Case: Abdul Waheed Khan Vs. Bhawani And Ors

2. The relevant facts may be briefly stated: The respondents, claiming to be the khatedars of an extent of 57.07 acres of land in Mauza Bhanpur, Tahsil Huzur, Western District Bhopal filed a suit against the appellant on the ground that the latter was in illegal possession thereof. The appellant contested the suit mainly on the ground that he was the khatedar of the said land and that he was in possession thereof in that capacity. He also pleaded that his title to the property was declared by the Tahsildar in an application for ejectment filed by him against the respondents under the Bhopal State Land Revenue Act, 1932 (Act, No. IV of 1932), hereinafter called the Act, and that the said decision would be a bar to the maintainability of the suit in a civil Court3. The learned Subordinate Judge, Bhopal, held that the respondents were the khatedars of the suit land and that they had been in possession thereof in that capacity. He held that the suit was maintainable in a civil Court4. On appeal, the Additional District Judge agreed with the findings arrived at by the trial Court5. On second appeal to the Madhya Pradesh High Court, Shiv Dayal, J., of that Court, after admitting certain notifications as evidence, came to the same conclusion both on the question of title and on the question of jurisdiction. In the result he dismissed the second appeal6. Hence the present appeal by special leave

Reasoning: This argument appears to be plausible, but a deeper scrutiny reveals a fallacy. The scope of an entry in regard to the right to hold a land under S. 89 (2) of the Act and the decision under S. 93 thereof is disclosed by S. 95. When such an entry is made in the register of rights and is not corrected in the manner prescribed in S. 93, under S. 95 it shall be presumed to be correct until the contrary is proved. The effect of such an entry, therefore, is only to make it a presumptive piece of evidence in a collateral proceeding: that is to say, in a suit based on title when such an entry is relied upon by one or other of the parties, the Court shall presume it to be correct unless the other party rebuts the presumption. Not only S 95 does not by necessary implication bar a suit but also assumes that in such a suit the correctness of such an entry could be questioned subject to the said presumption12. It is, therefore, clear that S. 200 (1) of the Act, read with the said group of sections, does not exclude the jurisdiction of a civil court to entertain a suit based on titleBut a perusal of the judgments of the Courts below shows that all the Courts, after taking into consideration the entire oral and documentary evidence, came to the conclusion that the respondents had established their title. Indeed, though the High court rightly pointed out that the finding of fact given by the lower appellate Court was conclusive, in view of the insistence of the Advocate in the High Court, it considered the entire documentary and oral evidence over-again and came to the same conclusion. It also admitted the notifications in respect of the settlement as fresh evidence and, after considering them, held that they did not disclose that the patta issued in favour of the respondents ancestors was cancelled. In our view, the High Court should have accepted the finding of the first appellate Court and should not have reviewed the evidence over again. The Courts in effect held that the said presumption was rebutted by the oral and documentary evidence adduced by the respondents. We are not, therefore, justified in an appeal under Art. 136 of the Constitution to permit the appellant to canvass the correctness of the said concurrent findings of fact14. The last argument raises a question of limitation. If, as we have held, the suit is outside the scope of the Act, the question of limitation turns upon the provisions of the Indian Limitation Act. The suit was originally filed by the respondents for a declaration of their title to the suit property, but as they were dispossessed of the land on March 5, 1953, subsequent to the filing of the suit, the plaint was amended on July 24, 1954, praying for delivery of possession. To such a suit Art. 142 of the Limitation Act applies. The suit is, therefore, clearly not barred by limitation.