UMRAO Vs. SARDAR

JUDGEMENT

(1.) This second appeal has been filed by two plaintiffs named Umrao and Nasiba, as the suit filed by them for obtaining the possession of 8 kanals of land situated at a certain village in District Gurgaon had at first been dismissed by the Sub-Judge Third Class, Gurgaon, by his judgment dated 30th November, 1966, and then by the Second Additional District Judge, Gurgaon, in appeal by judgment dated 13th October, 1967. The only point for determination in this case is whether Sardar defendant was in occupation of the land as a mortgagee and hence possession could not be obtained by the plaintiffs without payment of the mortgagee-money amounting to Rs. 1200/-.

(2.) There were previously proceedings between the parties under section 145 of the Criminal Procedure Code. The First Additional District Judge, Rohtak, at Gurgaon dismissed the revision arising out of the order of the Sub-Divisional Magistrate holding that Ramzani, a tenant set up by the plaintiffs, was not in possession of the land in dispute within two months of the preliminary order. The said revision was decided on 4th November, 1965, and it was thus on 25th November, 1965, that the suit was filed by the plaintiffs for obtaining possession of the land from the defendant. The plaintiffs made out this case that Ramzani was in occupation of the land as a tenant under them and that some such entries in the revenue record had been made as to show that the actual possession was with the defendant.

(3.) The various entries in the revenue record do not at all support the case of the plaintiffs. It is only in the jamabandi for the year 1958-59 (copy Exhibit P-2), that the plaintiffs are shown as cultivating the land themselves. In the next jamabandi of the year 1963-64 it is the defendant who was mentioned to be mortgagee of the land. The mortgage was, however, stated to be oral. Exhibit D-1 is a copy of the jamabandi of the year 1964-65 filed by the defendant himself. It also indicates that the defendant was an oral mortgagee. It is contended by the learned counsel for the appellants that no presumption of truth should attach to the entries in the jamabandi as they are not supported by any documentary evidence. He was aware of the fact that the mortgage alleged being oral, no mortgage-deed itself could be produced. He, however, urged that the plaintiffs should have proved some entry of the report for the attestation of the mutation on the basis of the mortgage which had come into force. Oral mortgages in villages are not uncommon and the mortgagee is satisfied when entry in the revenue record is made in his favour. It was not incumbent on the plaintiffs to prove the basis upon which entry in the revenue record was made. The factum of the mortgage may have become known from the defendant himself and a mention of this fact was then made for explaining how the defendant had come into possession of the land when in the previous jamabandi the plaintiffs themselves were shown to be in possession. If there had been any mischief committed by some petty revenue official in the making of a fictitious entry the same could be got rectified; and if the plaintiffs failed to obtain the rectification, they must suffer by the presumption of truth attaching to the entry in the jamabandi. Both the Courts below have decided this question of fact in favour of the defendant that he is in possession as a mortgagee. There is no cogent reason to hold that the plaintiffs can recover the possession of the land on the strength of their claim to the ownership of the land. The appeal consequently stands dismissed with costs.