whether the High Court was right in upholding the judgment of the first Appellate Court by
observing that in the absence of any order of abandonment or revocation of the patta given to the respondents-plaintiffs, grant of patta (Ex.D-20) in 1929 in favour of the appellants-defendants was illegal and that the appellants-defendants cannot claim right based upon Ex.D-20 and other documents.
Unless shown perverse - concurrent findings can not be distrubed
concurrent finding of the High Court and the first Appellate Court - unless are shown to be perverse, Apex court /this Court would certainly interfere with the findings of fact recorded by
the High Court
Admitted facts need not be proved
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.
Thirty years old document presumption as to genuineness
Ex. D-20 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 granted in favour of Gaya Din is of Samvat 1986 (1929 A.D.) which 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.
Declaration of title and possession - Plaintiff has to prove his case
It is trite law that, in a suit for declaration of title, the burden always lies on the plaintiff to make out and establish a clear case for granting such a declaration and the weakness, if any, of the case set up by the defendants would not be a ground to grant relief to the plaintiff.” 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. As noted above, 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. Observing that in a suit for declaration of title, the plaintiffsrespondents are to succeed only on the strength of their own title irrespective of whether the defendants-appellants have proved
their case or not,
Or.41, rule 27 CPC additional evidence at appellate stage
The appellate court should not ordinarily allow new evidence to be adduced in order to enable a party to raise a new point in appeal. Similarly, where a party on whom the onus of proving a
certain point lies fails to discharge the onus, he is not entitled to a fresh opportunity to produce evidence, as the court can, in such a case, pronounce judgment against him and does not
require any additional evidence to enable it to pronounce judgment.The inadvertence of the party or his inability to understand the legal issues involved or the wrong advice of a pleader or the negligence of a pleader or that the party did not realise the importance of a document does not constitute a “substantial cause” within the meaning of this Rule. The mere fact that
certain evidence is important, is not in itself a sufficient ground for admitting that evidence in appeal.” "Where the additional evidence sought to be adduced removes the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue in the suit and interest of justice clearly renders it imperative that it may be allowed to be permitted on record, such application may be allowed.”
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2176 OF 2007
JAGDISH PRASAD PATEL (DEAD)
THR. LRS.& ANOTHER …Appellants
VERSUS
SHIVNATH & OTHERS …Respondents
J U D G M E N T
R. BANUMATHI, J.
This appeal arises out of the judgment dated 05.02.2007
passed by the High Court of Madhya Pradesh at Jabalpur
dismissing the Second Appeal No.174 of 1989 filed by the
appellants, thereby affirming the decision of the first Appellate
Court in Civil Appeal No.29-A/85 holding that in the absence of any
order of abandonment or revocation of the patta given to the
forefathers of the respondents-plaintiffs, grant of patta in favour of
the appellants/defendants was illegal and that the appellantsdefendants cannot claim any right over the suit properties.
2. Case of Respondents-plaintiffs is as under:-
Respondents-Shiv Nath and deceased Vishwanath/predecessor in
interest of respondents No.2 to 10 filed a suit for declaration of title
1
over the suit lands in khasra numbers 41-1.39, 131-2.70, 162-0.17,
163-3.92 and 164-2.15 Kita 5 total area 10.33 situated in Village
Bairath General No.782, Tehsil Gopad Banas and possession of all
the khasra numbers except khasra No.164 against the father of the
appellants-Hanuman Din. Ram Sahai and Rameshwar - fathers of
the plaintiffs were the joint lessees of the lands in khasra Nos. 41,
131, 132, 136/13, 135, 134/4, 137/27, 140/11, 142/2, 143, 146,
147, 162, 163/25, 164/4 and 257 total measuring 21.45 acres and
their names were included as ‘lessees’ of the above lands during
the settlement and they kept on cultivating the lands till forty years
back when a partition took place between the two and both of them
became owners of half part each. Hanuman Din never remained in
possession of any part of the lands nor he had any right or
entitlement over the suit lands; but the grandfather of the
appellants-Gaya Din got a lease in disputed lands of the
respondents which according to the respondents is a forged
document. Based on the aforesaid lease, Gaya Din got his name
entered as khatedar in respect of the khataunis of the disputed
lands.
3. Respondent-deceased Vishwanath-predecessor-in-interest of
respondents No.2 to 10 filed an application before the Collector in
2
August, 1969 stating that the lease of the disputed lands was
wrongly issued by illaqedar in the name of Gaya Din and the
proceedings for cancellation of the records in the name of Gaya
Din be initiated. The matter was sent to the Revenue Inspector for
enquiry who submitted his report in favour of respondents in
respect of the ownership of the lands in dispute and the Collector
registered the report after approving it. In proceedings before the
Sub-Divisional Magistrate in Miscellaneous Case No.351/142/69
under Section 145 Cr.P.C. initiated by Hanuman Din, the
Sub-Divisional Magistrate found Hanuman Din in possession of
lands in khasra Nos.162 and 163 and respondents were found in
possession of land in khasra No.164. Respondents-plaintiffs
alleged that pursuant to the order of the Sub-Divisional Magistrate,
Hanuman Din forcibly took possession of land in khasra No.41 and
therefore, the respondents filed suit for declaration and permanent
injunction.
4. Hanuman Din resisted the suit contending that the
respondents have never remained in ownership or possession of
the disputed lands and the lands belonged to one Ram Raj Singh
but he was not cultivating the lands and gave it to the
predecessors of the respondents for cultivation on the basis of
3
Batai-crop sharing and only because of this, patta was granted at
the time of settlement in their names. The appellants further
averred that the father of the respondents abandoned the lands
and since revenue tax was not being paid, the khata of the
disputed lands was cancelled. Case of the appellants-defendants
is that in the auction held by Pawaidar for lease of suit lands and
other lands, bid of Gaya Din was accepted and in this regard, a
lease was issued in his name in Samvat 1986 (1929 A.D.). The
appellants had been in continuous possession of the suit
properties and the same is reflected in the khataunis and other
revenue records.
5. The trial court vide judgment dated 02.07.1985 dismissed the
respondents’ suit by holding that Gaya Din has been holding pattalease (Ex.D-20) in respect of the suit lands and has been in
continuous possession of the disputed lands since 1950 and
thereafter, Hanuman Din was in possession of the same. After
referring to the orders of the Commissioner (Ex.D-1), the trial court
held that the Commissioner recorded a finding of fact that the
respondents got the entries made in the revenue records in their
names in connivance with the Patwari. The trial court held that the
lease-patta (Ex.D-20) was issued by the then iIlaqedar to Gaya Din
4
and that the said document being more than thirty years old is a
genuine one. After referring to various khasras and the entries
thereon in the name of appellant’s father, it was held that the
appellants’ father Hanuman Din has been in possession of the suit
lands since 1950 or prior to that. The trial court further held that the
suit was instituted on 17.10.1975 which is beyond twelve years and
that the suit is barred by time.
6. In appeal, the first Appellate Court vide its judgment dated
03.04.1989 held that at the time of settlement, patta was granted in
the name of father of the respondents and this has not been
disputed by the appellants and the appellants could not establish
abandonment of the lands by the father of the respondents and
therefore, the respondents ought to be treated as owners of the
suit properties. The first Appellate Court further held that the lease
Ex.D-20 produced by the appellants cannot be held to be a valid
one and in absence of order of revocation of the patta granted to
the respondents, it cannot be held that Ex.D-20 confers right of
ownership on the appellants over the disputed lands. The first
Appellate Court held that merely because of production of pattalease – Ex.D-20 by Hanuman Din, it cannot be said to have been
proved and therefore, it cannot be held that Hanuman Din has a
5
legal right of ownership on the disputed lands. The first Appellate
Court noted that on the basis of Ex.D-1 – order of the
Commissioner, possession of the suit properties by the appellants
cannot be held to be proved, since the respondents or their
ancestors were not parties to the said proceedings. On these
findings, the first Appellate Court set aside the judgment of the trial
court and held that the respondents are the owners of the disputed
lands and held that the respondents are entitled to get possession
of the lands in khasra Nos. 41, 131, 162 and 163 from the father of
the appellants.
7. In the second appeal, the High Court affirmed the findings of
the first Appellate Court and held that the suit lands were recorded
in the name of fathers of the respondents and that there was no
document on record to show that they have abandoned the
possession of the lands or surrendered the same in favour of
iIlaqedar. It was held that though patta-lease – Ex.D-20 was
granted in favour of grandfather of the appellants, the appellants
have not adduced any evidence to prove abandonment of the
lands in favour of iIlaqedar and no right accrued to the appellants
on the basis of the patta (Ex.D-20). Being aggrieved, the
appellants have preferred this appeal.
6
8. We have heard Mr. Subodh Markandeya, learned senior
counsel for the appellants-defendants and Mr. A.K. Shrivastava,
learned senior counsel for the respondents-plaintiffs. We have
considered the submissions and carefully perused the impugned
judgment and the judgment of the courts below and other materials
on record.
9. The point falling for consideration is whether the High Court
was right in upholding the judgment of the first Appellate Court by
observing that in the absence of any order of abandonment or
revocation of the patta given to the respondents-plaintiffs, grant of
patta (Ex.D-20) in 1929 in favour of the appellants-defendants was
illegal and that the appellants-defendants cannot claim right based
upon Ex.D-20 and other documents.
10. The impugned judgment of the High Court is the concurrent
finding of the High Court and the first Appellate Court. We are
conscious that 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
7
the High Court. [Vide Mahesh Dattatray Thirthkar v. State of
Maharashtra (2009) 11 SCC 141]
11. The respondents-plaintiffs–Shiv Nath and deceased
Vishwanath filed suit for declaration of title over the suit lands in
khasra numbers 41-1.39, 131-2.70, 162-0.17, 163-3.92 and
164-2.15 total area 10.33 situated in Village Bairath General
No.782, Tehsil Gopad Banas on the plea that a lease/patta was
issued in favour of their fathers and that their names were
included as ‘lessees’ of the suit lands during settlement and that
they have been cultivating the lands till forty years back when
partition took place between the two and both Shiv Nath and
deceased Vishwanath became owners of half portion each.
12. The appellants-defendants resisted the suit contending that
Ram Raj Singh was the original owner of the lands but he was
not cultivating the lands and settlement patta was given in the
name of the fathers of respondents namely Ram Sahai and
Rameshwar on the basis of Batai-crop sharing at the time of
settlement and the predecessors of respondents-plaintiffs have
not cultivated the lands. The appellants-defendants further
averred that the forefathers of respondents-plaintiffs abandoned
the suit lands and since revenue tax was not paid, the lease of
8
the suit lands in favour of respondents-plaintiffs was cancelled.
The then illaqedar accepted the bid of the defendant’s father
Gaya Din in the auction held in the year 1929-Samvat 1986. The
appellants-defendants have claimed ownership and possession
over the lands in dispute on the basis of the patta Ex.D-20 (Ex. P21) that was issued in their favour in Samvat 1986 (1929 A.D.)
and averred that since then they are in possession of the
disputed lands.
13. The suit of the respondents-plaintiffs is 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. PW-1-Vishwanath, in his deposition,
stated that the original patta was very old, torn and the same is
not with them. The respondents-plaintiffs have produced the
report of the Revenue Inspector dated 05.10.1969 (Ex. P-3) as
per which on the application of Vishwanath, an enquiry was made
and it was found that the name of pattedar is Gaya Din. Gaya
Din and Shiv Nath are shown as lease holders. In Ex.P-3, it is
further stated that in Khatauni No.58/59, it was found that names
9
of Ram Sahai and Rameshwar Kurmi are found recorded as
owners of land numbers 51/1.38, 162/0.17, 163/3.72, 164/2.65
and 131/2.70. It was further stated that the patta illaqa of the
above numbers are found registered in the name of Gaya Din.
Ex.P-3-report notes the entries in Ex.D-20-patta to the effect that
permission to make entry in respect of the patta granted vide
order No.146/1960 dated 21.11.1960 issued by the Tahsildar in
the official record has been given after due inspection and entry
in khasra is found made by the concerned Patwari on 10.01.1961.
14. In his evidence, PW-1 has stated that patta-lease was
issued in the name of his father. In his written statement,
defendant Hanuman Din also admitted that the plaintiffsrespondents’ 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. The trial court as well as the
first appellate court held that the lease was granted in favour of
father of respondents-plaintiffs at time of the settlement and they
were held to be original lessees. The trial court while deciding
issue No.2(A), observed that the grant of lease in the name of
father of respondents-plaintiffs in the settlement is not rebutted by
the appellants-defendants. Drawing our attention to the findings
10
of the trial court that patta was granted in favour of the father of
the respondents-plaintiffs, the learned senior counsel for the
respondents-plaintiffs submitted that this amounts to admission
and in terms of Section 58 of the Evidence Act, admitted facts
need not be proved. Placing reliance upon Nagindas Ramdas v.
Dalpatram Iccharam alias Brijram and others (1974) 1 SCC
242 and Executive Officer, Arulmigu Chokkanatha Swamy
Koil Trust, Virudhunagar v. Chandran and others (2017) 3
SCC 702, it was submitted that in view of clear admission of grant
of lease in the name of father of respondents-plaintiffs, the said
admitted fact need not be proved.
15. 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. It is pertinent to note that in para No.(2) of
11
the written statement, the appellants-defendants averred that the
lands were in the ownership of Ram Raj Singh 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 Gaya Din was accepted
and the disputed lands were transferred in his name in the sale in
Samvat 1986 i.e. 1929 A.D. The lease of the lands was issued in
the name of Gaya Din. 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 respondents. 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 patta-lease 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.
16. In his cross-examination, PW-1 stated that his father left for
Jabalpur about forty years prior to the institution of the suit. In the
12
cross-examination, PW-1 however denied the suggestion that
when his father left for Jabalpur, he handed over the disputed
lands to Pawaidar and all the records at the relevant time were
kept by the iIlaqedar. From the statement of PW-1-Vishwanath
and PW-2-Ram Gopal, it is evident that the father of Vishwanath
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 Gaya Din was accepted
and the suit properties along with other lands were given on lease
to Gaya Din. We find substance in the submission of the learned
senior counsel for the appellants that 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 Gaya Din.
17. 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 Gaya Din, is strengthened by revenue
records and ample evidence. The Pawaidar sanctioned entries
13
regarding grant of patta to Gaya Din to be made in the
Government records. The appellants-defendants produced their
patta-Ex. D-20 which has also been produced by the
respondents-plaintiffs (Ex. P-21). Ex. D-20 is the patta kashtkari
as per the order of the Hon’ble Shri Rai Saheb Churhat, Halka
Patwari No.1, Region Churhat, State Rewa, Location Mauja
Kother, in Samvat 1986 in the name of Gaya Din as
farmer/cultivator for the suit properties granted for agricultural
purpose. From Ex. D-20, it is seen that as per Tahsildar order
No.146/1960 dated 21.11.1960, Pawaidar has been allowed to
enter in government serial. As per the order of the Tahsildar,
entry has been made accordingly in Pawai Khasra as is clear
from the endorsement made by Patwari dated 10.01.1961 in
Ex.D-20.
18. Ex. D-20-patta in favour of Gaya Din was validly granted by
the iIIaqedar to Gaya Din in the year 1929. The said documents
issued by the Tahsildar were produced from the custody of the
appellants. The contents thereon show that as per the
Government records, the lands had been given to Gaya Din. The
documents being more than thirty years old, the trial court rightly
presumed the Ex.D-20-patta of genuine. It was then up to the
14
respondents to rebut the presumption. This has not been
controverted by the respondents-plaintiffs.
19. Ex. D-20 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 granted in favour of Gaya
Din is of Samvat 1986 (1929 A.D.) which 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.
20. The respondents-plaintiffs have produced the copies of
khasras of several years. However, only the copies of khasra for
the years 1955-56 (Ex. P-9) and 1956-57 (Ex. P-10) are in the
name of respondents-plaintiffs; and in the previous khasras for
the years 1950-51 to 1954-55 (Ex. P-8) and subsequent khasras
15
for 1960-61 (Ex. P-12), 1963-64 to 1965-66 (Ex. P-13), 1968-69
(Ex. P-14) and 1970-71 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 Gaya Din and that he and Hanuman Din had
been continuously in possession of the properties is thus
established by the revenue records.
21. From perusal of the Khatauni for the year 1952-53 (Ex.P-2)
produced by the plaintiffs, it is seen that the appellantsdefendants are in possession of the suit lands from the year
1950-51 to 1954-55 (Ex. P-8) and thereafter, the subsequent
khasras 1960-61 onwards. The names of the appellantsdefendants being mentioned in the khasra 1950-51 to 1954-55 is
very crucial. The reason being Vindhya Pradesh Abolition of
Jagirs and Land Reforms Act, 1952 (Vindhya Pradesh Act) came
into force on 30.07.1953. Ex. D-20 (Ex. P-21) - lease was
granted in favour of the predecessors of the appellantsdefendants namely Gaya Din by Pawaidar under Section 44 of
the Rewa State Malgujari and Kashtkari Act, 1935 (Rewa Land
Revenue and Tenancy Act, 1935). After referring to Ex. D-20, the
trial court rightly held that the Pawaidar was empowered to issue
the lease and that lease (Ex. D-20) was issued under
16
Section 141 of the Act. It was therefore rightly held by the trial
court that the lease (Ex. D-20) is valid and that the appellantsdefendants have proved that the lease of the lands was legally
given by illaqedar in favour of their father.
22. 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 respondentsplaintiffs has abandoned the suit properties, pursuant to which,
auction was held by the Pawaidar and lease was issued by
illaqedar in favour of Gaya Din and that he was in continuous
possession of the suit properties.
23. In the plaint, the respondents/plaintiffs have alleged that
Ex. D-20-patta is a forged one. In para No.(4) of the plaint, it is
alleged that without knowledge of the respondents/plaintiffs’
father, defendants’ father Gaya Din got the lease from Ilaqa
Churhat by illegal means and Gaya Din never remained in
possession of the properties. The respondents-plaintiffs have not
produced any document to prove that Ex. D-20 is a forged one.
The plaintiffs at one place averred that without the knowledge of
17
the plaintiffs and their father, Gaya Din succeeded in getting the
lease by illegal means of the disputed lands from iIlaqa therein;
whereas in para No.(5), the respondents-plaintiffs alleged that the
document is a forged one. In fact, as pointed out earlier, the
respondents themselves have filed the patta granted in favour of
the appellants-defendants. It is pertinent to note that Vishwanath
had given an application for inspection of the area (patta) in
respect of land numbers 41, 131, 162, 163 and 164 situated in
Village Bairath. The Collector called for the report from the
Revenue Inspector and as per the Report of the Revenue
Inspector (Ex. P-3), though the names of Ram Sahai and
Rameshwar are found recorded as owners of the said lands,
patta illaqa of the above land numbers was found registered in
the name of Gaya Din. The report of the Revenue Inspector
refers to the entry in respect of patta granted vide order
No.146/1960 dated 21.11.1960 issued by the Tahsildar. It also
refers to entry in khasra made by the concerned Patwari on
10.01.1961 which is in possession of Hanuman Din-predecessor
of the appellants. Ex. P-3-Report of Revenue Inspector states
that the patta-Ex. D-20 was granted in favour of Gaya Din.
18
24. The entries which are 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. 1955-
56 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
Gaya Din 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.
25. Ex. D-1– Order of the Commissioner dated 17.07.1973:-
In the proceeding initiated by the appellants’ father – Hanuman
Din, an application was filed before the District Collector alleging
interpolation by patwari in the gashti – khasras at the behest of
19
the plaintiffs-respondents–Vishwanath, Shiv Nath and Jairaj
Kumari in respect of khasra Nos. 131,151,161,162,163 and 411.
The order of the Commissioner refers to the order passed by
Tahsildar dated 28.07.1971 upholding the entries in favour of
appellants’ father Hanuman Din and rejecting the plaintiffsrespondents’ claim. After personally perusing the relevant
khasras, the Tahsildar held that entries for the years 1963-64 to
1968-69 made in favour of plaintiffs-respondents were
subsequently made and Tahsildar directed correction of khasra
entries in favour of appellant’s father. In revision, the Collector
upheld the said order of the Tahsildar dated 28.07.1971.
26. In revision against the order of the Collector, the
Commissioner vide order dated 17.07.1973 upheld the order of
Tahsildar observing that from perusal of SDO’s report dated
21.10.1969 and the order of Tahsildar dated 28.07.1971, the
mischief of patwari was proved beyond shadow of doubt. These
orders were not challenged by the plaintiffs-respondents and are
binding on them. The relevant portion of the order of the
Commissioner reads as under:-
“In the Court of Shri Jagat Swarup, Commissioner Rewa Divn.
Rewa, M.P.
Case No.52/A.61/71-73: Dated 17.07.1973
20
……….
2. A perusal of the records of the lower courts reveals that
N.A. Hanuman filed an application dated 19.09.1969 before
Collector Sidhi alleging interpolation by Patwari in the GashtiKhasaras in respect of Khasra Nos.131, 151, 161, 162, 163 and
41 of Village Bairath, Tehsil Gopadbanas. The application was
sent to SDO for enquiry. SDO reported vide his report dated
21.10.1969 that the allegations are true and the patwari was
guilty of grave misconduct. The charge of interpolation is
amply proved. Collector also found the report to be true,
but ordered that Tehsildar should hear the opposite party
before ordering correction (Order Sheet dated 23.10.1969).
Tehsildar held the enquiry and on the basis of documents
and oral evidence ordered correction of khasra entries for
the year 1963-64 to 1968-69 vide his order dated 28.07.1971.
The perusal of SDO’s report dated 21.10.1969 and the order
of Tehsildar dated 28.07.1971 reveals that the mischief of
patwari was proved beyond a shadow of doubt. The order
passed by the Tehsildar has to be treated as administrative in
nature and cannot be set aside u/s 50 of the M.P. Land Revenue
Code, 1959.
3. So far as the present proceedings u/s 50 of the M.P. Land
Revenue Code, 1959 are concerned, they do not lie.
Administratively, I uphold the order dated 28.07.1971 passed by
the Tehsildar, because it is based on unassailable logic. After all,
patwari cannot be the final arbiter of the destinies of cultivators.”
From the above order of the Commissioner 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
21
High Court and the first Appellate Court erred in not considering
Ex.D-1-order of the Commissioner in its proper perspective.
27. Application filed for receiving additional evidence:- The
question may arise that though the number of orders were
passed in various proceedings before the Revenue Authorities,
why the respondents-plaintiffs have not challenged the same then
and there. The real fact is that the respondents-plaintiffs did
challenge various orders passed by the revenue authorities
before the concerned authorities and lost. Unfortunately, those
documents have not been filed by the appellants-defendants in
the courts below. Before this Court, the appellants-defendants
have filed an application to receive three additional documents
which are the orders passed by the Naib Tahsildar dated
01.09.1962, order of Tahsildar dated 28.07.1971 and order of
Collector dated 21.11.1972. The three documents which
according to the appellants are relevant are:-
S.No. Documents Remarks
1. 01.09.1962 – Order passed by the Naib
Tahsildar, Gopad Banas in the suit filed
by Shivnath, son of Ram Sahai and
Shivnath, son of Rameshwar under
Section 250 of M.P. Land Revenue
Code, 1959.
Application was
dismissed holding that the
patta of the land was
issued by the Tahsildar in
favour of Gayadin – father
of the appellantdefendant.
2. 28.07.1971 – Order of Tahsildar, Gopad
Banas in Civil Suit No.26 A74/70-71 in
the suit filed by Hanuman – son of
Gayadin
-
3. 21.11.1972 – Order of the Collector,
District Siddi
-
22
The learned senior counsel for the respondents submitted that
there is a clear bar to adduce additional evidence in the appellate
court subject to circumstances stated under Order XLI Rule 27
CPC and no such circumstance has been set-forth in the
application filed by the appellants. It was submitted that there was
no pleading to that effect in the written statement and if the
application to receive additional evidence is allowed then it would
amount to de novo trial of the suit which was filed nearly after
forty-nine years. It was further submitted that when these
documents were neither filed in the trial court nor before the first
appellate court nor before the High Court, the Supreme Court
cannot entertain the documents filed as additional evidence. In
support of his contention, the learned senior counsel relied upon
Karewwa and others v. Hussensab Khansaheb Wajantri and
others (2002) 10 SCC 315 and Roop Chand v. Gopi Chand
Thelia (1989) 2 SCC 383 and other decisions.
28. 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
23
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.
29. In Union of India v. Ibrahim Uddin & Another, (2012) 8
SCC 148, this Court held as under:-
“36. The general principle is that the appellate court should not
travel outside the record of the lower court and cannot take any
evidence in appeal. However, as an exception, Order 41 Rule 27
CPC enables the appellate court to take additional evidence in
exceptional circumstances. The appellate court may permit
additional evidence only and only if the conditions laid down in
this Rule are found to exist. The parties are not entitled, as of
right, to the admission of such evidence. Thus, the provision
does not apply, when on the basis of the evidence on record, the
appellate court can pronounce a satisfactory judgment. The
matter is entirely within the discretion of the court and is to be
used sparingly. Such a discretion is only a judicial discretion
circumscribed by the limitation specified in the Rule itself. (Vide
K. Venkataramiah v. A. Seetharama Reddy AIR 1963 SC 1526,
Municipal Corpn. of Greater Bombay v. Lala Pancham AIR 1965
SC 1008, Soonda Ram v. Rameshwarlal (1975) 3 SCC 698 and
Syed Abdul Khader v. Rami Reddy (1979) 2 SCC 601.)
24
37. The appellate court should not ordinarily allow new evidence
to be adduced in order to enable a party to raise a new point in
appeal. Similarly, where a party on whom the onus of proving a
certain point lies fails to discharge the onus, he is not entitled to
a fresh opportunity to produce evidence, as the court can, in
such a case, pronounce judgment against him and does not
require any additional evidence to enable it to pronounce
judgment. (Vide Haji Mohammed Ishaq v. Mohd. Iqbal and
Mohd. Ali and Co. (1978) 2 SCC 493)
…….
40. The inadvertence of the party or his inability to understand
the legal issues involved or the wrong advice of a pleader or the
negligence of a pleader or that the party did not realise the
importance of a document does not constitute a “substantial
cause” within the meaning of this Rule. The mere fact that
certain evidence is important, is not in itself a sufficient ground
for admitting that evidence in appeal.”
“47. Where the additional evidence sought to be adduced
removes the cloud of doubt over the case and the evidence has
a direct and important bearing on the main issue in the suit and
interest of justice clearly renders it imperative that it may be
allowed to be permitted on record, such application may be
allowed.”
30. The order of the Commissioner dated 17.07.1973 refers to
the order of the Tahsildar dated 28.07.1971 and also the report of
the SDO dated 21.10.1969. We are inclined to receive the order
of Tahsildar dated 28.07.1971 as additional evidence. From the
order of the Tahsildar dated 28.07.1971, in Civil Suit
No.26A74/70-71 filed before Tahsildar, it is seen that Hanuman
25
Din-applicant thereon filed an application before the Collector,
Sidhi stating that he is the land owner-cultivator of the land
numbers 131, 151, 161, 162, 163, 41 of the village Bairath and
has been in possession of the lands and that the non-applicants
(Vishwanath, Shiv Nath and Jairaj Kumari) got their names
recorded in revenue entries in connivance with Shri Bansh
Bahadur Singh, 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 (Vishwanath, Shiv
Nath, Jairaj Kumari) in respect of land numbers 41, 131, 162, 163
was found to be made subsequently and held as under:-
“9. As far as the rectification in the Khasra entries for the years
1968-69 or prior to it is concerned, application is allowed as per
para 8 and therefore, question regarding dispute in regard to
subsequent years of the above years does not arise at all. I have
personally perused the Khasra for the years 1963-64 to 1967-68
and I find that apart from the entries made in the column No.12
of the Khasra pertaining to the land No.41 at the time of inquiry,
“Vishwanath, Shivnath Kurmi, R/o Deh 41/1.39” it specifically
appears to be made subsequently.…... Thus, it is proved that the
entry in regard to the possession of non applicants Vishwanath,
Shivnath and Jairaj Kumri in respect of land No.41, 151, 162 and
163 is found proved to be made subsequently.”
26
“10. Now, it is to be seen that who was in the possession of the
disputed land prior to the disputed years. In this regard, none of
the parties has produced any evidence. Hence in the interest of
justice, I have called for the Khasra for the years 1961-62, 1962-
63 and gone through it and then apart from the Land No.131,
non applicants are not found to be in the possession of the
above land. In such circumstances, it is clear that Patwari Halqa
with the intention to create dispute in respect of the disputed land
has committed forgery before his retirement.
Thus, the entries for the year 1963-64 to 1968-69 in
relation to possession of the applicants on the land No.41, 151,
161, 162 and 163 be recorded rectified in place of the non
applicants on the basis of entries for the year 1962-63 …..”
31. The learned senior counsel appearing for the plaintiffsrespondents raised strong objections contending that the said
order of the Tahsildar dated 28.07.1971 in Civil Suit No.26A74/70-
71 cannot be received as additional evidence and cannot be
looked into as the said documents were not produced before the
trial court nor were there reference to those documents in the
written statement. We find no merit in the contention 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, Rewa in Case No.52A
61/71-73 marked as Ex. D-1 dated 17.07.1973 makes a clear
reference to the order of the Tahsildar dated 28.07.1971. Since in
27
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, in
our view, there is no impediment in receiving the order of the
Tahsildar dated 28.07.1971 as additional documents and
considering the same. Since the order of the Tahsildar has been
referred to in the order of the Commissioner dated 17.07.1973
(Ex.D-1), in our view, 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.
32. The order of the Commissioner dated 17.07.1973 makes a
reference to the order of the Tahsildar dated 28.07.1971 which in
turn refers to the suit filed by the predecessors of the plaintiffsrespondents under Section 250 of the MP Code in which
28
plaintiffs-respondents were unsuccessful in challenging the lease
in favour of Gaya Din/Hanuman Din. This document was not
produced before the Courts below and now only produced as
additional evidence. As discussed earlier, we are not inclined to
receive this document as additional evidence. In our considered
view, 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 plaintiffsrespondents got the entries in the revenue records in connivance
with the Patwari and that the Patwari was guilty of grave
misconduct.
33. Limitation:- The respondents’ suit was for the reliefs of
declaration of title and consequential possession of the suit lands.
The suit was instituted on 17.10.1975. The appellants contended
that the suit is hopelessly time barred as according to them, the
cause of action arose for the first time in the year 1929, when the
patta was issued in favour of the appellants’ grandfather Gaya
Din and then in the year 1935, when the Act was promulgated by
the Maharaja of Rewa and then in the year 1952, when Jagirdari
was abolished and Hanuman Din became the tenant of the State
instead of Jagirdar and lastly on 02.11.1960, when the name of
29
Hanuman Din was entered by the Tahsildar as bhumiswami. By
dismissing the suit, the trial court held that the
respondents/plaintiffs must have filed the suit within twelve years
of possession of the defendants or dispossession of the plaintiffs.
In the plaint, the respondents have averred that they came to
know about the lease of the lands in favour of Gaya Din only in
the month of August, 1969 whereas the first Appellate Court held
that the suit was within the period of limitation of twelve years by
treating the cause of action to have arisen on 06.11.1974 i.e. on
the date of order of the Sub-Divisional Magistrate in Section 145
proceedings. Since we considered the matter at length on merits,
we are not inclined to go into the question of limitation.
34. Case of the respondents-plaintiffs is that as per Section 5 of
the Vindhya Pradesh Abolition of Jagirs and Land Reforms Act,
1952, all the Jagir Lands were resumed by the then Vindhya
Pradesh Government on 23.06.1953. On that date, illaqedar was
not authorised and was not having jurisdiction to issue patta. The
merit of the contention is to be considered in the light of the
provisions of Rewa Land Revenue and Tenancy Act, 1935 (Rewa
Act) and Vindhya Pradesh Act, 1952.
30
35. The learned senior counsel for the appellants stated that in
1929, there was no codified revenue law in the State of Rewa. In
1935, Maharaja of Rewa promulgated the Rewa Land Revenue
and Tenancy Act, 1935. Section 2 of the Rewa Act repealed all
earlier government notices, rules, circulars, orders, notifications
etc. that are inconsistent to the said Act; but saved the action
taken thereunder. Thus, the action taken thereunder the said Act
like grant of patta etc. was saved. Case of the appellantsdefendants is that by virtue of Section 2 of the Rewa Act, grant of
patta to Gaya Din is saved. It is also their case that Section 3 of
the Rewa Act saved the existing proceedings and the fathers of
the respondents could have proceeded against the appellants
under Sections 46 and 142 of the Rewa Act. However, they have
not initiated any proceedings under the said provisions of the Act.
In 1948, the State of Rewa acceded to India and became part of
the State of Vindhya Pradesh. In 1952, the State of Vindhya
Pradesh abolished the system of Jagirdari by the Vindhya
Pradesh Abolition of Jagirs and Land Reforms Act, 1952. Under
Section 26 of the Vindhya Pradesh Act, the appellants’ father
Hanuman Din became direct tenant of the State in place of
31
Jagirdar and under Section 28 of the Act, he became a pattedartenant.
36. By the States Reorganization Act, 1956, the erstwhile State
of Vindhya Pradesh became a part of larger Madhya Pradesh.
Subsequent to which, the State of Madhya Pradesh enacted the
M.P. Land Revenue Code, 1959 (M.P. Code) whereby the
appellants’ predecessor Hanuman Din being a pattedar-tenant in
Vindhya Pradesh in possession of the lands, became their
Bhumiswami under Section 158(1)(d)(i) of the M.P. Code. After
following the due procedure laid down under Sections 109 and
110 of the M.P. Code, his name was entered in revenue records.
37. The trial court rightly held that the disputed lands belonged
to the iIlaqa and the Pawaidar was empowered under the
provisions of Section 44 of the Rewa Act to issue the said lease
(Ex. D-20). Section 44 of the Rewa Land Revenue and Tenancy
Act, 1935 reads as under:-
“44. Conferment of Pattas – (1) In a kothar village, the
following revenue officers are authorised to confer a patta:-
……….
(2) In a pawai, the following persons may confer a patta:-
(a) at a revision of settlement – the Settlement Officer and
Assistant Settlement Officers,
(b) during the currency of Settlement –
32
A pawaidar in pawai land not included in a sub-pawai;
A sub-pawaidar in respect of land included in his subpawai;
A mortgagee in possession;
A mortgagor in possession;
The Court of Wards in land under its superintendence;
A widow having life interest in a pawai or sub-pawai;
……..”
38. The learned senior counsel for the respondents-plaintiffs
submitted that upon consideration of the evidence of Hanuman
Din (DW-1), the first appellate court recorded a finding of fact that
in the year 1954, patta was granted in favour of Gaya Din
(defendants’ father) and as per the testimony of Hanuman Din
(DW-1), when patta was issued, Hanuman Din was 35 years old.
It was submitted that based on the evidence of Hanuman Din, the
first appellate court recorded finding that patta was granted in
favour of Gaya Din in the year 1954 by which time, the tradition of
Pawai has been removed and therefore, patta granted in favour
of Gaya Din is not a valid one. The first appellate court arrived at
such a finding without proper facts and by drawing an inference
noting that when DW-1 was examined in 1984, he was aged 65
years from which the first Appellate Court inferred that DW-1 must
have been born in 1919. Referring to the statement of DW-1 that
when patta was issued, he was aged 35 years, the first appellate
33
court inferred that patta must have been issued in 1954 (DW-1
born in 1919 + 35=1954) and by that time, system of Pawai had
been removed. In this regard, the learned senior counsel for the
respondents-plaintiffs submitted that as per Section 5 of the
Vindhya Pradesh Act, all the Jagir Lands were resumed in the
then Vindhya Pradesh Government on 23.06.1953, hence, on this
date, Pawaidar/iIlaqedar/Jagirdar were not authorised and were
not having jurisdiction to issue patta and therefore, the finding of
the first appellate court that the patta issued in the name of Gaya
Din in the year 1954 is not a valid one and the said findings of
fact cannot be interfered with.
39. The finding of the first appellate court that the patta was
granted to Gaya Din in 1954 and that illaqedar was not competent
to issue patta is misconceived. As discussed earlier, patta was
granted to Gaya Din 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-Hanuman Din. The
learned senior counsel appearing for the appellants has drawn
our attention to the provisions of Vindhya Pradesh Act and
submitted that as per Section 5 of the said Act, the State
34
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. We find
substance in the submission of the learned senior counsel for the
appellants that 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. Section 28 of the Vindhya Pradesh Abolition of Jagirs and
Land Reforms Act, 1952 reads as under:-
28. Certain occupants of lands to be pattedar tenants. – (1)
Subject to the provisions of sub-section (2) every person who is
entered in the revenue record for a continuous period of three
years as an occupant of any Jagir-land at the date of resumption,
shall be deemed to be pattedar tenant in respect of such land
which shall be assessed at the village rate.
(2) Nothing in sub-section (1) shall apply to any sir or khudkasht
land which is allotted to the Jagirdar under Section 22 or any
grove land possession of which the Jagirdar is entitled to retain
under clause (c) of Section 7.
In view of the provisions of the above Act, the first appellate court
erred in saying that the patta in favour of Gaya Din was granted in
the year 1954 and by that time, Pawaidar/iIlaqedar was not
having jurisdiction to issue patta.
35
40. Re: Finding of the first appellate court: Ownership of
the respondents not terminated in a legal way:- The first
appellate court held that the ownership of Rameshwar and Ram
Sahai was not terminated in a legal way and therefore, they are to
be treated as owners of the suit properties. The first Appellate
Court further held that since the ownership of Rameshwar and
Ram Sahai was not terminated in a legal way, the lease deedEx.D-20 which has been produced on behalf of defendant No.1
cannot be treated to be a proved document and on those
findings, set aside the finding of the trial court that defendant No.1
is having a legal right of ownership of the disputed lands. The first
Appellate Court, in our view, 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
Gaya Din and the continued possession of Gaya Din and his sonHanuman Din and the appellants. The first Appellate Court and
the High Court erred in brushing aside the findings recorded by
36
the Commissioner dated 17.07.1973 as to the misconduct of the
patwari in making entries in the revenue records.
41. 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. As noted above, 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.
Observing that in a suit for declaration of title, the plaintiffsrespondents are to succeed only on the strength of their own title
irrespective of whether the defendants-appellants have proved
their case or not, in Union of India and others v. Vasavi Cooperative Housing Society Limited and others (2014) 2 SCC
269, it was held as under:-
37
“15. It is trite law that, in a suit for declaration of title, the burden
always lies on the plaintiff to make out and establish a clear case
for granting such a declaration and the weakness, if any, of the
case set up by the defendants would not be a ground to grant
relief to the plaintiff.”
42. 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, in our view,
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-1-
Order of the Commissioner dated 17.07.1973 and the report of
the SDO dated 21.10.1969 and other revenue records showing
38
that the forefather of the appellants-defendants namely Gaya Din
was given the patta (Ex.D-20) and since then, Gaya Din and
Hanuman Din 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.
43. In the result, the judgment of the High Court in the Second
Appeal No.174 of 1989 dated 05.02.2007 is set aside and this
appeal is allowed. The Suit No.68-A/75 filed by the respondentsplaintiffs is dismissed and the judgment of the trial court shall
stand restored. No order as to cost.
.....………………………….J.
[R. BANUMATHI]
…..………………………….J.
[R. SUBHASH REDDY]
New Delhi;
April 09, 2019.
39
observing that in the absence of any order of abandonment or revocation of the patta given to the respondents-plaintiffs, grant of patta (Ex.D-20) in 1929 in favour of the appellants-defendants was illegal and that the appellants-defendants cannot claim right based upon Ex.D-20 and other documents.
Unless shown perverse - concurrent findings can not be distrubed
concurrent finding of the High Court and the first Appellate Court - unless are shown to be perverse, Apex court /this Court would certainly interfere with the findings of fact recorded by
the High Court
Admitted facts need not be proved
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.
Thirty years old document presumption as to genuineness
Ex. D-20 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 granted in favour of Gaya Din is of Samvat 1986 (1929 A.D.) which 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.
Declaration of title and possession - Plaintiff has to prove his case
It is trite law that, in a suit for declaration of title, the burden always lies on the plaintiff to make out and establish a clear case for granting such a declaration and the weakness, if any, of the case set up by the defendants would not be a ground to grant relief to the plaintiff.” 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. As noted above, 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. Observing that in a suit for declaration of title, the plaintiffsrespondents are to succeed only on the strength of their own title irrespective of whether the defendants-appellants have proved
their case or not,
Or.41, rule 27 CPC additional evidence at appellate stage
The appellate court should not ordinarily allow new evidence to be adduced in order to enable a party to raise a new point in appeal. Similarly, where a party on whom the onus of proving a
certain point lies fails to discharge the onus, he is not entitled to a fresh opportunity to produce evidence, as the court can, in such a case, pronounce judgment against him and does not
require any additional evidence to enable it to pronounce judgment.The inadvertence of the party or his inability to understand the legal issues involved or the wrong advice of a pleader or the negligence of a pleader or that the party did not realise the importance of a document does not constitute a “substantial cause” within the meaning of this Rule. The mere fact that
certain evidence is important, is not in itself a sufficient ground for admitting that evidence in appeal.” "Where the additional evidence sought to be adduced removes the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue in the suit and interest of justice clearly renders it imperative that it may be allowed to be permitted on record, such application may be allowed.”
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2176 OF 2007
JAGDISH PRASAD PATEL (DEAD)
THR. LRS.& ANOTHER …Appellants
VERSUS
SHIVNATH & OTHERS …Respondents
J U D G M E N T
R. BANUMATHI, J.
This appeal arises out of the judgment dated 05.02.2007
passed by the High Court of Madhya Pradesh at Jabalpur
dismissing the Second Appeal No.174 of 1989 filed by the
appellants, thereby affirming the decision of the first Appellate
Court in Civil Appeal No.29-A/85 holding that in the absence of any
order of abandonment or revocation of the patta given to the
forefathers of the respondents-plaintiffs, grant of patta in favour of
the appellants/defendants was illegal and that the appellantsdefendants cannot claim any right over the suit properties.
2. Case of Respondents-plaintiffs is as under:-
Respondents-Shiv Nath and deceased Vishwanath/predecessor in
interest of respondents No.2 to 10 filed a suit for declaration of title
1
over the suit lands in khasra numbers 41-1.39, 131-2.70, 162-0.17,
163-3.92 and 164-2.15 Kita 5 total area 10.33 situated in Village
Bairath General No.782, Tehsil Gopad Banas and possession of all
the khasra numbers except khasra No.164 against the father of the
appellants-Hanuman Din. Ram Sahai and Rameshwar - fathers of
the plaintiffs were the joint lessees of the lands in khasra Nos. 41,
131, 132, 136/13, 135, 134/4, 137/27, 140/11, 142/2, 143, 146,
147, 162, 163/25, 164/4 and 257 total measuring 21.45 acres and
their names were included as ‘lessees’ of the above lands during
the settlement and they kept on cultivating the lands till forty years
back when a partition took place between the two and both of them
became owners of half part each. Hanuman Din never remained in
possession of any part of the lands nor he had any right or
entitlement over the suit lands; but the grandfather of the
appellants-Gaya Din got a lease in disputed lands of the
respondents which according to the respondents is a forged
document. Based on the aforesaid lease, Gaya Din got his name
entered as khatedar in respect of the khataunis of the disputed
lands.
3. Respondent-deceased Vishwanath-predecessor-in-interest of
respondents No.2 to 10 filed an application before the Collector in
2
August, 1969 stating that the lease of the disputed lands was
wrongly issued by illaqedar in the name of Gaya Din and the
proceedings for cancellation of the records in the name of Gaya
Din be initiated. The matter was sent to the Revenue Inspector for
enquiry who submitted his report in favour of respondents in
respect of the ownership of the lands in dispute and the Collector
registered the report after approving it. In proceedings before the
Sub-Divisional Magistrate in Miscellaneous Case No.351/142/69
under Section 145 Cr.P.C. initiated by Hanuman Din, the
Sub-Divisional Magistrate found Hanuman Din in possession of
lands in khasra Nos.162 and 163 and respondents were found in
possession of land in khasra No.164. Respondents-plaintiffs
alleged that pursuant to the order of the Sub-Divisional Magistrate,
Hanuman Din forcibly took possession of land in khasra No.41 and
therefore, the respondents filed suit for declaration and permanent
injunction.
4. Hanuman Din resisted the suit contending that the
respondents have never remained in ownership or possession of
the disputed lands and the lands belonged to one Ram Raj Singh
but he was not cultivating the lands and gave it to the
predecessors of the respondents for cultivation on the basis of
3
Batai-crop sharing and only because of this, patta was granted at
the time of settlement in their names. The appellants further
averred that the father of the respondents abandoned the lands
and since revenue tax was not being paid, the khata of the
disputed lands was cancelled. Case of the appellants-defendants
is that in the auction held by Pawaidar for lease of suit lands and
other lands, bid of Gaya Din was accepted and in this regard, a
lease was issued in his name in Samvat 1986 (1929 A.D.). The
appellants had been in continuous possession of the suit
properties and the same is reflected in the khataunis and other
revenue records.
5. The trial court vide judgment dated 02.07.1985 dismissed the
respondents’ suit by holding that Gaya Din has been holding pattalease (Ex.D-20) in respect of the suit lands and has been in
continuous possession of the disputed lands since 1950 and
thereafter, Hanuman Din was in possession of the same. After
referring to the orders of the Commissioner (Ex.D-1), the trial court
held that the Commissioner recorded a finding of fact that the
respondents got the entries made in the revenue records in their
names in connivance with the Patwari. The trial court held that the
lease-patta (Ex.D-20) was issued by the then iIlaqedar to Gaya Din
4
and that the said document being more than thirty years old is a
genuine one. After referring to various khasras and the entries
thereon in the name of appellant’s father, it was held that the
appellants’ father Hanuman Din has been in possession of the suit
lands since 1950 or prior to that. The trial court further held that the
suit was instituted on 17.10.1975 which is beyond twelve years and
that the suit is barred by time.
6. In appeal, the first Appellate Court vide its judgment dated
03.04.1989 held that at the time of settlement, patta was granted in
the name of father of the respondents and this has not been
disputed by the appellants and the appellants could not establish
abandonment of the lands by the father of the respondents and
therefore, the respondents ought to be treated as owners of the
suit properties. The first Appellate Court further held that the lease
Ex.D-20 produced by the appellants cannot be held to be a valid
one and in absence of order of revocation of the patta granted to
the respondents, it cannot be held that Ex.D-20 confers right of
ownership on the appellants over the disputed lands. The first
Appellate Court held that merely because of production of pattalease – Ex.D-20 by Hanuman Din, it cannot be said to have been
proved and therefore, it cannot be held that Hanuman Din has a
5
legal right of ownership on the disputed lands. The first Appellate
Court noted that on the basis of Ex.D-1 – order of the
Commissioner, possession of the suit properties by the appellants
cannot be held to be proved, since the respondents or their
ancestors were not parties to the said proceedings. On these
findings, the first Appellate Court set aside the judgment of the trial
court and held that the respondents are the owners of the disputed
lands and held that the respondents are entitled to get possession
of the lands in khasra Nos. 41, 131, 162 and 163 from the father of
the appellants.
7. In the second appeal, the High Court affirmed the findings of
the first Appellate Court and held that the suit lands were recorded
in the name of fathers of the respondents and that there was no
document on record to show that they have abandoned the
possession of the lands or surrendered the same in favour of
iIlaqedar. It was held that though patta-lease – Ex.D-20 was
granted in favour of grandfather of the appellants, the appellants
have not adduced any evidence to prove abandonment of the
lands in favour of iIlaqedar and no right accrued to the appellants
on the basis of the patta (Ex.D-20). Being aggrieved, the
appellants have preferred this appeal.
6
8. We have heard Mr. Subodh Markandeya, learned senior
counsel for the appellants-defendants and Mr. A.K. Shrivastava,
learned senior counsel for the respondents-plaintiffs. We have
considered the submissions and carefully perused the impugned
judgment and the judgment of the courts below and other materials
on record.
9. The point falling for consideration is whether the High Court
was right in upholding the judgment of the first Appellate Court by
observing that in the absence of any order of abandonment or
revocation of the patta given to the respondents-plaintiffs, grant of
patta (Ex.D-20) in 1929 in favour of the appellants-defendants was
illegal and that the appellants-defendants cannot claim right based
upon Ex.D-20 and other documents.
10. The impugned judgment of the High Court is the concurrent
finding of the High Court and the first Appellate Court. We are
conscious that 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
7
the High Court. [Vide Mahesh Dattatray Thirthkar v. State of
Maharashtra (2009) 11 SCC 141]
11. The respondents-plaintiffs–Shiv Nath and deceased
Vishwanath filed suit for declaration of title over the suit lands in
khasra numbers 41-1.39, 131-2.70, 162-0.17, 163-3.92 and
164-2.15 total area 10.33 situated in Village Bairath General
No.782, Tehsil Gopad Banas on the plea that a lease/patta was
issued in favour of their fathers and that their names were
included as ‘lessees’ of the suit lands during settlement and that
they have been cultivating the lands till forty years back when
partition took place between the two and both Shiv Nath and
deceased Vishwanath became owners of half portion each.
12. The appellants-defendants resisted the suit contending that
Ram Raj Singh was the original owner of the lands but he was
not cultivating the lands and settlement patta was given in the
name of the fathers of respondents namely Ram Sahai and
Rameshwar on the basis of Batai-crop sharing at the time of
settlement and the predecessors of respondents-plaintiffs have
not cultivated the lands. The appellants-defendants further
averred that the forefathers of respondents-plaintiffs abandoned
the suit lands and since revenue tax was not paid, the lease of
8
the suit lands in favour of respondents-plaintiffs was cancelled.
The then illaqedar accepted the bid of the defendant’s father
Gaya Din in the auction held in the year 1929-Samvat 1986. The
appellants-defendants have claimed ownership and possession
over the lands in dispute on the basis of the patta Ex.D-20 (Ex. P21) that was issued in their favour in Samvat 1986 (1929 A.D.)
and averred that since then they are in possession of the
disputed lands.
13. The suit of the respondents-plaintiffs is 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. PW-1-Vishwanath, in his deposition,
stated that the original patta was very old, torn and the same is
not with them. The respondents-plaintiffs have produced the
report of the Revenue Inspector dated 05.10.1969 (Ex. P-3) as
per which on the application of Vishwanath, an enquiry was made
and it was found that the name of pattedar is Gaya Din. Gaya
Din and Shiv Nath are shown as lease holders. In Ex.P-3, it is
further stated that in Khatauni No.58/59, it was found that names
9
of Ram Sahai and Rameshwar Kurmi are found recorded as
owners of land numbers 51/1.38, 162/0.17, 163/3.72, 164/2.65
and 131/2.70. It was further stated that the patta illaqa of the
above numbers are found registered in the name of Gaya Din.
Ex.P-3-report notes the entries in Ex.D-20-patta to the effect that
permission to make entry in respect of the patta granted vide
order No.146/1960 dated 21.11.1960 issued by the Tahsildar in
the official record has been given after due inspection and entry
in khasra is found made by the concerned Patwari on 10.01.1961.
14. In his evidence, PW-1 has stated that patta-lease was
issued in the name of his father. In his written statement,
defendant Hanuman Din also admitted that the plaintiffsrespondents’ 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. The trial court as well as the
first appellate court held that the lease was granted in favour of
father of respondents-plaintiffs at time of the settlement and they
were held to be original lessees. The trial court while deciding
issue No.2(A), observed that the grant of lease in the name of
father of respondents-plaintiffs in the settlement is not rebutted by
the appellants-defendants. Drawing our attention to the findings
10
of the trial court that patta was granted in favour of the father of
the respondents-plaintiffs, the learned senior counsel for the
respondents-plaintiffs submitted that this amounts to admission
and in terms of Section 58 of the Evidence Act, admitted facts
need not be proved. Placing reliance upon Nagindas Ramdas v.
Dalpatram Iccharam alias Brijram and others (1974) 1 SCC
242 and Executive Officer, Arulmigu Chokkanatha Swamy
Koil Trust, Virudhunagar v. Chandran and others (2017) 3
SCC 702, it was submitted that in view of clear admission of grant
of lease in the name of father of respondents-plaintiffs, the said
admitted fact need not be proved.
15. 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. It is pertinent to note that in para No.(2) of
11
the written statement, the appellants-defendants averred that the
lands were in the ownership of Ram Raj Singh 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 Gaya Din was accepted
and the disputed lands were transferred in his name in the sale in
Samvat 1986 i.e. 1929 A.D. The lease of the lands was issued in
the name of Gaya Din. 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 respondents. 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 patta-lease 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.
16. In his cross-examination, PW-1 stated that his father left for
Jabalpur about forty years prior to the institution of the suit. In the
12
cross-examination, PW-1 however denied the suggestion that
when his father left for Jabalpur, he handed over the disputed
lands to Pawaidar and all the records at the relevant time were
kept by the iIlaqedar. From the statement of PW-1-Vishwanath
and PW-2-Ram Gopal, it is evident that the father of Vishwanath
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 Gaya Din was accepted
and the suit properties along with other lands were given on lease
to Gaya Din. We find substance in the submission of the learned
senior counsel for the appellants that 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 Gaya Din.
17. 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 Gaya Din, is strengthened by revenue
records and ample evidence. The Pawaidar sanctioned entries
13
regarding grant of patta to Gaya Din to be made in the
Government records. The appellants-defendants produced their
patta-Ex. D-20 which has also been produced by the
respondents-plaintiffs (Ex. P-21). Ex. D-20 is the patta kashtkari
as per the order of the Hon’ble Shri Rai Saheb Churhat, Halka
Patwari No.1, Region Churhat, State Rewa, Location Mauja
Kother, in Samvat 1986 in the name of Gaya Din as
farmer/cultivator for the suit properties granted for agricultural
purpose. From Ex. D-20, it is seen that as per Tahsildar order
No.146/1960 dated 21.11.1960, Pawaidar has been allowed to
enter in government serial. As per the order of the Tahsildar,
entry has been made accordingly in Pawai Khasra as is clear
from the endorsement made by Patwari dated 10.01.1961 in
Ex.D-20.
18. Ex. D-20-patta in favour of Gaya Din was validly granted by
the iIIaqedar to Gaya Din in the year 1929. The said documents
issued by the Tahsildar were produced from the custody of the
appellants. The contents thereon show that as per the
Government records, the lands had been given to Gaya Din. The
documents being more than thirty years old, the trial court rightly
presumed the Ex.D-20-patta of genuine. It was then up to the
14
respondents to rebut the presumption. This has not been
controverted by the respondents-plaintiffs.
19. Ex. D-20 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 granted in favour of Gaya
Din is of Samvat 1986 (1929 A.D.) which 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.
20. The respondents-plaintiffs have produced the copies of
khasras of several years. However, only the copies of khasra for
the years 1955-56 (Ex. P-9) and 1956-57 (Ex. P-10) are in the
name of respondents-plaintiffs; and in the previous khasras for
the years 1950-51 to 1954-55 (Ex. P-8) and subsequent khasras
15
for 1960-61 (Ex. P-12), 1963-64 to 1965-66 (Ex. P-13), 1968-69
(Ex. P-14) and 1970-71 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 Gaya Din and that he and Hanuman Din had
been continuously in possession of the properties is thus
established by the revenue records.
21. From perusal of the Khatauni for the year 1952-53 (Ex.P-2)
produced by the plaintiffs, it is seen that the appellantsdefendants are in possession of the suit lands from the year
1950-51 to 1954-55 (Ex. P-8) and thereafter, the subsequent
khasras 1960-61 onwards. The names of the appellantsdefendants being mentioned in the khasra 1950-51 to 1954-55 is
very crucial. The reason being Vindhya Pradesh Abolition of
Jagirs and Land Reforms Act, 1952 (Vindhya Pradesh Act) came
into force on 30.07.1953. Ex. D-20 (Ex. P-21) - lease was
granted in favour of the predecessors of the appellantsdefendants namely Gaya Din by Pawaidar under Section 44 of
the Rewa State Malgujari and Kashtkari Act, 1935 (Rewa Land
Revenue and Tenancy Act, 1935). After referring to Ex. D-20, the
trial court rightly held that the Pawaidar was empowered to issue
the lease and that lease (Ex. D-20) was issued under
16
Section 141 of the Act. It was therefore rightly held by the trial
court that the lease (Ex. D-20) is valid and that the appellantsdefendants have proved that the lease of the lands was legally
given by illaqedar in favour of their father.
22. 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 respondentsplaintiffs has abandoned the suit properties, pursuant to which,
auction was held by the Pawaidar and lease was issued by
illaqedar in favour of Gaya Din and that he was in continuous
possession of the suit properties.
23. In the plaint, the respondents/plaintiffs have alleged that
Ex. D-20-patta is a forged one. In para No.(4) of the plaint, it is
alleged that without knowledge of the respondents/plaintiffs’
father, defendants’ father Gaya Din got the lease from Ilaqa
Churhat by illegal means and Gaya Din never remained in
possession of the properties. The respondents-plaintiffs have not
produced any document to prove that Ex. D-20 is a forged one.
The plaintiffs at one place averred that without the knowledge of
17
the plaintiffs and their father, Gaya Din succeeded in getting the
lease by illegal means of the disputed lands from iIlaqa therein;
whereas in para No.(5), the respondents-plaintiffs alleged that the
document is a forged one. In fact, as pointed out earlier, the
respondents themselves have filed the patta granted in favour of
the appellants-defendants. It is pertinent to note that Vishwanath
had given an application for inspection of the area (patta) in
respect of land numbers 41, 131, 162, 163 and 164 situated in
Village Bairath. The Collector called for the report from the
Revenue Inspector and as per the Report of the Revenue
Inspector (Ex. P-3), though the names of Ram Sahai and
Rameshwar are found recorded as owners of the said lands,
patta illaqa of the above land numbers was found registered in
the name of Gaya Din. The report of the Revenue Inspector
refers to the entry in respect of patta granted vide order
No.146/1960 dated 21.11.1960 issued by the Tahsildar. It also
refers to entry in khasra made by the concerned Patwari on
10.01.1961 which is in possession of Hanuman Din-predecessor
of the appellants. Ex. P-3-Report of Revenue Inspector states
that the patta-Ex. D-20 was granted in favour of Gaya Din.
18
24. The entries which are 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. 1955-
56 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
Gaya Din 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.
25. Ex. D-1– Order of the Commissioner dated 17.07.1973:-
In the proceeding initiated by the appellants’ father – Hanuman
Din, an application was filed before the District Collector alleging
interpolation by patwari in the gashti – khasras at the behest of
19
the plaintiffs-respondents–Vishwanath, Shiv Nath and Jairaj
Kumari in respect of khasra Nos. 131,151,161,162,163 and 411.
The order of the Commissioner refers to the order passed by
Tahsildar dated 28.07.1971 upholding the entries in favour of
appellants’ father Hanuman Din and rejecting the plaintiffsrespondents’ claim. After personally perusing the relevant
khasras, the Tahsildar held that entries for the years 1963-64 to
1968-69 made in favour of plaintiffs-respondents were
subsequently made and Tahsildar directed correction of khasra
entries in favour of appellant’s father. In revision, the Collector
upheld the said order of the Tahsildar dated 28.07.1971.
26. In revision against the order of the Collector, the
Commissioner vide order dated 17.07.1973 upheld the order of
Tahsildar observing that from perusal of SDO’s report dated
21.10.1969 and the order of Tahsildar dated 28.07.1971, the
mischief of patwari was proved beyond shadow of doubt. These
orders were not challenged by the plaintiffs-respondents and are
binding on them. The relevant portion of the order of the
Commissioner reads as under:-
“In the Court of Shri Jagat Swarup, Commissioner Rewa Divn.
Rewa, M.P.
Case No.52/A.61/71-73: Dated 17.07.1973
20
……….
2. A perusal of the records of the lower courts reveals that
N.A. Hanuman filed an application dated 19.09.1969 before
Collector Sidhi alleging interpolation by Patwari in the GashtiKhasaras in respect of Khasra Nos.131, 151, 161, 162, 163 and
41 of Village Bairath, Tehsil Gopadbanas. The application was
sent to SDO for enquiry. SDO reported vide his report dated
21.10.1969 that the allegations are true and the patwari was
guilty of grave misconduct. The charge of interpolation is
amply proved. Collector also found the report to be true,
but ordered that Tehsildar should hear the opposite party
before ordering correction (Order Sheet dated 23.10.1969).
Tehsildar held the enquiry and on the basis of documents
and oral evidence ordered correction of khasra entries for
the year 1963-64 to 1968-69 vide his order dated 28.07.1971.
The perusal of SDO’s report dated 21.10.1969 and the order
of Tehsildar dated 28.07.1971 reveals that the mischief of
patwari was proved beyond a shadow of doubt. The order
passed by the Tehsildar has to be treated as administrative in
nature and cannot be set aside u/s 50 of the M.P. Land Revenue
Code, 1959.
3. So far as the present proceedings u/s 50 of the M.P. Land
Revenue Code, 1959 are concerned, they do not lie.
Administratively, I uphold the order dated 28.07.1971 passed by
the Tehsildar, because it is based on unassailable logic. After all,
patwari cannot be the final arbiter of the destinies of cultivators.”
From the above order of the Commissioner 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
21
High Court and the first Appellate Court erred in not considering
Ex.D-1-order of the Commissioner in its proper perspective.
27. Application filed for receiving additional evidence:- The
question may arise that though the number of orders were
passed in various proceedings before the Revenue Authorities,
why the respondents-plaintiffs have not challenged the same then
and there. The real fact is that the respondents-plaintiffs did
challenge various orders passed by the revenue authorities
before the concerned authorities and lost. Unfortunately, those
documents have not been filed by the appellants-defendants in
the courts below. Before this Court, the appellants-defendants
have filed an application to receive three additional documents
which are the orders passed by the Naib Tahsildar dated
01.09.1962, order of Tahsildar dated 28.07.1971 and order of
Collector dated 21.11.1972. The three documents which
according to the appellants are relevant are:-
S.No. Documents Remarks
1. 01.09.1962 – Order passed by the Naib
Tahsildar, Gopad Banas in the suit filed
by Shivnath, son of Ram Sahai and
Shivnath, son of Rameshwar under
Section 250 of M.P. Land Revenue
Code, 1959.
Application was
dismissed holding that the
patta of the land was
issued by the Tahsildar in
favour of Gayadin – father
of the appellantdefendant.
2. 28.07.1971 – Order of Tahsildar, Gopad
Banas in Civil Suit No.26 A74/70-71 in
the suit filed by Hanuman – son of
Gayadin
-
3. 21.11.1972 – Order of the Collector,
District Siddi
-
22
The learned senior counsel for the respondents submitted that
there is a clear bar to adduce additional evidence in the appellate
court subject to circumstances stated under Order XLI Rule 27
CPC and no such circumstance has been set-forth in the
application filed by the appellants. It was submitted that there was
no pleading to that effect in the written statement and if the
application to receive additional evidence is allowed then it would
amount to de novo trial of the suit which was filed nearly after
forty-nine years. It was further submitted that when these
documents were neither filed in the trial court nor before the first
appellate court nor before the High Court, the Supreme Court
cannot entertain the documents filed as additional evidence. In
support of his contention, the learned senior counsel relied upon
Karewwa and others v. Hussensab Khansaheb Wajantri and
others (2002) 10 SCC 315 and Roop Chand v. Gopi Chand
Thelia (1989) 2 SCC 383 and other decisions.
28. 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
23
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.
29. In Union of India v. Ibrahim Uddin & Another, (2012) 8
SCC 148, this Court held as under:-
“36. The general principle is that the appellate court should not
travel outside the record of the lower court and cannot take any
evidence in appeal. However, as an exception, Order 41 Rule 27
CPC enables the appellate court to take additional evidence in
exceptional circumstances. The appellate court may permit
additional evidence only and only if the conditions laid down in
this Rule are found to exist. The parties are not entitled, as of
right, to the admission of such evidence. Thus, the provision
does not apply, when on the basis of the evidence on record, the
appellate court can pronounce a satisfactory judgment. The
matter is entirely within the discretion of the court and is to be
used sparingly. Such a discretion is only a judicial discretion
circumscribed by the limitation specified in the Rule itself. (Vide
K. Venkataramiah v. A. Seetharama Reddy AIR 1963 SC 1526,
Municipal Corpn. of Greater Bombay v. Lala Pancham AIR 1965
SC 1008, Soonda Ram v. Rameshwarlal (1975) 3 SCC 698 and
Syed Abdul Khader v. Rami Reddy (1979) 2 SCC 601.)
24
37. The appellate court should not ordinarily allow new evidence
to be adduced in order to enable a party to raise a new point in
appeal. Similarly, where a party on whom the onus of proving a
certain point lies fails to discharge the onus, he is not entitled to
a fresh opportunity to produce evidence, as the court can, in
such a case, pronounce judgment against him and does not
require any additional evidence to enable it to pronounce
judgment. (Vide Haji Mohammed Ishaq v. Mohd. Iqbal and
Mohd. Ali and Co. (1978) 2 SCC 493)
…….
40. The inadvertence of the party or his inability to understand
the legal issues involved or the wrong advice of a pleader or the
negligence of a pleader or that the party did not realise the
importance of a document does not constitute a “substantial
cause” within the meaning of this Rule. The mere fact that
certain evidence is important, is not in itself a sufficient ground
for admitting that evidence in appeal.”
“47. Where the additional evidence sought to be adduced
removes the cloud of doubt over the case and the evidence has
a direct and important bearing on the main issue in the suit and
interest of justice clearly renders it imperative that it may be
allowed to be permitted on record, such application may be
allowed.”
30. The order of the Commissioner dated 17.07.1973 refers to
the order of the Tahsildar dated 28.07.1971 and also the report of
the SDO dated 21.10.1969. We are inclined to receive the order
of Tahsildar dated 28.07.1971 as additional evidence. From the
order of the Tahsildar dated 28.07.1971, in Civil Suit
No.26A74/70-71 filed before Tahsildar, it is seen that Hanuman
25
Din-applicant thereon filed an application before the Collector,
Sidhi stating that he is the land owner-cultivator of the land
numbers 131, 151, 161, 162, 163, 41 of the village Bairath and
has been in possession of the lands and that the non-applicants
(Vishwanath, Shiv Nath and Jairaj Kumari) got their names
recorded in revenue entries in connivance with Shri Bansh
Bahadur Singh, 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 (Vishwanath, Shiv
Nath, Jairaj Kumari) in respect of land numbers 41, 131, 162, 163
was found to be made subsequently and held as under:-
“9. As far as the rectification in the Khasra entries for the years
1968-69 or prior to it is concerned, application is allowed as per
para 8 and therefore, question regarding dispute in regard to
subsequent years of the above years does not arise at all. I have
personally perused the Khasra for the years 1963-64 to 1967-68
and I find that apart from the entries made in the column No.12
of the Khasra pertaining to the land No.41 at the time of inquiry,
“Vishwanath, Shivnath Kurmi, R/o Deh 41/1.39” it specifically
appears to be made subsequently.…... Thus, it is proved that the
entry in regard to the possession of non applicants Vishwanath,
Shivnath and Jairaj Kumri in respect of land No.41, 151, 162 and
163 is found proved to be made subsequently.”
26
“10. Now, it is to be seen that who was in the possession of the
disputed land prior to the disputed years. In this regard, none of
the parties has produced any evidence. Hence in the interest of
justice, I have called for the Khasra for the years 1961-62, 1962-
63 and gone through it and then apart from the Land No.131,
non applicants are not found to be in the possession of the
above land. In such circumstances, it is clear that Patwari Halqa
with the intention to create dispute in respect of the disputed land
has committed forgery before his retirement.
Thus, the entries for the year 1963-64 to 1968-69 in
relation to possession of the applicants on the land No.41, 151,
161, 162 and 163 be recorded rectified in place of the non
applicants on the basis of entries for the year 1962-63 …..”
31. The learned senior counsel appearing for the plaintiffsrespondents raised strong objections contending that the said
order of the Tahsildar dated 28.07.1971 in Civil Suit No.26A74/70-
71 cannot be received as additional evidence and cannot be
looked into as the said documents were not produced before the
trial court nor were there reference to those documents in the
written statement. We find no merit in the contention 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, Rewa in Case No.52A
61/71-73 marked as Ex. D-1 dated 17.07.1973 makes a clear
reference to the order of the Tahsildar dated 28.07.1971. Since in
27
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, in
our view, there is no impediment in receiving the order of the
Tahsildar dated 28.07.1971 as additional documents and
considering the same. Since the order of the Tahsildar has been
referred to in the order of the Commissioner dated 17.07.1973
(Ex.D-1), in our view, 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.
32. The order of the Commissioner dated 17.07.1973 makes a
reference to the order of the Tahsildar dated 28.07.1971 which in
turn refers to the suit filed by the predecessors of the plaintiffsrespondents under Section 250 of the MP Code in which
28
plaintiffs-respondents were unsuccessful in challenging the lease
in favour of Gaya Din/Hanuman Din. This document was not
produced before the Courts below and now only produced as
additional evidence. As discussed earlier, we are not inclined to
receive this document as additional evidence. In our considered
view, 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 plaintiffsrespondents got the entries in the revenue records in connivance
with the Patwari and that the Patwari was guilty of grave
misconduct.
33. Limitation:- The respondents’ suit was for the reliefs of
declaration of title and consequential possession of the suit lands.
The suit was instituted on 17.10.1975. The appellants contended
that the suit is hopelessly time barred as according to them, the
cause of action arose for the first time in the year 1929, when the
patta was issued in favour of the appellants’ grandfather Gaya
Din and then in the year 1935, when the Act was promulgated by
the Maharaja of Rewa and then in the year 1952, when Jagirdari
was abolished and Hanuman Din became the tenant of the State
instead of Jagirdar and lastly on 02.11.1960, when the name of
29
Hanuman Din was entered by the Tahsildar as bhumiswami. By
dismissing the suit, the trial court held that the
respondents/plaintiffs must have filed the suit within twelve years
of possession of the defendants or dispossession of the plaintiffs.
In the plaint, the respondents have averred that they came to
know about the lease of the lands in favour of Gaya Din only in
the month of August, 1969 whereas the first Appellate Court held
that the suit was within the period of limitation of twelve years by
treating the cause of action to have arisen on 06.11.1974 i.e. on
the date of order of the Sub-Divisional Magistrate in Section 145
proceedings. Since we considered the matter at length on merits,
we are not inclined to go into the question of limitation.
34. Case of the respondents-plaintiffs is that as per Section 5 of
the Vindhya Pradesh Abolition of Jagirs and Land Reforms Act,
1952, all the Jagir Lands were resumed by the then Vindhya
Pradesh Government on 23.06.1953. On that date, illaqedar was
not authorised and was not having jurisdiction to issue patta. The
merit of the contention is to be considered in the light of the
provisions of Rewa Land Revenue and Tenancy Act, 1935 (Rewa
Act) and Vindhya Pradesh Act, 1952.
30
35. The learned senior counsel for the appellants stated that in
1929, there was no codified revenue law in the State of Rewa. In
1935, Maharaja of Rewa promulgated the Rewa Land Revenue
and Tenancy Act, 1935. Section 2 of the Rewa Act repealed all
earlier government notices, rules, circulars, orders, notifications
etc. that are inconsistent to the said Act; but saved the action
taken thereunder. Thus, the action taken thereunder the said Act
like grant of patta etc. was saved. Case of the appellantsdefendants is that by virtue of Section 2 of the Rewa Act, grant of
patta to Gaya Din is saved. It is also their case that Section 3 of
the Rewa Act saved the existing proceedings and the fathers of
the respondents could have proceeded against the appellants
under Sections 46 and 142 of the Rewa Act. However, they have
not initiated any proceedings under the said provisions of the Act.
In 1948, the State of Rewa acceded to India and became part of
the State of Vindhya Pradesh. In 1952, the State of Vindhya
Pradesh abolished the system of Jagirdari by the Vindhya
Pradesh Abolition of Jagirs and Land Reforms Act, 1952. Under
Section 26 of the Vindhya Pradesh Act, the appellants’ father
Hanuman Din became direct tenant of the State in place of
31
Jagirdar and under Section 28 of the Act, he became a pattedartenant.
36. By the States Reorganization Act, 1956, the erstwhile State
of Vindhya Pradesh became a part of larger Madhya Pradesh.
Subsequent to which, the State of Madhya Pradesh enacted the
M.P. Land Revenue Code, 1959 (M.P. Code) whereby the
appellants’ predecessor Hanuman Din being a pattedar-tenant in
Vindhya Pradesh in possession of the lands, became their
Bhumiswami under Section 158(1)(d)(i) of the M.P. Code. After
following the due procedure laid down under Sections 109 and
110 of the M.P. Code, his name was entered in revenue records.
37. The trial court rightly held that the disputed lands belonged
to the iIlaqa and the Pawaidar was empowered under the
provisions of Section 44 of the Rewa Act to issue the said lease
(Ex. D-20). Section 44 of the Rewa Land Revenue and Tenancy
Act, 1935 reads as under:-
“44. Conferment of Pattas – (1) In a kothar village, the
following revenue officers are authorised to confer a patta:-
……….
(2) In a pawai, the following persons may confer a patta:-
(a) at a revision of settlement – the Settlement Officer and
Assistant Settlement Officers,
(b) during the currency of Settlement –
32
A pawaidar in pawai land not included in a sub-pawai;
A sub-pawaidar in respect of land included in his subpawai;
A mortgagee in possession;
A mortgagor in possession;
The Court of Wards in land under its superintendence;
A widow having life interest in a pawai or sub-pawai;
……..”
38. The learned senior counsel for the respondents-plaintiffs
submitted that upon consideration of the evidence of Hanuman
Din (DW-1), the first appellate court recorded a finding of fact that
in the year 1954, patta was granted in favour of Gaya Din
(defendants’ father) and as per the testimony of Hanuman Din
(DW-1), when patta was issued, Hanuman Din was 35 years old.
It was submitted that based on the evidence of Hanuman Din, the
first appellate court recorded finding that patta was granted in
favour of Gaya Din in the year 1954 by which time, the tradition of
Pawai has been removed and therefore, patta granted in favour
of Gaya Din is not a valid one. The first appellate court arrived at
such a finding without proper facts and by drawing an inference
noting that when DW-1 was examined in 1984, he was aged 65
years from which the first Appellate Court inferred that DW-1 must
have been born in 1919. Referring to the statement of DW-1 that
when patta was issued, he was aged 35 years, the first appellate
33
court inferred that patta must have been issued in 1954 (DW-1
born in 1919 + 35=1954) and by that time, system of Pawai had
been removed. In this regard, the learned senior counsel for the
respondents-plaintiffs submitted that as per Section 5 of the
Vindhya Pradesh Act, all the Jagir Lands were resumed in the
then Vindhya Pradesh Government on 23.06.1953, hence, on this
date, Pawaidar/iIlaqedar/Jagirdar were not authorised and were
not having jurisdiction to issue patta and therefore, the finding of
the first appellate court that the patta issued in the name of Gaya
Din in the year 1954 is not a valid one and the said findings of
fact cannot be interfered with.
39. The finding of the first appellate court that the patta was
granted to Gaya Din in 1954 and that illaqedar was not competent
to issue patta is misconceived. As discussed earlier, patta was
granted to Gaya Din 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-Hanuman Din. The
learned senior counsel appearing for the appellants has drawn
our attention to the provisions of Vindhya Pradesh Act and
submitted that as per Section 5 of the said Act, the State
34
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. We find
substance in the submission of the learned senior counsel for the
appellants that 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. Section 28 of the Vindhya Pradesh Abolition of Jagirs and
Land Reforms Act, 1952 reads as under:-
28. Certain occupants of lands to be pattedar tenants. – (1)
Subject to the provisions of sub-section (2) every person who is
entered in the revenue record for a continuous period of three
years as an occupant of any Jagir-land at the date of resumption,
shall be deemed to be pattedar tenant in respect of such land
which shall be assessed at the village rate.
(2) Nothing in sub-section (1) shall apply to any sir or khudkasht
land which is allotted to the Jagirdar under Section 22 or any
grove land possession of which the Jagirdar is entitled to retain
under clause (c) of Section 7.
In view of the provisions of the above Act, the first appellate court
erred in saying that the patta in favour of Gaya Din was granted in
the year 1954 and by that time, Pawaidar/iIlaqedar was not
having jurisdiction to issue patta.
35
40. Re: Finding of the first appellate court: Ownership of
the respondents not terminated in a legal way:- The first
appellate court held that the ownership of Rameshwar and Ram
Sahai was not terminated in a legal way and therefore, they are to
be treated as owners of the suit properties. The first Appellate
Court further held that since the ownership of Rameshwar and
Ram Sahai was not terminated in a legal way, the lease deedEx.D-20 which has been produced on behalf of defendant No.1
cannot be treated to be a proved document and on those
findings, set aside the finding of the trial court that defendant No.1
is having a legal right of ownership of the disputed lands. The first
Appellate Court, in our view, 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
Gaya Din and the continued possession of Gaya Din and his sonHanuman Din and the appellants. The first Appellate Court and
the High Court erred in brushing aside the findings recorded by
36
the Commissioner dated 17.07.1973 as to the misconduct of the
patwari in making entries in the revenue records.
41. 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. As noted above, 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.
Observing that in a suit for declaration of title, the plaintiffsrespondents are to succeed only on the strength of their own title
irrespective of whether the defendants-appellants have proved
their case or not, in Union of India and others v. Vasavi Cooperative Housing Society Limited and others (2014) 2 SCC
269, it was held as under:-
37
“15. It is trite law that, in a suit for declaration of title, the burden
always lies on the plaintiff to make out and establish a clear case
for granting such a declaration and the weakness, if any, of the
case set up by the defendants would not be a ground to grant
relief to the plaintiff.”
42. 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, in our view,
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-1-
Order of the Commissioner dated 17.07.1973 and the report of
the SDO dated 21.10.1969 and other revenue records showing
38
that the forefather of the appellants-defendants namely Gaya Din
was given the patta (Ex.D-20) and since then, Gaya Din and
Hanuman Din 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.
43. In the result, the judgment of the High Court in the Second
Appeal No.174 of 1989 dated 05.02.2007 is set aside and this
appeal is allowed. The Suit No.68-A/75 filed by the respondentsplaintiffs is dismissed and the judgment of the trial court shall
stand restored. No order as to cost.
.....………………………….J.
[R. BANUMATHI]
…..………………………….J.
[R. SUBHASH REDDY]
New Delhi;
April 09, 2019.
39
