FAROOQI BEGUM (D) BY LRS. versus THE STATE OF UTTAR PRADESH
[2022] 13 S.C.R. 227, Supreme Court of India, 2022
Outcome: Appeal(s) allowed (Granted)
Segment: Facts
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FAROOQI BEGUM (D) BY LRS.
v.
THE STATE OF UTTAR PRADESH
(Civil Appeal No. 1534 of 2009)
JULY 12, 2022.
[S. ABDUL NAZEER AND VIKRAM NATH, JJ.]
Government grants: Resumption of land – Suit for declaration
and possession – On facts, the State of UP-respondent, through
Collector, filed suit for declaration, possession and damages with
respect to land that it was a government grove and presently
belonging to the U.P. State Garden Department – Said grove was
rent free grant of the defendant-appellant by the ruler of erstwhile
Rampur State and was later resumed by the successor in 1930 and
thereafter, came in the hands of the State of U.P. however, the
appellant managed to get her name continued in the revenue record
though her possession was removed – Plea of the appellant that
they were throughout in possession and, as such, had perfected her
right, title and interest on the coming of the 1952 Act; and that in a
previous proceeding State acquiesced to the defendant’s title – Trial
court decreed the suit in favour of the respondent – Also, in the first
appeal and second appeal, the order of the trial court upheld – On
appeal, held: Neither any order resuming the earlier grant nor any
order of the revenue court to show that the said resumption of land
had been incorporated in the revenue records was filed – Only
evidence led by the respondent was filing of a true copy of Muafiat
Register and the statement of PW-2, clerk working in the revenue
department, which
is not free from suspicion and cannot be relied
upon – There was no evidence to prove the resumption of the grant
– Furthermore, respondent led no evidence to establish possession
since 1930 after the resumption – Courts below have proceeded on
assumptions and presumptions to hold in favour of the State –
Appellants had filed not only documentary evidence to prove their
continuous possession but also oral evidence, which was ignored –
Thus, the High Court erred in not taking into consideration the
relevant material and instead relied upon inadmissible evidences –
Even the burden of proof has been wrongly placed on the appellant
– Thus, the order passed by the High Court is set aside and the
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matter is remitted to High Court – U.P. Zamindari Abolition & Land
Reforms Act, 1952.
Allowing the appeal, the Court
HELD 1.1 The suit of the respondent instituted for the relief
of declaration, possession and mesne profits was based on the
averments that the grant given by Nawab Hamid Ali Khan in 1924
in favour of the appellant, had been resumed by his successor,
Nawab Raza Ali Khan in the year 1930, thereafter, the respondent
had entered into possession, the records were corrected,
however, the appellant on account of some omission in the
maintenance of the records, re- entered into possession
sometimes in 1959 and, therefore, they were compelled to file a
suit. It is also stated that the respondent made an attempt to get
the records corrected through the revenue court by way of an
application for correction of revenue records, but the same was
rejected by the Deputy Collector in 1953. [Para 13][234-H; 235-
A-B]
1.2 The first thing required to be proved by the plaintiff/
-respondent was that there was resumption of the grant given in
favour of the appellant. For the said purpose, neither any such
order resuming the earlier grant was filed, nor any order of the
revenue court was filed to show that the said resumption of grant
had been incorporated in the revenue records. The defense taken
was that all the records had been destroyed in a fire in 1947. The
only evidence led by the plaintiff- respondent was filing of a
true
copy of Muafiat Register and the statement of PW-2, who was
said to be working as a Clerk in the Revenue Department. [Para
14][235-C-D]
1.3 According to counsel for the appellant, two basic
objections were taken for not relying upon the Muafiat Register.
Firstly, it had torn binding and had loose pages. Secondly, the
entire register was written in blue-black ink and it is only the
entry relating to the land in question regarding resumption was
written in black ink. These two aspects casted a doubt on the
veracity of the entries in the register and in particular the entry
relating to the resumption. The document was, thus, a document
not free from suspicion and as such, no reliance could be placed
upon it. [Para 15][235-E-F]
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1.4 Apart from the above, no other evidence was led by the
plaintiff/-respondent to prove the resumption. PW-2 in his
cross-examination, had no explanation for the loose pages, the
index i.e. the first page and the last page being missing with no
detail of the number of pages in the said register. Further, there
was no explanation for the difference in the ink and that too only
on the page by which, the entry relating to resumption with respect
to the land in dispute was made. The courts below relied upon
the entries in the Muafiat Register only for the reason that it was
a document produced by the State and the State would have no
reason to make any kind of interpolation. There was no other
supporting document with regard to presumption of the land in
question. [Para 16][235-F-H]
1.5 Referring to the above documents and statements,
counsel for the appellants submitted that grave injustice has been
done to the appellant by the courts below in holding that there
was a resumption, in the absence of any credible, reliable evidence
to that effect. Prima facie, there is substance in submission of the
appellants that apparently there was no evidence to prove the
resumption of the grant. [Para 17, 18][236-A-B]
1.6 The finding recorded by a Class-I Officer of the State
could not be easily ignored. It is true that correction of record
proceedings is summary in nature, but when the inspection was
carried out, such finding recorded in the order regarding
possession
ought not to have been ignored. [Para 21][236-F]
1.7 Plaintiff/respondent’s led no evidence to establish that
it was throughout in possession since 1930 after the resumption.
The courts below have proceeded on assumptions and
presumptions to hold in favour of the State on the question of
possession and to decree the suit. [Para 22][236-G-H]
1.8 The defendant/appellants had filed not only documentary
evidence to prove their continuous possession but also oral
evidence, which has been ignored. [Para 23][237-A]
FAROOQI BEGUM (D) BY LRS. v. THE STATE OF UTTAR
PRADESH
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1.9 Appellants submitted that courts below have placed
reliance upon a letter of the defendant-appellant dated 19.07.1954
to draw presumption that the defendant-appellant was not in
possession in 1954 and it is for this reason that she had applied
for seeking to be put back into possession. The contents of the
said letter have been perused. According to it, there is some
land of Government and after merger the Government Garden
Department, Rampur has taken possession over her grove and
the request made was to direct the Government Garden
Department, Rampur to remove their possession from her garden
so that she may have full possession of her share. This clearly
means that there was issue of some part of the land granted to
the defendant-appellants being in possession of the Garden
Department, Rampur. [Para 24][237-B-D]
1.10 This letter has been heavily relied upon by the courts
below to record the finding of possession in favour of the plaintiff/
respondent. The signatures on the said letter were denied by
the defendant-/appellant, but the same was sought to be proved
through a nephew of step- sister instead of getting the same
verified by a hand-writing expert. [Para 25][237-D-E]
1.11 The High Court fell in error in not taking into
consideration the relevant material and instead relying upon
inadmissible evidence or evidence which had no bearing to the
findings. Even the burden had been wrongly placed on the
defendant/appellant. Further, the High Court ought to have
carefully scrutinized the evidence available on record and only
thereafter arrived at a conclusion. The judgment of the High Court
impugned in the appeal is set aside. The matter is remitted back
to the High Court. [Para 29, 31][238-D-F]
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1534
of 2009.
From the Judgment and Order dated 21.07.2006 of the High Court
of Judicature at Allahabad in Second Appeal No.813 of 1975.
Ms. Nitya Ramakrishnan, Sr. Adv., Rahul Kripalani, Ms. Rashmi
Nandakumar, Vinoothna Vinjam, Advs. for the Appellants.
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Tanmaya Agarwal, Wrick Chatterjee, Advs. for the Respondent.
The Judgment of the Court was delivered by
VIKRAM NATH, J.
Appellant has assailed the correctness of Judgment and Order
dated 21.07.2006 passed by the Single Judge, Allahabad High Court in
Second Appeal No. 813 of 1975 between Farooqi Begum vs. State of
Uttar Pradesh, whereby the Second Appeal was dismissed giving rise to
the present appeal.
FACTS
2. The State of U.P. through Collector, Rampur, instituted a suit
for declaration, possession and damages before the Court of District
Judge, Rampur, registered as Original Suit No.1 of 1964, State of U.P.
vs. Smt. Farooqi Begum with respect to land in suit measuring 20 bighas
10 biswa (pukhta) situated in Village Thotar, Tehsil Sadar, District Rampur,
that it was a government grove (known as ‘Bagh Hazoor Pasand’)
and presently belonging to the U.P. State Garden Department, Rampur.
3. According to the plaint averments, the said grove was rent free
grant of the defendant long before the merger of Rampur State and like
other Muafis; it was granted by His Highness Nawab Hamid Ali Khan
to his different wives and was liable to resumption at the pleasure of the
ruler of erstwhile Rampur State; after the death of Nawab Hamid Ali
Khan in 1930, his successor Nawab Raza Ali Khan resumed all the
Muafis of all the widows of his father including that of the defendant;
the possession of the same was taken over by the State Authorities soon
after the resumption; the
same was given effect to in the revenue papers
and the grove concerned came to be recorded in the name of the State
(Shamil Khalasa); the defendant and her Karpoons through collusion
of the revenue officers managed to get her name continued in the
Patwari’s record even though her possession had been removed; the
grove in question along with similarly resumed grove came into the hands
of the State of U.P. at the time of merger; ever since the State has been
selling its Bahar; the defendant on the basis of continuance of her name,
though illegally, continued to interfere in the possession of the State even
in 1959 claiming the grove in question in her ownership; the State of
U.P. took legal steps to get the revenue records corrected by expunging
the name of the defendant and for incorporating the name of the State
FAROOQI BEGUM (D) BY LRS. v. THE STATE OF UTTAR
PRADESH
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but the revenue court declined such request of the State as such the
necessity to file the suit arose.
4. Smt. Farooqi Begum, the sole defendant, filed the written
statement denying the plaint allegations except that the proceedings before
the revenue courts culminated in her favour; it was further alleged that
the defendant had been in continuous possession since 1924; the property
in suit was the holding of the defendant on the commencement of U.P.
Zamindari Abolition and Land Reforms Act, 1952 and as such on the
commencement of the Act, the defendant became the ‘Bhumidhar’
thereof; that in proceedings for ejectment against one Laddan Khan
initiated by the defendant, the State being a party had acquiesced to the
defendant’s title as such the suit was barred by estoppel; further that the
Bagh Hazoor Pasand was in possession of defendant and was her
own property and adjoining grove measuring 13 bighas 2 biswas was the
grove of the plaintiff State and was in its possession; both these groves
are separated by a Nala (a drain); the plaintiff had filed a suit on a
wrong advice that the grove in question was resumed; other formal pleas
of defence were also taken in the written statement.
5. The Trial Court proceeded to frame issues on the basis of
pleadings and allowed the parties to lead their evidence. The defendant
filed an application under Order VI Rule 17 of the Code of Civil Procedure,
19081 for amendment in the
written statement on 01.11.1965. The Trial
Court vide judgment dated 13.11.1966 decreed the suit and at the same
time rejected the amendment application on the ground that it had been
filed at a very belated stage after the arguments had been heard. Against
the said judgment dated 13.11.1966, the defendant preferred an appeal
which was originally filed before the High Court and registered as First
Appeal No.61 of 1967 but later on transferred to the Court of District
Judge, Rampur, after the U.P. Civil Laws Amendment Act, 1970.
6. In the Court of District Judge, Rampur, it was registered as
Civil Appeal No. 50 of 1970, Smt. Farooqi Begum vs. State of U.P. The
District Judge, Rampur, vide judgment and order dated 08.09.1971 allowed
the amendment dated 01.11.1965, set aside the judgment of the Trial
Court dated 13.11.1966 and remanded the matter to the Trial Court for a
fresh decision after necessary reframing of issues and opportunity to
the parties to adduce evidence.
1 In short “CPC”
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7. After remand, the Trial Court in addition to the already framed
ten issues, further framed four more issues and allowed the parties to
lead evidence. The Trial court vide judgment and order dated 01.05.1973
again decreed the suit.
8. The First Appeal filed by the defendant registered as Civil
Appeal No.73 was dismissed by IInd Additional District Judge, Rampur,
vide judgment dated 06.03.1975. Aggrieved by the same, the defendant
preferred the Second Appeal before the High Court registered as Second
Appeal No. 813 of 1975. The learned single Judge of the Allahabad
High Court vide judgment and order dated 21.07.2006 dismissed the
Second Appeal which has given rise to the filing of the present appeal.
9. We have heard Ms. Nitya Ramakrishnan, learned senior counsel
for the appellants and Mr. Tanmaya Agarwal, learned counsel for the
State. We have been taken through the material on record by the learned
counsel for the parties.
Arguments of the appellant:
10. The following submissions have been advanced on behalf of
the appellant stating that the courts below committed the following serious
errors of law.
i.
The burden of proof was wrongly shifted on the defendant-
appellant.
ii.
Inadmissible evidence was relied upon to record finding in
favour of the plaintiff-respondent.
iii.
Secondary evidence was relied upon without the Record-
keeper being examined to prove the same.
iv.
Even the secondary evidence relied upon smelt of
manipulation and interpolation,
which was illegally ignored.
v.
Documents were prepared in the name of the defendant-
appellant, which were specifically denied, but the same was
illegally relied upon.
vi.
The core issue as to whether an unconditional gift by a
husband in favour of his wife during the subsistence of the
marriage was irrevocable, has not been looked into, thereby
resulting into grave error of justice.
FAROOQI BEGUM (D) BY LRS. v. THE STATE OF UTTAR
PRADESH [VIKRAM NATH, J.]
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vii.
The plaintiff-respondent had completely failed to prove their
case as there was no evidence to support their claim but
still the suit was decreed.
viii.
Relevant and admissible evidence was illegally ignored.
ix.
The pleadings of the plaintiff-respondent were vague and
not specific, nor was duly established by evidence despite
the same, the suit was decreed.
x.
The defendant-appellant was throughout in possession and,
as such, had perfected her right, title and interest on the
coming of the U.P. Zamindari Abolition & Land Reforms
Act, 1951, which aspect has not been considered.
11. On all the above submissions, learned counsel for the appellants
has referred in detail to the evidence and the relevant material, which
we will refer to at a later stage.
12. On the other hand, learned counsel for the plaintiff-respondent
made the following submissions:
i.
All the three courts below have recorded concurrent findings
of fact and, as such, do not call for any interference.
ii.
Once the plaintiff and defendant both have equal opportunity
to lead evidence, the argument regarding shifting of burden
of proof would lose its significance.
iii.
The plaintiff-respondent had led cogent, reliable and
admissible evidence to establish his case.
iv.
The courts below have taken into consideration all the
material placed before it and after due appreciation of the
same, in accordance with law, the findings have been
recorded.
v.
All
the three courts have dealt with all the specific issues
framed and have recorded their findings after due
consideration of the material placed by both the sides.
ANALYSIS:
13. The suit of the respondent instituted for the relief of declaration,
possession and mesne profits was based on the averments that the grant
given by Nawab Hamid Ali Khan in 1924 in favour of the appellant, had
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been resumed by his successor, Nawab Raza Ali Khan in the year 1930,
thereafter, the respondent had entered into possession, the records were
corrected, however, the appellant on account of some omission in the
maintenance of the records, re-entered into possession sometimes in
1959 and, therefore, they were compelled to file a suit. It is also stated
that the respondent made an attempt to get the records corrected through
the revenue court by way of an application for correction of revenue
records, but the same was rejected by the Deputy Collector in 1953.
14. On the above pleadings, the first thing required to be proved
by the plaintiff-respondent was that there was resumption of the grant
given in favour of the appellant. For the said purpose, neither any such
order resuming the earlier grant was filed, nor any order of the revenue
court was filed to show that the said resumption of grant had been
incorporated in the revenue records. The defense taken was that all the
records had been destroyed in a fire in 1947. The only evidence led by
the plaintiff-respondent was filing of a true copy of Muafiat Register
and the statement of PW-2 (Roop Kishore), who was said to be working
as a Clerk in the Revenue Department.
15. We have examined the statement of PW-2. According to
learned counsel for the appellant, two basic objections were taken for
not relying upon the Muafiat Register. Firstly, it had torn binding and had
loose pages. Secondly, the entire
register was written in blue-black ink
and it is only the entry relating to the land in question regarding resumption
was written in black ink. These two aspects casted a doubt on the veracity
of the entries in the register and in particular the entry relating to the
resumption. The document was, thus, a document not free from suspicion
and as such, no reliance could be placed upon it.
16. Apart from the above, no other evidence was led by the plaintiff-
respondent to prove the resumption. PW-2 in his cross-examination, had
no explanation for the loose pages, the index i.e. the first page and the
last page being missing with no detail of the number of pages in the said
register. Further, there was no explanation for the difference in the ink
and that too only on the page by which, the entry relating to resumption
with respect to the land in dispute was made. The courts below relied
upon the entries in the Muafiat Register only for the reason that it was a
document produced by the State and the State would have no reason to
make any kind of interpolation. There was no other supporting document
with regard to presumption of the land in question.
FAROOQI BEGUM (D) BY LRS. v. THE STATE OF UTTAR
PRADESH [VIKRAM NATH, J.]
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17. Referring to the above documents and statements, counsel
for the appellants submitted that grave injustice has been done to the
appellant by the courts below in holding that there was a resumption, in
the absence of any credible, reliable evidence to that effect.
18. Prima facie, we find substance in submission of the learned
counsel for the appellants that apparently there was no evidence to prove
the resumption of the grant.
19. Insofar as the issue of possession is concerned, learned counsel
for the appellant submitted that it was the specific case of the defendant-
appellants that they had continued in possession right from 1924 i.e. the
time when the grant was given. It is also submitted that throughout in the
revenue records, the possession of the defendant-appellant is recorded.
It was also submitted that 20 bighas and odd piece of land given under
the grant was separated by a Nala(drain) with a separate piece of land
measuring 13 bighas and odd, which was in the possession of State
Department of Government Garden and it was this smaller piece of
land, which was being let out by the State of U.P., Garden Department
by selling usufruct thereof.
20. It was next submitted that Deputy Collector in the proceedings
for correction of records initiated by the plaintiff-respondent, had made
a spot inspection not once but a couple of times. In its order dated
03.01.1961, while rejecting the application of the State
for deleting the
name of the defendant-appellant and recording the name of the plaintiff-
respondent, had categorically recorded that the defendant-appellant was
in occupation and in possession of the land in question.
21. It may be noted that the finding recorded by a Class-I Officer
of the State could not be easily ignored. It is true that correction of
record proceedings is summary in nature, but when the inspection was
carried out, such finding recorded in the order regarding possession ought
not to have been ignored.
22. It is thus apparent that plaintiff-respondent led no evidence to
establish that it was throughout in possession since 1930 after the
resumption. The courts below have proceeded on assumptions and
presumptions to hold in favour of the State on the question of possession
and to decree the suit.
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23. On the other hand, we find that that the defendant-appellants
had filed not only documentary evidence to prove their continuous
possession but also oral evidence, which has been ignored.
24. It was further submitted on behalf of the appellants that courts
below have placed reliance upon a letter of the defendant-appellant dated
19.07.1954 to draw presumption that the defendant-appellant was not in
possession in 1954 and it is for this reason that she had applied for seeking
to be put back into possession. The contents of the said letter have been
perused. According to it, there is some land of Government and after
merger the Government Garden Department, Rampur has taken
possession over her grove and the request made was to direct the
Government Garden Department, Rampur to remove their possession
from her garden so that she may have full possession of her share. This
clearly means that there was issue of some part of the land granted to
the defendant-appellants being in possession of the Garden Department,
Rampur.
25. This letter has been heavily relied upon by the courts below to
record the finding of possession in favour of the plaintiff-respondent.
The signatures on the said letter were denied by the defendant-appellant,
but the same was sought to be proved through a nephew of step-sister
instead of getting the same verified by a hand-writing expert.
26. P.W.-3, Shakir Ali Khan, who claims to be a Clerk posted as
Clerk in the Garden Department
Office, in his examination-in-chief has
stated that he recognizes the signature of the defendant-appellant as his
wife is the step-daughter of the sister of the defendant-appellant.
However, in his cross-examination, he states that:
i.
he does not know the name of the sister of Farooqui Begum,
the defendant-appellant, whose step-daughter was his wife;
he even does not know the name of her father; he had
never exchanged any letter with the defendant-appellant;
he had not seen defendant-appellant reading and writing;
he does not have any direct relationship with the defendant.
The credibility of the statement of PW-3 to prove the
signature of the defendant also appears to be far-fetched
and doubtful. We may also note here that even if the said
letter contain the signature of the defendant, it’s content
cannot be read to mean that the defendant was expecting
FAROOQI BEGUM (D) BY LRS. v. THE STATE OF UTTAR
PRADESH [VIKRAM NATH, J.]
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complete loss of possession over her entire piece of land
but it was only with respect to part of the land where the
Government Garden Department had apparently
encroached upon while demarcating.
27. Learned counsel for the plaintiff-respondent has sought to
justify the findings recorded by the courts below referring to the various
parts of the judgments and also taking us through the evidence on record.
28. Learned Counsel for the defendant-appellant has vehemently
argued that the gift by a muslim husband to his wife during marriage will
be irrevocable. She has placed reliance upon a few judgements in support
of the said submission. We are not inclined to enter into that question as
prima facie, we are of the view that the matter requires reconsideration
by the High Court and such an issue could be raised at that stage.
29. We have given our anxious consideration to the arguments
advanced and are of the view that the High Court fell in error in not
taking into consideration the relevant material and instead relying upon
inadmissible evidence or evidence which had no bearing to the findings.
Even the burden had been wrongly placed on the defendant-appellant.
Further, the High Court ought to have carefully scrutinized the evidence
available on record and only thereafter arrived at a conclusion.
30. In view of the above, the appeal deserves to be allowed. It is,
accordingly, allowed.
31. The judgment of the High Court
impugned in the appeal is set
aside. The matter is remitted back to the High Court.
32. The Second Appeal be restored to its original number and
may be heard and disposed of afresh in the light of the observations
made above.
33. Learned counsel for the parties would be at liberty to raise all
the points before the High Court. They undertake to extend all co-operation
in the hearing of the appeal before the High Court. We also request the
High Court to decide the appeal as expeditiously as possible.
Nidhi Jain
Appeal allowed.
(Assisted by : Shashwat Jain, LCRA)