Rajiv Sharma, J.@mdashThis regular second appeal is directed against the judgment and decree of the learned District Judge, Kangra at Dharamshala, H.P. dated 17.03.2003, passed in Civil Appeal No. 171-B/XIII-2001. Key facts" necessary for the adjudication of this regular second appeal are that the predecessor-in-interest of respondents-plaintiffs (hereinafter referred to as the plaintiff), namely, Nanku son of Tiblu, has instituted suit for declaration and permanent prohibitory injunction against the predecessor-in-interest of the appellants-defendants, namely Nanku son of Umdu (hereinafter referred to as the defendant). According to the averments made in the plaint, the plaintiff was in possession of the suit land as detailed in the plaint. The defendant, in connivance with the revenue staff to take undue advantage of his name, started correction proceedings before the Assistant Collector, IInd Grade, Multan and vide order dated 2.8.1999 correction was made in the column of cultivation in favour of the defendant, which was illegal, null and void. The plaintiff, being tenant in possession of the suit land was entitled to remain in possession of the suit land. On the strength of the impugned order of Assistant Collector, IInd Grade, Multan, the defendant was trying to take forcible possession of the suit land.
2. The suit was contested by the defendant. According to the averments made in the written statement, the suit land was exclusively owned and possessed by the defendant since his forefathers and the plaintiff was never inducted as tenant by the defendant or his forefathers. The plaintiff never came in possession of the suit land. The correction of entry has been made by the Assistant Collector, IInd Grade, Multan in favour of the defendant rightly.
3. The replication was filed by the plaintiff. The learned trial Court framed the issues. The suit was decreed vide judgment dated 20.8.2001. The defendant, feeling aggrieved, preferred an appeal against the judgment and decree dated 20.8.2001. The learned District Judge, Kangra at Dharamshala, dismissed the same on 17.3.2003. Hence, this regular second appeal.
4. The regular second appeal was admitted on the following substantial questions of law on 3.3.2004:
"1. Whether the Courts below have misread the entries in the revenue record leading them to record unsustainable and perverse findings?
2. Whether both the Courts below have exceeded their jurisdiction and rendered illegal, erroneous and perverse findings by holding Ext. P.W.-1A, the order of correction of revenue entries to be without jurisdiction by misconstruing the provisions of H.P. Land Revenue Act and the rules and also by misinterpreting the notification made in this regard?"
5. Mr. Bhupinder Gupta, Sr. Advocate, on the basis of the substantial questions of law framed, has vehemently argued that the Courts below have misread the entries in the revenue record and the Courts below have exceeded their jurisdiction. On the other hand, Mr. Ajay Chandel, Advocate has supported the judgments and decrees passed by the learned Courts below.
6. I have heard learned Counsel for the parties and have also gone through the judgments and records of the case carefully.
7. The revenue entries in Misal Haquiat Bandobast Jadid for the year 1973-82 Ext. P-2 and Ext. P-1 jamabandi for the year 1992-93, demonstrates the plaintiff to be in possession of the suit land. In the jamabandi for the year 1997-98, the plaintiff was entered in possession of the suit land under the State of Himachal Pradesh.
8. The plaintiff has appeared as P.W.-1. He claimed his possession over the suit land. He obtained the demarcation. The defendant had moved an application for the correction of revenue entries. He obtained illegal order Ext. P.W.-1/A in his favour. He denied the possession of the defendant over the suit land since the time of his ancestors. No land of the defendant adjoins the suit land. He admitted the existence of the house of defendant nearby on the back side of the suit land at a distance of 5-6 meters from the suit land and no land of defendant adjoins the suit land. The house of the defendant was at a higher elevation. P.W.-3 Anil Kumar, Patwari, on the basis of the record also deposed that no land of defendant abuts the suit land. The house of the defendant was on adjoining land of Kh. No. 1749 and that house of defendant was at higher elevation as compared to the plaintiff. P.W.-4 Achhar Singh, Naib Tehsildar, proved demarcation report Ext. P.W.-4/A.
9. The defendant has appeared as D.W. - 1. He claimed to be owner-in-possession of the suit land since the time of his ancestors. According to him, the plaintiff was never in possession and his house was at a distance of 7 meters from the suit land. He deposed that his land was located on the southern and western side of the suit land but he was unable to give Kh. No. of such land owned by him. D.W. - 2 Sehi Ram, nephew of the defendant deposed that the defendant was in possession of the suit land. The defendant is his maternal uncle. His house is situated at a distance of 3 kms. from the suit land. D.W. - 2 Sehi Ram has admitted that plaintiff has constructed shed on the suit land.
10. Section 37(2) of the H.P. Land Revenue Act, 1954, reads as under:
"(2) If in any such dispute the Revenue Officer is unable to satisfy himself as to which of the parties thereto is in possession of any property to which the dispute relates, he shall ascertain through the Gram Panchayat constituted under the Himachal Pradesh Panchayati Raj Act, 1994 (4 of 1994) or any other agency so prescribed by the Financial commissioner or by summary inquiry who is the person best entitled to the property, and shall by order direct that, that person be put in possession thereof, and that an entry in accordance with that order be made in the record of register."
11. The State Government has issued notification under Section 11 of the Himachal Pradesh Land Revenue Act on 27.7.1985. The relevant portion of the Notification reads as under:
"Government of Himachal Pradesh
Revenue Department
Notification
Shimla-2, dated 27/7/85
No. Rev. D(A) 2-91/82.--The Governor, Himachal Pradesh, while determining the functions to be discharged by the Revenue Officers of various classes, is pleased, in exercise of the powers conferred upon him under Section 11 of the Himachal Pradesh Land Revenue Act, 953 (6 of 1954), (hereinafter called the said Act) to order that except where the class of Revenue Officers by whom any function is to be discharged, is specified in the Act itself or in a general or special order of the Government, the following functions shall be discharged by the Revenue Officers of the respective classes specified as under:
1. .......................
2. That the functions arising under the Sections and chapters of the said Act which are specified in Schedule ''B'' hereto annexed shall be discharged only by Assistant Collectors, First Grade, and officers of the higher class;
3. .......................
4. .......................
5. .......................
Schedule-A
.................................
.................................
.................................
Schedule-B.
Chapter III ............................
Section 37(2) Placing persons in possession of disputed property.
.................................
.................................
By order
Financial Commissioner-Cum-Secretary (Revenue)"
12. The Assistant Collector, IInd Grade, Multan, has decided the application for correction of entries under Section 37(2) of the H.P. Land Revenue Act, 1954. The Assistant Collector, 1st Grade was only competent to take action as per notification No. Rev. D(A) 2-91/82 dated 27.7.1985. Thus, the application decided by Assistant Collector, IInd Grade, Multan, was without jurisdiction. It is evidence from the revenue record, right from the year 1973 that the plaintiff was in possession of the suit land. Presumption of truth is attached to the revenue entries. The defendant has not rebutted the revenue entries made in favour of the plaintiff. The Courts below have correctly appreciated the oral as well as documentary evidence and Ext. P.W.-1/A has also rightly been declared to be illegal. The substantial questions of law are answered accordingly. Consequently, there is no merit in this appeal and the same, is dismissed, so also the pending application(s), if any.
