' This second appeal arises from the judgment and decree dated 3-6-1966 passed by the Additional District Judge, Gujrat whereby the findings of Civil Judge, III Class, Gujrat were reversed and the judgment and decree granted to the petitioners/plaintiffs on 23-10-1965 was set aside.
2. The suit was filed by one Inayat Ali alias Inayat Hussain who died during the pendency of the litigation. The present appellants are the legal representatives of Inayat Ali. Similarly respondents Nos.1 to 9 were impleaded as legal representatives after the death of one of the defendants, namely Muhammad Ali alias Tota.
3. The dispute encompasses agricultural land measuring 90 Kanals one Marla situated in village Jataria Khurd, Tehsil Kharian, District Gujrat. Inayat Ali filed a suit for declaration to the effect that he had obtained the land in dispute from Mst. Raj Bhari and others being occupancy tenants after paying the compensation and by obtaining decree dated 19th March, 1959 and that the entries of Jamabandi for the year 1960-61 alongwith the Khasra Girdawaris made thereafter were illegal, void and inoperative against his rights. An injunction permanently restraining the defendants from interfering with their possession was also prayed for.
4. It was contended that in pursuance of the decree necessary entries were recorded in the Revenue Record in favour of the plaintiff but in the year 1960-61, the Patwari, Halqa unlawfully and without proper checking of the record made wrong entry in the Jamabandi showing the possession of the defendants over certain Khasra numbers as tenants-at-will and on others as occupancy tenants.
5. The suit was contested by the defendants on the ground that the decree dated-19-3-1959 was passed on the consenting statement of Mst. Raj Bhari, who herself was not owner of the land because prior to that one Akbar Ali, predecessor-in-interest of the defendants had been adjudicated as owner of this property by the High Court. The defendants thus denied the ownership of the plaintiff. They also denied plaintiffs possession and accordingly disputed the maintainability of the suit as well as its valuation for the purposes of court-fee.
6. The learned Civil Judge did not accept the version of the defendants and relying upon the decree dated 19-3-1959, decreed the suit. In appeal, the findings on the issues relating to the maintainability and valuation of the suit were reversed by the learned Additional District Judge and the suit was dismissed on the ground that the plaintiff was not in possession of the land and the suit for mere declaration without seeking possession was not competent. Resultantly, the issue of valuation was also found against the plaintiff.
7. On behalf of the plaintiffs-appellants, it has been urged that the trial Court had decreed the claim of the plaintiff-appellants on the basis of acquisition of proprietary rights as occupancy tenants but the lower appellate Court overlooked the evidence produced by the parties which showed that at the relevant time, the defendants-respondents were undergoing a sentence passed upon them by the Criminal Court and as such could not hold the possession of the suit land. It was further contended that if the plaint was deficiently stamped, it was liable to be rejected under Order 7, Rule 11 of the C.P.C. but the suit could not be dismissed.
8. As is obvious from the above, only those findings of the learned Additional District Judge have been assailed in this appeal which are concerning the possession of the land and valuation of the suit. The claim of the appellants is that the entries of the Revenue Record were contrary to the actual position. It is from the year 1960-61 that the defendants-respondents were recorded as tenants-at-will over Khasra Nos.390, 394, 395, 400 and 401 and as occupancy tenants on Khasra Nos.370 to 372, 383 to 385 and 389. The Khasra Girdawari was also maintained in the same order.
9. The plaintiffs-appellants produced oral evidence to falsify these entries. This evidence was as such not sufficient to rebut the impact of the revenue documents. The witnesses are one way or the other either related to the plaintiff or interested for or against the parties. At times, they are self- contradictory also. For instance, if Allah Ditta P.W.1, at one occasion says that the land is in self- cultivation of the plaintiff, in the same breath he would mention Azmat Hussain as tenant under the plaintiff. In judicial scrutiny such an evidence would not sustain effect against the Jamabandi and the Khasra Girdawari continuously maintained since 1960-61. The position remained the same even at the time of the institution of the suit.
10. Great emphasis has been placed on the fact that the defendants having been in the prison were not able to hold the possession of the suit land at the relevant time. This situation has two aspects. First, the absence of the defendants cannot essentially mean that the plaintiff was in possession of the land. The plaintiff's physical possession was to be proved by direct and affirmative evidence and could not be inferred merely due to imprisonment of the defendants.
Secondly, despite the imprisonment of the defendants, the plaintiff may not be in possession of the land and, as alleged by the defendants, the suit land could be cultivated by the tenants on their behalf. The period of imprisonment of the defendants is also noteworthy. They were convicted for five years in 1957 and in ordinary course, the term of their sentence should have expired sufficiently before the institution of the suit. The factum of the imprisonment of the defendants, therefore, cannot by itself nullify the entries of the Khasra Girdawari.
11. The findings of the learned Additional District Judge are, thus, unexceptionable. The plaintiffs- appellants not being in possession, the suit was not competent in the form brought. That being so, there was no need to first ask the plaintiffs to make up the deficiency in the court-fee or to reject the plaint on that score. That situation could arise only if the suit was otherwise competent but it was deficiently valued for the purpose of court-fee.
' In view of the above, there is no force in this appeal which is dismissed with costs.