Ashok Bhushan, J. - (1.) This appeal has been filed challenging the judgment dated 28.07.2006 of High Court of Uttarakhand by the appellants, who were the plaintiffs in suit No. 9 of 1992. The High Court by its judgment has allowed the first appeal filed by the defendants-respondents setting aside the judgment and decree dated 13.08.1996 of the District Judge in Suit No. 9 of 1992.
(2.) The brief facts of the case necessary to be noticed for deciding this appeal are: 2.1 One Badri Aswal was the owner of agricultural land in Khata/Khatauni No. 46 of Village Gyansu, District Uttar Kashi (earlier part of Tehri Garhwal) measuring a total of 62 Nali and 1 muthi. The said Badri had no issue. He married one Tulsa Devi. It is claimed that Tulsa Devi adopted one Bhopalu as her son after death of her husband but Bhopalu's name could never be mutated in the Revenue records. Tulsa Devi died much before independence. One Amar Singh, predecessor-in-interest of appellants claimed to be looking after the affairs of Bhopalu and paying land revenue on his behalf. Bhopalu also died before independence and after death of Bhopalu, Amar Singh continued to be in possession of land belonging to Tulsa Devi. Tulsa Devi's name continued in revenue records. Amar Singh claimed to be in possession of the land. According to law as was in force in Tehri Garhwal at that time that when a tenant/owner dies without an heir, the land is escheated to State. For the reason, Tulsa Devi died without an heir, the entire land was treated to be State property. 2.2 The Collector, Tehri Garhwal passed an order on 17.04.1956 and ordered that property of Tulsa Devi be got released from the possession of Amar Singh. However, Amar Singh was allowed to remain in possession of the land where his house, Gaushala and Sagwara was situated with the condition that total areas shall not exceed 4 Nali. A document was written on 14.05.1956 (paper No.23Gha/2) which recorded that Amar Singh has handed over possession of the entire land of Tulsa Devi except 4 Nali 1 muthi. The plots covering that area of 4 Nali and 1 muthi was also mentioned in the said document. The Government required land for construction of buildings for District Uttar Kashi, with regard to which land in Village Gyansu was acquired. Instead of paying compensation to tenure holders whose land was acquired, the Government ordered to give land in exchange of the land, which earlier was recorded in the name of Tulsa Devi, which stood escheated to the State. An exchange document was recorded in this context where various plots were given in exchange to different tenant holders whose land was acquired. The record operations in the village in question continued from 1952 to 1963 (as has been noted by the High Court). 2.3 The name of Amar Singh was shown in possession with regard to few plots, which were the plots recorded in the name of Tulsa Devi. The A.R.O. passed an order dated 06.05.1961 directing that name of Amar Singh, who was recorded in possession be deleted. The said order was based on a report that name of Amar Singh has been recorded surreptitiously by the record officials. 2.4 In area where the land in question was situated, the Kumaon and Uttarakhand Zamindari Abolition and Land Reforms Act, 1960 (hereinafter referred to as "1960 Act") was enforced. In accordance with the provisions of the 1960 Act, Section 10 provides that every person who on the date immediately preceding the appointed date was recorded as occupants of land held by a hissedar or a khaikar was held to be asamis. The Patwari of the village referring to a Government order dated 19.12.1973 made an entry in Khata/Khatauni firstly in the Fasli year 1979-1985 making entries as per the above Government order. The status of asamis w.e.f. 01.01.1974 and right of sirdar of Khasra No. 641, 719 and 697 was entered against the name of Amar Singh by the Patwari. Amar Singh died in or about the Year 1985. The appellants, who are sons of Lt. Amar Singh filed Civil Suit No. 9 of 1992 against the defendants-respondents praying for permanent injunction. Following reliefs were claimed in para No. 11 of the plaint:- a) to pass a permanent injunction restraining the defendant his family members, agents and labourers from forceful, fraudulent interference in the land in Khata Khatoni No.195/35-K field No.719 admeasuring 2 Nali, 11 Muthi land of village Gyansu, Patti Barahat, Uttarkashi; b) the cost of the case be awarded in favour of the plaintiffs and against the defendant, as this Hon'ble Court deems fit and proper in the facts and circumstances of the case. 2.5 The case of the plaintiff was that father of plaintiff got sirdari rights w.e.f. 01.01.1974. Father of the plaintiffs remained in possession till his death and thereafter the appellants are in possession of plot No. 719 area 2 Nali and 1 muthi on which they have shown mustard crops. It was pleaded that on 27.11.1991, the defendants damaged the mustard crops. Consequently, the suit was filed. 2.6 The defendants in their written statements denied the plaint allegations. Defendants' case was that plot No. 719 and other plots were recorded in the name of Tulsa Devi, who died before the present settlement leaving no heir, therefore, the properties of Tulsa Devi escheated to State and vested in the State of Uttar Pradesh. In the year 1956-57, State needed the properties in Mauza Barahat for construction of PWD houses, the Government acquired property but instead of paying compensation, the owners were given plots of Tulsa Devi in exchange. The grandfather of defendant Mor Singh was Maurusidar, who was owner of plot No. 611 area of 3 Nali 2 muthi, which was acquired by the State and in exchange of said plots Mor Singh was given plot Nos. 366,335, 336 and 364 corresponding to new Plot Nos. 641, 719 and 657. After the death of Mor Singh, partition took place and the plots came in the kura of Narain Singh, father of the defendants. 2.7 Narain Singh partitioned the property and since 24.03.1969, it is the defendants, who are the owners of the plot. Narain Singh died in 1974. It was pleaded that District Magistrate, Tehri Garhwal ordered that the property of Tulsa Devi be got released from the possession of Amar Singh and allowed him to own only 4 Nali 1 muthi land. The land, which was left with Amar Singh did not include Plot No. 719 and with connivance of revenue officials, he got forged entries made with regard to Plot No. 719 and 641. It was alleged that at the present settlement, the Assistant Record officer ordered for striking off the name of Amar Singh by order dated 06.05.1961 but even after directing for deletion of his name from Plot No. 641, 749, it continued in the Revenue records on the basis of which Amar Singh claimed that he has become sirdar. 2.8 It was alleged that plaintiffs are not in possession of the plot Nos. 641 and 719 and it is the defendants, who are in possession and the suit is liable to be dismissed. 2.9 Trial court framed several issues and by order dated 13.08.1996 decreed the suit for injunction of the plaintiffs. Trial court further noticed that an order was passed by the Assistant Record Officer and in the order, he directed for deletion of the name of Amar Singh, the order was only in papers and there is no proof, which has been filed on the record to prove that actual possession of the plot was taken from Amar Singh. Consequently, the entries of possession continued in favour of Amar Singh. 2.10 With regard to the case of the defendants that possession was taken from Amar Singh of the plot belonging to Tulsa Devi and in exchange the plot No. 719 was given to the predecessors-in-interest of the plaintiffs, the trial court held that even though document 23C indicate that plots were taken from Amar Singh and given in supurdagi of Malguzar but there is no proof that actual possession was taken from Amar Singh. The entries in the name of Amar Singh cannot be held to be forged (farzi). 2.11 The defendants aggrieved by the judgment of trial court dated 13.08.1996 filed an appeal in the High Court. The High Court vide its judgment dated 28.07.2006 has allowed the first appeal and set aside the judgment of the trial court dated 13.08.1996. High Court held that in the record operation, there being order passed by Assistant Record Officer in the year 1961 directing the deletion of entry in the name of Amar Singh, no right can be claimed by Amar Singh on the basis of such possession entry. High Court further held that the entry made by the Patwari(Lekhpal) in 1379-1385 Fasli, that Amar Singh has become asamis and sirdar was without authority. Patwari(Lekhpal) was not competent to declare asami/sirdari rights and it was only Assistant Collector, who could have passed any such order. No order having been passed by the competent authority giving asamis/sirdari rights to Amar Singh, on the strength of unauthorised entry made by Patwari, Amar Singh cannot claim any right. 2.12 High Court further noticed that Amar Singh himself in his statement, as has been extracted, in the document dated 14.05.1956, admitted to release the land of Tulsa Devi from his possession except area of 4 Nali, which was given to him under the order of Collector, Tehri Garhwal, where his house, Gaushala and Sagwara were situated. Amar Singh thereafter cannot claim possession or right with regard to any land except those 4 Nalis land, which was given to him in the year 1956. 2.13 High Court held that although correctness of entries in the revenue records cannot be challenged but entries are open to attack on the ground that it was made fraudulently or surreptitiously. High Court held that defendants' case is fortified by the document 21-Ga, which indicate that the land in question had been given in exchange to the predecessor of defendants. On the aforesaid findings, the appeal was allowed setting aside the judgment of the trial court. The appellants aggrieved by the judgment of the High Court has come up in this appeal.
(3.) Shri A.S. Rawat, learned senior counsel appearing for the appellants contends that High Court erred in setting aside the decree of trial court. He submits that Amar Singh's name being recorded in the revenue records as in possession of plot in question, he become asamis by virtue of provisions of 1960 Act and the entry made by Patwari in Khasra "1979-1385" was on the strength of statutory provision and Government order issued therein. He submits that Amar Singh was never dispossessed from plot in question. He submits that the plot No. 719 being a very small piece of land measuring 2 Nali 1 muthi land, which was in possession of Amar Singh, the trial court has correctly decreed the suit holding the Amar Singh to have become asamis/sirdars and bhumidars. He submits that entry made in favour of Amar Singh as asamis cannot be held to be forged.;