Case: Vishwa Vijai Bharti Vs. Fakhrul Hasan &amp; Ors

not in possession in the year 1359 Fasli shall be called an Adhivasi of the land and shal l be entitled to retain possession thereof. The names of the respondents were entered as occupants in the revenue record of 1356 Fasli but after considering the entire evidence, the District Court rejected those entries on the ground that they were fraudulent. Thus, the only question before the High Court was whether the entries on which the respondents relied were genuine or fraudulent. That is a question of fact and the High Court had no jurisdiction to set aside in second appeal the finding recorded on that question by the district Court.The High Court assumed erroneously that the District Court had not given any finding on the question of fraud and on that assumption, it accepted mechanically the en tries in the revenue record showing that the respondents were in possession of the lands as occupants. The learned District Judge, by his judgment dated April 18, 1962 had gone in great details into the question whether the particular ent ries showing that the respondents were occupants of the land were genuine or fraudulent. Those entries are Exs. A-5 to A-12. As pointed out by the learned Judge, the original lessee Sukai had migrated to Bombay after handing over the charge of the lands to his nephews who got the names of the respondents entered in the revenue record "surreptitiously". The learned Judge points out that Fakhrul Hasan, who alone was examined on behalf of the respondents, was just a lad of 10 at the time when he i s alleged to have entered into adverse possession of the lands. Neither Sukai, who was the original lessee, nor Haqiqullah and Ghani who were said to: be cultivating the lands under a power of attorney executed by Sukai, were examined by the respondents. The other respondent Sanaullah was not living in the village at all and is said to have been doing business in second-hand spares in Bombay. Haqiqullah was summoned by the appellant for producing the power of attorney dated July 27, 1942 and taking advantage of that opportunity the respondents cross- examined him. Haqiqullah, being a close relation of the respondents was only too willing to oblige them by giving pre-conceived answers in the so-called cross-examination. Bu t the learned trial Judge overlooked that Haqiqullah was only summoned to produce a document and by reason of section 139 of the Evidence Act he could not become a witness in the case and could not therefore have been cross-examined on the merits of the case. But, even her considering the evidence of Haqiqullah the learned District Judge recorded a finding that "The entries were all fictitious". He then proceeded to examine the documentary evidence in the case and held:"After a careful consideration of the pros and cons of the whole case I am of opinion that the Thekedar Sukai had I cultivated the sir and Khudkashi of the temple land which was given to him on Theka through his brother and his cousin, namely Haqiqullah and Ghani and these two per sons in order to create permanent rights in the Theka property, had fraudulently got the names of their boys entered , in the revenue records right from the inception. I am also of the opinion that these by of the house-hold never cultivated the land and they acquired no right, title or interest in the Theka land".5. We find it quite difficult to understand how the High Court could hold that the District Court had not recorded any "clear finding" that the entries in the revenue record for the year 1356 Fasli were fraudulent. Evidently, the attention of the High Court was not drawn to at least half a dozen reasons given by the District Court for holding that the entries were "fictitious" and were made "surreptitiously" and "fraudulently".6. We could have even appreciated if, under section 103 of the Code of Civil Procedure, the High Court were to determine the issue whether the entries were fraudulent, if it though, wrongly though, that the District Court had not recorded a clear finding on that issue. But the High Court did not discuss the evidence at all and chose instead to place a blind and easy reliance on the entries which are utterly uninspiring. B7. 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 in to their correctness. But the presumption of correctness can apply only to genuine, not forged or fraudulent, entries. The distinction may be fine but it is real. The distinction is that one cannot challenge the correctness of what the entry is the revenue record states but the entry is open to the attack that it was Made fraudulently or surreptitiously. Fraud and forgery rob a document of all its legal effect and cannot found a claim to possessory title.In Amba Prasad v. Abdul Noor Khan and ors.([1964] 7 S.C.R. 800.), it was held by this Court that section 20 of the U.P. Act 1 of 1.951 does not require proof of actual possession and that its purpose is to eliminate inquiries into disputed possession by acceptance of the entries in the Khasra or Khatauni of 1356 Fasli. While commenting on this decision, this Court observed in Sonawati and ors. v. Sri Ram and Anr.([1968] 1 S.C.R. 617, 620.) that "the Civil Court in adjudging a claim of a person to the rights of an adhivasi is not called upon to make an enquiry whether the claimant was actually in possession of the land or held the right as an occupant: cases of fraud apart, the entry in the record alone is relevant". We have supplied the emphasis in order to show that the normal presumption of correctness attaching to entries in the revenue record, which by law constitute evidence of a legal title, is displaced by proof of fraud.8.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]We find it quite difficult to understand how the High Court could hold that the District Court had not recorded any "clear finding" that the entries in the revenue record for the year 1356 Fasli were fraudulent. Evidently, the attention of the High Court was not drawn to at least half a dozen reasons given by the District Court for holding that the entries were "fictitious" and were made "surreptitiously" andcould have even appreciated if, under section 103 of theCode of Civil Procedure, the High Court were to determine the issue whether the entries were fraudulent, if it though, wrongly though, that the District Court had not recorded a clear finding on that issue. But the High Court did not discuss the evidence at all and chose instead to place a blind and easy reliance on the entries which are utterly uninspiring.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 in to their correctness. But the presumption of correctness can apply only to genuine, not forged or fraudulent, entries. The distinction may be fine but it is real. The distinction is that one cannot challenge the correctness of what the entry is the revenue record states but the entry is open to the attack that it was Made fraudulently or surreptitiously. Fraud and forgery rob a document of all its legal effect and cannot found a claim to possessory title.In Amba Prasad v. Abdul Noor Khan and ors.([1964] 7 S.C.R. 800.), it was held by this Court that section 20 of the U.P. Act 1 of 1.951 does not require proof of actual possession and that its purpose is to eliminate inquiries into disputed possession by acceptance of the entries in the Khasra or Khatauni of 1356 Fasli. While commenting on this decision, this Court observed in Sonawati and ors. v. Sri Ram and Anr.([1968] 1 S.C.R. 617, 620.) that "the Civil Court in adjudging a claim of a person to the rights of an adhivasi is not called upon to make an enquiry whether the claimant was actually in possession of the land or held the right as an occupant: cases of fraud apart, the entry in the record alone is relevant". We have supplied the emphasis in order to show that the normal presumption of correctness attaching to entries in the revenue record, which by law constitute evidence of a legal title, is displaced by proof of fraud.