HIGH COURT OF HIMACHAL PRADESH
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(1.)This is an appeal against the decree and judgment I passed by the learned Additional District Judge, Kangra at Dharamsala, dated I 12th March, 1980, whereby, on an appeal filed by Shri Jai Chand, appellant, I the decree and judgment passed by the trial court were modified to the extent I that the suit of the appellant to the extent of the land comprised in Khasra I No. 374 was decreed whereas the suit regarding the remaining land was I dismissed.
(2.)Aggrieved by the said judgment and decree passed by the learned lower appellate court, the appellants have filed this second appeal.
(3.)The facts relevant to the case may be briefly stated. The suit was filed by Shri Jai Chand appellant against the respondents Nos. 1 and 2, whereas the appellant No. 2 in this Court was impleaded as a proforma -respondent being a co -owner of the land in dispute. The learned trial court dismissed the suit of the appellants holding that the appellants were not in possession of the land in suit and accordingly a suit for declaration and injunction was not maintainable. The decree and judgment passed by the trial court was assailed by preferring an appeal in the lower appellate court. The lower appellate court on the concession of the contesting -defendants (respondent Nos. 1 and 2) decreed the suit of the appellants to the extent that Khasra No. 374 being Tikka - abadi land, the appellants were in possession thereof and as such they were entitled to the decree. The appellants have now assailed the decree and judgment of the learned lower appellate court in respect of half share in Khasra Nos. 371, 77 and 376. It is contended by the learned counsel for the appellants that the learned lower appellate court has mis -understood and misread the evidence, especially the documentary evidence and has wrongly come to the conclusion that the respondents were the tenants of the land in question It is further contended that Ex. D -l, which is a document prepared during the settlement operations by the Patwari and is not verified by the revenue officers and also does not form a part of Record -of -Fights could not be relied upon. It is further contended that the only entry in favour of the defendants in the revenue record is as contained in Ex. D -l. It is also argued that this document has got no evidentiary value and at the most is relevant under Section 35 of the Evidence Act. Immediately thereafter during settlement operations missal - haquiat was prepared, a copy whereof is Ex. P.
2. A missal -haquiat is also prepared during settlement operation and carries a presumption of truth as attached to an entry in a jamabandi. It is also contended that the respondents have not been able to establish that they were settled as tenants on the land in dispute. No. receipt in token of the payment of rent has been produced. On the contrary, there are entries in the missal -haquiat as also in the previous jamabandi pertaining to the land in dispute which show that the respondents have not been in possession of the land in dispute.
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