BIDHIA (deceased) through his LRs Ajit Ram and another vs GHUNGHAR (deceased) through his LRs Charan Dass and others
- Court
- High Court of Himachal Pradesh
2026:HHC:26030
High Court of H.P.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA Nos. 28 and 29 of 2009
Reserved on: 15.06.2026
Date of Decision: 02.07.2026
RSA No. 28 of 2009
1. Bidhia alias Bidhi Chand (since deceased) through his LRs.
...Appellants
Versus
Ghungar (since deceased) through his LRs & others.
...Respondents
RSA No. 29 of 2009
2. Bidhia (since deceased) through his LRs.
...Appellants
Versus
Khemdi Ram (since deceased), through his LRs & others
...Respondents
_____________________________________
Coram
Hon’ble Mr Justice Rakesh Kainthla , Judge.
1
Whether approved for reporting? Yes
For the appellants : Mr Bhupender Gupta, Senior
Advocate, with Mr Janesh Gupta,
Advocate, in both the appeals.
For the respondents : Mr Bimal Gupta, Senior Advocate,
with Mr Trigun Negi, Advocate for
respondents No.1(a) and 1(b) in RSA
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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No. 28 of 2009 and for respondents
No.1(a) to 1(d), 2(a) and 2(b) and
3(a) to 3(e) in RSA No. 29 of 2009.
High Court of H.P.
None for respondents No. 2 and 3 in
RSA No. 28 of 2009.
None for respondents No. 4 and 5 in
RSA No. 29 of 2009.
______________________________________
Rakesh Kainthla, Judge
The present appeals are directed against the judgment
and decree dated 04.12.2008 passed by the learned District Judge,
Kangra at Dharamshala, H.P. (learned Appellate Court) vide
which the judgment and decree dated 28.06.2004, passed by
learned Civil Judge (Junior Division), Court No.1, Dehra, District
Kangra, H.P. (learned Trial Court) were set aside. (T he parties shall
be referred to in the same manner as they were arrayed before the
learned Trial court for the sake of convenience).
2. Briefly stated, the facts giving rise to the present
appeals are that Bidhia instituted a civil suit for seeking
declaration that he is in actual and physical possession of the suit
land mentioned in the head note and para-1 of the plaint to the
th
extent of 5/8 share and tenant under defendants No.2 and 3 to
th
the extent of 3/8 share, and the entry showing the name of
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defendant No.1 in the column of possession is wrong, illegal, null
High Court of H.P.
and void. A consequential relief of permanent prohibitory
injunction for restraining defendant No.1 from interfering with
the suit land or raising any construction over it was also prayed. It
was also prayed in the alternative that the possession be delivered
to the plaintiff by demolition or otherwise. It was asserted that
previously the land was shown to be owned by Bhagat Ram, Milap
Singh, Mohinder Singh, Ramesh Chand, Madan Lal and in the
plaintiff’s possession as a tenant. The plaintiff became the owner
of the suit land after the commencement of the HP Tenancy and
th
Land Reforms Act to the extent of a 5/8 share. Defendants 2
th
and 3 were minors to the extent of a 3/8 share, and the
proprietary rights were not conferred upon the plaintiff
regarding their share. Defendant No.1 colluded with the
settlement staff and got himself recorded as being in possession
of the suit land. This entry is incorrect. Defendant No.1 threatened
to interfere with the plaintiff’s possession. Hence, the suit was
filed to seek the relief mentioned above.
3. Defendant No.1 filed a written statement taking
preliminary objections regarding the lack of cause of action and
the plaintiff being estopped by his act and conduct to file the
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present suit. The contents of the plaint were denied on the merits.
High Court of H.P.
It was asserted that Hardeo, father of the plaintiff, defendant No.1
and Khemdi were recorded as tenants at will of the land
measuring 56 Kanals and 8 marlas, including the suit land. The
plaintiff was the eldest brother. Defendant No.1 and the other two
brothers were minors. All the brothers assisted their father in the
cultivation of the land. The plaintiff, being the eldest son, started
managing the affairs of the family. He misused the confidence
reposed in him by his father and substituted his name without
any order of the competent authority. He got conferred the
proprietary rights upon him without the knowledge of Hardeo or
his sons. Defendant No.1 was found to be in possession during the
settlement and was recorded as ‘Kabiz’. The defendant No.1 had
become the owner by adverse possession. Therefore, it was
prayed that the present suit be dismissed.
4. A separate written statement was filed by defendants
No. 2 and 3, taking preliminary objections regarding lack of
jurisdiction and cause of action. The contents of the plaint were
denied on the merits. It was asserted that plaintiff or defendant
No.1 had no relationship with defendant Nos. 2 and 3. Defendants
Nos. 2 and 3 were in possession of the suit land, and they had
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never inducted any person as a tenant. Therefore, it was prayed
High Court of H.P.
that the suit be dismissed.
5. Separate replications denying the contents of the
written statement and affirming those of the plaint were filed.
6. Defendants, Khemdi Ram, Ghunger and Faquir, filed a
separate suit seeking a declaration that they are co-owners along
with the plaintiff and are in possession as tenants along with
Ghungar over 3 shares under defendants No. 2 and 3 and owners
th
of the suit land to the extent of 5/8 shares. It was asserted that
Hardeo was a tenant on the payment of ‘Gala Batai’. He had four
sons: Bidhia, Khemdi Ram, Ghunger and Faquir. He was
illiterate, and Bidhia, being the eldest son, started managing the
affairs of the family. He got himself recorded to be in possession.
He also got conferred the proprietary rights upon himself
th
regarding the 5/8 share. All the brothers were the tenants of the
suit land. Hence, the suit was filed to seek the relief mentioned
above.
7. The suit was opposed by filing a written statement
taking preliminary objections regarding the lack of jurisdiction
and the plaintiffs being estopped by their act and conduct from
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filing the present. The contents of the plaint were denied on the
High Court of H.P.
merits. However, it was admitted that Bhagat Ram was the owner
in possession of the suit land. It was specifically denied that he
had inducted Hardeo or any other person to be a tenant. It was
asserted that the defendants were still in possession, and a false
suit was filed against them. Hence, it was prayed that the suit be
dismissed.
8. Bidhia also filed a separate written statement taking
preliminary objections regarding lack of locus standi and
jurisdiction, the suit being liable to be stayed in view of the
pendency of the earlier suit, the plaintiffs being estopped by their
conduct from filing the suit, and the suit being collusive. The
contents of the plaint were denied on the merits. It was asserted
that Hardeo was not the tenant and Bidhia was the tenant for
more than 40 years. His name was correctly recorded in the
Jamabandi, and ownership was rightly conferred upon him.
Therefore, it was prayed that the suit be dismissed.
9. Separate replications denying the contents of the
written statements and affirming those of the plaint were filed.
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10. Learned Trial Court consolidated both the suits and
High Court of H.P.
framed the following issues on 19.04.1997: -
Whether Bidhia was a tenant over the suit
1.
land, i.e. Khasra Nos. 209, 216 and 231,
measuring 0-29-36 hecatres? OPD
Whether Hardeo was a tenant of the suit land,
2.
if so its effect? OPD.
Whether Ramesh Chand and Madan Lal never
3.
inducted Bidhia as a tenant? OPD-2.
Whether Bidhia got wrongly substituted
4.
himself as a tenant in place of Hardeo, if so
effect?OPD-1
Whether Bidhia is entitled to the relief of
5.
injunction? OPP
Whether Khemdi, Ghungar, and Faqir are
6.
entitled to the relief of an injunction? OPD-1.
Whether Khemdi, Ghungar, and Faquir are
7.
entitled to the relief of declaration? OPD-1.
Whether, in the alternative, the defendant
7-A.
No.1 has become owner of the suit land by way
of adverse possession as alleged? OPD-1.
Relief.
8.
11. The parties were called upon to produce the evidence.
Plaintiff Bidhi Chand examined himself (PW-1) and Prithi Ram
(PW-2). The defendant No.1 Ghunger Ram examined himself
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(DW-1), Khushi Ram (DW-2), Lekh Ram (DW-3), Ramesh Chand
High Court of H.P.
(DW-4) and Kushal Singh (DW-5).
12. Learned Trial Court partly decreed the suit filed by
Bidhia and dismissed the suit filed by Khemdi and others. An
appeal was filed against the judgment and decree. The learned
Appellate Court held that the learned Trial Court had framed eight
issues and taken them together for discussion. This was a
violation of Order 20 Rule 5 of the Code of Civil Procedure (CPC).
Hence, the judgment and decree were set aside, and the matter
was remanded to the learned Trial Court for fresh decision as per
the law.
13. Learned Trial Court held that the plea taken by
plaintiff Bidhia that Hardeo had abandoned the tenancy and he
was inducted as a tenant was highly probable. He was
continuously recorded in possession in the revenue record. An
entry in the copy of the Jamabandi carries with it a presumption
of correctness, and the evidence of the defendants was not
sufficient to rebut the presumption. The name of defendant No.1
was recorded in a permissive capacity, and he could not claim the
adverse possession. Hence, the learned Trial Court answered
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issue No.1 in the affirmative, issue No. 3 partly in the affirmative,
High Court of H.P.
issues Nos. 2, 4, 5, 6, 7 and 7-A in the negative and partly decreed
the suit filed by Bidhia and dismissed the suit filed by Khemdi,
etc.
14. Being aggrieved by the judgment and decree passed by
the learned Trial Court, two separate appeals were filed, which
were decided by the learned District Judge, Kangra at
Dharamshala, H.P. (learned Appellate Court). Learned Appellate
Court held that earlier Hardeo was recorded to be the tenant on
the payment of Gala Batai. His name was substituted by the name
of plaintiff Bidhia. The plea taken by him that Hardeo had become
blind and he had surrendered the tenancy to the landowners was
not satisfactory. The possession of defendant No.1 was recorded
during the settlement, and the settlement operation was carried
out with due care and caution. Hardeo had become a non-
occupancy tenant of the suit land after the commencement of the
H.P. Tenancy and Land Reforms Act, and all the legal heirs were
enjoying the possession of the suit land after his death. Hence,
the suit filed by Bidhia was dismissed.
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15. Being aggrieved by the judgments and decrees passed
High Court of H.P.
by the learned Appellate Court, two separate appeals have been
filed before the High Court, which were admitted on 26.02.2009
on the following substantial questions of law:
Substantial question of law in RSA No. 28 of 2009
1. Whether the Lower Appellate Court has committed
grave illegality in not taking into consideration the
provision of the Punjab Tenancy Act, which was
applicable at the relevant time when the plaintiff-
appellant claimed the abandonment of tenancy by Shri
Hardeo? Are not the findings of Lower Appellate Court
illegal, erroneous, and perverse in insisting on the
proof of relinquishment of tenancy when the revenue
entries depicted the status of plaintiff-appellant to be
the tenant under the then owner, who never
questioned the status of plaintiff- appellant as a
tenant?
2. Whether the Lower Appellate Court has committed a
grave error of jurisdiction in failing to consider that
the order of conferment of proprietary rights with the
consent of the owner, Shri Bhagat Ram, with respect to
the land under the tenancy of plaintiff-appellant
attained finality, except for such land which was
owned by defendants-respondents No.2 and 3, who
were minors at the relevant time. When the tenancy
was common for whole land, has not Lower Appellate
Court acted in an erroneous and perverse manner to
hold that the plaintiff-appellant has failed to prove the
tenancy over the land in question when the owner
under whom the right of tenancy was asserted never
disputed such status?
3. Whether the impugned judgment and decree passed by
Lower Appellate Court is erroneous, illegal and
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perverse when it failed to consider the admissions
made by defendant-respondent No.1 Shri Registrar the
grant of land as Nautor when defendant-respondent
No.1 Shri Ghunghar claiming their status to be landless
while applying for grant of land as Nautor when
defendant- respondent No.1 Sh. Ghunghar failed to
prove his possession over the suit land; has not the
Lower Appellate Court proceeded in an erroneous,
illegal and perverse manner to hold him to be a joint
tenant when the ingredients of joint tenancy were not
at all established?
High Court of H.P.
Substantial question of law in RSA No. 29 of 2009
1. Whether the Lower Appellate Court has committed
grave illegality in not taking into consideration the
provision of the Punjab Tenancy Act, which was
applicable at the relevant time when the plaintiff-
appellant claimed the abandonment of tenancy by Shri
Hardeo? Are not the findings of Lower Appellate Court
illegal, erroneous, and perverse in insisting on the
proof of relinquishment of tenancy when the revenue
entries depicted the status of plaintiff-appellant to be
the tenant under the then owner, who never
questioned the status of defendant No.1- appellant as a
tenant?
2. Whether the Lower Appellate Court has committed a
grave error of jurisdiction in failing to consider that
the order of conferment of proprietary rights with the
consent of the owner, Shri Bhagat Ram, with respect to
the land under the tenancy of defendant No.1-
appellant attained finality, except such land which was
owned by defendants-proforma respondents No.4 and
5, who were minors at the relevant time. When the
tenancy was common for whole land, has not Lower
Appellate Court acted in an erroneous and perverse
manner to hold that defendant No.1-appellant has
failed to prove the tenancy over the land in question
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when the owner under whom the right of tenancy was
asserted never disputed such status?
High Court of H.P.
3. Whether the impugned judgment and decree passed by
Lower Appellate Court is erroneous, illegal and
perverse when it failed to consider the admissions
made by plaintiffs-respondents claiming their status
to be landless while applying for grant of land as
Nautor when plaintiff-respondents failed to prove
their possession over the suit lan, has not the Lower
Appellate Court proceeded in an erroneous, illegal and
perverse manner to hold them to be a joint tenant
when ingredients of joint tenancy were not at all
established?
4. Whether the Lower Appellate Court has failed to
consider that the suit filed by plaintiffs/respondents
was hopelessly barred by limitation, and civil court
lacks the jurisdiction to entertain the suit of the nature
as filed by the plaintiffs-respondents?
5. Whether the impugned judgment and decree passed by
Lower Appellate Court is unsustainable in failing to
apply the rule of estoppel, which was clearly
established on record for entertaining the suit filed by
plaintiffs-respondents on account of their admissions,
as well as acts, conduct and acquiescence?
16. I have heard Mr. Bhupender Gupta, learned Senior
Advocate assisted by Mr. Janesh Gupta, learned counsel for the
appellants in both the appeals and Mr. Bimal Gupta, learned
Senior Advocate assisted by Mr. Trigun Negi, learned counsel for
respondents No.1(a) and 1(b) in RSA No. 28 of 2009 and
respondents No.1(a) to 1(d), 2(a) and 2(b) and 3(a) to 3(e) in RSA
No. 29 of 2009.
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17. Mr Bhupender Gupta, learned Senior Advocate for the
High Court of H.P.
appellants in both the appeals, submitted that the learned
Appellate Court erred in setting aside the well-reasoned
judgment passed by the learned Trial Court. The plea taken by
the plaintiff, Bidhia, that Hardeo had abandoned the tenancy and
he was inducted as a tenant by Bhagat Ram was duly proved on
record. Bidhia was recorded to be in possession as a non-
occupancy tenant on the payment of the rent. The entry
continued without any objection from any person. A person
recorded to be a tenant became the owner after the
commencement of the H.P. Tenancy and Land Reforms Act. A
mutation of conferment of proprietary rights was sanctioned in
th
favour of Bidhia regarding 5/8 share, but could not be
sanctioned regarding the share of the minors. The jurisdiction of
the Civil Court to go into the question of conferment of
proprietary rights is quite limited. Therefore, he prayed that the
present appeal be allowed and the judgments and decrees passed
by the learned Courts below be set aside.
18. Mr. Bimal Gupta, learned Senior Advocate, for
respondents No.1(a) and 1(b) in RSA No. 28 of 2009 and
respondents No.1(a) to 1(d), 2(a) and 2(b) and 3(a) to 3(e) in RSA
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No. 29 of 2009 submitted that Bidhia had never claimed that
High Court of H.P.
Hardeo had abandoned the tenancy and he was inducted as a
tenant by the owners. He led the evidence to this effect and
learned Trial Court erred in relying upon the evidence beyond
the pleadings. The entry in favour of plaintiff Bidhia was
changed without any order of the competent authority and was
liable to be ignored. This Court should not interfere with the
findings of fact unless it is proved. No perversity has been shown
in the present case. Hence, he prayed that the present appeals be
dismissed. He relied upon the following judgments in support of
his submissions: -
1. Tulsa Singh vs. Agya Ram & others 1994 SCC
OnLine HP 15: AIR 1994 HP 167;
2. State of Himachal Pradesh & Ors vs. Ajay Vij and
others 2011:HHC:464;
3. Chet Ram vs. Jai Dei & others 2011:HHC:9054;
4. Shiam Parshad vs. Kasmir Singh & Ors.
2016:HHC:8828;
5. Parvati Devi & others vs. Inder Singh & others
2017 SCC OnLine HP2675;
6. Prem Sagar & others vs. Har Gopal Singh and
others 2019 SCC OnLine HP2528
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19. I have given a considerable thought to the submissions
High Court of H.P.
made at the bar and have gone through the records carefully.
Substantial question of law No.4(RSA No.29 of 2009)
20. It is undisputed that a mutation of conferment of
th
proprietary rights (Ext.P-7) regarding 5/8 share of Bhagat Ram,
Milap Singh and Mahinder Singh was sanctioned in favour of
Bidhia in the presence of Bhagat Ram, the original landlord, on
28.07.1976. The defendant claimed that proprietary rights could
have been conferred upon Bidhia because Hardeo and not he was
the tenant. This plea, if accepted, would have the effect of getting
rid of the order passed by the competent authority under the
provisions of the H.P. Tenancy and Land Reforms Act. It was laid
down in Chuniya Devi versus Jindu Ram 1991 (1) Shimla Law Cases
213 that the jurisdiction of the Civil Court to go into the
conferment of the proprietary rights is barred except when there
is a violation of the natural law, the statutory authorities have not
acted in conformity with the fundamental principle of judicial
procedure or have not complied with the provisions of the Act.
This judgment was explained by this Court in Shankar Versus
Rukmani 2003 (1) Shim. L.C. 300 , and it was held that where an
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order has been passed by the Land Reforms Officer, the
High Court of H.P.
jurisdiction of the Civil Court to go into the validity of the order is
barred. It was observed: -
“4. So far the ratio in judgment in Chuhniya v. Jindu Ram's
case (supra) is concerned, the reference before the Full
Bench was whether the Civil Court has the jurisdiction in
respect of the order of conferment of proprietary rights
under Section 104 of the H.P. Tenancy and Land Reforms
Act, 1972 (hereinafter called 'the Act') which has been
answered in the negative except in a case where it is found
that the statutory authorities envisaged by the Act have not
acted in conformity with the fundamental principles of the
judicial procedure or where the provisions of the Act have
not been complied with.
5. The acquisition of proprietary rights by tenants other
than non-occupancy tenants is dealt with in Chapter X of
the Act. This Chapter consists of Sections 104 to 117.
Section 112 of the Act provides for a bar of jurisdiction of
the Civil Court for calling into question the validity of any
proceedings or orders taken or made under this Chapter. By
providing an appeal and revision against the order passed
by the Land Reforms Officer under this Chapter, a further
bar of jurisdiction has been provided under Section 115 to
call in question any order made by the Collector,
Commissioner or Financial Commissioner by declaring
them final. It is also observed by the Full Bench in Chuhniya
Devi v. Jindu Ram's case (supra) that from the Scheme of
Chapter X, it is clear that there are bound to be occasions
when the dispute about the relationship of landlord and
tenant would arise in the proceedings which need to be
adjudicated upon by the authorities as provided therein,
before conferment of proprietary rights upon a tenant or
before the resumption of land by the landowner.
6. Referring to sub-section (4) of Section 104 and Rule 29,
the Full Bench has concluded in para 39 that:
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"...........It is implicit in sub-section (4) of Section 104
that the Legislature envisaged that a dispute may
arise whether a person cultivating the land of a
landowner is a tenant or not when proceedings were
in progress under Chapter X and provided that it
shall be decided by the authorities contemplated
under this Chapter who shall require the landowner
to establish that a person cultivating his land is not a
tenant."
High Court of H.P.
7. It was in this context that the Full Bench further held in
paragraph 40 :
"Any inquiry by a Civil Court on the question was
barred by the legislature by specifically providing in
Sections 112 and 115, both occurring in Chapter X,
that the validity of any order made under the Chapter
shall not be called in question in any court and that
the order shall be final except as expressly provided
in the Chapter. The legislature knew its mind fully
well. Where it wanted a dispute to be determined by
the Civil Court, it provided so in Chapter X itself. One
has only to look at Sections 107 and 109 (2). Not only
did the Legislature rule out any determination by a
Civil Court, by necessary implication, of other
matters, it expressly said so in Sections 112 and 115."
8. While discussing the rationale for the exclusion of the
Civil Court, the learned Judges have held in paragraph 44
that:
"The exclusion of the jurisdiction of the Civil Court,
in the matter of determination of the question
whether a person cultivating the land of a landowner
is his tenant or not for purposes of Chapter X, is both
reasonable and understandable. Permitting such a
question to be determined by the civil court also
would have introduced an element of
unpredictability, spread over a long period while the
matter was under adjudication before the Civil Court
at the trial or an appellate stage, which could have
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made the effective implementation of measures of
land reform aimed at by the Act, uncertain. The
legislature could legitimately think of ruling out such
a situation. It has done so by excluding the
jurisdiction of the civil court expressly in that
matter."
High Court of H.P.
9. After analysing the judgment in Chuhniya Devi v. Jindu
Ram's case (supra) , we have no doubt that the jurisdiction
of the Civil Court is barred under the Act if the dispute
pertaining to the relationship of landlord and tenant arises
during the proceedings of conferment of proprietary rights
upon the tenant and resumption of land by the landowner
and the order in respect thereof has been passed by the
authorities under the Act except in a case where it is found
that the statutory authorities envisaged by that Act had not
acted in conformity with the fundamental principles of a
judicial procedure or where the provisions of the Act had
not been complied with. But if the dispute of landlord and
tenant arises independently of the proceedings under the
Act, the Civil Court has the jurisdiction.”
21. This aspect was also clarified by a Single Judge of the
Hon'ble High Court in Tajdin & Ors. Vs. Milkho Devi & Ors. Latest
HLJ 2005 H.P. 825, wherein it was held: -
“13. This judgment appears to have settled all the matters
about which there was some conflict with regard to the
interpretation of the judgment of the Full Bench in
Chuhniya Devi v. Jindu Ram's case (supra) . One factor which
has to be kept in mind and should not be lost sight of white
considering the import of the judgment of the Full Bench is
that the question before the Full Bench was whether the
civil court had jurisdiction in respect of an order conferring
proprietary rights under Section 104 of the H.P. Tenancy
and Land Reforms Act, 1972 which had not been assailed
under the provisions of the said Act. The Full Bench in para
39 again made it clear that a dispute may arise where the
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person cultivating the land of a landowner is a tenant or
not when proceedings were in progress under Chapter X.
The Full Bench was dealing with the impact of the bar to
the jurisdiction of the Civil Court under Sections T12 and
115 of the HP. Tenancy and Land Reforms Act, both of
which occur in Chapter X, and it is in this context that the
observations made in para 40 have to be read. Again, in
para 44 (quoted above), the Full Bench has clearly held that
the exclusion of the jurisdiction of the Civil Court in the
matter of determining the question whether a person
cultivating the land of the landowner is a tenant or not for
the purposes of Chapter X is both reasonable and
understandable. It is thus clear that the question before the
Full Bench and its answer and the various observations
were confined to disputes pertaining to the relationship of
landlord and tenant arising out of and during the course of
proceedings of conferment of proprietary rights on the
tenant and Chapter X of the H.P. Tenancy and Land
Reforms Act. The observations made in Chapter 45 have to
be read in this context only.
High Court of H.P.
14. This has been amply clarified by the Division Bench in
Shankar case (supra) wherein after analyzing the entire law
and the judgment in Chuhniya Devi's case (supra) the
Division Bench held that if a dispute pertaining to the
relationship of landlord and tenant arises during the
proceedings of conferment of proprietary rights upon the
tenant and the resumption of land by the landowner and
the order in respect thereof has been passed by the
authorities under the Act the Civil Court will have no
jurisdiction except in a case where it is found that the
competent authority has acted either in violation of the
Rules of Natural Justice or contrary to the provisions of law
laid down in the Act or the Rules. If the dispute regarding
the relationship of landlord and tenant has no connection
with the proceedings under Chapter X of the H.P. Tenancy
and Land Reforms Act, the Civil Court would have
jurisdiction to hear and decide this dispute.
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15. I am not only bound but am in respectful agreement
High Court of H.P.
with the observations of the Division Bench in Shankar's
case quoted hereinbefore. The bar to the jurisdiction of the
Civil Court under Section 112 of the Tenancy and Land
Reforms Act will only apply when the validity of
proceedings or orders made under Chapter X is called in
question in any Civil Court. Similarly, under Section 115 of
the said Act, the order in appeal or revision passed by the
Collector, Commission or Financial Commissioner can also
not be challenged before the Civil Court unless the same is
in violation of the principles of Natural Justice or is
contrary to the provisions of the Rules or the Act. The
foundation for this must be laid in the plaint. It is the
averments made in the plaint which will show whether the
Civil Court has or does not have jurisdiction to entertain
the suit.”
22. In the present case, the dispute between the parties
arose out of the order of the conferment of proprietary rights;
therefore, it was essential for Ghungar etc. to plead and prove
that the statutory authority had acted contrary to law or in
violation of the principle of natural justice. There is no whisper in
the plaint filed by them to this effect. It was asserted in para-3
that Bidhia got proprietary rights conferred upon himself without
the knowledge of Hardeo and his brothers, which is not sufficient
to confer the jurisdiction upon the Court as noticed above.
Therefore, the jurisdiction of the Civil Court to go into the
question of conferment of proprietary rights was partly barred,
and the learned Appellate Court could not have granted the
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declaration sought by Ghungar, etc. Hence, this substantial
High Court of H.P.
question of law is answered accordingly.
Substantial questions of law No. 1 to 3 in both the appeals .
23. Copy of the Jamabandi for the year 1932-33 (Ext.AXX)
shows Hardeo to be a tenant under Bhagat Ram on the payment
of half share of the produce. A similar entry was recorded in the
copy of the Jamabandi for the year 1944-45 (Ext.D-1). This entry
was changed in the copy of Jamabandi for the 1952-53, and Bidhia
was recorded to be a tenant on the payment of Gala Batai, half
share of the produce. The area was increased in the copy of the
rd
jamabandi for the 1955-57, and the rent was reduced to 1/3 of
the produce. It was submitted that the change was unauthorised
and no reliance could have been placed upon it. Hardeo continued
to be a tenant, and the name of Bidhia could not have been
substituted as per the law. This plea cannot be accepted. Hardeo
never objected to the change in the revenue entry during his
lifetime. He died on 24.02.1979 as per the death certificate
(Ext.D-5). He never claimed during his lifetime that he was a
tenant. Bhagat Ram was present at the time of attestation of the
mutation. He also never claimed that Hardeo was the tenant and
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not Bidhia. Not only this, Ghungar Ram and Faquir had applied
High Court of H.P.
for the allotment of the land under the provisions of the Himachal
Pradesh Village Common Land Vesting and Utilisation Scheme.
Faquir made a statement (Ext. P-12) that he did not own any land,
and he was not a tenant. His father was alive, and he had no land
in his name. Similarly, Ghungar made a statement (Ext.P-13) that
he was not the tenant of any land or the owner of any land. These
statements were made on 08.09.1975 in the presence of Pardhan
and contained an important admission that they were not tenant
and Hardeo was also not the owner of any land. It was laid by
Hon’ble Supreme Court in Bishwanath Prasad v. Dwarka Prasad,
(1974) 1 SCC 78: 1973 SCC OnLine SC 322 that a statement made by a
party is admissible, irrespective of the fact whether the party
appeared in the witness box or the admission was put to him in
the cross-examination. It was observed at page 81:
8. There is no merit even in the contention that, because
these three statements — Exs. G, G-2 and H had not been
put to the first plaintiff when he was in the witness box or
to the eighth defendant, although he had discreetly kept
away from giving evidence; they cannot be used against
him. Counsel drew our attention to Section 145 of the
Indian Evidence Act. There is a cardinal distinction
between a party who is the author of a prior statement and
a witness who is examined and is sought to be discredited
by use of his prior statement. In the former case, an
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admission by a party is substantive evidence if it fulfils the
requirements of Section 21 of the Evidence Act; in the latter
case, a prior statement is used to discredit the credibility of
the witness and does not become substantive evidence. In
the former, there is no requirement of the statement
containing the admission having to be put to the party
because it is evidence proprio vigore : in the latter case, the
Court cannot be invited to disbelieve a witness on the
strength of a prior contradictory statement unless it has
been put to him, as required by Section 145 of the Evidence
Act. This distinction has been clearly brought out in the
ruling in the Bharat Singh case. [AIR 1966 SC 405: (1966) 1
SCR 606, 615-16: (1966) 2 SCJ 53] This Court disposed of a
similar argument with the following observations:
High Court of H.P.
"Admissions are substantive evidence by
themselves, in view of Sections 17 and 21 of the
Indian Evidence Act, though they are not conclusive
proof of the matters admitted. We are of the opinion
that the admissions duly proved are admissible evidence
irrespective of whether the party making them appeared
in the witness box or not, and whether that party, when
appearing as a witness, was confronted with those
statements in case it made a statement contrary to those
admissions . The purpose of contradicting the witness
under S. 145 of the Evidence Act is very much
different from the purpose of proving the admission.
Admission is substantive evidence of the fact
admitted, while a previous statement used to
contradict a witness does not become substantive
evidence and merely serves the purpose of throwing
doubt on the veracity of the witness. What weight is
to be attached to an admission made by a party is a
matter different from its use as admissible
evidence." (Emphasis supplied)
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24. This position was reiterated in Union of India v. Moksh
High Court of H.P.
Builders and Financiers Ltd. , (1977) 1 SCC 60: 1976 SCC OnLine SC
377 , wherein it was observed at page 67:
21…. There is, however, no force in the other argument that
they are not admissible in evidence against Defendant 3, as
he was not confronted with them in the trial court, and
they were not adverse to the interest of their maker at the
time when they were made. It has been held by this Court
in Bharat Singh v. Bhagirath [AIR 1966 SC 405 : (1966) 1 SCR
606 ] that an admission is substantive evidence of the fact
admitted, and that admissions duly proved are
“admissible evidence irrespective of whether the party
making them appeared in the witness box or not and
whether that party, when appearing as witness, was
confronted with those statements in case it made a
statement contrary to those admissions.”
In taking this view, this Court has noticed the decision in
Ajodhya Prasad Bhargava v. Bhawani Shanker Bhargava [AIR
1957 All 1: ILR (1956) 2 All 399] also. The point has been
considered and answered as follows in Wigmore on
Evidence , Vol. IV, §1048 (at p. 3):
“The theory of the hearsay rule is that an extra-judicial
assertion is excluded unless there has been sufficient
opportunity to test the grounds of assertion and the
credit of the witness, by cross-examination by the party
against whom it is offered (post, §1362); e.g. if Jones
had said out of court ‘The party-opponent Smith
borrowed this fifty dollars’, Smith is entitled to an
opportunity to cross-examine Jones upon that
assertion. But if it is Smith himself who said out of
court, ‘I borrowed this fifty dollars’, certain Smith
cannot complain of lack of opportunity to cross-
examine himself before his assertion is admitted
against him. Such a request would be absurd. Hence, the
objection of the hearsay rule falls away, because the
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very basis of the rule is lacking, viz., the need and
prudence of affording an opportunity of cross-
examination.”
High Court of H.P.
Moreover, Defendant 3 had a full opportunity to appear
and defend himself, but he did not do so, and the case
proceeded against him ex parte. The plaintiff even tried to
examine him as his own witness, but his appearance could
not be secured in spite of the prayer for the issue of
summonses and a warrant. There is therefore no force in
the argument to the contrary.
22. So also, there is no force in the argument that the
aforesaid admissions or statements of Defendant 3 could
not be read against him, as they were not averse to his
interest when made. There is no such requirement of the
Evidence Act, and the argument is untenable as it
unreasonably restricts the opportunity to prove the true
state of affairs on the party's own showing and to demolish
his subsequent claim as self-contradictory. This point has
also been dealt with in Wigmore on Evidence , §1048 (at p. 4)
in this way:
“It follows that the subject of an admission is not
limited to facts against the party-opponent's interest at
the time of making it. No doubt the weight of credit to
be given to such statements is increased when the fact
stated is against the person's interest at the time, but
that circumstance has no bearing upon their
admissibility. On principle, it is plain that the probative
reason why a party-opponent's utterance is sought to
be used against him is ordinarily the reason noted
above, in para 1( b ), viz. that it exhibits an inconsistency
with his present claim, thus tending to throw doubt
upon it, whether he was at the time speaking apparently
in his own favour or against his own interest.”
The contrary view has been characterised by Wigmore as
“a fallacy, in the fullest sense”.
23. Another argument which has been advanced against the
admissibility of the aforesaid admissions of Defendant 3 is
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that they could be evidence only in terms of Section 33 of
the Evidence Act. That argument is also quite untenable
because Section 33 deals with statements of persons who
cannot be called as witnesses, and does not restrict or
override the provisions relating to admissions in the
Evidence Act. The High Court also committed a similar
error of law in its impugned judgment. The aforesaid
admissions of Defendant 3 are therefore satisfactory
evidence to prove that he himself was the owner of the
house, and his son, Defendant 2, was merely a
“benamidar” for him.
High Court of H.P.
25. It was held in Nagindas Ramdas v. Dalpatram Ichharam ,
(1974) 1 SCC 242: 1973 SCC OnLine SC 378 , that the admissions are
the best proof of the facts admitted. It was observed at page 251:
“27. From a conspectus of the cases cited at the bar, the
principle that emerges is, that if at the time of the passing
of the decree, there was some material before the Court, on
the basis of which, the Court could be prima facie satisfied,
about the existence of a statutory ground for eviction, it
will be presumed that the Court was so satisfied and the
decree for eviction though apparently passed on the basis
of a compromise, would be valid. Such material may take
the shape either of evidence recorded or produced in the
case, or it may partly or wholly be in the shape of an
express or implied admission made in the compromise
agreement itself. Admissions, if true and clear, are by far
the best proof of the facts admitted. Admissions in
pleadings or judicial admissions, admissible under Section
58 of the Evidence Act, made by the parties or their agents
at or before the hearing of the case, stand on a higher
footing than evidentiary admissions. The former class of
admissions are fully binding on the party that makes them
and constitutes a waiver of proof. They can be made the
foundation of the rights of the parties. On the other hand,
evidentiary admissions which are receivable at the trial as
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evidence are, by themselves, not conclusive. They can be
shown to be wrong.”
High Court of H.P.
26. It was held in S.R. Srinivasa v. S. Padmavathamma ,
(2010) 5 SCC 274: 2010 SCC OnLine SC 507 that an admission is the
best proof of the facts admitted. It was observed at page 289:
“44. It is undoubtedly correct that a true and clear
admission would provide the best proof of the facts
admitted. It may prove to be decisive unless successfully
withdrawn or proved to be erroneous. The legal position
with regard to admissions and their evidentiary value has
been discussed by this Court in many cases. We may notice
some of them.
45. In Narayan Bhagwantrao Gosavi Balajiwale v. Gopal
Vinayak Gosavi [AIR 1960 SC 100] , it was observed as
follows: (AIR p. 105, para 11)
“ 11 . … An admission is the best evidence that an
opposing party can rely upon, and though not
conclusive, is decisive of the matter, unless successfully
withdrawn or proved erroneous.”
46. In Nagindas Ramdas v. Dalpatram Ichharam [(1974) 1
SCC 242: AIR 1974 SC 471 ], it has been observed: (SCC p. 252,
para 27)
“ 27 . … Admissions, if true and clear, are by far the best
proof of the facts admitted. Admissions in pleadings or
judicial admissions, admissible under Section 58 of the
Evidence Act, made by the parties or their agents at or
before the hearing of the case, stand on a higher footing
than evidentiary admissions. The former class of
admissions are fully binding on the party that makes
them and constitutes a waiver of proof. They by
themselves can be made the foundation of the rights of
the parties by themselves. On the other hand,
evidentiary admissions which are receivable at the trial
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as evidence are, by themselves, not conclusive. They can
be shown to be wrong.”
High Court of H.P.
47. The aforesaid two judgments, along with some other
earlier judgments of this Court, were considered by this
Court in Gautam Sarup v. Leela Jetly [(2008) 7 SCC 85 ],
wherein it was observed as follows: (SCC pp. 90 & 94, paras
16 & 28)
“ 16 . A thing admitted in view of Section 58 of the
Evidence Act need not be proved. Order 8 Rule 5 of the
Code of Civil Procedure provides that even a vague or
evasive denial may be treated as an admission, in which
event the court may pass a decree in favour of the
plaintiff. Relying on or on the basis thereof, a suit,
having regard to the provisions of Order 12 Rule 6 of the
Code of Civil Procedure, may also be decreed on
admission. It is one thing to say that, without resiling
from an admission, it would be permissible to explain
under what circumstances the same had been made, or
it was made under a mistaken belief, or to clarify one's
stand inter alia in regard to the extent or effect of such
admission, but it is another thing to say that a person
can be permitted to totally resile therefrom. …
*
28 . What, therefore, emerges from the discussions made
hereinbefore is that a categorical admission cannot be
resiled from, but, in a given case, it may be explained or
clarified. Offering an explanation in regard to an
admission or explaining away the same, however,
would depend upon the nature and character thereof. It
may be that a defendant is entitled to take an alternative
plea. Such alternative pleas, however, cannot be
mutually destructive of each other.”
27. This position was reiterated in Union of India v.
Ibrahim Uddin , (2012) 8 SCC 148: 2012 SCC OnLine SC 528 , wherein
it was observed at page 166:
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29. Admission is the best piece of substantive evidence that
an opposite party can rely upon, though not conclusive,
and is decisive of the matter, unless successfully
withdrawn or proved erroneous. Admission may, in certain
circumstances, operate as an estoppel. The question which
is needed to be considered is what weight is to be attached
to an admission, and for that purpose, it is necessary to
find out as to whether it is clear, unambiguous and a
relevant piece of evidence, and further, it is proved in
accordance with the provisions of the Evidence Act. It
would be appropriate that an opportunity be given to the
person under cross-examination to tender his explanation
and clear the point on the question of admission. (Vide
Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak
Gosavi [AIR 1960 SC 100], Basant Singh v. Janki Singh [AIR
1967 SC 341], Sita Ram Bhau Patil v. Ramchandra Nago Patil
[(1977) 2 SCC 49: AIR 1977 SC 1712], Sushil Kumar v. Rakesh
Kumar [(2003) 8 SCC 673: AIR 2004 SC 230], United India
Insurance Co. Ltd. v. Samir Chandra Chaudhary [(2005) 5 SCC
784], Charanjit Lal Mehra v. Kamal Saroj Mahajan [(2005) 11
SCC 279: AIR 2005 SC 2765 ] and Udham Singh v. Ram Singh
[(2007) 15 SCC 529 ] .)
High Court of H.P.
30. In Nagubai Ammal v. B. Shama Rao [AIR 1956 SC 593],
this Court held that an admission made by a party is
admissible and the best evidence, unless it is proved that it
had been made under a mistaken belief. While deciding the
said case, reliance has been placed upon the judgment in
Slatterie v. Pooley [(1840) 6 M&W 664: 151 ER 579] , wherein
it had been observed, “What a party himself admits to be
true, may reasonably be presumed to be so.”
31. In LIC v. Ram Pal Singh Bisen [(2010) 4 SCC 491 : (2010) 1
SCC (L&S) 1072: (2010) 2 SCC (Civ) 191] this Court held that:
(SCC p. 496, para 23)
“ 23 . … failure to prove the defence does not amount to
an admission, nor does it reverse or discharge the
burden of proof of the plaintiff….”
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32. In view of the above, the law on admissions can be
summarised to the effect that an admission made by a
party, though not conclusive, is a decisive factor in a case
unless the other party successfully withdraws the same or
proves it to be erroneous. Even if the admission is not
conclusive, it may operate as an estoppel. Law requires that
an opportunity be given to the person who has made an
admission under cross-examination to tender his
explanation and clarify the point on the question of
admission. Failure of a party to prove its defence does not
amount to admission, nor can it reverse or discharge the
burden of proof of the plaintiff.
High Court of H.P.
34. Section 58 provides that a fact may not need to be
proved in any proceeding which the parties thereto agreed
to admit at the hearing or which, before the hearing, they
agreed to admit by any writing under their hands or which
they admitted by their pleading, even in that case the court
may, in its discretion, even if such an admission has been
made by the party, require the fact admitted to be proved
otherwise than by such admission. In fact, admission by a
party may be oral or in writing. “Admissions” are governed
under Sections 17 to 31 of the Evidence Act, and such
admissions can be tendered and accepted as substantive
evidence. While admission for purposes of trial may
dispense with proof of a particular fact. Section 58 deals
with admissions during trial, i.e. at or before the hearing,
which are known as judicial admissions or stipulations
dispensed with proof. Admissions are not conclusive proof
but may operate as an estoppel against its maker.
Documents are necessarily either proved by a witness or
marked on admission.
28. Learned Appellate Court held that Ghungar and his
brother had not been in possession of the suit land or any portion
thereof in their own right, and Herdev had been the owner in
possession of the suit land. These findings overlook the
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admission made by Ghungar and Faquir Chand that their father
High Court of H.P.
was not the owner of any land. Therefore, the findings recorded
by the learned Appellate Court are based upon the misreading of
the admission and are liable to be interfered with.
29. Section 35 of the Punjab Tenancy Act deals with the
relinquishment of the tenancy by a tenant holding for a fixed
term. Section 36 deals with the relinquishment by other tenants
and provides that a tenant may relinquish his tenancy by giving a
notice verbally or in writing to the landlord or his agent declaring
his intention to relinquish the tenancy at the end of agriculture
year. Section 38 of the Act provides for the abandonment of the
tenancy and reads that if a tenant having a right of occupancy
fails to cultivate the land in his tenancy for more than one year
without sufficient cause, the right of occupancy shall be
extinguished. Therefore, it is permissible to the tenant to
relinquish the tenancy or abandon the tenancy. Bidhia
categorically stated that Hardeo was unable to cultivate the land,
and he (Bidhia) was inducted as a tenant by Bhagat Ram, who, as
already stated, never disputed Bidhia’s status during the
conferment of the proprietary rights. The defendant Ghungar and
his brother stated that they were minors, and Bidhia was a major,
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which shows that the defendants could not have cultivated the
High Court of H.P.
land.
30. Ghungar Ram (DW-1) stated that Hardeo was not
aware of the change in the revenue entries. He separated his
children, and he started cultivating the land separately.
31. Ramesh Chand (DW-4) stated in his cross-
examination that land cultivated by Bidhia, Ghungar and Faqir,
etc., was a different land and not the suit land. He admitted that
he had not objected to the attestation of Bidhia. His statement
that Bidhia, etc., were cultivating some other land is clearly not
correct because his predecessor Bhagat Ram had not objected to
the conferment of proprietary rights regarding the suit land.
32. Prithvi Ram (PW-2) stated that Hardeo used to
cultivate the land whenever he was capable, and thereafter Bidhia
cultivated the land. Hardeo remained active for 10 years before his
death, and land was cultivated by Bidhia thereafter. Learned
Appellate Court construed the statement to mean that Hardeo
continued to cultivate the land till 1969, which is contrary to the
plaintiff’s case. This inference could not have been drawn from
his statement. This witness stated that he had seen Hardeo, but
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he had left the area in connection with his job. He admitted that
High Court of H.P.
Hardeo used to cultivate the suit land. He was not aware that
Bidhia was residing with Hardeo because he was serving in the
Army. He had served for six years before the independence and
thereafter for three years. He claimed himself to be aged 60,
which means that he was born somewhere in the year 1940 and
could not serve in the Army at the age of one year. He repeatedly
stated that he was not aware of the fact because he had remained
outside the area, which shows that his testimony regarding the
possession was not trustworthy, and the same could not have
been used to rebut the presumption of correctness attached to the
revenue record. It was laid down by the Hon’ble Supreme Court in
Partap Singh v. Shiv Ram, (2020) 11 SCC 242: 2020 SCC OnLine SC
228 that an entry in the jamabandi carries with it a presumption
of correctness u/s 45 of the H.P. Land Revenue Act, and the
burden is upon the person who alleges to the contrary. The
burden can be discharged by leading evidence of incapable
integrity. Oral evidence is not sufficient to hold that the
presumption stands rebutted. It was observed:
16. As per Section 32(2)( a ) of the 1954 Act, record-of-
rights, i.e. jamabandi, shall include the name of persons
who are landowners, tenants or assignees of land revenue
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and also the rent, land revenue, rates, cesses or other
payments due from and to each of those persons and the
Government. On the other hand, the periodical record, i.e.
khasra girdawari, as mentioned in Section 34 of the 1954
Act, is to be prepared every year as proof of the statements,
as mentioned in sub-section (2) clause ( a ) of Section 32,
which includes the name of the landowners, tenants and
the rent and land revenue payable. In terms of Section 45 of
the 1954 Act, the record of rights as prepared in terms of
Sections 32 and 34 of the 1954 Act carries a presumption of
truth. Still further, any person who is aggrieved by any
entry in the record of rights or a periodical record has a
right to invoke the jurisdiction of the civil court for
correction of the entries in terms of Section 46 of the 1954
Act.
High Court of H.P.
17. The detailed procedure for recording periodical records
of rights, as well as the record-of-rights, in terms of
Sections 32 and 34 of the 1954 Act, has been prescribed.
The record of rights contains entries of the revenue record
for the four years. Such a record of rights carries the
presumption of correctness in terms of Section 45 of the
1954 Act and also Section 35 of the Evidence Act, 1872 (for
short “the Evidence Act”). Section 109 of the Evidence Act
further contemplates whether there exists a relationship of
landowner and tenant, and the burden of proving such a
relationship is on the person who affirms it.
18. The relevant provisions of the Evidence Act read as
follows:
“ 35. Relevancy of entry in public record or an electronic
record made in performance of duty .—An entry in any
public or other official book, register or record or an
electronic record, stating a fact in issue or relevant fact,
and made by a public servant in the discharge of his
official duty, or by any other person in performance of a
duty specially enjoined by the law of the country in
which such book, register, or record or an electronic
record is kept, is itself a relevant fact.
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*
High Court of H.P.
109. Burden of proof as to relationship in the cases of
partners, landlord and tenant, principal and agent .—
When the question is whether persons are partners,
landlord and tenant, or principal and agent, and it has
been shown that they have been acting as such, the
burden of proving that they do not stand, or have ceased
to stand, to each other in those relationships
respectively, is on the person who affirms it.”
19. In the State of Himachal Pradesh, jamabandi, under
Section 32 of the 1954 Act, as well as Khasra Girdawari,
under Section 34 of the 1954 Act, both are record-of-rights
in terms of Section 32 of the 1954 Act and have a statutory
presumption of truth. How that presumption can be
inferred has come up for consideration before this Court in
Harish Chander v. Ghisa Ram, (1981) 1 SCC 431 . This Court
held that the entries in the jamabandi carry a presumption
of truth, but such presumption is rebuttable. Once that
presumption is raised, still another comes to the aid of
Respondent 1 [therein] [ Ed. : The facts of Harish Chander,
(1981) 1 SCC 431 , are that the name of Respondent 1 therein
was recorded as a tenant in the jamabandi for the year
1959-60 (Ext. P-1) and consistently thereafter till the year
1968 (Khasra-girdawaris Exts. P-2 to P-7). Thus, it was
held that the statutory presumption of truth of these
entries was attracted to the benefit of Respondent 1 tenant,
and so also the reversal of the burden of proof under
Section 109 of the Evidence Act, 1872, was held to be to his
benefit. The facts of the present case are exactly the
opposite— see para 20 below—there is no entry at all in the
record of rights of the tenancy claimed by the respondent-
defendant herein. Thus, the presumption of the truth of
the record-of-rights has been held to enure to the benefit
of the appellants whose names were found to be recorded
in the record-of-rights.] by reason of the rule contained in
Section 109 of the 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
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that such relationship has ceased, is on the party who so
asserts. It was held as under: (SCC pp. 431-433, paras 2 & 6)
High Court of H.P.
“ 2 . … 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.
*
6 . 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 Section 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 1 by reason of the rule contained in Section
109 of the Evidence Act, 1872, 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.”
20. The present is a case where no relationship of landlord
and tenant is mentioned in the revenue record, though
required in terms of Section 32(2)( a ) of the 1954 Act. In the
absence of an entry in the revenue record, which is also
expected to contain the entry of rent and possession, the
tenancy cannot be treated as in existence only on the basis
of oral evidence of the witnesses examined by the
defendant. The burden of proving the relationship was on
the defendant. Such a burden cannot be said to be rebutted
only by oral evidence. The witnesses may lie, but the
documents do not, is a golden rule. The presumption of
truth attached to the revenue record can be rebutted only
on the basis of evidence of impeccable integrity and
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reliability. The oral evidence can always be adduced
contrary to the revenue record, but such oral testimony
will not be sufficient to hold that the statutory
presumption stands rebutted.
High Court of H.P.
21. This Court in Vishwa Vijay Bharati v. Fakhrul Hassan,
(1976) 3 SCC 642, held that the entries in the revenue record
ought to be generally accepted at their face value and
courts should not embark upon an appellate inquiry into
their correctness. But the presumption of correctness can
apply only to genuine, not forged or fraudulent entries.
This Court held as under: ( Fakhrul Hassan case [Vishwa
Vijay Bharati v. Fakhrul Hassan, (1976) 3 SCC 642 ], SCC p.
645, para 14)
“ 14 . It is true that the entries in the revenue record
ought, generally, to be accepted at their face value, and
courts should not embark upon an appellate inquiry into
their correctness. But the presumption of correctness
can apply only to genuine, not forged or fraudulent,
entries. The distinction may be fine, but it is real. The
distinction is that one cannot challenge the correctness
of what the entry in the revenue record states, but the
entry is open to the attack that it was made fraudulently
or surreptitiously. Fraud and forgery rob a document of
all its legal effect and cannot be found a claim to the
possessory title.”
22. This Court in Guru Amarjit Singh v. Rattan Chand, (1993)
4 SCC 349: AIR 1994 SC 227 was examining a dispute of the
relationship of landlord and tenant. A copy of a more than
thirty-year-old lease deed was produced to prove the
relationship between the landowner and tenant. However,
the revenue record did not show any payment of rent, but
only the existence of terms of the lease to pay rent. This
Court held that non-production of the receipts of payment
of rent clearly indicates that there was no relationship
between the landlord and tenants.
23. In Sodhi Transport Co. v. State of U.P., (1986) 2 SCC 486:
1986 SCC (Tax) 410] , this Court was considering Section 28-
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B of the Uttar Pradesh Sales Tax Act, 1948, which raises a
presumption of sale of goods in a manner prescribed
therein. This Court considered Section 4 of the Evidence
Act and also the previous judgments and held as under:
(SCC p. 496, para 14)
High Court of H.P.
“ 14 . A presumption is not in itself evidence but only
makes a prima facie case for a party in whose favour it
exists. It is a rule concerning evidence. It indicates the
person on whom the burden of proof lies. When the
presumption is conclusive, it obviates the production of
any other evidence to dislodge the conclusion to be
drawn on proof of certain facts. But when it is
rebuttable, it only points out the party on whom lies the
duty of going forward with evidence on the fact
presumed, and when that party has produced evidence
fairly and reasonably tending to show that the real fact
is not as presumed, the purpose of the presumption is
over. Then the evidence will determine the true nature
of the fact to be established. The rules of presumption
are deduced from enlightened human knowledge and
experience and are drawn from the connection, relation
and coincidence of facts and circumstances.”
24. In another judgment in Kumar Exports v. Sharma
Carpets, (2009) 2 SCC 513 : (2009) 1 SCC (Civ) 629 : (2009) 1
SCC (Cri) 823 , this Court examined the presumption of fact
in proceedings under Section 138 of the Negotiable
Instruments Act, 1881. It was held that bare denial of the
passing of the consideration and existence of debt,
apparently, would not serve the purpose of the accused.
Something, which is probable, has to be brought on record
for getting the burden of proof shifted to the complainant.
It was held as under: (SCC p. 521, para 21)
“ 21 . The accused also has an option to prove the
non-existence of consideration and debt or liability
either by letting in evidence or, in some clear and
exceptional cases, from the case set out by the
complainant, that is, the averments in the complaint,
the case set out in the statutory notice and evidence
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adduced by the complainant during the trial. Once such
rebuttal evidence is adduced and accepted by the court,
having regard to all the circumstances of the case and
the preponderance of probabilities, the evidential
burden shifts back to the complainant and, thereafter,
the presumptions under Sections 118 and 139 of the Act
will not again come to the complainant's rescue.”
High Court of H.P.
25. The presumption of truth attached to the revenue
record can be rebutted if such an entry was made
fraudulently or surreptitiously ( Vishwa Vijay Bharati v.
Fakhrul Hassan, (1976) 3 SCC 642) or where such an entry
has not been made by following the prescribed procedure
( Bhimappa Channappa Kapali v. Bhimappa Satyappa
Kamagouda, (2012) 13 SCC 759: (2014) 5 SCC (Civ) 419 ). Even
in Guru Amarjit Singh v. Rattan Chand, (1993) 4 SCC 349: AIR
1994 SC 227 , where thirty years old lease deed was
produced, this Court had not accepted the proof of the
relationship between landowner and tenant in the absence
of receipt of payment of rent.
26. Therefore, we find that the presumption of truth
attached to the record of rights can be rebutted only if
there is fraud in the entry or the entry was surreptitiously
made, or the prescribed procedure was not followed. It will
not be proper to rely on the oral evidence to rebut the
statutory presumption, as the credibility of oral evidence
vis-à-vis documentary evidence is at a much weaker
level.”
33. It was submitted that Bidhia had not pleaded that
Hardeo was the owner who had abandoned the tenancy, and the
evidence to this effect was beyond pleading and could have been
looked into. This submission will not help the respondents. It was
laid down by the Hon’ble Supreme Court in Des Raj v. Bhagat Ram,
(2007) 9 SCC 641: 2007 SCC OnLine SC 221 that the pleadings in the
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Mufassil have to be liberally construed as a whole. It was observed
High Court of H.P.
at page 647: -
17. It may be true that in his plaint, the plaintiff did not
specifically plead ouster, but muffosil pleadings, as is well
known, must be construed liberally. Pleadings must be
construed as a whole.
18. In Devasahayam v. P. Savithramma [(2005) 7 SCC 653]
this Court opined: (SCC p. 661, para 20)
“ 20 . The pleadings, as are well known, must be
construed reasonably. The contention of the parties
in their pleadings must be culled out from reading
the same as a whole. Different considerations on the
construction of pleadings may arise between
pleadings in the mofussil court and pleadings in the
original side of the High Court.”
19. Only because the parties did not use the terminology
that they should have, ipso facto, would not mean that the
ingredients for satisfying the requirements of the statute
are absent. There cannot be any doubt whatsoever that,
having regard to the changes brought about by Articles 64
and 65 of the Limitation Act, 1963, vis-à-vis Articles 142
and 144 of the Limitation Act, 1908, the onus to prove
adverse possession would be on the person who raises such
a plea. It is also not in dispute that the possession of a co-
sharer is presumed to be the possession of the other co-
sharers unless the contrary is proved.
34. Bidhia had specifically pleaded that he was inducted as
a tenant, and the mere fact that he had not mentioned that
Hardeo had abandoned the tenancy will not make his case
doubtful.
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35. Learned Appellate Court also relied upon the
High Court of H.P.
statement of Bidhia in his cross-examination that it was correct
that Bhagat Ram had not inducted Bidhia, Ghungar and Khemdi
as tenants. This is clearly a result of some mistake because
Hardeo had four sons, namely, Khemdi, Ghungar, Faqir and
Bidhia, whereas the names of only three sons have been
mentioned. Further, a stray line in the cross-examination is not
to be read in isolation, and the whole statement has to be read.
He has repeatedly said that he was inducted as a tenant by Bhagat
Ram, and this stray line in the cross-examination would not take
away the effect of his repeated assertion that he was inducted as a
tenant by Bhagat Ram.
36. It was submitted that the change in favour of Bidhia
was unauthorised, and subsequent entries cannot be relied upon.
There can be no dispute that if the change in favour of a person is
unauthorised, the subsequent entries will have no effect;
however, the burden to prove that the change was unauthorised is
upon a person who asserts it to be so. It was laid down by the
Hon’ble Supreme Court in Vishwa Vijay Bharati v. Fakhrul Hassan ,
(1976) 3 SCC 642: 1976 SCC OnLine SC 197 that the Civil Courts
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should not embark upon an appellate enquiry into the correctness
High Court of H.P.
of the revenue entries. It was observed at page 645:
14. It is true that the entries in the revenue record ought,
generally, to be accepted at their face value, and courts
should not embark upon an appellate inquiry into their
correctness. But the presumption of correctness can apply
only to genuine, not forged or fraudulent, entries. The
distinction may be fine, but it is real. The distinction is that
one cannot challenge the correctness of what the entry in
the revenue record states, but the entry is open to the
attack that it was made fraudulently or surreptitiously.
Fraud and forgery rob a document of all its legal effect, and
cannot be found a claim to possessory title.
37. In the present case, no material was brought on record
to rebut the presumption of correctness attached to the revenue
entries. Bhagat Ram and Hardeo, who were interested in
disputing the entries, never challenged them. Bhagat Ram was
present at the time of attestation of the mutation, but he never
claimed that the entries were incorrect. Ghungar and Faqir never
claimed that they were in possession of any land, clearly
supporting the revenue entries. Therefore, the entries cannot be
ignored on the basis that the change was unauthorised and the
jduemtns in Tulsa Singh (supra, Ajay Vij (supra), Chet Ram (supra)
Sham Prasad (supra) and Paravati Devi (supra) do not apply to the
present case.
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38. Therefore, the learned Appellate Court erred in
High Court of H.P.
holding that revenue entries were incorrect. The learned
Appellate Court did not consider the provisions of the Punjab
Tenancy Act. The learned Appellate Court brushed aside the order
of conferment of proprietary rights as if it had no value. It was an
order passed by a competent officer in the exercise of jurisdiction
conferred upon him in the presence of the owner and the tenant,
and could not be ignored unless the same was set aside by taking
recourse to the law. The learned Appellate Court also erred in
holding that the admissions made by Ghungar and Faquir were of
no consequence; hence, these substantial questions of law are
answered accordingly.
Substantial question of law No.5 in RSA No.29 of 2009.
39. No act or conduct of Ghungar etc. leading the plaintiff
Bidhia to act to his advantage was brought on record in the
absence of which the principle of estoppel could not have been
applied; hence, this substantial question of law is answered
accordingly.
Final order:
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40. In view of the above, the present appeals are allowed,
High Court of H.P.
and the judgments and decrees passed by the learned Appellate
Court are set aside, whereas the judgments and decrees passed by
the learned Trial Court are restored.
41. The present appeals stand disposed of, and so are the
pending miscellaneous applications, if any.
42. The record of the learned Courts below be returned
along with a copy of this judgment.
( Rakesh Kainthla)
Judge
nd
02 July, 2026.
(ravinder)
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