Suit:
Suit for declaration of title and possession – Filed by respondents-plaintiffs – Suit contested on the ground that the suit land was abandoned by respondent-plaintiff and lease was issued to the predecessor-in-interest of the appellants-defendants – Trial court dismissed the suit holding that patta-lease (Ex.D-20) in respect of suit land was issued by the Illaquedar to the defendants and since then they were in possession of the same and also held that plaintiffs got the entries of their names in the revenue records in connivance with the patwari – First appellate court doubting the correctness of Ex.D-20 decreed the suit – In second appeal High Court affirmed the findings of first appellate court – Appeal to Supreme Court – Held: In a suit for title and possession, plaintiffs can succeed only on the strength of their own title and not on the weakness of the case of the defendants – The burden was on the plaintiffsrespondents to establish their title – They have failed to produce title document or any other evidence to prove their title – The oral and documentary evidence clearly establish that patta-lease (Ex.D20) was issued to predecessor-in-interest of the defendents and they were in continuous possession of the suit land – Trial court had rightly dismissed the suit.
Constitution of India:
Art.136 – Special Leave Petition – Scope of – Concurrent finding of fact – Interference with – Held: Concurrent finding of fact cannot be interfered with, unless warranted by compelling reasons – When the findings of courts below are perverse, interference with the findings of fact are warranted. Evidence Act, 1872:
s. 58 Proviso – Admitted facts – Whether need to be proved – Held: s. 58 postulates that things admitted need not be proved – However, proviso to s. 58 gives full discretion to the court to require the admitted facts to be proved.
s. 90 – Presumption – As to genuineness of a document – Held: Court ‘may presume’ that the document is genuine – Mere allegation of fraud would not be sufficient to rebut such presumption.
Code of Civil Procedure, 1908:
Or. XLI, r. 27 – Production of additional evidence – When permissible – Discussed.
Deeds and Documents:
Revenue entries – Evidentiary value – Held: Revenue entries for few Khataunis are not proof of title, but are mere statements for revenue purpose.
Allowing the appeal, the Court
HELD: 1. In an appeal under Article 136 of the Constitution of India, the concurrent findings cannot be interfered with unless warranted by compelling reasons. When the finding of the first appellate court and the High Court are shown to be perverse, this Court would certainly interfere with the findings of fact recorded by the High Court. [Para 10][530-E]
Mahesh Dattatray Thirthkar v. State of Maharashtra (2009) 11 SCC 141 : [2009] 3 SCR 1122 – relied on.
2. The suit of the respondents-plaintiffs was for declaration of their title to the suit lands and consequential delivery of the suit lands. Having filed the suit for declaration of title, the plaintiffs could succeed in their suit only by adducing sufficient evidence to establish their title. But the plaintiffs have not produced the patta granted to their fathers. [Para 13][531-D]
3. In the written statement, defendant also admitted that the plaintiffs-respondents’ fathers were lessees and patta-lease was originally granted in their favour during the settlement period for cultivation on the basis of Batai/crop-sharing. [Para 14] [531-H; 532-A]
Nagindas Ramdas v. Dalpatram Iccharam alias Brijram and Others (1974) 1 SCC 242 : [1974] 2 SCR 544; Executive Officer, Arulmigu Chokkanatha Swamy Koil Trust, Virudhunagar v. Chandran and Others
(2017) 3 SCC 702 : [2017] 5 SCR 473 – referred to.
4. Section 58 of the Evidence Act, no doubt, postulates that the things admitted need not be proved. However, proviso to Section 58 of the Evidence Act gives full discretion to the court to require the facts admitted to be proved otherwise than by such admission. When the respondents-plaintiffs have filed the suit for declaration of their title, the respondents-plaintiffs cannot isolate few sentences in the written statement and take advantage of only those part of the written statement which are favourable to them. The written statement filed by the appellants-defendants has to be read in toto. In the written statement, the appellantsdefedants averred that the lands were in the ownership of ‘R’ at the time of the settlement, but because he was not in a position to cultivate the same himself, the lands were given to the father of the respondents-plaintiffs for cultivation on the basis of Batai/crop-sharing. It is further averred that the then Halkedar cancelled the lease in respect of disputed lands and the same were auctioned in which the bid of the defendants’ father was accepted and the disputed lands were transferred in his name in the sale in Samvat 1986 i.e. 1929 A.D. The admission of the defendants as to the lease of the plaintiffs’ father was the lease earlier granted in favour of the forefathers of the plaintiffsrespondents. In the light of the pleadings and the oral and documentary evidence adduced by the defendants, notwithstanding the admission in the written statement, the burden lies upon the respondents-plaintiffs to prove that the pattalease continues to be in their favour and that they are the holders of patta and that they are in continued possession of the suit properties. [Para 15][532-E-H; 533-A-B]
5. From the statement of PW-1 and PW-2, it is evident that the father of PW-1 had started living in Jabalpur forty years back prior to institution of the suit and settled there. In the light of the evidence adduced, the trial court rightly accepted the case of the defendants that in Samvat 1986 (1929 A.D.), in the auction held by Pawaidar for lease of suit lands and other lands, bid of their grandfather was accepted and the suit properties along with other lands were given on lease to him. If the lands were not left so abandoned by the father of respondents-plaintiffs, it would not have been possible for the Pawaidar to auction the lease of the suit lands and grant lease of the lands in favour of grandfather of defendants. [Para 16][533-C]
6. Case of the appellants-defendants that in Samvat 1986 (1929 A.D.), in the auction held by Pawaidar for lease of suit lands and other lands, the suit properties along with other lands were given on lease to their grandfather is strengthened by revenue records and ample evidence. Ex. D-20 [Patta in favour of grandfather of defendants] being thirty year old document gives rise to presumption as to its genuineness. Contention of the respondents-plaintiffs is that Section 90 of the Evidence Act has no application to Ex. D-20 and the presumption cannot be raised as to the genuineness of the contents of the document. Section
90 of the Evidence Act enables the court to draw presumption about the genuineness of the document which is thirty years old. Section 90 lays down that the court “may presume” that the document is genuine. Since the patta [Ex.D-20] is more than thirty years old, Section 90 raises presumption as to the authenticity of the document. Mere allegations of fraud would not be sufficient to rebut the presumption raised under Section
90 of the Evidence Act. [Para 17-19][533-F; 534-C-E]
7. Only the copies of khasra for the years 1955-56 (Ex. P9) and 1956-57 (Ex. P-10) are in the name of respondentsplaintiffs; and in the previous khasras for the years 1950-51 to 1954-55 (Ex. P-8) and subsequent khasras for 1960-61 (Ex. P12), 1963-64 to 1965-66 (Ex. P-13), 1968-69 (Ex. P-14) and 197071 to 1975 (Ex. D-2), the entries are in the name of the father of the appellants-defendants. The lease was granted in favour of grand father of defendants and that he and father of defendants had been continuously in possession of the properties is thus established by the revenue records. [Para 20][535-F-G]
8. The revenue records produced by the appellants for several years amply strengthen the case of the appellants that patta (Ex. D-20) was granted to them and that they are in possession of the suit properties for several years. The oral and documentary evidence clearly establish that the father of the respondents-plaintiffs has abandoned the suit properties, pursuant to which, auction was held by the Pawaidar and lease was issued by illaqedar in favour of grand father of appellantdefendent and that he was in continuous possession of the suit properties. The respondents-plaintiffs have not produced any document to prove that Ex. D-20 is a forged one. In fact, the respondents themselves have filed the patta granted in favour of the appellants-defendants. [Paras 22 and 23][535-D-E; F-G]
9. The entries which were consistently in favour of the appellants ought not to have been ignored in preference to the entries in favour of the respondents only for two years i.e. 195556 and 1956-57. Moreover, in the light of the findings by the revenue authorities on several occasions, the said entries in the name of the respondents cannot be said to be genuine. The first Appellate Court and the High Court were not right in brushing aside Ex. P-21 (Ex.D-20) patta granted in the name of the appellants and other crucial documents like report of the Revenue Inspector (Ex. P-3) which notes that patta illaqa is in the name of grandfather of appellants and the several entries in the revenue records are in the name of the appellants. In the absence of the contra evidence adduced by the respondents-plaintiffs, the trial court rightly held that the appellants have been in continuous possession of the suit properties and that the respondents have failed to prove their right over the suit properties prior to filing of the suit. [Para 24][536-C-E]
10. From the order of the Commissioner dated 17.7.1973 and the report of the other revenue authorities, it is clear that the plaintiffs-respondents have made interpolation in the revenue entries in connivance with Patwari and got the revenue entries recorded in their names. The High Court and the first Appellate Court erred in not considering Ex.D-1-order of the Commissioner in its proper perspective. [Para 26][538-B]
11. Under Order XLI Rule 27 CPC, production of additional evidence, whether oral or documentary, is permitted only under three circumstances which are: (I) Where the trial Court had refused to admit the evidence though it ought to have been admitted; (II) the evidence was not available to the party despite exercise of due diligence; and (III) the appellate Court required the additional evidence so as to enable it to pronounce judgment or for any other substantial cause of like nature. An application for production of additional evidence cannot be allowed if the appellant was not diligent in producing the relevant documents in the lower court. However, in the interest of justice and when satisfactory reasons are given, court can receive additional documents. [Para 28][539-C-E]
Union of India v. Ibrahim Uddin & Another, (2012) 8 SCC 148 : [2012] 8 SCR 35 – relied on.
Karewwa and others v. Hussensab Khansaheb Wajantri and Others (2002) 10 SCC 315 ; Roop Chand v. Gopi Chand Thelia (1989) 2 SCC 383 : [1989] 2 SCR 184 – referred to.
12. In the present case, the Court is inclined to receive the order of Tahsildar dated 28.07.1971 as additional evidence. From the order of the Tahsildar dated 28.07.1971, it is seen that the applicant thereon (appellant) had filed an application before the Collector, stating that he was the land owner-cultivator of the land numbers 131, 151, 161, 162, 163, 41 and has been in possession of the lands and that the non-applicants (respondentsplaintiffs) got their names recorded in revenue entries in connivance with Patwari and prayed for rectification of the entries. A report was called from the SDO who held a detailed enquiry and submitted a report. Based upon such enquiry and report of the SDO dated 21.10.1969, the Tahsildar held that the entry in regard to possession of the non-applicants in respect of land numbers 41, 131, 162, 163 was found to be made subsequently. [Para 30][540-G-H; 541-A-B]
13. It is wrong to say that the order of the Tahsildar dated 28.07.1971 cannot be looked into on the ground that they were not adduced as evidence before the trial court. Order of the Commissioner, marked as Ex. D-1 makes a clear reference to the order of the Tahsildar dated 28.07.1971. Since in Ex.D-1 (17.07.1973), there is reference to the order of the Tahsildar dated 28.07.1971, the same is received as additional evidence. The order of the Tahsildar dated 28.07.1971 has a direct bearing on the main issue in the suit and in the interest of justice, the same has to be received as additional evidence. Since Ex. D-1 makes a reference to the order of the Tahsildar, there is no impediment in receiving the order of the Tahsildar dated 28.07.1971 as additional documents and considering the same. [Para 31] [541-H; 542-A-D]
14. Since the order of the Tahsildar has been referred to in the order of the Commissioner dated 17.07.1973 (Ex.D-1), it will not have the effect of introducing new case necessitating remittance of the matter. So far as the other two additional documents namely, order of the Naib Tahsildar dated 01.09.1962 – order passed in the suit filed under Section 250 of the M.P. Land Revenue Code and the order of the District Collector dated 21.11.1972, they are not received as additional evidence. [Para 31][542-D-E]
15. The first Appellate Court and the High Court fell in error in not taking into consideration the categorical findings recorded in the order of the Commissioner (Ex. D-1) that the plaintiffs-respondents got the entries in the revenue records in connivance with the Patwari and that the Patwari was guilty of grave misconduct. [Para 32][542-G-H]
16. The finding of the first appellate court that the patta was granted to grandfather of appellant-defendants in 1954 and that illaqedar was not competent to issue patta is misconceived. The Patta was granted not in 1954 but in Samvat 1986 (1929 A.D.) when admittedly the illaqedar had such power. That apart, the validity of patta so granted cannot be determined based on the inference drawn as to the age of DW-1[father of defendant]. As per Section 5 of the Vindhya Pradesh Act, the State Government by a notification appointed a date for the resumption of any class of Jagir Lands and the consequences of such resumption are set out in Section 6 of the said Act. In terms of Section 28 of the said Act, the appellants who were till then the tenants of intermediary/Jagirdar shall be deemed to be pattedar tenant in respect of the said lands. In view of the provisions of the above Act, the first appellate court erred in saying that the patta was granted in the year 1954 and by that time, Pawaidar/iIlaqedar was not having jurisdiction to issue patta. [Para 39][545-F-H; 546-A-D]
17. The first Appellate Court was not right in doubting the correctness of Ex. D-20 and not right in observing that defendant No.1 is not having a legal right of ownership on the disputed lands. The first appellate court and the High Court fell in error in not taking into consideration Ex.D-1-order of the Commissioner dated 17.07.1973 and the order of the Tahsildar dated 28.07.1971 and other documents showing grant of lease/patta in the name of grandfather of the appellants-defendants and their continued possession. The first Appellate Court and the High Court erred in brushing aside the findings recorded by the Commissioner dated 17.07.1973 as to the misconduct of the patwari in making entries in the revenue records. [Para 40][546-F-H; 547-A]
18. In the suit for declaration for title and possession, the plaintiffs-respondents could succeed only on the strength of their own title and not on the weakness of the case of the defendantsappellants. The burden is on the plaintiffs-respondents to establish their title to the suit properties to show that they are entitled for a decree for declaration. The plaintiffs-respondents have neither produced the title document i.e. patta-lease which the plaintiffs-respondents are relying upon nor proved their right by adducing any other evidence. The revenue entries relied on by them are also held to be not genuine. In any event, revenue entries for few Khataunis are not proof of title; but are mere statements for revenue purpose. They cannot confer any right or title on the party relying on them for proving their title. [Para 41][547-B-D]
Union of India and Others v. Vasavi Co-operative Housing Society Limited and others (2014) 2 SCC
269 : [2014] 1 SCR 180 – relied on.
19. Upon appreciation of evidence, the trial court has recorded findings on various issues which was reversed by the first Appellate Court. Since the first Appellate Court reversed the judgment of the trial court, in the second appeal, the High Court ought to have weighed and considered the evidence and materials. The order of the High Court dismissing the appellant’s appeal by affirming the findings of the first Appellate Court is mainly on the ground that in the absence of any order of abandonment or revocation of the patta granted to the respondents-plaintiffs, grant of patta (Ex.D-20) in favour of the appellants-defendants was illegal. The High Court did not appreciate the patta (Ex.D-20) granted in favour of the forefathers of the appellants by the competent authority in 1929 and the report of the Revenue Inspector dated 05.10.1969. The first Appellate Court and the High Court did not consider Ex.D-1Order of the Commissioner dated 17.07.1973 and the report of the SDO dated 21.10.1969 and other revenue records showing that the forefather of the appellants-defendants namely Gaya Din was given the patta (Ex.D-20) and since then, he and his descendants were in possession of the properties. The High Court has not properly appreciated the evidence and materials on record and the impugned judgment is liable to be set aside. [Para 42][547-F-H; 548-A-B]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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