IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- 1. SPECIAL APPEAL CIVIL No. 20 of 2001 STATE V/S RAMA KISHAN & ORS 2. SPECIAL APPEAL CIVIL No. 21 of 2001 U I T JODHPUR V/S RAMA KISHAN & ORS Mr. SG OJHA, for the appellant / petitioner Mr. HR SONI & Mr. RK SONI, for the respondent Date of Order : 26.2.2008 HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI SANGEET LODHA,J. ORDER ----- These two appeals arise out of the common judgment of the learned Single Judge dt. 18.5.1993, deciding two appeals, being Appeal No. 31 and 32 of 1978, which in turn were filed by the two sets of co-plaintiffs, against the judgment & decree of the learned trial court dt. 19.8.1977, passed in Civil Suit No. 39/68, dismissing the same. Thus, these appeals relate to only one litigation, and involve common question of law and facts, and are therefore being decided by this common order. As observed above, the learned trial court had dismissed the suit, and a look at the impugned judgment shows, that the learned Single Judge has affirmed that decree of the dismissal of that suit. The facts of the case comprise of a very very long history, and are based on very many proceedings, taken from time to time, by different authorities. The suit relates to two parcels of land, shown by figures “ABCD” and “EABGF”. The plaintiff's being the state, and the U.I.T., claimed the property to be state property, i.e. Nazul land, having been placed at the disposal of the U.I.T., the other plaintiff; and the suit has been filed for recovery of possession of the land, along with the mesne profits, and pendente-lite and future mesne profits. On the other hand the defendant no. 1 claims himself to be the owner of the property, under two Pattas, while the plaintiffs claim those Pattas to be fictitious and forged. So far the other defendants are concerned, it would suffice to observe, that they are the tenants of the defendant no.1, and the real contest is between the plaintiff appellants and the defendant no.1, and therefore, hereafter expression ‘defendant’ or ‘defendants’ would mean only defendant no.1. The suit was filed in the year 1965, on 22.12.1965, to be precise. 2 The perusal of the record, and the judgment of the learned Single Judge, so also the learned trial court shows, that voluminous documentary evidence has been produced by either side, comprising mostly of documents of antiquity. The learned trial court framed as many as 15 issues. However, the perusal of the judgment of the learned Single Judge shows, that before him the parties were ad- idem, rather expressly agreed, to the effect, that pivotal issue is issue no. 7; in the sense, that it is only if issue no. 7 is decided in favour of the plaintiffs, then, only, requirement of going into other issues may arise, otherwise all other issues will become only academic. The learned Single Judge has categorically recorded this statement more than once, and then, after going through the material, and discussing it thread bare, has decided the issue no. 7 against the plaintiffs, and in favour of the defendants, and therefore, found all other issues to have become of academic importance only, not requiring to be gone into. In that view of the matter, we also proceed to examine the sustainability of the findings of the learned Single Judge, on issue no. 7. For convenience, we may reproduce the issue no. 7, which reads as under:- “7/ Whether the Patta of Samwat 1886 in favour of Magdutta and Patta of Samwat 1857 in favour of Allabux and the sale 3 by Allabux in favour of defendant No.1 of Samwat 1907 are fictitious and forged and defendant No.1 is a trespasser of the entire land of plan Ex-I for reasons given in para 24 of the plaint?” It may be observed here, that the mention of year “1857” appears to be an accidental slip, as it should be the year 1867. Thus, a reading of this issue shows, that it primarily comprehends the question, as to whether the Pattas of Smt. 1886 and 1867, and sale in favour of defendant no. 1, of the year 1907, are fictitious and forged. Obviously this fact is not in dispute, that the plaintiff is continuing in possession of the property, obviously therefore, the suit for possession had been filed, and also claims title through the aforesaid documents. In these circumstances, since the plaintiff has filed the suit for recovery of possession, the possession being nine points title, it is required of the plaintiff to prove, that the land belongs to the plaintiff, or either of the plaintiff, and/or that the documents of the title, on which the defendant relies, are fictitious and forged. It is a different story, that even if they were found to be fictitious and forged, still the possession is good against the whole world except the true owner, and therefore, the 4 plaintiff is required to prove to be the owner of the property. With this it is also required to be grasped, that this is a letters patent appeal, under Section 18 of the Rajasthan High Court Ordinance, as it then stood, and the question involved has been examined by the two learned courts below, being the learned trial court, and the learned Single Judge. That being the position, the findings recorded by the two learned courts below, relating to questions of fact, would not be open to be considered by us, for arriving at any different conclusions by re- appreciating the evidence, or by undertaking any hair spinning exercise. The scope of this special appeal being limited to the question of law, is a proposition which is no more res-integra. That being the settled legal position, on the face of it, the finding on the question, as to whether the Pattas are fictitious and forged, or not, in the very nature of things, is a brass question of fact, and that having been decided by the two learned courts below concurrently, it is not permissible for us; to re- appreciate the evidence, over again, as if we were the trial court, or even the first Appellate Court. Notwithstanding the above legal position, since 5 the litigation involves very heavy stakes, being relating to 5369 sq. Gaj (2’ x 2’) land, situated in the main heart of the city of Jodhpur, being Siwanchi Gate, we do not stand advised to feel satisfied by resting contented, simply by holding, that the findings are findings of fact, and need not be gone into by us, and therefore, in order to satisfy our judicial conscience, we are again examining the findings. Considering the case from that stand point, a comprehension of the record shows, that in substance, the plaintiffs allege, and believe, Patta of Samvat 1886 to be fictitious and forged, on the ground; (1) In Patta of Samvat 1886 there is reference of earlier Patta of 1868, and the eastern boundary of the land in the two Pattas does not tally, (2) The Patta of 1868 is not entered in the Patta Bahi of 1868, (3) Though entry of Patta of 1886 does find place in Patta Talika Bahi of 1886, but is not entered in any other relevant record, (4) Then it is alleged that there is some difference in the ink of writing of the relevant entry in Patta Talika Bahi, (5) The parcel of the land covered by Patta of 1886 was Patta sud land of Sheru son of Jamal, issued on Savan Sudi 11, Samvat 1836, which land was acquired by the erstwhile State of Jodhpur in 1933-1934, (6) Apart from the land covered by Patta of Sheru, the excess land that had been in possession of widow of Sheru, was already acquired in 1934, and no objection 6 was raised at that time (7) Next being, that no written document of purchase by Mughdutt, on the basis of which Patta of 1886 is alleged to have been made has been produced in any proceedings up till now (8) Regarding Patta of 1867 also the grounds are, that there is no entry of Patta dated Kartik Sud 7, 1867 in the Patta Bahi of Revenue Department, secondly that in the proceedings before the Municipal Board neither any reference was made, nor any document was produced, relating to Patta of 1867, and that the defendant has not secured any Patta in his own name after Samvat 1907 from the Jodhpur State. Then, certain more circumstances are shown to be indicative of Patta being not genuine. However, in our view, there is voluminous documentary evidence, consisting of Ex.A-9, being the original Patta of 1886, corresponding entry in Patta Talika Bahi of Samvat 1886, being Ex.11. Then, Ex.A-5 is Patta Setting Report by Zafar Hussain dated 2.2.54. Then, Ex.A.-6 is the order of the Additional Commissioner, Municipal Board, Jodhpur dated 15.5.1955, upholding the title of the defendant. Then, Ex.A-7 is the order of the State Government dt. 30/31.8.1956, affirming the order Ex.A-6, in revision, and holding that land ABCD was covered by Patta in favour of ancestors of defendant. Then regarding other parcel of the land, Ex.-9 is the original patta of 1867, corresponding to calendar year 1810-11, in favour of Fakira 7 father of Allabux. Then, Ex.A-10 is the original sale deed of Samvat 1907, corresponding to calendar year 1850-51, in favour of Maghdutt by Allabux. Then, Ex.18 is the Patta Talika Bahi, in which copy of the Patta issued in favour of Mughdutt, consequent upon the sale by Allabux, has been recorded, being of Samvat 1907, corresponding to Calendar year 1850-51. Then, Ex.27, a map from the File No. 99 of 1908 of Public Works Department, Mahkama Khas, Raj Marwar, Jodhpur which was produced by the plaintiff, showing that the disputed land is of Harlal Dave, father of the defendant, the map is dated 19.9.1908. Then, Ex.28 is the copy of the application by said Harlal Dave dated 20.12.1919, requesting the Member, Public Works Department, for issuing directions to the P.W.D. Employees, not to interfere with his possession over the land, which is his Patta sud. This application refers to two Pattas, which are subject matter of the two properties, and in that application, reference to map of 1908 is also made, and thereupon the officer concerned endorsed, that Patta Court has certified patta, with Kabja-sud land of Harlal, and directed P.W.D. not to interfere. The original of those documents was brought by P.W.7 in the trial court. Then, Ex.-11 is the entry of Patta Talika Bahi of 1886, and these documents Ex.A-9, Ex.11, Ex.A-27 and 28, have been found by the learned Single Judge to be more than 30 years old, and produced from proper custody, attracting presumption under Section 90 of the Evidence Act. As noticed above the suit 8 was filed in the year 1965. Obviously, therefore, even as on the date of suit itself, documents were more than 30 years old. Then, regarding documents being Patta Talika Bahis, which have been produced from proper custody, being through the officers of the Achieves Department, and therefore, in the case of these documents, Section 81 of the Evidence Act enjoins a duty on the court, to presume their genuineness. It is a different story, that genuineness of these documents has not been disputed either. Then Ex.18 is the entry in the Patta Talika Bahi of Samvat 2008, about grant of Patta in favour of Mugdutt, consequent upon purchase by him in the year 1907. These entries also attract presumption under Section 81 of the Evidence Act. With this Ex.27 and 28 are million dollar circumstances against the plaintiff; apart from, even Ex.A- 7, being the order of the State Government itself recognising defendant's title. As against this it has been noticed by the learned Single Judge, and in our view, rightly so, that the defendant applied for inspection of Patta Bahi in the year 1962, and thereupon it was reported that required Patta Bahis are not available. In that view of the matter, in our view, the learned Single Judge has rightly declined to place reliance on the statement of P.W.7, where he has deposed, that there is no entry in the Patta Bahi. Then, obviously, as rightly found by the learned 9 Single Judge, that the matter rests in the realm of opinion of P.W.5 and 7, and inference drawn by them, as against which, the documents discussed above, consistently show, the genuineness of the Patta, continuity of the things, and continuous possession of the plaintiff. As against this there is no evidence led on the side of the plaintiff to establish, as to how the land in question belongs to plaintiff, so as to entitle the plaintiff (either of them) to get decree for possession against the defendant. Thus, even after re-appreciating entire evidence on record, we are at one with the findings recorded by the learned courts below, on issue no. 7. Since issue no. 7 stands decided in favour of the defendant, and against the plaintiffs, the other issues, as conceded by the plaintiff before the learned Single Judge, only remain academic, and need not be gone into. The net result of the aforesaid discussion is, that we do not find any force in the appeals, and the same are, therefore dismissed; with no order as to costs. (SANGEET LODHA), J. (N.P.GUPTA), J. /sushil/ 10