RSA-4557-2009 (O&M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 212 RSA-4557-2009 (O&M) Date of decision: 07.04.2026 Purushottam Dass ...Appellant(s) Vs. Bishna and others ...Respondent(s) CORAM: HON’BLE MS. JUSTICE NIDHI GUPTA Present:- Mr. Keshav Pratap Singh, Advocate with Mr. Nitin Sansanwal, Advocate for the appellant. Mr. Surinder Gandhi, Advocate for the respondents. *** NIDHI GUPTA, J. Present Second Appeal has been filed by defendant No.1 against the concurrent judgments and decrees of the learned District Courts, whereby the suit filed by the plaintiffs/respondents for possession by way of pre-emption, has been decreed by both the District Courts. 2. Brief facts of the case are that the plaintiffs had filed a suit for possession by way of pre-emption. It was pleaded in the plaint that the agricultural land measuring 53K-7M/suit land was in the co-ownership of defendants No.2 ad 3. Defendants No.2 and 3 had sold the suit land to defendant No1. for sale consideration of Rs.1 lac vide registered Sale Deed dated 01.06.2001. It was alleged that in order to defeat the pre-emption right of the plaintiff, sale consideration of Rs.1,93,393.75 was wrongly got recorded in place of Rs.1 lac. Before making sale, defendants No.2 and 3 did not issue any notice to the plaintiffs. It was stated that plaintiffs are in DIVYANSHI 2026.04.09 11:34 I attest to the accuracy and integrity of this document RSA-4557-2009 (O&M) - 2 - cultivating possession of suit land as tenants Gair Morusi on “Batai Tihai” under defendants No.2 and 3 and now they are in possession as gair morusi tenants under defendant No.1. Recital to this effect has also been made in the Sale Deed. It was alleged that defendant No.1 is a stranger and plaintiffs have prior right to pre-empt the sale in favour of defendant No.1. Plaintiff had requested defendant No.1 repeatedly to admit their claim however, to no avail. Hence, present suit was filed on 03.08.2001. 3. Upon appraisal of the pleadings and the evidence led by the parties, the learned Civil Judge (Junior Division), Siwani, Camp at Bhiwani had decreed the suit of the plaintiffs vide judgment and decree dated 08.11.2006 in the following manner: - “As a sequel to my findings on all issues above, present suit for possession by way of pre-emption succeeds and is hereby decreed, as prayed for subject to plaintiffs depositing a sum Rs.1,54,714.75 (Rs.1,93,393.75 Rs.38,679.00 Zare Panjam) in court within one month from today. Plaintiffs shall also be entitled to costs of the suit through out. Decree sheet be prepared and file to the record room, after due be consigned compliance.” 4. The Civil Appeal filed by defendant No.1 was dismissed by the learned Additional District Judge-III, Bhiwani vide judgment and decree dated 23.07.2009. Hence, the present second appeal by defendant No.1. 5. It is inter alia submitted by learned counsel for the appellant/defendant No.1 that learned District Courts were in error in non- suiting the appellant as they failed to appreciate that plaintiffs had failed to DIVYANSHI 2026.04.09 11:34 I attest to the accuracy and integrity of this document RSA-4557-2009 (O&M) - 3 - prove the payment of batai tihai. It is submitted that respondents have not placed on record any receipt to show any payment of rent to the defendants No.2 and 3. It is contended that for proving tenancy, payment of rent is a must. As such, plaintiffs were unable to establish their right of pre- emption. 6. It is further submitted that the plaintiffs have filed the instant suit seeking “possession” by way of pre-emption. It is contended that the very fact that the plaintiffs have made prayer for possession, would imply that plaintiffs are not in possession of the suit property. As such, plaintiffs have been unable to establish their pre-emptory right; and suit has, therefore, been wrongly decreed. 7. It is accordingly prayed that the present Second Appeal be allowed; and the impugned judgments and decrees of the learned District Courts be set aside. 8. Per contra, learned counsel for respondents No.1 to 3/plaintiffs vehemently opposes submissions advanced on behalf of the appellant and submits that plaintiffs had produced voluminous revenue record to prove their possession over the suit property as tenants. The said revenue record in the form of Jamabandi was rebuttable however, no evidence in rebuttal was led by defendant No.1. Even khasra girdawari was brought on record by the plaintiffs to prove their possession as tenants over the suit property. Moreover, the concurrent findings of fact have been returned by both the District Courts to the effect that plaintiffs are in possession of suit property DIVYANSHI 2026.04.09 11:34 I attest to the accuracy and integrity of this document RSA-4557-2009 (O&M) - 4 - as gair morusi tenants. Said findings of fact cannot be gone into in Second Appeal. He accordingly prays for dismissal of the present Appeal. 9. No other argument is made on behalf of the parties. I have heard learned counsel and perused the case file in detail. I find no merit in the submissions advanced on behalf of learned counsel for the appellant. 10. The only point for determination before this Court is whether the respondent/plaintiffs are in possession of the suit land as tenants? The whole issue at hand is laid to rest from the findings as recorded by the learned First Appellate Court in paras 13, 14, 15 and 17 of the judgment dated 23.07.2009, which read as follows: - “13. Learned counsel for the appellant has argued that the learned lower court has wrongly passed the judgment and decree dated 8.11.2006 which is against the law and facts. Further, it is argued that the learned lower court has wrongly held that at the time of sale of land in dispute, the respondents/plaintiffs were in possession as gair morusian tenants. Further, it is wrongly held b the learned lower court that the had superior right to purchase the land and they were not given notice of the intended sale by defendants no.2 and 3. Further, it is argued that the learned lower court has committed error in interpreting and appreciation of the sale deed in evidence. The respondents/plaintiffs are failed to prove their burden that they were in possession over the land in dispute as tenants and the respondents/plaintiffs cannot take the benefit of weakness of the case of the appellants. Hence, prayer has been made to accept the appeal. 14. On the other hand, learned counsel for the respondents has refuted the above said arguments and argued that the learned lower court has reasonedly and legally passed the DIVYANSHI 2026.04.09 11:34 I attest to the accuracy and integrity of this document RSA-4557-2009 (O&M) - 5 - judgment and decree and legally appreciated the evidence of the respondents and respondents no.4 and 5 Raghbir and Rattan Singh were already ex parte before the learned lower court. Further, it is argued that they are in cultivating possession over the suit land as gair morusian tenants on payment of Batai-Tihai and also drawn attention of the court towards revenue record in the shape of Ex.P-1 jamabandi for the year 1998-99, Ex.P-3 Jamabandi for the year 1993-94 and Ex. PX jamabandi for the year 2003-2004 and also proved Ex. P-4 girdawari from 2004 to 2006 and also ex.P2 khasra girdawari from 1999 to 2003. Further, it is argued that the revenue record is sufÏcient to prove their plea that they are gair morusian tenants . 15. Next, it is argued that in sale deed certified copy of which is attached on the file goes to shows that the respondents are tenants over the suit land in which it is clearly mentioned that vendee is required to recover the possession from the tenants and respondents have also examined PW-1 and PW-2 Phulla Nambardar and proved their case sufÏciently. Hence, prayer for dismissal of the appeal has been made. XXX XXX XXX XXX XXXX 17. The first argument of the counsel for the appellant that respondents/plaintiffs not remained in possession as gair morusian tenants over the suit land and counsel for the respondents/plaintiffs refuted the above said arguments of the appellant and this court is also of the view that from the perusal of Ex.P-1 jamabandi for the year 1998-99, Exc. P-3 jamabandi for the year 1993-94 and Ex. PX jamabandi for the year 2003-04 goes to show that in possession column no.5 Bishna, Khubi and Deda Ram sons of Hans Raj are indicated as gair morusian tenants and Ex. P-2 khasra girdawari from 1999 to 2003 and Ex. PY khasra girdawari from 2004 to 2006 DIVYANSHI 2026.04.09 11:34 I attest to the accuracy and integrity of this document RSA-4557-2009 (O&M) - 6 - goes to show that Bishna etc. are tenants gair moursi against payment of Batai Tihai as per Ex.P-3 jamabandi for the year 1993-94 indicated in column no.9. So, it is crystal clear that from the perusal of the revenue record respondents/plaintiffs are tenants gair morusian in the suit land and that being so, I am not inclined to hold that the respondents are not gair moursian tenants. So, this argument of counsel for the appellant does not find any merit.” 11. A bare reading of the above findings of fact, as also perusal of the record shows that plaintiffs are shown to be in possession of the suit land as gair morusi tenants on payment of batai tihai. On a Court query, it has been fairly admitted by learned counsel for the appellant that in the Jamabandi in the column of cultivation, respondents’ names are mentioned; and in column 9, batai tihai is mentioned. Thus, in view of this admitted fact, as also the abovesaid overwhelming and voluminous evidence, mere non-production of rent receipts, would not be fatal to the case of the plaintiffs. Needless to say, entries in the revenue record regarding possession of the plaintiffs and payment of rent will only be made if respondents were actually paying rent to the defendants no.2 and 3. The appellant has led no evidence in rebuttal. 12. It is also to be seen that it has not been denied by the appellant that even in the Sale Deed dated 01.06.2001 executed by defendants No.2 and 3 in favour of defendant No.1, it has been mentioned that plaintiffs are in possession over the suit property as gair morusi tenants. Even in para 5 of the plaint, it is mentioned that the Sale DIVYANSHI 2026.04.09 11:34 I attest to the accuracy and integrity of this document RSA-4557-2009 (O&M) - 7 - Deed dated 01.06.2001 carries a recital that plaintiffs are in possession over the said property as gair morusi tenants. It is further mentioned in the Sale Deed that appellant will have to take possession from the respondents. In the written statement, appellant has disputed this fact. However, he has not specifically denied regarding the aforesaid recital in the Sale Deed. Admittedly, defendants No.2 and 3 were proceeded against exparte and did not appear in the Court. Even the Sale Deed dated 01.06.2001 has not been exhibited by defendant No.1 for the reasons best known to him. 13. At this stage, reference is made to a judgment passed by Hon’ble Supreme Court in Vishwasrao Satwarao Naik v. State of Maharashtra (SC) : Law Finder Doc Id # 1015748; wherein it is held that: - “B. Revenue record - Reliability - Presumption of truth is attached to revenue record - Presumption, however, rebuttable, but it is for party who alleges entries as wrong to lead evidences to rebut presumption.” The relevant para of the said judgment is as under:- “6. The main ground urged is that since in the earlier proceedings held under the Act, the extent of pot kharab land was found to be 106.24 acres, then in the second ceiling proceedings the extent of pot kharab land could not come down to 28.20 acres. In this behalf, it is urged that the revenue authorities have relied upon the revenue entries with regard to the classification of the land and have not actually visited the land to determine which land is cultivable and which land is not cultivable. In ceiling proceedings, it is the duty of the owner of the land to show which portion of his DIVYANSHI 2026.04.09 11:34 I attest to the accuracy and integrity of this document RSA-4557-2009 (O&M) - 8 - land is exempt from ceiling proceedings. In this case, in the return filed on behalf of the owner it was mentioned that only 11.10 acres of land is pot kharab. However, on the basis of the revenue record, the ofÏcer assessed the pot kharab land as 28.20 acres. The appellant led no evidence and has not even placed on record the revenue records prior to the earlier ceiling proceedings or the revenue record thereafter, to support his claim that even earlier the land which was declared to be pot kharab, was actually not classified as such in the revenue record. Presumption of truth is attached to the revenue record. No doubt, this is a rebuttable presumption, but it is for the party who alleges that the entries in the revenue record are wrong to lead evidences to rebut this presumption. This, the appellants have miserably failed to do. The appellants have also failed to lead any evidence to show that the revenue entries are wrong. 14. This Court in Amar Singh v. Kishan Dev, (P&H) : Law Finder Doc Id # 814667 has held as under:- “A. Civil Procedure Code, 1908 Section 100 Second appeal - Suit for declaration and payment of ⅓rd batai by tenants and necessary corrections to be made in the revenue record decreed - Presumption of truth to revenue record - Rebuttable presumption - No interference warranted with order of Court below in rebutÝng the presumption of truth attached in jamabandi in question. XXX XXX XXX XXX C. Civil Procedure Code, 1908 Section 100 Second appeal - Landlord-tenant relationship - Proof of - Revenue courts relied upon the findings of civil courts regarding status of petitioners and possession over the suit land, which have been upheld in second appeal - Relationship of landlord and DIVYANSHI 2026.04.09 11:34 I attest to the accuracy and integrity of this document RSA-4557-2009 (O&M) - 9 - tenant was an admitted fact - Plea raised by petitioner that they had no sufÏcient cause not to make payment of rent of the land in dispute - Not tenable.” The relevant paras of the said judgment are as under:- “43. Learned counsel for the petitioners has also referred the observations in case of Ram Kishan and others v. Mast Ram (supra), while pressing upon his submission that petitioners have sufÏcient cause for non-payment of rent. In view of my discussion above, the plea raised by the petitioners that they had sufÏcient cause not to make payment of rent of the land in dispute, has no basis and is liable to be discarded. The observations made in Ram Kishan and others v. Mast Ram (supra) are not helpful to the petitioners in the facts and circumstances of this case. 44. Learned counsel for the appellant has raised another plea that the application was filed by respondent No.3 in form-L but it should be on form-K1 as Kishan Dev was a big landlord and there was some surplus cases pending. This plea is beyond the scope of pleadings either in the regular second appeal or even in this petition. He could not point out that this point was ever raised before the civil Court or revenue authorities at any point of time, as such, cannot be raised in this writ petition for the first time being a question of fact.” 15. Learned counsel for the appellant is unable to controvert or dispute the factual and legal position noted above. 16. In view of the discussion above, no ground is made out to interfere in the impugned judgments and decrees of the learned District Courts. The present Regular Second Appeal is hereby dismissed. DIVYANSHI 2026.04.09 11:34 I attest to the accuracy and integrity of this document RSA-4557-2009 (O&M) - 10 - 17. Pending applications, if any, stand disposed of. 07.04.2026 (NIDHI GUPTA) Divyanshi JUDGE Whether speaking/reasoned: Yes/No Whether reportable: Yes/No DIVYANSHI 2026.04.09 11:34 I attest to the accuracy and integrity of this document