ivil Appeal No 1443 of 1972
From the Judgment and Order dated 30111971 of the Allahabad High Court in Special Appeal No 491 of 1963
213 Uma Dutt for the Appellants
Ms Rachna Gupta for Bagga for the Respondents
The Judgment of the Court was delivered by KANIA J
The appellants before us are the heirs and legal representatives of one Wali Mohammad
Respondents Nos 1 and 2 are the sons of one Ram Kumar
Respondent No 3 is the Board of Revenue Allahabad
On May 22 1928 Wali Mohammad executed a usufructuary mortgage in favour of Ram Kumar and Shiv Kumar in respect of two plots
According to Wali Mohammad he redeemed the said mortgage and took possession of the said plots in the begin ning of Fasli Year 1354 period from 17 1946 to 3061947 and continued to be in possession thereof
On December 28 1953 Ram Kumar moved an application under section 232 of the UP Zamindari Abolition and Land Reforms Act 1950 here inafter referred to as the said Act for getting posses sion of the said two plots from Wali Mohammad On the ground that his name was recorded in the Khasra and Khatauni of 1356 Fasli and therefore he was the Adhivasi of the said plots
This was contested by Wali Mohammad
The Sub Divi sional Officer found that Wali Mohammad was in possession of the said plots since the redemption of the said mortgage and dismissed the suit of Ram Kumar
That decision was confirmed by the Additional Commissioner on appeal holding that the entry in the Khasra relied on by Ram Kumar was fictitious
On second appeal the Board of Revenue set aside the deci sion of the Sub Divisional Officer and the Additional Com missioner and held that the entry in the Khasra to the effect that Ram Kumar was the occupant of the said plots in Khasra of Fasli Year 1356 was sufficient to confer Adhivasi rights on him and no further inquiry was called for to ascertain whether the said entry was correct or wrong
Wali Mohammad filed a writ petition in the Allahabad High Court challenging the aforesaid decision of the Board of Revenue
The learned Single Judge of the High Court after hearing the arguments in the said writ petition allowed the same and quashed the order of the Board of Revenue on the ground that the Board of Revenue had committed an error of juris diction
Ram Kumar preferred a Letters Patent Appeal against the said decision of the learned Single Judge
The said appeal was allowed by a Division Bench of the said High Court
The Division Bench set aside the order of the learned Single Judge holding that the entry in the revenue records was enough to 214 confer rights of Adhivasi under section 20b of the said Act
That decision is challenged before us in this appeal by Special Leave granted on the application of Wali Mohammad
Wali Mohammad died during the pendency of the present appeal and his heirs and legal representatives have been brought on record in his place
The relevant provision which falls for consideration is clause i of sub section b Of section 20 of the said Act
The relevant part of section 20 runs as follows 20
Every person who a x x x x x b was recorded as occupant i of any land other than grove land or land to which section 16 applies or land referred to in the proviso to sub section 3 of sec tion 27 of the UP Tenancy Amendment Act 1947 in the Khasra or Khatauni of 1356 F pre pared under sections 28 and 33 respectively of the UP Land Revenue Act 1901 UP Act III of 1901 or who was on the date immediately preceding the date of vesting entitled to retain possession thereof under clause c of sub section 1 of section 27 of the United Provinces Tenancy Amendment Act 1947 UP Act X of 1947 or ii x x x x x shall unless he has become a bhumidhar of the land under sub section 2 of section 18 or an assami under clause h of section 21 be called Adhivasi of the land and shall subject to the provisions of this Act be entitled to take or retain possession thereof
 The said section deals with the question as to who is entitled to take or retain possession of the land in ques tion
The plain language of the aforesaid clause i of sub section b of section 20 of the said Act suggests that this question has to be determined on the basis of the entry in the Khasra or Khatauni of 1356 Fasli Year prepared under sections 28 and 33 respectively of the UP Land Revenue Act 1901
An analysis of the said section shows that under sub section b of section 20 the entry in the Khasra or Khatauni of the Fasli Year 1356 shall determine the question as to the person who is entitled to take or 215 retain possession of the land
It is of course true that if the entry is fictitious or is found to have been made surreptitiously then it can have no legal effect as it can be regarded as no entry in law but merely because an entry is made incorrectly that would not lead to the conclusion that it ceases to be an entry
It is possible that the said entry may be set aside in appropriate proceedings but once the entry is in existence in the Khasra or Khatauni of Fasli Year 1356 that would govern the question as to who is entitled to take or retain possession of the land to which the entry relates
It was submitted by learned counsel for the appellants that if the entry was not correct it could not be regarded as an entry made according to law at all and the right to take or retain possession of the land could not be deter mined on the basis of an incorrect entry
He placed reliance on the decision of this Court in Bachan and another vs Kankar and others  In that judgment the nature of the entries in Khasra or Khatauni is discussed and it is also discussed as to how this entry should be made
This Court held that entries which are not genuine cannot confer Adhivasi rights
It has been observed that an entry under section 20b of the said Act in order to enable a person to obtain Adhivasi rights must be an entry under the provisions of law and entries which are not genuine cannot confer Adhivasi rights
In that judgment it has been stated that the High Court was wrong when it held that though the entry was incorrect it could not be said to be fictitious
That observation however has to be understood in the context of what follows namely that an entry which is incorrectly introduced into t he records by reason of iII will or hostility is not only shorn of authenticity but also becomes utterly useless without any lawful basis
This judgment in our view does not lay down that all incorrect entries are fictitious but only lays down that a wrong entry or incorrect entry which has been made by reason of iII will or hostility cannot confer any right under section 20b of the said Act
This decision is clarified by a subsequent judgment of this Court in Vishwa Vijai Bharti vs Fakhrul Hasan and others  where it has been held as follows It is true that the entries in the revenue record ought generally to be accepted at their face value and courts should not embark upon an appellate inquiry into their correct ness
But the presumption of correctness can apply only to genuine not forged or fraudu lent entries
The distinction may be fine but it is real
The distinction is that one cannot challenge the correctness of what the entry in the 216 revenue record states but the entry is open to the attack that it was made fradulently or surreptitiously
Fraud and forgery rob a document of all its legal effect and cannot found a claim to possessory title
 Coming to the present case although the Additional Commissioner has held that the entry was fictitious that conclusion seems to have arrived at merely on the basis that Wali Mohammad was in possession in Fasli Year in question with the result that the entry in the Khasra or Khatauni showing Ram Kumar as the occupant could not be correct
There is nothing to show that the said entry was fictitious or was made fradulently or was incorrectly introduced by reason of iII will or hostility towards Wali Mohammad
In these circumstances the entry may not be correct but it could not be said to be fictitious or regarded as non est
Merely because the entry might be incorrect that would not make any difference to the determination of the question as to who is entitled to be declared to be the Adhivasi of the land under the provisions of section 20b of the said Act
We agree with the conclusion and reasoning of the High Court
In the result the appeal fails and is dismissed with costs
Y Lal Appeal dis missed


Summary:
The appellantplaintiff instituted a suit for declara tion of title possession and mesne profits of the suit property
The respondents defendants 1 and 2 resisted the suit mainly on the ground that they were tenants of one Sirajuddin who had allegedly acquired title to the suit property on the basis of a gift in favour of his wife
The Trial Court decreed the suit holding that Sirajuddin had no right or title and that the defendants were trespassers
The High Court rejected the defendants  appeal and the special leave therefrom was rejected by this Court
The decree holder moved an Execution Petition for pos session
The respondents objected to the execution on the ground that they were tenants and could not therefore be dispossessed in execution of the decree of the Civil Court
The objection was rejected and the High Court rejected the appeal therefrom
Thereafter when the Execution Petition was set down for proceeding further once again the respondents raised the plea of tenancy and this time the Executing Court raised an issue of tenancy and referred the same to the Tenancy Court for determination
The appellant appealed to the High Court
The High Court observed that there could be no question of creation of tenancy interest by those who themselves had no title that the judgment debtors  earlier objection to execution on the ground of their claim of tenancy was also rejected and it was not open to the judgment debtors to once again raise an issue of tenancy before the Executing Court which ought to have rejected the same contention
Even so the High Court having noted that judgment debtor No 2 had already filed an independent proceeding under the Hyd erabad Tenancy and Agricultural Lands Act 1950 for declara tion of his tenancy rights observed that if that was so then the Competent 218 Authority under the Tenancy Act would have to decide the issue on its own merits and in accordance with law irrespec tive of and regardless of all observations if any touching upon such a claim of tenancy in the civil proceedings be tween the parties
The High Court also observed that the question of tenancy was not directly in issue between the parties in the civil proceedings and the judgment debtor No 2 was not debarred from instituting proceedings under the Tenancy Act before the Competent Authority
The High court allowed the revision petition set aside the order of the Executing Court referring the issue of tenancy and directed the Executing Court to proceed further with the Execution Petition
Before this Court it was contended that the High Court committed a serious error while setting aside the order of the Executing Court referring the issue of tenancy to the Tehsildar at the same time allowing the proceedings under the Tenancy Act before the Tehsildar proceed in the face of the fact that the judgment debtors  objection on the basis of their tenancy was already rejected by the Executing Court and in holding that the competent authority should decide the issue of tenancy in accordance with law irrespec tive of and regardless of all observations made in the suit and the appeal
Disposing of the appeal this Court HELD 1 The Tenancy Act had amended the law regulating the relations of land holders and tenants of agricultural land and the alienation of such land
221B 2 Though it could he said that when the person who inducted the tenants on the land was found to be a trespass er on the date of the induction the tenants could not continue to have a right to be on the land against the will of the true owner yet taking into consideration the exclu sive nature of jurisdiction of the Tenancy authorities under the Tenancy Act and the fact that the appellant has already preferred an appeal from the order of the competent authori ty the Court was not inclined to interfere with the order of the High Court appealed against
222D E Latchaiah vs Subrahmanyam   referred to
3 It will now be open to the appellant to place the decisions rendered in her favour by the Civil Courts before the competent authority hearing the appeal and to proceed in accordance with the provisions of the Tenancy Act
222F 219