HIGH COURT OF RAJASTHAN
Click here to view full judgement.
(1.) THIS is a revision application under sec. 10(2) Rajasthan (Protection of Tenants) Ordinance,1949 against an order of the Assistant Collector, Sambhar dated 13-9-54re fusing protection to the applicant under sec. 7 of the Ordinance.
(2.) WE have heard the learned counsel appearing for the parties and have also examined the record of the case. The applicant Suva applied for reinstatement over the land in dispute on 10-7-52 before the Anti-Ejectment Officer, Jaipur with the allegation that foe had been cultivating the same since long and that Chhotu, Bhanwar Singh and Sujya, opposite parties dispossessed him wrongfully. Chhotu denied the allegations and pleaded that Suva was a resident of Gangati Khurd and that he did not hold or cultivate any land in Gangati Kalan where the land in dispute was situate. Oral as well as documentary evidence was led by the parties. Oral evidence of the applicant consisted of persons cultivating lands round about the disputed land, who deposed to the case set up by the applicant. The witnesses examined by the opposite party corroborated the version put-forth on their behalf. The applicant produced two receipt for payment of irrigation due to the Irrigation Department for Svt. 2003 and Svt. 2007 (Ex. P. 1 and P. 2). A copy of the Navisht alleged to have been executed by Chhotu opposite party in favour of Sheo Karan Ex. P. 3, was also produced. The trial court held that the applicant failed to establish his possession within three months of the applica-cation. The request for reinstatement was rejected. The case was remanded by the Board for further enquiry on the lines indicated in the remand order. It was pointed out that the receipts for payment of irrigation dues produced by the applicant be scrutinised further to ascertain as to whether they appertained to the land in dispute or not. The Thikana papers were also directed to be examined show as to which party had been paying rents and for what land. The applicant examined an employee of the Irrigation Department, whereas, the opposite party produced copies of Khasras of Thikana Dadu along with a Kamdar. The trial court held that the applicant failed to establish his case. The reinstatement request was therefore rejected, again and hence this revision.
The lower court has disbelieved the documentary evidence led by the applicant grounds, which on does scrutiny, are found to be clearly untenable. Shri Gopal Beharilal, clerk of the Irrigation Department has produced Khasra for Svt. 2005 of village Gangati Kalan wherein Chandra son of Shola a real brother of the applicant is entered at itemNo.52. It is unfortunate that the record for Svt. year 2003 and 2007 has been destroyed and hence the receipt produced by the applicant could not be tallied with other connected record. He has father stated that the parcha abpashi for Svt. 2003 and 2007 produced by the applicant were issued by the Irrigation Department. Ram Sahai, Muhafiz Irrigation, has stated that in Svt. 2007 irrigation facilities were allowed to Suva in respect of the land in dispute as he was cultivating the same. It has been argued before us that a Muhafiz who is to deal with hundreds of khasra numbers during the course of his official duty cannot be expected to retainanything particular about individual khasra numbers and the fact that he has stated so definitely about the land in dispute should throw district upon his testimony. It is important to remember in this connection that the opposite party has not been able to produce any parcha abpashi that may have been issued to them by the Irrigation Department. In fact it is stated before us that no parcha abpashi is in their possession according to which the land is alleged to have been irrigated during the past. Secondly the opposite party denied any land being in the possession of applicant in Gangati Kalan. This viewed in the context of the testimony of the irrigation employees, would mean that the applicant, and not the opposite party,has been paying the irrigation dues and that the land in respect of which the dues are paid is the same which formed the subject matier, of the dispute. The khasras of the Thikana produced by the opposite party are obviously not of much value. In Svt. years 2005 to 2008 the name of Chhotu appears but without any reference to the khasra numbers or the name of the land in dispute. The manner in which these documents are maintained by the Thikana has been stated by Balkrishna D.W.9. The relevant portion runs as follows : - "The Khasras are made up of separate sheets of paper stitched with a thread. There are no covers over these papers. None of the Khasras bears any Mohar of the Thikana. These Khasras have not been signed by the Patels. Patwaris and weighman. The Khasras do not bear any serial number nor the pages have been numbered there in. The names of the fields have not been entered in Khasras. This, coupled with the fact that these Khasras were not produced during the early stages of the trial and that Bhanwar Singh, an employee of the Thikana also stands impleaded in the case, practically the reduces the credibility of all this evidence to nought. Obviously this type of evidence could be created by the Thikana as and when considered desirable. It may be pointed out that the opposite party when confronted with the evidence of the Irrigation Department, considered it essential to invent some explanation for the payment of irrigation does for land in Gangati Kalaan by the applicant. It has therefore been subsequently suggested that the applicant cultivated some land of Sujya and the name of land appears in the Khasra prepared in the name of the applicant. This exposes the tactics of the opposite party a great deal. The very fact that the specification of the field was considered necessary in the case of the applicant and not so in the case of others raises a strong presumption that the applicant's Khasra was prepared to explain an uncomfortable position. This runs contradictory to the early plea taken by the opposite party that the applicant did not cultivate any land in Gangati Kalaan. To believe the documentary evidence of the Thikana under the circumstances would itself be an absurdity. In fact the applicant's documentary evidence is much more reliable and free from suspicion. Its rejection is not a fair and judicious exercise of discretion. It would be on the other hand merely arbitrary and fanciful.
Ex. P.3 on which the learned lower court has mostly based its judgment, is a document admitted to have been executed by chhotu opposite party in favour of his brother-in-law,Sheo Karan. Chhotu admits to have got executed this document by the scribe who has deposed to its execution. It is stated therein that the land in dispute is at presented being cultivated by Suva Chamar and that Sheokaran to whom Chhotu was transferring his khatedari interest in the land should attend to the litigation started by Suva. It has been argued before us that this reference to Suva did not appear originally in the document, but as Sheokaran subsequently chose to help the applicant, these words were allowed to be interpolated. The trial court has held these words are contradictory to the opening words of the document, there is difference in ink and the evidence is shaky. None of these arguments can with-stand scrutiny. There if no inconsistency inasmuch as the document as a whole would mean that the land which was formerly cultivated by Chhotu and Bhagirath is now being cultivated by Suva. The scribe and the attesting witnesses examined by the applicant have clearly given out that the entire document was written at the instance of Chhotu including the words to which objection is now being taken. As against this the only relevant thing "pointed out by the opposite party's witnesses is that nothing was decided about Suva's interests. None of them has stated that these words were not written then or that they were added subsequently in their presence. The version set up by the opposite party is inherently absurd. Chhotu surrendered his rights in favour of Sheokaran. Sheokaran who was examined as a witness by the applicant had been in possession of the land. This statement is prejudicial to the interests of Sheokaran and comes after surrender by Chhotu of all right in his favour. There could be no valid motive for Sheokaran to admit the applicant's possession except that it was the result of his desire to serve the cause of truth. It was suggested before us that the surrender was itself written by Chhotu under duress as Sheokaran threatened to turn out his own wife who is Chhotu's sister unless these land were surrendered to him. If this be a fact it would hardly stand to reason that Sheokaran would be willing to undermine his rights in the land by admitting the applicant's possession just for a song. Thus the finding of the lower court that the Ex. P. 3 contains words which were added subsequently is based entirely on conjecture. On the other hand, the evidence led in the case leaves no room to doubt that the document was executed by Chhotu and it was admitted by him then that the land was in Suva's possession.
The documentary evidence has thus been entirely misappreciated by the trial court. The findings arrived at are entirely untenable and against the weight of evidence. The same may be said of the treatment of the oral evidence by the lower court. The witnesses occupying lands contiguous to or in close proximity with the land in dispute said that the applicant had been cultivating the land since a number of years and that the opposite party wrongfully dispossessed him on the date alleged in the application for reinstatement. It was argued on behalf of the opposite party that the applicant stated at one time that he held receipts granted to him by the Thikana and that his failure to produce the same should raise an inference adverse to him. Much need not be said on the point. The employees of the Thikana itself have stated that no receipts are granted by the Thikana. In fact no receipts have been produced even by the opposite party and thus non-production of receipts by the applicant, where none exist, can hardly be of any significance. The evidence led by the opposite party does not at all provide any cogent and convincing reading. In fact the documentary evidence led by the applicant is of so forceful nature that it easily radiates strength to the oral evidence as well is which is also reliable in itself. On a consideration of the entire circumstances of the case, we come to the conclusion that the applicant was in possession of the land in dispute and was dispossessed wrongfully within three months prior to the presentation of the application. We therefore, allow the revision set aside the order of the lower court and direct that the applicant shall be re-instated over the land in dispute.;
Copyright © Regent Computronics Pvt.Ltd.