1. This is a second appeal by the defendants who are brothers inter se and has arisen from a suit for possession of agricultural land measuring 32 Kanals by pre-emption. The land in dispute was sold by Ladha Ram, the paternal grandfather of the plaintiff-respondent, in favour of the defendants on the 1st of June, 1955 for Rs.4,000. The plaintiff sought to pre-empt the sale on the ground of his relationship with the vendor. The suit was resisted by the defendants with the plea that they were occupying the land as tenants under the vendor on the date of the sale and that, therefore, the sale could not be pre-empted. This plea found favour with the trial Court but was negatived in appeal by Shri. A. N. Aggarwal, Additional District Judge, Hissar, who rejected as false the relevant entries in khasra girdawari Exhibit D-2, according to which the defendants were in possession of the land in dispute as tenants under the vendor during the agricultural year 1964-65.
2. The case of the appellants before me is that the learned Additional District Judge has misinterpreted the evidence and drawn wrong inferences therefrom and that on a correct appreciation thereof the khasra girdawari entries must be held to be fully reliable. After hearing learned counsel for the parties, I am of the opinion that the contention raised by the learned counsel for the appellants merits acceptance.
3. The land in dispute is comprised of Killas Nos. 5, 6, 15 and 16 of rectangle No. 289. According to the entries in khasra girdawari Exhibit D-2, Killa Nos. 5 and 6 were in possession of one Kirta as a tenant under the vendor while the other two Killa numbers were in the cultivating possession of the vendor himself prior to the agricultural year 1964-65. For the Kharif crop of that year the following entry was made in respect of all the four Killas on the 6th November, 1964:
'Kharif mein kasht Khiali Pokhar Pisran Puran ba hissa braber ghair marusian sakan deh batai 1/3 mai neera billa kharch zabani Khiali muzara.'
This entry was repeated for the next crop, i.e., Rabi 1965 on the 24th of March, 1965. However, on the 14th of November, 1965, i.e., about 5 1/2 months after the sale, the entry made for Kharif 1965 was:
'Kharif self cultivated by the tenants as owners--Khiali Ram and Pokhar Ram
* * *.' This entry was repeated for the next crop, i.e., Rabi 1966 on the 8th of April, 1966.
4. The learned Additional District Judge rejected the entries made in the Khasra girdawari for the year 1964-65 to be unreliable for the reasons enumerated below.
(i) According to Bhagtu (D.W. 3) who was admittedly cultivating the land in dispute for more than a decade as a tenant under Ladha Ram, the defendants started cultivating the land after the sale in their favour.
(ii) There is a recital in sale deed Exhibit D-3 that the vendor had delivered possession of the land in dispute at site to the vendees who had obtained the same. If the defendants had been in possession of the land earlier to the sale the recital would not find a place in the sale deed.
(iii) The relevant daily diary maintained by the Patwari and the lease deed admitted by Khiali Ram defendant to have been executed by him in favour of Ladha Ram in or about the year 1961 (when the tenancy in question commenced, according to him) had not been produced.
(iv) The Patwari who made the khasra girdawari and Ladha Ram vendor had not been brought into the witness-box in support of the entries in Khasra girdawari Exhibit D-2.
(v) The entries in khasra girdawari Exhibit D-2 for the year 1964-65 indicate that they were made at the instance of Khiali Ram which circumstance deprives those entries of all value.
(vi) Khiali Ram defendant has stated in the witness-box that he had been cultivating the land for six years earlier, while according to khasra girdawari Exhibit D-2 the period was only two years.
5. In my opinion the learned Additional District Judge has gone completely wrong in assessing the worth of khasra girdawari Exhibit D-2. The main thing which he has missed about the document is that it came into existence when there was no dispute between the parties about any pre-emption matter and when even the sale in dispute was not contemplated. If it be assumed that Khiali Ram manipulated the khasra girdawari entry for Kharif 1964, it would have to be held that he did so in anticipation of a possible sale of the land in dispute in his favour by the vendor--a result which appears to be absurd. The khasra girdawari entries are the record of the acts of a public servant performed in the discharge of his official duties and, therefore, relevant under Section 35 of the Indian Evidence Act. It is true that no presumption of correctness attaches to them but their evidentiary value is not nil, and the Court would be wrong in embarking on an assessment thereof with a presumption that they are not correct or that they cannot be relied upon unless supported by other evidence. Of course, the party which asserts that they are false, is at liberty to prove that they fulfil that character. It may even be that evidence is forthcoming which creates a suspicion about their genuineness. In either case the Court would be justified in rejecting them as unreliable. Apart from such a situation, however, they must be given the weight they ordinarily deserve and, in the present case, I do not find that any circumstances have been proved such as may indicate the falsity, or even create suspicion about the genuineness, of the entries in Exhibit D-2.
6. The testimony of Bhagta (D.W. 3) has not been properly grasped by the learned Additional District Judge. That witness stated in the examination-in-chief that he had given up possession of the land as a tenant under the vendor five years earlier and that for the preceding two or three years, the land had been under the cultivation of the defendants although he (the witness) was not sure of the length of that period. In cross-examination he stated:
'Khiali and Pokhar have cultivated the land after the sale. Before that the cultivation was that of Ladha Ram.'
The deposition of the witness must be taken as a whole and so taken it cannot be said to mean that the defendants never cultivated the land as tenants under the vendor prior to the sale. In fact, no direct question on the point was put to the witness. In this connection the testimony of Hari Chand (P.W. 1) is significant. He admitted that Ladha Ram was 85 or 90 years of age, that he was living at Hissar and that for the previous 20 or 25 years he was not doing anything. Clearly then Ladha Ram cannot be expected to be titling the land himself and there is no evidence to indicate through whom he was cultivating the land after Bhagtu (D.W. 6) gave it up.
7. Kirta (D.W. 4) who is shown in Exhibit D-2, to be cultivating a part of the land as a tenant under the vendor prior to the year 1964-65, has fully supported the defendants. According to him, they had been cultivating the land for the previous five years. The period last mentioned may have been exaggerated but it certainly goes to indicate the correctness of the entries in Exhibit D-2 for the year 1964-65.
8. The recital in the sale deed which has been used by the learned Additional Single Judge to discredit the khasra girdawari is wholly innocuous. Even if the defendants were in possession of the lands as tenants prior to the sale, proprietary possession thereof had to be given to them at the time of the sale and a recital to the effect entered in the sale deed. The recital in question is clearly of that nature and not capable of leading to an inference that the defendants were not in possession earlier to the sale.
9. The non-production by the defendants of the daily diary maintained by the Patwari and of the lease deed above mentioned can also not be used to raise a presumption against the case put forward by the defendants, khasra girdawari Exhibit D-2 gives such support to their case that the onus, for all practical purposes, shifts to the plaintiffs, there being no circumstances raising a suspicion about the genuineness of the entries in that document.
10. The non-production of the Patwari and Ladha Ram vendor in the witness box can also not go against the defendants. The certified copy of the khasra girdawari having been made a part of the record by the defendants, there was no necessity at all for them to produce the Patwari or Ladha Ram vendor, who, it may be added, is none else than the grandfather of the plaintiffs and, therefore, deeply interested in him.
11. Nor can it be said that the fact that the entry for the harvest Kharif 1964 was made at the instance of Khiali Ram defendant detracts from the correctness thereof. In the discharge of his official duties the Patwari has to prepare the khasra girdawari in accordance with the information supplied to him by the persons working in the fields while he is on his round thereof. If Khiali Ram defendant was in possession of the land as a tenant at the time when Patwari prepared khasra girdawari Exhibit D-2, it would be natural for him (Khiali Ram defendant) to state the nature of his possession and it would be incumbent on the Patwari to act upon the information unless he had reason to disbelieve or suspect it. It bears repetition that in November, 1964, when the entry for Kharif 1964 was made, there was no dispute between the parties nor was any sale of the land even contemplated. Under the circumstances there was no question of Khiali Ram defendant having a false entry made to the effect that he was cultivating the land of Ladha Ram as a tenant. It is further significant that according to khasra girdawari Exhibit D-1 other land of Ladha Ram was also taken by the defendants as tenants under Ladha Ram and it is nobody's case that the entries therein are not correct or that they were maneuvered with some ulterior motive.
12. It is true that Khiali Ram defendant, while appearing as a witness for himself, averred that he had been in cultivating possession of the land for about six years earlier which does not appear to be correct. the fact, however, that he has given an exaggerated version of the period for which he had been in possession of the land, is not sufficient to throw the khasra girdawari over-board. In the circumstance of the case that document appears to be genuine and there is no good reason to suspect its veracity.
13. For the reasons stated, I hold that the defendants have proved themselves to be in possession of the land as tenants under the vendor immediately prior to the sale which, therefore, is not pre-emptible. The finding of the learned Additional District Judge to the contrary is reversed. In the result, the appeal is accepted and the suit of the plaintiff dismissed with costs throughout.
14. Appeal accepted.