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PETITIONER: HARISH CHANDER & ORS.

       Vs.

RESPONDENT: GHISA RAM AND ANR.

DATE OF JUDGMENT18/12/1980

BENCH: KOSHAL, A.D. BENCH: KOSHAL, A.D. ISLAM, BAHARUL (J)

CITATION:  1981 AIR  695            1981 SCR  (2) 405  1981 SCC  (1) 431

ACT:      Punjab  Land   Revenue  Act,  Section  44  and  Rule  1 contained in  Section 109 Evidence Act-Scope of-Suit of pre- emption of  land on  the ground  that the  plaintiff  was  a tenant-Presumption of  truth of  entries in  favour  of  the revenue records like Jamabandi and Khasra Girdawaris.

HEADNOTE:      Dismissing the  defendant’s appeal  and  affirming  the decree in favour of the plaintiffs, the Court. ^      HELD: A presumption of truth attaches to the entries in the Jamabandi  for the  year 1959-60  showing the defendant- respondents as  a tenant,  in  view  of  the  provisions  of Section 44  of the Punjab Land Revenue Act. That presumption is no doubt rebuttable, but, in the instant case, no attempt has been made to displace it. [407C-D]      Further, once that presumption is raised, still another comes to  the aid  of respondent No. 1 by reason of the rule contained in Section 109 of the Indian Evidence Act, namely, that when two persons have been shown to stand to each other in the  relationship of  landlord and  tenant, the burden of proving that  such relationship  has ceased, is on the party who so  asserts. It may, therefore, be legitimately presumed that the plaintiff continued to possess the land as a tenant till the institution of the suit. [407D-E]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 2150 of 1970.      Appeal by  Special Leave  from the  Judgment and  Order dated 27-7-1980 of the Punjab and Haryana High Court in R.S. No. 737/70      Harbans Singh for the Appellant.      Hardayal Hardy and B. Datta, for the Respondent.      The Judgment of the Court was delivered by      KOSHAL, J.-  This appeal  by special  leave is directed against the  judgment dated  July 27, 1970 of the High Court of Punjab  and Haryana  affirming the  decrees passed by the trial court  and the  first appellate  court in  a suit  for

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possession by  way of  pre-emption of the land in dispute in favour of  plaintiff-respondent No.  1 on the ground that he was a  tenant of  the disputed  land when it was sold to the appellants by  respondents Nos.  2 to 4 through a registered sale deed dated September 29, 1967. 406      2. The  suit was  resisted by  the appellants  with the counter-claim that  they, and  not respondent No. 1, were in possession of  the land  on the  relevant  date  as  tenants inasmuch as  it had  been leased out to them by their vendor Kanti Prasad  two years prior to the sale, i.e., in the year 1965. The  decrees passed by the courts below proceed on the basis of  evidence to the effect that the name of respondent No. 1 was recorded as a tenant in the Jamabandi for the year 1959-60 (Ex. P. 1) and consistently thereafter till the year 1968 (Khasragirdawaris  Exs. P.  2 to  P. 7). Apart from the oral evidence  there is  no material on the record which may indicate the  falsity of  any of  the entries in the revenue records and we are of the opinion that the lower courts were fully justified in relying on them.      Learned counsel  for the  appellants relies  upon three documents in  support of  his contention  that  the  Khasra- girdawaris should not be believed. First in point of time is an application  (Ex. A31)  which was  sent to  the concerned Deputy Commissioner  through the military authorities by one of the  appellants who was an army hand. That application is dated December  11, 1967 and states that the land in dispute was taken by him on lease from Kanti Prasad in the year 1965 and prays  that the  Khasra-girdawari  should  be  corrected accordingly. The  second is  the sale-deed  itself in  which appears a recital to the effect that on the date of the sale the vendors had been in possession of the land covered by it for the  preceding two years. The third is the plaint itself which seeks  "possession by  way of  pre-emption".  None  of these  documents   is  of  any  help  to  the  case  of  the appellants. The  recital in  the plaint is easily explained. It is  no more  than the  usual prayer  made  in  suits  for preemption  and   may  well  be  interpreted  to  mean  that possession be  granted to the plaintiff by the decree in his capacity of a pre-emptor (and not that of a mere tenant). It cannot be  implied therefrom  that the  plaintiff was out of actual possession.  In fact  the case made out in the plaint was specifically  founded on the plea that the plaintiff had been in  possession of the land in dispute as a tenant right upto the date of the institution of the suit. Paragraph 4 of the plaint reads:           "4.   The    plaintiff   has   been   continuously      cultivating the  aforesaid land mentioned in para No. 1      of the  plaint, for a long time as non-occupancy tenant      and I,  the plaintiff,  have been  cultivating the same      even uptil now.   The Vendees are outsiders, therefore,      I, the  plaintiff have  the preferential  right of pre-      emption."      This plea clearly negatives the contention based on the recital contained in the prayer clause of the plaint. 407      The  averments   appearing  in   the  sale   deed   and application Ex.  A. 31  (which was  made about  2/1/2 months later) to  the  effect  that  the  appellants  had  been  in possession of the land as tenants since 1965 appears to have been falsely  made  in  an  attempt  to  defeat  prospective preemptors. Had  it been  a correct statement of fact, there is no  reason why  it should  not have  found a place in the agreement of sale which is dated the 24th April, 1967 but in which no  mention of  delivery of  possession of the land to

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the appellants  is  made.  Nor  is  any  cogent  explanation forthcoming for  the fact that no attempt was made by any of the appellants  to have  their possession  over the  land as tenants made  the subject-matter of an entry in the relevant records at any time before the sale deed was registered.      No suspicion can attach to the entries in the jamabandi for the year 1959-60, nor have the contents of that document been assailed  before us. A presumption of truth attaches to those entries  in view  of the  provisions of  s. 44  of the Punjab Land  Revenue  Act.  That  presumption  is  no  doubt rebuttable but  no attempt  has been  made to  displace  it. Further, once  that presumption  is  raised,  still  another comes to  the aid  of respondent No. 1 by reason of the rule contained in s. 109 of the Indian Evidence Act, namely, that when two  persons have  been shown to stand to each other in the relationship  of landlord  and  tenant,  the  burden  of proving that  such relationship  has ceased, is on the party who so  asserts. It  may therefore  be legitimately presumed that the plaintiff continued to possess the land as a tenant till the institution of the suit.      Even though the question of possession of the plaintiff as a  tenant is  a question  of fact  which is  concluded by concurrent findings  arrived at  by  the  courts  below,  we confirm these  findings after  consideration of the relevant material.      3. The  decree passed  in favour of respondent No. 1 is not  challenged   on  any   other  ground.   The  appeal  is accordingly  dismissed   with  costs.   All  mesne   profits deposited by  respondent No.  1 in the courts below shall be paid back to him forthwith. V.D.K                                      Appeal dismissed. 408