fact rebuttable and the perusal of para No. 16 of the judgment of the learned Lower Appellate Court would show that the father of the defendant-appellants Gopi Ram remained in possession of suit land upto Rabi 1984 and thereafter the plaintiff-respondent came in possession. Change reflected in the jamabandi for the year 1987-88 (Ex. D-5) has been correctly explained by entry No. 316 in rojnamcha dated 4.4.1984 (Ex. P-6), copy of khasra girdwaris for the year 1987-88 (Ex. D-5) has been correctly explained by entry No. 316 in rojnamcha dated 4.4.1984 (Ex. P-6), copy of khasra girdwaris for the year 1983-84 to 1987-88 (Ex. P-7), which show that the change was made by incorporating the name of the plaintiff-respondent on 4.4.1984, as per rapat rojnamcha and, therefore, the entry in the jamabandi for the year 1987-88 (Ex. D-5) is based on rapat rojnamcha entry No. 316 dated 4.4.1984 (Ex. P-6) and khasra girdawari entries for the year 1983-84 to 1987-88 (Ex P-7) and the plaintiff-respondent has been able to prove his possession of the suit land as tenant in the year 1984. There is nothing in the aforementioned judgments, which may result in defeating the rights of the plaintiff-respondent. In para 3 of the judgment in the case of Durga (deceased) and others (supra), it has in fact been observed that the presumption raised under Section 44 of the Punjab Land Revenue Act, 1887 was a rebuttable presumption and it would stand rebutted if any contrary material is produced on the record. Such material in the form of additional evidence has been placed on record as Ex. P-6 and Ex. P-7. Therefore, the aforementioned judgments do not advance the case of the defendant-appellants in any manner whatsoever. For the reasons aforementioned, this appeal fails and the same is dismissed. Appeal dismissed.