A.L. Vaidya, J.

1. The present appeal was admitted on the following question of law:

Whether there has been gross mis-reading and mis-appreciation of oral and documentary evidence for holding that the Defendants-Appellant were not in possession as tenants of the suit land and further that they had not become owners by virtue of the provisions of Himachal Pradesh Tenancy and Land Reforms Act

The facts giving rise to the present appeal are that Shri Gobind Singh-Plaintiff-Respondent became the owner of the suit land measuring 6-100 Bighas, as described in the plaint, on the basis of exchange from the owners in the year 1975 According to the Plaintiff, when by way of exchange he became owner of the suit land at that time the land was lying Banjar and he got the possession of the same and made the said land cultivable one. It was pleaded by him that the Defendants were not in possession of the suit land However, according to him, as per entries in the revenue records the Defendants-Appellant have been recorded as tenants of the suit land under the owner and after the exchange under him and these entries were assailed to be wrong and incorrect. The Plaintiff moved an application for correction of revenue entries before the ievenu3 authorities which application was allowed but on appeal it was remanded back and after remand the application had been dismissed. The Plaintiff, thus, filed the present suit before the trial Court that he was in possession of the suit land as owner and the Defendants have been wrongly recorded as tenants over the suit land. According to the Plaintiff, the Defendants on account of wrong entries, were threatening to oust him from the suit land, hence he preferred a suit for declaration that he was owner in possession of the suit land and as a consequential relief he asked for permanent injunction.

2. The Defendants, who happened to be recorded as tenants on payment of rent over the suit land, contested the suit and very specifically pleaded that they were in occupation of the suit land as tenants and by operation of law they have become owner of the same.

Parties were put to trial on the following Issues by the trial Courts:

1. Whether the Plaintiff has become the owner of the suit land by way of exchange, as alleged OPP

2. Whether the Plaintiff is himself cultivating the suit land, as alleged, and suit for declaration is competent OPP

3. Whether the Defendants were the tenants of the suit land and have become its owner under Tenancy and Land Reforms Act OPD

4. Whether this Court has no jurisdiction to try this suit OPD

5. Whether the suit is time barred OPD

6. Whether the Defendants are entitled to special costs, as alleged OPD

7. Relief.

The trial Court came to the conclusion that the Defendants have failed to prove that they were tenants of the suit land and, as such, the suit of the Plaintiff was decreed for declaration and for consequential relief of injunction.

3. The aforesaid judgment and decree were assailed in an appeal before the first appellate Court on various pleas and the first appellate Court, after hearing the parties, dismissed the appeal and maintained the judgment and decree passed by the trial Court.

4. The aforesaid judgment and decree have been assailed on various grounds. However, the appeal was admitted on the question of law already referred to.

5. I have heard the learned Counsel for the parties and have also gone through the record and scrutinized the evidence minutely.

The sole point to be gone into is whether the evidence examined by the parties was legally competent to establish the tenancy rights claimed by the Defendants. I think both the courts below acted illegally in dislodging the case of the Defendants which otherwise stood legally established through documentary evidence and other circumstances brought on record by the parties. The findings against the Defendants, though unanimously arrived at by the courts below, being without any legally competent evidence, have to be interfered with.

6. The parties have brought on record documentary as well as the oral evidence. Documentary evidence consisted of the entries in the records of rights.

7. Ex. D-2 is the copy of Jamabandi for the year 1946-47 wherein Bijali Mahandev has been recorded as owner of the suit land while Mst. Budhi, widow of Medhu, Ruldu, Lalu sons of Kundlu alongwith some other persons sons of Damodar have been recorded in occupation of the suit land Ex. D 3 is the copy of Jamabandi for the year 1951-52 wherein the entries remained the same, as referred to earlier. Ex. D-4 is the copy of Jamabandi for the year 1954-55 wherein Smt. Budhi and Ors. have been recorded as owners of the suit land while the Defendants and their predecessors have been recorded in occupation as tenants on payment of one third of the produce as rent. Ex. D-5 is the copy of Jamabandi for the year 1959-60; Ex. D-6 is the copy of Jamabandi for the year 1963-64; and Ex. D-7 is the copy of Jamabandi for the year 1969-70 wherein the entries remained the san e and the Defendants and their predecessors have been recorded in actual occupation of the suit land as non-occupancy tenants on payment of rent which was 1/3rd of the produce. In all these entries in the record of rights, referred to above, the suit land has been described as cultivable one. Ex. D-8 is the copy of Khasra Girdawari from October 1980 to April 1984 wherein earlier Gobind Singh Plaintiff has been recorded to be the owner in occupation of the suit land but lateron it has been recorded in occupation of the Defendants on the basis of report No. 564 dated 19-6-1984. It was probably done because Gobind Singh preferred an application for correcting the revenue entries which was accepted in his favour but lateron it was disallowed.

8. So, admittedly, the entries in the latest record of rights pertaining to the suit land recorded the Defendants to be in occupation of the suit land as tenants on payment of rent. Legal presumption of truth is attach- ed to these entries which presumption, no doubt, is rebuttable.

9. The other documents brought on record pertained to the order of Collector, Kullu, Ex. D-1 whereby the appeal preferred by Jethu, one of the tenants against the order of Assistant Collector Second Grade correcting the revenue entries in favour of Gobind Singh was accepted and the case was remanded for fresh decision to Tehsildar Kullu This order is dated 6-6-1979. Ex. P-1 is the copy dated 20-8-1982 passed by the Assistant Collector First Grade, Kullu, after the remand wherein it was held that the Respondents were the tenants of the suit land as their entry existed as tenants for more than three successive Jamabandis and the learned officer held that he could not correct the entry as applied for and, therefore, the application was rejected.

10 Ex. P-6 is the copy of Jamabandi for the year 1974-75 wherein Gobind Singh has been recorded as the owner while the Defendants have been recorded as tenants on payment of rent fixed as 1/3rd of the produce.

11. Ex. P-5 is the copy of mutation of exchange on the basis of which the Plaintiff became the owner. This mutation was sanctioned on 21-5-1975 in the absence of the Defendants. In this copy it has been very specifically recorded that the tenants were in occupation of the suit land meaning thereby that even at the time of sanction of mutation of exchange in favour of the Plaintiff the suit laud was recorded in occupation of the tenants and the entire suit land was recorded as Bakhal Som meaning thereby that it was cultivable one. It was not recorded as Banjar, as has been the case of the Plaintiff, though some Khasra Girdawari entries later on recorded it as Banjar.

12. Two other important documents Which have been relied upon in support of the Plaintiffs case can also be referred here. Ex. PW 1/A is dated 15-7-1976 which is the affidavit sworn by Sahahru, one of the tenants, wherein it has been deposed by him that prior to the exchange the owners were in occupation of the suit land and thereafter Gobind Singh is in occupation of the suit land. He also deposed that neither he nor his brOrs. on any occasion cultivated the suit land as tenants.

13. Ex. PW R-1/A is the copy of some statement made by Hari one of the recorded tenants which statement he is alleged to have made in some criminal case wherein he deposed that the land was Banjar but for the last four years it was being cultivated by Gobind Singh.

14. Some oral evidence has been examined by the Plaintiff to prove his possession over the suit land as, according to this evidence, the suit land was Banjar, therefore, it was occupied by the Plaintiff.

15. I think the oral evidence examined will not be of much importance in the face of the documentary evidence examined during the trial.

Tenant means a person who occupies the land of Anr. and in return, except as otherwise agreed to, was liable to pay rent to that person.

16. The documentary evidence, as referred to above, recorded the Defendants or their predecessors to be in occupation of the suit land as tenants, since 1954-55 until today. The suit land has been described as a cultivable one throughout except for some period, as has been described in the Khasra Girdawari prepared in the eighties. At the time of exchange in favour of the Plaintiff the suit land was recorded as cultivable one and in occupation of the tenants.

17. One aspect of the matter at this stage has always to be kept in mind. It has come in evidence that the Plaintiff was a Petition Writer. The Petition Writer has got the suit land as exchange which land in the records of rights was recorded in occupation of the tenants. The exchange was effected in the year 1975 when H.P. Tenancy and Land Reforms Act had already come into being and the tenancy rights had acquired much importance. These rights had been recognized to be legally sufficient to acquire the proprietary rights of the landlords under whom those tenancy rights had been created With this background, where the Defendants have been recorded in occupation as tenants of the suit land since 1954-55 until today, it does not appt al to reasoning that a man of Plaintiffs profession who was conversant with law could go for such a deal which would have rot brought him anything solid unless and until some underhand methods were deployed to acquire the property which has been so done in the present case as has been borne from the documents themselves.

18 Even if for arguments sake the suit land was uncultivated and lying barren but had been recorded to be in occupation of the Defendants as tenants, such a tenancy rights could not have been taken away in the manner it has been tried to be done by the Plaintiff. Once a person is held to be a tenant he cannot lose the tenancy rights except for his eviction in accordance with law or the tenants abandonment or relinquishment of tenancy in favour of the landlord. It is not the case of that nature.

19. It has been argued and wrongly relied upon by the two courts below that there were no rent receipts in favour of the Defendants, therefore, on that sole ground the tenancy did not stand established in their favour. Such an inference is most uncalled for. The factum of payment of rent, no doubt, would be one of the circumstances to prove the tenancy but it is not the payment of rent which is the essential condition to prove the tenancy, the important condition to be proved in this behalf was the liability to pay the rent which fact stood established from the long standing entries in favour of the Defendants. Both the courts below acted illegally and erred in appreciating the essential conditions required to be made out for proving the claim of the tenancy.

20. Much has been said about the affidavit Ex. PW1/A given by Shahru, one of the tenants. This affidavit was sworn in by Shahru deceased on 15-7-1976 and was produced before the Assistant Collector where the Plaintiff had moved an application to correct the Girdawari entries. This affidavit has been tried to be proved in the statement of one Chuhru Ram (PW 1) Petition Writer. According to this witness, this affidavit was attested by Shri Yagya Chand Dogra lawyer. He admitted that Gobind Singh Plaintiff was also working as a Petition Writer in Kullu courts. He admitted that in Ex. PW 1/A the Oath Commissioner did not get the signatures of the identifier of Shahru The witness stated that he himself did not know personally said Shri Shahru. Admittedly, Shahru was dead. This PW 1 was not knowing him; the signatures of the identifier of Shahru had not been taken and moreover the Plaintiff while examining himself as PW 2 has not stated even a single word regarding this affidavit which was alleged to have been produced before the revenue officer All these circumstances do not lead to the valid execution of this document. Otherwise also, there is nothing on record to suggest that Shahru when made this affidavit, which was used before the revenue officer, was allowed to be cross-examined and what was his statement to that effect made before the revenue officer. Such a document will not be of any help to the case of the Plaintiff to prove that the Defendants were not in occupation of the suit land as tenants. Even if for arguments sake the face value of this document is taken it could only mean that only Shahru was not occupying the suit land as a tenant but he could not bind his brOrs. who happened to be recorded as tenants of the suit land alongwith him. This aspect of the matter does not help the case of the Plaintiff. The other document, which happened to be the statement of Hari, made before the Additional Chief Judicial Magistrate, Kullu, on 5 10-1978, will also not carry any legal weight inasmuch as this statement is without cross examination and moreover from this statement it cannot be gathered that it pertained to the suit land inasmuch as the complaint or other relevant records pertaining to that has been kept away from the perusal of (Iv civil court. This document again will not be helpful in proving the case of the Plaintiff against the tenancy claim of the Defendants.

21. It has been contended on behalf of the Plaintiff-Respondent that from the date of exchange the tenancy stood extinguished. I fail to under stand under what provision of law this inference could be derived at. The factum being argued that the tenancy stood extinguished from this date only mean that prior to this date tenancy rights were there which were being enjoyed by none else but by the Defendants or their predecessors. There is no law on the basis of which through an exchange the tenancy rights could be terminated. Such rights could be terminated through the process of law and not by creating exchange by the landlord. If it was so, the tenancy could be brought to end by this method by the landlords ignoring the statutory provisions in this behalf.

22. Thus, on the basis of the aforesaid circumstances examined during the trial both the courts below acted illegally in ignoring the legally competent evidence supporting the Defendants plea of tenancy as claimed by them. The Defendants having been held to be in occupation of the suit land as tenants since 1954-55, till date, accordingly, under Section 104 of the H.P. Tenancy and Land Reforms Act the proprietary rights in respect of the suit land stood conferred upon them and they have become owners of the same by operation of law.

23. In view of the foregoing reasons, the present appeal is accepted and the judgment and decree passed by the two courts below are set aside and as a consequence thereof the suit of the Plaintiff is dismissed with costs throughout.