Case: JAGDISH PRASAD PATEL(D) THR. LRS Vs. SHIVNATH

2. Case of Respondents-plaintiffs is as under:- Respondents-Shiv Nath and deceased Vishwanath/predecessor in interest of respondents No.2 to 10 filed a suit for declaration of title over the suit lands in khasra numbers 41-1.39, 131-2.70, 162-0.17, 163-3.92 and 164-2.15 Kita 5 total area 10.33 situated in Village Bairath General No.782, Tehsil Gopad Banas and possession of all the khasra numbers except khasra No.164 against the father of the appellants-Hanuman Din. Ram Sahai and Rameshwar - fathers of the plaintiffs were the joint lessees of the lands in khasra Nos. 41, 131, 132, 136/13, 135, 134/4, 137/27, 140/11, 142/2, 143, 146, 147, 162, 163/25, 164/4 and 257 total measuring 21.45 acres and their names were included as ‘lessees? of the above lands during the settlement and they kept on cultivating the lands till forty years back when a partition took place between the two and both of them became owners of half part each. Hanuman Din never remained in possession of any part of the lands nor he had any right or entitlement over the suit lands; but the grandfather of the appellants-Gaya Din got a lease in disputed lands of the respondents which according to the respondents is a forged document. Based on the aforesaid lease, Gaya Din got his name entered as khatedar in respect of the khataunis of the disputed lands.Respondent-deceased Vishwanath-predecessor-in-interest of respondents No.2 to 10 filed an application before the Collector in August, 1969 stating that the lease of the disputed lands was wrongly issued by illaqedar in the name of Gaya Din and the proceedings for cancellation of the records in the name of Gaya Din be initiated. The matter was sent to the Revenue Inspector for enquiry who submitted his report in favour of respondents in respect of the ownership of the lands in dispute and the Collector registered the report after approving it. In proceedings before the Sub-Divisional Magistrate in Miscellaneous Case No.351/142/69 under Section 145 Cr.P.C. initiated by Hanuman Din, the Sub-Divisional Magistrate found Hanuman Din in possession of lands in khasra Nos.162 and 163 and respondents were found in possession of land in khasra No.164. Respondents-plaintiffs alleged that pursuant to the order of the Sub-Divisional Magistrate, Hanuman Din forcibly took possession of land in khasra No.41 and therefore, the respondents filed suit for declaration and permanent injunction.Hanuman Din resisted the suit contending that the respondents have never remained in ownership or possession of the disputed lands and the lands belonged to one Ram Raj Singh but he was not cultivating the lands and gave it to the predecessors of the respondents for cultivation on the basis of Batai-crop sharing and only because of this, patta was granted at the time of settlement in their names. The appellants further averred that the father of the respondents abandoned the lands and since revenue tax was not being paid, the khata of the disputed lands was cancelled. Case of the appellants-defendants is that in the auction held by Pawaidar for lease of suit lands and other lands, bid of Gaya Din was accepted and in this regard, a lease was issued in his name in Samvat 1986 (1929 A.D.). The appellants had been in continuous possession of the suit properties and the same is reflected in the khataunis and other revenue records.The trial court vide judgment dated 02.07.1985 dismissed the respondents? suit by holding that Gaya Din has been holding patta- lease (Ex.D-20) in respect of the suit lands and has been in continuous possession of the disputed lands since 1950 and thereafter, Hanuman Din was in possession of the same. After referring to the orders of the Commissioner (Ex.D-1), the trial court held that the Commissioner recorded a finding of fact that the respondents got the entries made in the revenue records in their names in connivance with the Patwari. The trial court held that the lease-patta (Ex.D-20) was issued by the then iIlaqedar to Gaya Din and that the said document being more than thirty years old is a genuine one. After referring to various khasras and the entries thereon in the name of appellant?s father, it was held that the appellants? father Hanuman Din has been in possession of the suit lands since 1950 or prior to that. The trial court further held that the suit was instituted on 17.10.1975 which is beyond twelve years and that the suit is barred by time.In appeal, the first Appellate Court vide its judgment dated 03.04.1989 held that at the time of settlement, patta was granted in the name of father of the respondents and this has not been disputed by the appellants and the appellants could not establish abandonment of the lands by the father of the respondents and therefore, the respondents ought to be treated as owners of the suit properties. The first Appellate Court further held that the lease Ex.D-20 produced by the appellants cannot be held to be a valid one and in absence of order of revocation of the patta granted to the respondents, it cannot be held that Ex.D-20 confers right of ownership on the appellants over the disputed lands. The first Appellate Court held that merely because of production of patta- lease – Ex.D-20 by Hanuman Din, it cannot be said to have been proved and therefore, it cannot be held that Hanuman Din has a legal right of ownership on the disputed lands. The first Appellate Court noted that on the basis of Ex.D-1 – order of the Commissioner, possession of the suit properties by the appellants cannot be held to be proved, since the respondents or their ancestors were not parties to the said proceedings. On these findings, the first Appellate Court set aside the judgment of the trial court and held that the respondents are the owners of the disputed lands and held that the respondents are entitled to get possession of the lands in khasra Nos. 41, 131, 162 and 163 from the father of the appellants.In the second appeal, the High Court affirmed the findings of the first Appellate Court and held that the suit lands were recorded in the name of fathers of the respondents and that there was no document on record to show that they have abandoned the possession of the lands or surrendered the same in favour of iIlaqedar. It was held that though patta-lease – Ex.D-20 was granted in favour of grandfather of the appellants, the appellants have not adduced any evidence to prove abandonment of the lands in favour of iIlaqedar and no right accrued to the appellants on the basis of the patta (Ex.D-20). Being aggrieved, the appellants have preferred this appeal.

Reasoning: 10. The impugned judgment of the High Court is the concurrent finding of the High Court and the first Appellate Court. We are conscious that in an appeal under Article 136 of the Constitution of India, the concurrent findings cannot be interfered with unless warranted by compelling reasons. When the finding of the first Appellate court and the High Court are shown to be perverse, this Court would certainly interfere with the findings of fact recorded by the High Court. [Vide Mahesh Dattatray Thirthkar v. State of Maharashtra (2009) 11 SCCIn his evidence, PW-1 has stated that patta-lease was issued in the name of his father. In his written statement, defendant Hanuman Din also admitted that the plaintiffs- respondents? fathers were lessees and patta-lease was originally granted in their favour during the settlement period for cultivation on the basis of Batai-crop sharing. The trial court as well as the first appellate court held that the lease was granted in favour of father of respondents-plaintiffs at time of the settlement and they were held to be original lessees. The trial court while deciding issue No.2(A), observed that the grant of lease in the name of father of respondents-plaintiffs in the settlement is not rebutted by the appellants-defendants. Drawing our attention to the findings of the trial court that patta was granted in favour of the father of the respondents-plaintiffs, the learned senior counsel for the respondents-plaintiffs submitted that this amounts to admission and in terms of Section 58 of the Evidence Act, admitted facts need not be proved. Placing reliance upon Nagindas Ramdas v. Dalpatram Iccharam alias Brijram and others (1974) 1 SCC 242     and Executive Officer, Arulmigu Chokkanatha Swamy Koil Trust, Virudhunagar v. Chandran and others (2017) 3 SCC 702  , it was submitted that in view of clear admission of grant of lease in the name of father of respondents-plaintiffs, the said admitted fact need not be proved.Section 58 of the Evidence Act, no doubt, postulates that the things admitted need not be proved. However, proviso to Section 58 of the Evidence Act gives full discretion to the court to require the facts admitted to be proved otherwise than by such admission. When the respondents-plaintiffs have filed the suit for declaration of their title, the respondents-plaintiffs cannot isolate few sentences in the written statement and take advantage of only those part of the written statement which are favourable to them. The written statement filed by the appellants-defendants has to be read in toto. It is pertinent to note that in para No.(2) of the written statement, the appellants-defendants averred that the lands were in the ownership of Ram Raj Singh at the time of the settlement, but because he was not in a position to cultivate the same himself, the lands were given to the father of the respondents-plaintiffs for cultivation on the basis of Batai-crop sharing. It is further averred that the then Halkedar cancelled the lease in respect of disputed lands and the same were auctioned in which the bid of the defendants? father Gaya Din was accepted and the disputed lands were transferred in his name in the sale in Samvat 1986 i.e. 1929 A.D. The lease of the lands was issued in the name of Gaya Din. The admission of the defendants as to the lease of the plaintiffs? father was the lease earlier granted in favour of the forefathers of the respondents. In the light of the pleadings and the oral and documentary evidence adduced by the defendants, notwithstanding the admission in the written statement, the burden lies upon the respondents-plaintiffs to prove that the patta-lease continues to be in their favour and that they are the holders of patta and that they are in continued possession of the suit properties.In his cross-examination, PW-1 stated that his father left for Jabalpur about forty years prior to the institution of the suit. In the cross-examination, PW-1 however denied the suggestion that when his father left for Jabalpur, he handed over the disputed lands to Pawaidar and all the records at the relevant time were kept by the iIlaqedar. From the statement of PW-1-Vishwanath and PW-2-Ram Gopal, it is evident that the father of Vishwanath had started living in Jabalpur forty years back prior to institution of the suit and settled there. In the light of the evidence adduced, the trial court rightly accepted the case of the defendants that in Samvat 1986 (1929 A.D.), in the auction held by Pawaidar for lease of suit lands and other lands, bid of Gaya Din was accepted and the suit properties along with other lands were given on lease to Gaya Din. We find substance in the submission of the learned senior counsel for the appellants that if the lands were not left so abandoned by the father of respondents-plaintiffs, it would not have been possible for the Pawaidar to auction the lease of the suit lands and grant lease of the lands in favour of Gaya Din.From perusal of the Khatauni for the year 1952-53 (Ex.P-2) produced by the plaintiffs, it is seen that the appellants- defendants are in possession of the suit lands from the year 1950-51 to 1954-55 (Ex. P-8) and thereafter, the subsequent khasras 1960-61 onwards. The names of the appellants- defendants being mentioned in the khasra 1950-51 to 1954-55 is very crucial. The reason being Vindhya Pradesh Abolition of Jagirs and Land Reforms Act, 1952 (Vindhya Pradesh Act) came into force on 30.07.1953. Ex. D-20 (Ex. P-21) - lease was granted in favour of the predecessors of the appellants- defendants namely Gaya Din by Pawaidar under Section 44 of the Rewa State Malgujari and Kashtkari Act, 1935 (Rewa Land Revenue and Tenancy Act, 1935). After referring to Ex. D-20, the trial court rightly held that the Pawaidar was empowered to issue the lease and that lease (Ex. D-20) was issued under Section 141 of the Act. It was therefore rightly held by the trial court that the lease (Ex. D-20) is valid and that the appellants- defendants have proved that the lease of the lands was legally given by illaqedar in favour of their father.The revenue records produced by the appellants for several years amply strengthen the case of the appellants that patta (Ex. D-20) was granted to them and that they are in possession of the suit properties for several years. The oral and documentary evidence clearly establish that the father of the respondents- plaintiffs has abandoned the suit properties, pursuant to which, auction was held by the Pawaidar and lease was issued by illaqedar in favour of Gaya Din and that he was in continuous possession of the suit properties.In the plaint, the respondents/plaintiffs have alleged that Ex. D-20-patta is a forged one. In para No.(4) of the plaint, it is alleged that without knowledge of the respondents/plaintiffs? father, defendants? father Gaya Din got the lease from Ilaqa Churhat by illegal means and Gaya Din never remained in possession of the properties. The respondents-plaintiffs have not produced any document to prove that Ex. D-20 is a forged one. The plaintiffs at one place averred that without the knowledge of the plaintiffs and their father, Gaya Din succeeded in getting the lease by illegal means of the disputed lands from iIlaqa therein; whereas in para No.(5), the respondents-plaintiffs alleged that the document is a forged one. In fact, as pointed out earlier, the respondents themselves have filed the patta granted in favour of the appellants-defendants. It is pertinent to note that Vishwanath had given an application for inspection of the area (patta) in respect of land numbers 41, 131, 162, 163 and 164 situated in Village Bairath. The Collector called for the report from the Revenue Inspector and as per the Report of the Revenue Inspector (Ex. P-3), though the names of Ram Sahai and Rameshwar are found recorded as owners of the said lands, patta illaqa of the above land numbers was found registered in the name of Gaya Din. The report of the Revenue Inspector refers to the entry in respect of patta granted vide order No.146/1960 dated 21.11.1960 issued by the Tahsildar. It also refers to entry in khasra made by the concerned Patwari on 10.01.1961 which is in possession of Hanuman Din-predecessor of the appellants. Ex. P-3-Report of Revenue Inspector states that the patta-Ex. D-20 was granted in favour of Gaya Din.The entries which are consistently in favour of the appellants ought not to have been ignored in preference to the entries in favour of the respondents only for two years i.e. 1955- 56 and 1956-57. Moreover, in the light of the findings by the revenue authorities on several occasions, the said entries in the name of the respondents cannot be said to be genuine. The first Appellate Court and the High Court were not right in brushing aside Ex. P-21 (Ex.D-20) patta granted in the name of the appellants and other crucial documents like report of the Revenue Inspector (Ex. P-3) which notes that patta illaqa is in the name of Gaya Din and the several entries in the revenue records are in the name of the appellants. In the absence of the contra evidence adduced by the respondents-plaintiffs, the trial court rightly held that the appellants have been in continuous possession of the suit properties and that the respondents have failed to prove their right over the suit properties prior to filing of thethe above order of the Commissioner and the report of the other revenue authorities, it is clear that the plaintiffs-respondents have made interpolation in the revenue entries in connivance with Patwari and got the revenue entries recorded in their names. The High Court and the first Appellate Court erred in not considering Ex.D-1-order of the Commissioner in its proper perspective.The learned senior counsel appearing for the plaintiffs- respondents raised strong objections contending that the said order of the Tahsildar dated 28.07.1971 in Civil Suit No.26A74/70- 71 cannot be received as additional evidence and cannot be looked into as the said documents were not produced before the trial court nor were there reference to those documents in the written statement. We find no merit in the contention that the order of the Tahsildar dated 28.07.1971 cannot be looked into on the ground that they were not adduced as evidence before the trial court. Order of the Commissioner, Rewa in Case No.52A 61/71-73 marked as Ex. D-1 dated 17.07.1973 makes a clear reference to the order of the Tahsildar dated 28.07.1971. Since in Ex.D-1 (17.07.1973), there is reference to the order of the Tahsildar dated 28.07.1971, the same is received as additional evidence. The order of the Tahsildar dated 28.07.1971 has a direct bearing on the main issue in the suit and in the interest of justice, the same has to be received as additional evidence. Since Ex. D-1 makes a reference to the order of the Tahsildar, in our view, there is no impediment in receiving the order of the Tahsildar dated 28.07.1971 as additional documents and considering the same. Since the order of the Tahsildar has been referred to in the order of the Commissioner dated 17.07.1973 (Ex.D-1), in our view, it will not have the effect of introducing new case necessitating remittance of the matter. So far as the other two additional documents namely, order of the Naib Tahsildar dated 01.09.1962 – order passed in the suit filed under Section 250 of the M.P. Land Revenue Code and the order of the District Collector dated 21.11.1972, they are not received as additional evidence.The order of the Commissioner dated 17.07.1973 makes a reference to the order of the Tahsildar dated 28.07.1971 which in turn refers to the suit filed by the predecessors of the plaintiffs- respondents under Section 250 of the MP Code in which plaintiffs-respondents were unsuccessful in challenging the lease in favour of Gaya Din/Hanuman Din. This document was not produced before the Courts below and now only produced as additional evidence. As discussed earlier, we are not inclined to receive this document as additional evidence. In our considered view, the first Appellate Court and the High Court fell in error in not taking into consideration the categorical findings recorded in the order of the Commissioner (Ex. D-1) that the plaintiffs- respondents got the entries in the revenue records in connivance with the Patwari and that the Patwari was guilty of grave misconduct.The finding of the first appellate court that the patta was granted to Gaya Din in 1954 and that illaqedar was not competent to issue patta is misconceived. As discussed earlier, patta was granted to Gaya Din not in 1954 but in Samvat 1986 (1929 A.D.) when admittedly the illaqedar had such power. That apart, the validity of patta so granted cannot be determined based on the inference drawn as to the age of DW-1-Hanuman Din. The learned senior counsel appearing for the appellants has drawn our attention to the provisions of Vindhya Pradesh Act and submitted that as per Section 5 of the said Act, the State Government by a notification appointed a date for the resumption of any class of Jagir Lands and the consequences of such resumption are set out in Section 6 of the said Act. We find substance in the submission of the learned senior counsel for the appellants that in terms of Section 28 of the said Act, the appellants who were till then the tenants of intermediary/Jagirdar shall be deemed to be pattedar tenant in respect of the said lands.view of the provisions of the above Act, the first appellate court erred in saying that the patta in favour of Gaya Din was granted in the year 1954 and by that time, Pawaidar/iIlaqedar was not having jurisdiction to issue patta.Re: Finding of the first appellate court: Ownership of the respondents not terminated in a legal way:- The first appellate court held that the ownership of Rameshwar and Ram Sahai was not terminated in a legal way and therefore, they are to be treated as owners of the suit properties. The first Appellate Court further held that since the ownership of Rameshwar and Ram Sahai was not terminated in a legal way, the lease deed- Ex.D-20 which has been produced on behalf of defendant No.1 cannot be treated to be a proved document and on those findings, set aside the finding of the trial court that defendant No.1 is having a legal right of ownership of the disputed lands. The first Appellate Court, in our view, was not right in doubting the correctness of Ex. D-20 and not right in observing that defendant No.1 is not having a legal right of ownership on the disputed lands. The first appellate court and the High Court fell in error in not taking into consideration Ex.D-1-order of the Commissioner dated 17.07.1973 and the order of the Tahsildar dated 28.07.1971 and other documents showing grant of lease/patta in the name of Gaya Din and the continued possession of Gaya Din and his son- Hanuman Din and the appellants. The first Appellate Court and the High Court erred in brushing aside the findings recorded by the Commissioner dated 17.07.1973 as to the misconduct of the patwari in making entries in the revenue records.In the suit for declaration for title and possession, the plaintiffs-respondents could succeed only on the strength of their own title and not on the weakness of the case of the defendants- appellants. The burden is on the plaintiffs-respondents to establish their title to the suit properties to show that they are entitled for a decree for declaration. The plaintiffs-respondents have neither produced the title document i.e. patta-lease which the plaintiffs-respondents are relying upon nor proved their right by adducing any other evidence. As noted above, the revenue entries relied on by them are also held to be not genuine. In any event, revenue entries for few Khataunis are not proof of title; but are mere statements for revenue purpose. They cannot confer any right or title on the party relying on them for proving their title. Observing that in a suit for declaration of title, the plaintiffs- respondents are to succeed only on the strength of their own title irrespective of whether the defendants-appellants have proved their case or not, in Union of India and others v. Vasavi Co- operative Housing Society Limited and others (2014) 2 SCC 269  , it was held asIt is trite law that, in a suit for declaration of title, the burden always lies on the plaintiff to make out and establish a clear case for granting such a declaration and the weakness, if any, of the case set up by the defendants would not be a ground to grant relief to the plaintiff.Upon appreciation of evidence, the trial court has recorded findings on various issues which was reversed by the first Appellate Court. Since the first Appellate Court reversed the judgment of the trial court, in the second appeal, the High Court ought to have weighed and considered the evidence and materials. The order of the High Court dismissing the appellant?s appeal by affirming the findings of the first Appellate Court is mainly on the ground that in the absence of any order of abandonment or revocation of the patta granted to the respondents-plaintiffs, grant of patta (Ex.D-20) in favour of the appellants-defendants was illegal. The High Court, in our view, did not appreciate the patta (Ex.D-20) granted in favour of the forefathers of the appellants by the competent authority in 1929 and the report of the Revenue Inspector dated 05.10.1969. The first Appellate Court and the High Court did not consider Ex.D-1- Order of the Commissioner dated 17.07.1973 and the report of the SDO dated 21.10.1969 and other revenue records showing that the forefather of the appellants-defendants namely Gaya Din was given the patta (Ex.D-20) and since then, Gaya Din and Hanuman Din were in possession of the properties. The High Court has not properly appreciated the evidence and materials on record and the impugned judgment is liable to be set aside.