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SUPREME COURT OF INDIA
L. Nageswara Rao, Hemant Gupta, JJ.
SHRI PARTAP SINGH (DEAD) THROUGH LRS. & ORS. – APPELLANT(S)
VERSUS
SHIV RAM (DEAD) THROUGH LRS. – RESPONDENT(S)
CIVIL APPEAL NO. 1511 OF 2020 (ARISING OUT OF SLP (CIVIL) NO. 725 OF 2017)
Decided on : 20-02-2020
(A) Land Laws – Jamabandi – Presumption of truth – Present is a case where no relationship of landlord and tenant is mentioned in revenue record though required in terms of Section 32(2)(a) of 1954 Act – In absence of entry in revenue record which is also expected to contain entry of rent and possession, tenancy cannot be treated to be in existence only on the basis of oral evidence of the witnesses examined by defendant – Burden of proving relationship was on defendant – Such burden cannot be said to be rebutted only by oral evidence – Witnesses may lie but documents do not, is a golden rule – Presumption of truth attached to revenue record can be rebutted only on the basis of evidence of impeccable integrity and reliability – Oral evidence can always be adduced contrary to revenue record but such oral testimony will not be sufficient to hold that statutory presumption stands rebutted. [Himachal Land Revenue Act, 1954 – Sections 32 and 35] (Para 18)
(B) Land Laws – Jamabandi – Presumption of truth – Presumption of truth attached to record-of-rights can be rebutted only if there is a fraud in entry or entry was surreptitiously made or that prescribed procedure was not followed – It will not be proper to rely on oral evidence to rebut statutory presumption as credibility of oral evidence vis-à-vis documentary evidence is at a much weaker level – High Court erred in law in allowing defendant's appeal relying upon oral evidence to rebut statutory presumption of truth attached to revenue record – Onus of proof was placed on defendant by trial court – Burden is on person who asserts such a relationship as per Section 109 of Evidence Act – Defendant has failed to rebut presumption of truth on the basis of reliable, trustworthy and cogent documentary evidence to prove relationship of a tenant – Order of High Court set aside and judgment and decree passed by First Appellate Court affirmed. (Paras 24, 25 and 26)
Facts of the case:
Present appeal is directed against an order passed by the High Court of Himachal Pradesh on 19th September 2016 whereby defendant's second appeal was allowed and suit for a permanent injunction, mandatory injunction and rendition of accounts was dismissed.
Findings of the Court:
Presumption of truth attached to record-of-rights can be rebutted only if there is a fraud in the entry or the entry was surreptitiously made or that prescribed procedure was not followed. It will not be proper to rely on the oral evidence to rebut the statutory presumption as the credibility of oral evidence vis-à-vis documentary evidence is at a much weaker level.
Result : Appeal allowed.
JUDGMENT
Hemant Gupta, J.
The present appeal is directed against an order passed by the High Court of Himachal Pradesh on 19th September 2016 whereby the defendant's second appeal was allowed and the suit for a permanent injunction, mandatory injunction and rendition of accounts was dismissed.
2. The suit was filed by plaintiff No. 1 claiming himself to be the owner of land measuring 53 Bighas 11 Biswas and plaintiff No. 2 claiming herself to be the owner of land measuring 12 Bighas 16 Biswas. The plaintiff No. 1 claimed to be ex-ruler of an erstwhile princely state of Dhami and that had been getting his property managed through various persons. The assertion of the plaintiffs is that the defendant was appointed as a Manager to look after and manage the property and was liable to render accounts to the plaintiffs after each crop harvest i.e. twice a year. The defendant had been rendering the accounts and used to be paid 10% management charges of the income of properties. The defendant was also required to maintain a register for keeping the account of income and expenditure as well as an inventory of the property of the plaintiffs.
3. The plaintiffs allege that there was misfeasance by the defendant, therefore, they terminated the agency and asked him to hand over the charge of the properties. In view of the said assertion, the suit for a permanent injunction, mandatory injunction and for possession of 8 plots of land measuring 13 Big has 14 Biswas was filed.
4. In the written statement, the defendant asserted that he is a tenant and that suit is exclusively triable by the Revenue Court. He further stated that he is paying one half Galla batai in respect of land measuring 13 Big has 2 Biswas for the last 12 years. The relevant assertion made by the defendant reads thus:
"2. That in view of the submissions made in the subsequent paras of this written statement, it is manifestly clear that this is a dispute between a land owner and a tenant and as such, this Court has got no jurisdiction to try and determine the suit. The suit is exclusively triable by Revenue Court and, therefore, it deserves to be stayed.
xx xx xx
On Merits
The facts which have not been specifically admitted shall be deemed to have been denied by necessary implication in the written statement herein below.
1. Para 1 is admitted to the extent that the Plaintiff is the owner of the land described in this para of the Plaint. However, it may be submitted that the Defendant is a tenant on payment of V2 Galla-batai in respect of land measuring 13 Bighas 2 Biswas Kitas 7 Khewat Khatauni No.1/1 Khasra Nos. 50(6 Biswas), Khasra No. 51 (3 Biswas) Khasra No. 302/52/1 (2 Bighas), Khasra No. 302/52/3 (17 Biswas), Khasra No. 303/52/1 (6 Bighas 17 Biswa), Khasra No. 52(2 Bighas 10 Biswas) and Khasra No. 68 (9 Biswas) situate in Village Kannauri, Pargana Dhamer, Tehsil and District Shimla for the last more than 12 years. The Defendant has nothing to do with the other land described in this para of the Plaint. The entries made in the Jamabandi 1981-82 referred to in this para in respect of the land described in this para of the written statement are not correct and are contrary to the facts on the spot."
5. The learned trial court framed as many as 12 issues but for the purpose of deciding the present appeal, Issue No. 3 is relevant which reads thus:
"Whether there is a relationship of landlord and tenant between the parties as alleged. If so, regarding what property?"
6. The plaintiff appeared as PW-1 and examined some other witnesses. The plaintiffs in evidence produced the revenue record i.e. Jamabandi (Ex.P/1 to Ex.P/4) and Khasra Girdawari (Ex.P/5 to P/12) wherein the property in dispute has been shown to be in the ownership and possession of the plaintiffs.
7. The learned trial court considering the oral evidence led by the defendant returned a finding that the presumption of truth to the revenue record, specially Jamabandi, stands rebutted as the witness of the defendant has de
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