MEGH RAJ Vs. RAGHUBIR SINGH AND OTHERS

JUDGEMENT

(1.) Notice in this appeal was issued because in the concluding portion of the judgment of the learned lower appellate Court by an accidental mistake it was incorporated that the finding of the learned trial Court on issue No. 2 is set aside. Otherwise from the perusal of the whole judgment it was apparent that the intention was only to reverse the finding on issue No. 1. As this technical mistake had to be removed, so this appeal was admitted to hearing. However, at the time of hearing, the learned counsel for the appellants has sought to challenge the finding of fact recorded on issue No. 1 as well.

(2.) Respondent No.1 filed the suit for permanent injunction restraining the appellants as well as respondent Nos. 2 to 4 from interfering with his possession over the land in dispute claiming that he was a co-sharer in possession to the extent of 1/4th and that the remaining 3/4th of the land was on lease with him from the other co-sharers. The learned trial Court negatived his plea and dismissed the suit. On appeal, the learned Additional District Judge, after going through the record and appreciating the oral and documentary evidence, reversed the finding of the learned trial Court, and holding the plaintiff to be in possession decreed the suit. The learned counsel for the appellant has sought to challenge the finding on the ground that the oral evidence has not been discussed in detail. The learned lower appellate Court has not relied upon the oral evidence with the observation that both the parties have led evidence in their own favour and there is nothing to choose between the witnesses produced by either of them. No fault can be found with this reasoning. The contention of the learned counsel for the appellants that Nathu Ram P.W.2 has admitted that Meg Raj appellant etc. have taken possession of the land in dispute and this part of his statement was not specifically taken note of, which was sufficient to rebut the presumption attached to the entries in the Jamabandi, also has no merit. A party is not bound by the statement of his witness, and to ignore oral evidence the lower appellate Court has mostly relied upon the documentary evidence which consists of the Khasra Girdawaris and the Jamabandis.

(3.) It was next contended that there was no sufficient ground to discard the later revenue record and to prefer the earlier one. The lower appellate Court has preferred the earlier revenue record on the ground that the entries in the subsequent one had been changed without observing the procedure prescribed and without issuing notice to the party concerned. That constituted a very valid reason to ignore the later entries. Moreover, the plaintiff is shown to be in possession as a tenant on the land in dispute in the Jamabandi for the year 1968-69. It is a matter of common knowledge that a tenant would not like to leave his tenancy rights unless he is ordered to be ejected by some competent authority. No ground therefore has been made out to interfere with the finding of fact recorded by the lower appellate Court and this appeal is accordingly dismissed but with no order as to costs.