- (1.) THIS is a second appeal under sec. 224 Rajasthan Tenancy Act against the decree and judgment, dated 1-10 63, of the Revenue Appellate Authority, Udaipur. Deceased Rajmal, the husband of Shrimati Anoop Kunwar whose name has now been entered as appellant in place of that of Rajmal,instituted a suit in the court of the S. D. O. Nimbahera in the year 1959 for a declaration that the land mentioned below are Khatedari lands of the plaintiff and for a temporary injunction restraining the respondent defendant Ranglal, who is brother of deceased plaintiff Rajmal, from interfering with the possession of the deceased plaintiff or dispossessing him. The suit was in respect of khasra numbers 1601, 1602, 1603 and 1604 measuring respectively 14 biswas, 1 bigha 3 biswas,7 biswas 2 bighas and 2 biswas in all 4 bighas and 6 biswas of village Badi Sadri, district Chittorgarh. The plaintiff had contended that these lands were in his khatedari and he was in possession of these lands and that since 28th March, 1959, the defendant was creating trouble to illegally take possession of these lands and was denying the title of the plaintiff. The court of first instance by its judgment dated 28th June, 1963, decree the plaintiff's suit holding that deceased plaintiff was khatedar of the lands in dispute and was in possession of the lands. The court ordered that the plaintiff was entitled to a permanent injunction.
(2.) THE defendant filed this appeal against the judgment and decree of the learned S. D. O. and the learned Revenue Appellate Authority sitting in appeal by this judgment dated 1-10 63, accepted the appeal and set said the judgment and decree of the lower court- The appellant has challenged the order of the learned Revenue Appellate Authority on the grounds, inter alia, that the entries in the revenue record are in plaintiff's favour and carry a presumption of truth and in the absence of rebuttal, the appellate court erred in holding the respondent a co-sharer to the extent of half the land, that the first appellate court invented a new case by holding that the land in dispute belonged to Nathulal, the father of the plaintiff and the defendant, that the first appellate court erred in holding that the defendant incurred expenditure on the construction of the well and in assuming for itself the role of a sole handwriting expert, held that the plaintiff had not paid the money spent by the defendant on the construction of the well, that the first appellate court erred in over-looking the fact that the land was recorded as the plaintiff's khud-kasht and that the first appellate court has not properly evaluated the evidence and has on the basis of conjuctures and surmises drawn incorrect inference from the evidence. We have heard the learned counsel for the parties and examined the record. We have also carefully gone through the evidence and the judgments forming the basis of this second appeal. On behalf of the appellant it was in the first instance contended at the time of arguments that the learned Revenue Appellate Authority's order does not fulfill the requirements of Rule 31 of Order 41. He contended that while the trial court has properly discussed the evidence on record, the learned Revenue Appellate Authority has confined himself to a consideration of issue number 2 only and has discussed the other aspects of the matter only incidently. A perusal of the judgment pronounced by the learned Revenue Appellate Authority, would show that the Revenue Appellate Authority, was aware of the points which had to be decided for deciding the appeal and has in his judgment discussed these points in sufficient detail before coming to the conclusion that the appeal should be accepted. The evidence which was relevant and had a bearing on the crux of the problem had been discussed by the first appellate court in sufficient detail and the reasons for not accepting the evidence adduced by the plaintiff have been fully explained. The plaintiff's case was that the land in dispute was his self acquired property, that his brother the defendant had incurred expenditure on the well on his behalf and that he paid his brother the amount that his brother had spent on this construction. The plaintiff had also contended that his evidence was sufficient to prove that he was in possession. The learned Revenue Appellate Authority has gone into all the above mentioned points and properly discussed the evidence and the law before arriving at his conclusion. In these circumstances the judgment of the learned Revenue Appellate Authority cannot be said to be bad in law. It fulfills substantially the requirements of Rule 31, Order 41. While the plaintiff seems to have based his claim on the ground that this land was his self acquired property and he was in possession, the defendant contended that the lands belonged to his father and were ancestral property and as a result of a prior partition, these lands fell in the share of the defendant who was in possession of this land right from that time. The defendant had further contended that the fact of his possession is established by the fact that he had undergone expenditure on the construction of this well and the land was all the time cultivated by his people and he was in possession. The plaintiff had contended that this land belonged to one deceased Shiv Chand and was sold by the widow of Ganeshilal heir of Shivchand, to the plaintiff for Rs. 2800/ -. This plea was not taken in the plaint, but an attempt was made to prove it to rebut the other party's contention that it was ancestral land which on partition fell in the share of the defendant The learned Revenue Appellate Authority came to the conclusion that the appellant has not succeeded in proving this fact It was also observed that the evidence on record including some of the documentary evidence namely the notices dated 6-6-1956 and 11-6-1956 lead to the conclusion that the above contention of the plaintiff is incorrect. A perusal of these notices would show that the plaintiff by implication admitted the fact that the disputed property belonged to Manakchand Nathulal and that the defendant had spent money after taking over possession of this well. Looking to these documents and the evidence, the learned Revenue Appellate Authority was justified in holding that the plaintiff had not succeeded in proving his case. In this second appeal it was contended on behalf of the appellant that Exhibit 1 and 2, the khasra girdawari and Jamabandi respectively of this land and the statement of PW-1, Patwari Gendalal proved the fact that the appellant was recorded in the annual registers as the khatedar tenant and hence on account of the provisions of sec. 140 a presumption about the possession of the plaintiff should have been drawn. It is no doubt true that a presumption of correctness attaches, on account of sec. 140 Land Revenue Act, to the entries in the annual registers. The Jamabandi from which Ex-2 has been taken, is undoubtedly an annual register and the appellant is justified in contending that the entry should be presumed to be true. It is, however, to be remembered that the presumption that can be drawn under the provisions of sec. 140 is rebuttable and holds only so long as the contrary is not proved. In the present case it was contended by the defendant's side that the land was ancestral, the plaintiff was recorded as khatedar as the head of the family and that all the evidence goes to show that this entry is not sufficient to prove that the lands were held by the plaintiff in his own right as sole Khatedar. It is, further, contended that the evidence clearly shows that the defendant was in the possession. As already stated the Revenue Appellate Authority found the notices sent by the plaintiff to the defendant containing the admission by the plaintiff that it was ancestral land. This was corroborated by the testimony of the mother of the contesting brothers and other evidence. We find that looking to the circumstances of the case, and the evidence on record, the learned Revenue Appellate Authority was correct in coming to the conclusion that the land in dispute was ancestral property and was allotted to the share of the defendant-respondent as a result of partition between the parties. Even the witnesses examined on behalf of the plaintiff support the respondent's case. PW.-l, Patwari Gendalal has in respect of Ex. 1, the khasra girdawari, said that the name of Rama in column No. !6 is entered as that of the person in cultivatory possession on behalf of the respondent Ranglal. This Rama has come in evidence to support the respondent's case. The statement of Rama is corroborated by the agreement and the Nokar-nama Ex. A-l and A-2 respectively which have been filed by the defendant and proved. In view of the fact that the land in dispute was ancestral land and joint, the possession of one brother would be on behalf of the other and the mere fact of the existence of the name of Rajmal in the Jamabandi is not sufficient to prove that this amounted to the ouster of Ranglal from the land in dispute. The language used by the plaintiff in the notices dated 6-6-56 and 11-6-56 which have been incorrectly numbered as Ex. A-2 and Ex. A-l respectively is worthy of note. The plaintiff has in these notices, clearly in his own handwriting admitted by implication the fact that the defendant was in possession of this land and that it was ancestral land These documents also show that the plaintiff had at that time charged the defendant with, illegally interfering with the land and constructing a well at his expense. These documents clearly show that from all accounts the defendant was in possession of this land in the year 1956.
(3.) THE defendant-respondent has lead oral and documentary evidence to prove his contention that he was in possession of the land in dispute as a result of the partition. Ex. A-l, Ex. A-6 and the statements of P. W. 1 Gendalal and D. Ws. Rama, Matarlal, Bhanwarlal and Lalu clearly show that the plaintiff hand no locus-standi, so far as possession is concerned, at the time of the suit and the land was in the possession of the defendant respondent since well before the date of the institution of the suit. THE plaintiff made a half hearted attempt to prove his possession by filing Exhibit 36 and examining P. W.-5 Dalla. While Ex. A-l to A 6 are on proper stamps, Ex. 36 is on plain paper and this witness P. W. 5 Dalla admits in his cross-examination that the land was in possession of defendant Rang Lal. Moreover, this document Ex. 36 is dated 19-1-60. In other words this document relates to a period after the filing of the suit and would not even if it were correct, help the plaintiff in the present suit. The plaintiff has primarily relied upon Ex. 19, 27 and 28. We have examined all these documents and found that the learned Revenue Appellate Authority was justified in holding that these documents were not helpful to the plaintiff because of the liberties that had been taken either by the plaintiff or some one else with the language of the documents and shape of the documents. A bare perusal of Ex. 19 shows that the plaintiff has tried to hide something and manipulated entries in the hope of availing of this document to support his case. The paper on which this document has been written, his been pasted on a second paper which again has been pasted on a 3rd paper perhaps with the intention of hiding whatever was written behind these papers. While the main body of the Ex. 19 is in the hand-writing of someone else and the name of defendant Ranglal also appears in it, there is an entry underneath on the main paper as also on the papers on which the document has been super-imposed in the handwriting of Rajmal to the effect that the amount was paid by Rajmal There was no occasion for any such entry and the mere existence of this entry creates a suspicion against Rajmal. Moreover, since it is an admission by Rajmal in his own favour, he cannot, under the Evidence Act use it to prove his ownership. The scribe of Ex. 19 Bhanwarlal has admitted the writing of only that portion which has got Ranglal's name also and has denied knowledge of the portion added by Rajmal. In Ex. 27 which is another document on which Rajmal has relied, the name of Nathulal has been written over the name Ranglal and the forgery is quite conspicuous. In Ex. 28 the entry on the credit side purporting to have been made by Ranglal to the effect that Rs. 2500 were received from Rajmal is a clear forgery. No handwriting expert is needed for reaching the conclusion that this entry is not in the handwriting of Ranglal The learned Revenue Appellate Authority did not commit any illegality in examining this entry and comparing it with the entries which were admittedly in the hand-writing of Ranglal and then coming to the conclusion that this entry had not been made by Ranglal and was a forgery. Moreover, there was no occasion for such an entry because the notices of 1956 very clearly show that no amount had been paid till then and that the plaintiff had been accusing the defendant of having incurred this expenditure without his consent. If the entry in Ex. 28 were correct and the amount had been spent by Ranglal on behalf of Rajmal, the language of the notices would have been different and he would have in the notice said that the amount was given by him. We find that the learned Revenue Appellate Authority was justified in believ-ing that the decision of the case depended in the circumstances of the case on issue No. 2 and the factum of possession. The evidence which has been adduced by the defendant to show that he was in possession and that the land fell in his share on partition and was ancestral and that he had spent his own money on the construction of the well, is worthy of credence. The evidence adduced by the plaintiff-appellant is not sufficient to rebut this and is not true and reliable. The learned Revenue Appellate Authority was, therefore, justified in accepting the appeal and we do not for the reasons given in the above paragraphs, consider it a fit case for reversing the well considered decision of the Revenue Appellate Authority. This second appeal is, therefore, rejected with costs. . ;