JAI KISHAN Vs. SARAN DASS
LAWS(HPH)-1997-12-24
HIGH COURT OF HIMACHAL PRADESH
Decided on December 11,1997

JAI KISHAN Appellant
VERSUS
Saran Dass Respondents


Referred Judgements :-

DURGA AND OTHERS V. MILKHI RAM AND OTHERS [REFERRED TO]


JUDGEMENT

SURINDER SARUP, J. - (1.)This appeal is directed against the concurrent judgments and decrees of both the courts below dismissing the suit of the plaintiffs -appellants. The suit had been filed for declaration and permanent injunction on the pleadings that the plaintiffs are owners in possession of the suit land, fully described in the plaint. According to them, the defendants -respondents have been interfering in their possession without any right, hence the suit for declaration to the effect that they are owners in possession and consequently relief for issuance of permanent injunction restraining the defendants -respondents from interfering in their possession over the suit land in any way.
(2.)In the written statement, defendants -respondents denied the claim of the plaintiffs -appellants and according to them, defendant No. 1 had been in possession of the suit land as tenant on payment of BATAI and had become its owner by coming into force of the Himachal Pradesh Tenancy and Land Reforms Act. Certain preliminary objections were also taken. On the pleadings of the parties, trial Court framed the following issues : -
(3.)Findings of both the courts below are based on appreciation of evidence. The same may briefly be mentioned. In the jamalandis for the years 1952 -53 and 1956 -57 (Exts. D -1 and D -2, respectively) on the record, the suit land has been shown in exclusive possession of Saran Dass, defendant No. 1 as tenant -at - will i.e., GAIR MARUSI on payment of BATAI. There is no evidence to show how these entries were later on changed/corrected in the name of Chaudhary Ram in the jamabandi for the year 1960 -61 (Ext. P -8). Plaintiffs are relying on RAPAT dated 6 -10 -1957. The same has not been produced in evidence, although it is on record as mark D The same, therefore, cannot be read in evidence. Even otherwise on merits for the reasons stated in the impugned judgement under apeal, that entry has been rightly ignored by the lower Appellate Court. It has rightly relied on a reported decision of the Punjab and Haryana High Court Durga and others v. Milkhi Ram and others, 1969, PLJ, 105 for the legal proposition to the effect that where the entry in the subsequent record of rights is proved to be unauthorised or illegal, the presumption attached to the later entries in the record of rights stands rebutted and the entries in the previous record of rights are to be preferred to the entries in the subsequent record of rights. This ratio of the judgment has been rightly applied to the facts of the present case.


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