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

Mahant Vishwa Nath Bharthi, the sarbrahkar of the temple of Shankarji Maharaj, Khowja, gave lands belonging to the temple, ad measuring about 44 acres, on Theka to one Sukai. The Thekanama was executed on June 5, 1942 to be effective from July 1, 1942. The lease was to enure for a period of 10 years and was due to expire on June 30, 1952. The Thekanama contained an express term that the Thekadar will not sub-let the leasehold property and that on the expiry of the period of l ease he shall hand over the possession of the property to thespite of this term against sub-letting, on July 27, 1942 the Lessee executed a power of attorney in favour of his nephews Haqiqullah and Ghani, apparently authorising them to cultivate the lands on his be half. On the expiry of the period of lease the Mahant instituted a suit for ejectment of the lessee which was decreed on November 25, 1 952. The Mahant then filed an application for executing the decree but an objection was raised thereto by the respondents, Sanaullah and Fakhrul Hasan who are respectively the brother and cousin of Haqiqullah. They filed two separate applications objecting to the execution of the decree on the ground that they had been cultivating the lands for several years and that they were entitled to continue in possession as Sirdars. On June 2, 1954 the objection raised by the respondents was allowed by the executing court which passed an order that the possession of the lands which on March 13, 1953 was given to the decree- holder in execution of the decree should be re-delivered to the respondents. Accordingly, the respondents were put back in possession in July, 1954.The lessor then instituted two separate suits under order XXI, Rule 103 of the Civil Procedure Code, the suit filed against Fakhrul Hasan being No. 17 of 1954 and the one against Sanaullah being No. of 1954. His case was that the lands were given on le se to Sukai on condition that he shall not sublet them, that a decree for possession was accordingly passed against Sukai on the expiry of the lease and that the respondents had got their names entered fraudulently in the revenue record a s the cultivators of the lands.Respondents took up various inconsistent pleas in answer to the suits. They contended that they were in possession of the lands with the consent of the original lessor. that they had become hereditary tenants and that they must be deemed to have become Adhivasis of thelearned Munsiff who tried the suits framed six issues, issue No. 2 being whether the respondents were Sirdars of the lands as alleged in paragraph s 17 and 18 of their written statements. This issue was referred to the revenue court for decision. The lessor having died during the pendency of those suits, the appellant was substituted in his placed as the Mahant of the Math. The revenue court found in favour of the respondents and accepting that finding the trial court dismissed the suits. In appeal, the District Court took the view that there was no justification for referring the particular issue to the revenue court and that the trial court ought to have decided all the issues for itself. The District Court accordingly remanded the suit with a direction that the Munsiff should decide the suit afresh uninfluenced by the finding given by the revenue court. The trial court then assessed the evidence, held the respondents and dismissed both the suits by its judgment dated November 17, 1961The District Court reversed the findings of the trial court in appeal and held that the appellant, being the Bhumidar of the lands, was entitled to recover possession thereof from the respondents. The appeals were accordingly allowed by the District Court by its judgment dated April 18,respondents filed Second Appeals Nos. 267 and 268 of 1962 against the decrees passed by the District Court. The High Court having allowed those appeals the Mahant of the Math has filed these appeals by special leave.

Reasoning: 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.