R.L. Anand, J. - (1.) This is a civil revision and has been directed against the judgment dated 1.2.2001 passed by the learned Additional District Judge, Kaithal, who affirmed the order dated 21.9.2000 passed by the learned Civil Judge, Kaithal, vide which the application of the petitioners under Order 39 Rules 1 and 2 of the Civil Procedure Code was dismissed.
(2.) Some facts can be noticed in the following manner:- Specific case pleaded by the plaintiff/petitioner before the trial Court was that about 50 years ago, one Jamna Dass had taken on rent the suit property from its owner Basant Lal and Babu Ram at the rate of Rs. 160/- per annum. After the death of Jamna Dass, the plaintiff/petitioner occupied the suit property as tenants under the heirs of the owners since Basant Lal and Babu Ram happened to be the brothers of plaintiff No. 2 and as such it was further pleaded by the plaintiff/petitioner that they got their electric connection and water connection installed in the suit property since long and the defendants who have purchased the property from the owners vide sale deed dated 10.8.2000 threatened to interfere in their possession and that they are trying to eject them. Along with the suit, the plaintiff/petitioners also filed an application under Order 39 Rules 1 and 2 of the Civil Procedure Code. Notice of the suit was given to the respondents. They contested the suit as well as the application. It was pleaded that the suit property was once owned by the two brothers namely Basant Lal and Babu Ram and after their death, property was sold by their heirs to the defendants vide registered sale deed dated 10.8.2000 for a sale consideration of Rs. 3 lacs and the possession was delivered to the defendants. The disputed house on the first floor along with the shop on a ground floor had been sold to the defendants. Defendant No. 1 was already in possession of the shop as tenant and was running a commission agency business in the shop under the name and style of "Rikhi Ram and Sons" in partnership with his father Jagdish Rai. The shop was taken on rent by Jaghdish Rai from Basant Lal and Baba Ram vide rent deed dated 24.9.1978. It was further pleaded by the defendants that from the date of purchase, they were owners in exclusive possession of the suit property and they had shifted their residence therein. It was denied that Jamuna Dass ever took the suit property on rent from Basant Lal and Babu Ram. The plaintiffs were never in possession of any part of the suit property. Rather they were residing in their another House bearing MCK No. 1014/17 which was adjoining the suit property. Though an electric meter was existing but was not working. Even water connection was not used. The suit was alleged to be false and frivolous which was filed after concealing the true and material facts.
(3.) The trial Court dismissed the application filed by the plaintiff/petitioners under Order 39 Rules 1 and 2 of the Civil Procedure Code. Not satisfied with it, the plaintiff/petitioners filed appeal. It was also dismissed by the first appellate Court for the following reasons given in paras 11 to 15 of the impugned judgment:- "11 The learned counsel for the plaintiffs-appellants vehemently argued that in the earlier entries of house tax assessment, name of Jamna Dass - grand father of plaintiff No. 1 is shown in the column of occupation. The plaintiffs have not disclosed as to when Jamna Dass died. Plaintiff No. 1 himself is aged about 70 years. Therefore, his grandfather Jamna Dass must have expired long ago. It was contended that the Municipal Committee should not have changed the earlier entries of house tax without giving notice to the plaintiffs, being successors of Jamna Dass and that the correction was not made in accordance' with law. The learned counsel referred to Kavirja Khazan Chand v. The New Delhi Municipality, (sic) Punjab Law Reporter 97 and Shri Roop Singh and another v. Shri Ram Singh, 1988 Punjab Law Journal 209. These authorities are entirely on different footings. In the first authority, there was proposed increase in assessment. The occupier has right to know the reasons for assessment. The second authority related to entries in the records of right that is Jamabandi. Entries of Jamabandi carry presumption of truth under section 44 of the Punjab Land Revenue Act. It was held that the later entries were void and null. In our case, no presumption of truthness is attached to the entries in the house tax assessment register. (12). It was further argued on behalf of the plaintiffs that even tenancy can be oral and could be proved by oral evidence, like any other fact as held in Smt. Gomti Devi v. Shri Om Parkash and another, 1980(1) Rent Control Report 569 , Reference was also made to Raman Malhotra v. Jagdish Raj Mehta and others, 1992(2) R.C.R.(Rent) 224 : 1991(2) Latest Judicial Reports 45 and Shri Kundan Lal of Sirsa v. Shri Sona Ram and others, 1989(1) R.C.R.(Rent) 219 : 1988 Haryana Rent Reporter 694. No dispute was raised about the proposition that the entries in the house tax assessment register showing occupation of a person are admissible in evidence and can be relied upon to prove admissible in evidence and can be relied upon to prove the fact of possession of particular person. The possession of an individual can certainly be determined on the basis of entries in the assessment register. (13). A close perusal of the assessment year 1985-86 would indicate that occupation of Jamna Das was recorded on the first floor. Admittedly Jamna Dass had already expired. It is not clear as to how entries in favour of Jamna Dass continued to be shown in the house tax register. On that basis, it can be said that the entries of the house tax register were not showing the correct position. Therefore, same cannot be relied upon to come to the prima facie conclusion that after the death of Jamuna Dass, plaintiff were in occupation of the suit property. In fact, plaintiffs Nos. 1 and 2 have been shown as residents of House No. 1014 in the voter list for the year 2000. Therefore, there is force in the plea of the defendants that plaintiffs were residing in the house adjoining the suit property. (14). The plaintiffs have to establish their prima facie case. The plaintiffs placed on record Ration Card and electricity bills, but the entries were not connected with the suit property. The plaintiffs also placed on record water charges bills, but the same related to House No. 1807/17. In the electricity bills, plaintiff Gopi Chand is shown to be resident of Mal-godown road, Kaithal. Therefore, these documents relied upon by the plaintiffs do not connect the suit property. At this stage of the case, there is no document in favour of the plaintiffs to prove their possession or relationship of landlord and tenant. Equally, there is no other document to show that plaintiff was a tenant under the owner/vendor. No receipt of payment of rent was placed on record. Documents produced by the plaintiffs do not relate to the suit property. (15). For the above reasons, I could not find any illegality or infirmity in the order of the learned lower Court. The discretion has been exercised in the judicial manner against the plaintiffs. There is no prima facie case nor balance of convenience in their favour. They will not suffer any irreparable loss or injury." ;