FAROOQI BEGUM (D) BY LRS. versus THE STATE OF UTTAR PRADESH on 12 July 2022

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 declarationand possession – On facts, the State of UP-respondent, throughCollector, filed suit for declaration, possession and damages withrespect to land that it was a government grove and presentlybelonging to the U.P. State Garden Department – Said grove wasrent free grant of the defendant-appellant by the ruler of erstwhileRampur State and was later resumed by the successor in 1930 andthereafter, came in the hands of the State of U.P. however, theappellant managed to get her name continued in the revenue recordthough her possession was removed – Plea of the appellant thatthey were throughout in possession and, as such, had perfected herright, title and interest on the coming of the 1952 Act; and that in aprevious proceeding State acquiesced to the defendant’s title – Trialcourt decreed the suit in favour of the respondent – Also, in the firstappeal and second appeal, the order of the trial court upheld – Onappeal, held: Neither any order resuming the earlier grant nor anyorder of the revenue court to show that the said resumption of landhad been incorporated in the revenue records was filed – Onlyevidence led by the respondent was filing of a true copy of MuafiatRegister and the statement of PW-2, clerk working in the revenuedepartment, which is not free from suspicion and cannot be reliedupon – There was no evidence to prove the resumption of the grant– Furthermore, respondent led no evidence to establish possessionsince 1930 after the resumption – Courts below have proceeded onassumptions and presumptions to hold in favour of the State –Appellants had filed not only documentary evidence to prove theircontinuous possession but also oral evidence, which was ignored –Thus, the High Court erred in not taking into consideration therelevant 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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[2022] 13 S.C.R.

Amatter is remitted to High Court – U.P. Zamindari Abolition & LandReforms Act, 1952.

Allowing the appeal, the Court

HELD 1.1 The suit of the respondent instituted for the reliefof declaration, possession and mesne profits was based on theBaverments that the grant given by Nawab Hamid Ali Khan in 1924in favour of the appellant, had been resumed by his successor,Nawab Raza Ali Khan in the year 1930, thereafter, the respondenthad entered into possession, the records were corrected,however, the appellant on account of some omission in theCmaintenance of the records, re- entered into possessionsometimes in 1959 and, therefore, they were compelled to file asuit. It is also stated that the respondent made an attempt to getthe records corrected through the revenue court by way of anapplication for correction of revenue records, but the same wasrejected by the Deputy Collector in 1953. [Para 13][234-H; 235-DA-B]

1.2 The first thing required to be proved by the plaintiff/-respondent was that there was resumption of the grant given infavour of the appellant. For the said purpose, neither any suchorder resuming the earlier grant was filed, nor any order of theErevenue court was filed to show that the said resumption of granthad been incorporated in the revenue records. The defense takenwas that all the records had been destroyed in a fire in 1947. Theonly evidence led by the plaintiff- respondent was filing of a truecopy of Muafiat Register and the statement of PW-2, who wasFsaid to be working as a Clerk in the Revenue Department. [Para14][235-C-D]

1.3 According to counsel for the appellant, two basicobjections were taken for not relying upon the Muafiat Register.Firstly, it had torn binding and had loose pages. Secondly, theGentire register was written in blue-black ink and it is only theentry relating to the land in question regarding resumption waswritten in black ink. These two aspects casted a doubt on theveracity of the entries in the register and in particular the entryrelating to the resumption. The document was, thus, a documentnot free from suspicion and as such, no reliance could be placedHupon it. [Para 15][235-E-F]

1.4 Apart from the above, no other evidence was led by theplaintiff/-respondent to prove the resumption. PW-2 in hiscross-examination, had no explanation for the loose pages, theindex i.e. the first page and the last page being missing with nodetail of the number of pages in the said register. Further, therewas no explanation for the difference in the ink and that too onlyon the page by which, the entry relating to resumption with respectto the land in dispute was made. The courts below relied uponthe entries in the Muafiat Register only for the reason that it wasa document produced by the State and the State would have noreason to make any kind of interpolation. There was no othersupporting document with regard to presumption of the land inquestion. [Para 16][235-F-H]

1.5 Referring to the above documents and statements,counsel for the appellants submitted that grave injustice has beendone to the appellant by the courts below in holding that therewas a resumption, in the absence of any credible, reliable evidenceto that effect. Prima facie, there is substance in submission of theappellants that apparently there was no evidence to prove theresumption of the grant. [Para 17, 18][236-A-B]

1.6 The finding recorded by a Class-I Officer of the Statecould not be easily ignored. It is true that correction of recordproceedings is summary in nature, but when the inspection wascarried out, such finding recorded in the order regardingpossession ought not to have been ignored. [Para 21][236-F]

1.7 Plaintiff/respondent’s led no evidence to establish thatit was throughout in possession since 1930 after the resumption.The courts below have proceeded on assumptions andpresumptions to hold in favour of the State on the question ofpossession and to decree the suit. [Para 22][236-G-H]

1.8 The defendant/appellants had filed not only documentaryevidence to prove their continuous possession but also oralevidence, which has been ignored. [Para 23][237-A]

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A1.9 Appellants submitted that courts below have placedreliance upon a letter of the defendant-appellant dated 19.07.1954to draw presumption that the defendant-appellant was not inpossession in 1954 and it is for this reason that she had appliedfor seeking to be put back into possession. The contents of thesaid letter have been perused. According to it, there is someBland of Government and after merger the Government GardenDepartment, Rampur has taken possession over her grove andthe request made was to direct the Government GardenDepartment, Rampur to remove their possession from her gardenso that she may have full possession of her share. This clearlyCmeans that there was issue of some part of the land granted tothe defendant-appellants being in possession of the GardenDepartment, Rampur. [Para 24][237-B-D]

1.10 This letter has been heavily relied upon by the courtsbelow to record the finding of possession in favour of the plaintiff/Drespondent. The signatures on the said letter were denied bythe defendant-/appellant, but the same was sought to be provedthrough a nephew of step- sister instead of getting the sameverified by a hand-writing expert. [Para 25][237-D-E]

1.11 The High Court fell in error in not taking intoEconsideration the relevant material and instead relying uponinadmissible evidence or evidence which had no bearing to thefindings. Even the burden had been wrongly placed on thedefendant/appellant. Further, the High Court ought to havecarefully scrutinized the evidence available on record and onlythereafter arrived at a conclusion. The judgment of the High CourtFimpugned in the appeal is set aside. The matter is remitted backto the High Court. [Para 29, 31][238-D-F]CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1534of 2009.

GFrom the Judgment and Order dated 21.07.2006 of the High Courtof Judicature at Allahabad in Second Appeal No.813 of 1975.

Ms. Nitya Ramakrishnan, Sr. Adv., Rahul Kripalani, Ms. RashmiNandakumar, 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 Orderdated 21.07.2006 passed by the Single Judge, Allahabad High Court inSecond Appeal No. 813 of 1975 between Farooqi Begum vs. State ofUttar Pradesh, whereby the Second Appeal was dismissed giving rise tothe present appeal.

FACTS

2. The State of U.P. through Collector, Rampur, instituted a suitfor declaration, possession and damages before the Court of DistrictJudge, 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 bighas10 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 freegrant of the defendant long before the merger of Rampur State and likeother Muafis; it was granted by His Highness Nawab Hamid Ali Khanto his different wives and was liable to resumption at the pleasure of theruler of erstwhile Rampur State; after the death of Nawab Hamid AliKhan in 1930, his successor Nawab Raza Ali Khan resumed all theMuafis of all the widows of his father including that of the defendant;the possession of the same was taken over by the State Authorities soonafter the resumption; the same was given effect to in the revenue papersand the grove concerned came to be recorded in the name of the State(Shamil Khalasa); the defendant and her Karpoons through collusionof the revenue officers managed to get her name continued in thePatwari’s record even though her possession had been removed; thegrove in question along with similarly resumed grove came into the handsof the State of U.P. at the time of merger; ever since the State has beenselling its Bahar; the defendant on the basis of continuance of her name,though illegally, continued to interfere in the possession of the State evenin 1959 claiming the grove in question in her ownership; the State ofU.P. took legal steps to get the revenue records corrected by expungingthe name of the defendant and for incorporating the name of the State A

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Abut the revenue court declined such request of the State as such thenecessity to file the suit arose.

4. Smt. Farooqi Begum, the sole defendant, filed the writtenstatement denying the plaint allegations except that the proceedings beforethe revenue courts culminated in her favour; it was further alleged thatBthe defendant had been in continuous possession since 1924; the propertyin suit was the holding of the defendant on the commencement of U.P.Zamindari Abolition and Land Reforms Act, 1952 and as such on thecommencement of the Act, the defendant became the ‘Bhumidhar’thereof; that in proceedings for ejectment against one Laddan Khaninitiated by the defendant, the State being a party had acquiesced to theCdefendant’s title as such the suit was barred by estoppel; further that theBagh Hazoor Pasand was in possession of defendant and was herown property and adjoining grove measuring 13 bighas 2 biswas was thegrove of the plaintiff State and was in its possession; both these grovesare separated by a Nala (a drain); the plaintiff had filed a suit on aDwrong advice that the grove in question was resumed; other formal pleasof defence were also taken in the written statement.

5. The Trial Court proceeded to frame issues on the basis ofpleadings and allowed the parties to lead their evidence. The defendantfiled an application under Order VI Rule 17 of the Code of Civil Procedure,E1908[1] for amendment in the written statement on 01.11.1965. The TrialCourt vide judgment dated 13.11.1966 decreed the suit and at the sametime rejected the amendment application on the ground that it had beenfiled at a very belated stage after the arguments had been heard. Againstthe said judgment dated 13.11.1966, the defendant preferred an appealwhich was originally filed before the High Court and registered as FirstFAppeal No.61 of 1967 but later on transferred to the Court of DistrictJudge, Rampur, after the U.P. Civil Laws Amendment Act, 1970.

6. In the Court of District Judge, Rampur, it was registered asCivil Appeal No. 50 of 1970, Smt. Farooqi Begum vs. State of U.P. TheDistrict Judge, Rampur, vide judgment and order dated 08.09.1971 allowedGthe amendment dated 01.11.1965, set aside the judgment of the TrialCourt dated 13.11.1966 and remanded the matter to the Trial Court for afresh decision after necessary reframing of issues and opportunity tothe parties to adduce evidence.

7. After remand, the Trial Court in addition to the already framedten issues, further framed four more issues and allowed the parties tolead evidence. The Trial court vide judgment and order dated 01.05.1973again decreed the suit.

8. The First Appeal filed by the defendant registered as CivilAppeal No.73 was dismissed by IInd Additional District Judge, Rampur,vide judgment dated 06.03.1975. Aggrieved by the same, the defendantpreferred the Second Appeal before the High Court registered as SecondAppeal No. 813 of 1975. The learned single Judge of the AllahabadHigh Court vide judgment and order dated 21.07.2006 dismissed theSecond Appeal which has given rise to the filing of the present appeal.

9. We have heard Ms. Nitya Ramakrishnan, learned senior counselfor the appellants and Mr. Tanmaya Agarwal, learned counsel for theState. We have been taken through the material on record by the learnedcounsel for the parties.

Arguments of the appellant:

10. The following submissions have been advanced on behalf ofthe appellant stating that the courts below committed the following seriouserrors of law.

i.The burden of proof was wrongly shifted on the defendant-appellant.

ii.Inadmissible evidence was relied upon to record finding infavour 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 ofmanipulation and interpolation, which was illegally ignored.

v.Documents were prepared in the name of the defendant-appellant, which were specifically denied, but the same wasillegally relied upon.

vi.The core issue as to whether an unconditional gift by ahusband in favour of his wife during the subsistence of themarriage was irrevocable, has not been looked into, therebyresulting into grave error of justice.

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Avii.The plaintiff-respondent had completely failed to prove theircase as there was no evidence to support their claim butstill the suit was decreed.

viii.Relevant and admissible evidence was illegally ignored.

ix.The pleadings of the plaintiff-respondent were vague andBnot specific, nor was duly established by evidence despitethe same, the suit was decreed.

x.The defendant-appellant was throughout in possession and,as such, had perfected her right, title and interest on thecoming of the U.P. Zamindari Abolition & Land ReformsCAct, 1951, which aspect has not been considered.

11. On all the above submissions, learned counsel for the appellantshas referred in detail to the evidence and the relevant material, whichwe will refer to at a later stage.

D12. On the other hand, learned counsel for the plaintiff-respondentmade the following submissions:

i.All the three courts below have recorded concurrent findingsof fact and, as such, do not call for any interference.

ii.Once the plaintiff and defendant both have equal opportunityEto lead evidence, the argument regarding shifting of burdenof proof would lose its significance.

iii.The plaintiff-respondent had led cogent, reliable andadmissible evidence to establish his case.

iv.The courts below have taken into consideration all theFmaterial placed before it and after due appreciation of thesame, in accordance with law, the findings have beenrecorded.

v.All the three courts have dealt with all the specific issuesframed and have recorded their findings after dueGconsideration 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 grantgiven by Nawab Hamid Ali Khan in 1924 in favour of the appellant, hadH

been resumed by his successor, Nawab Raza Ali Khan in the year 1930,thereafter, the respondent had entered into possession, the records werecorrected, however, the appellant on account of some omission in themaintenance of the records, re-entered into possession sometimes in1959 and, therefore, they were compelled to file a suit. It is also statedthat the respondent made an attempt to get the records corrected throughthe revenue court by way of an application for correction of revenuerecords, but the same was rejected by the Deputy Collector in 1953.

14. On the above pleadings, the first thing required to be provedby the plaintiff-respondent was that there was resumption of the grantgiven in favour of the appellant. For the said purpose, neither any suchorder resuming the earlier grant was filed, nor any order of the revenuecourt was filed to show that the said resumption of grant had beenincorporated in the revenue records. The defense taken was that all therecords had been destroyed in a fire in 1947. The only evidence led bythe plaintiff-respondent was filing of a true copy of Muafiat Registerand the statement of PW-2 (Roop Kishore), who was said to be workingas a Clerk in the Revenue Department.

15. We have examined the statement of PW-2. According tolearned counsel for the appellant, two basic objections were taken fornot relying upon the Muafiat Register. Firstly, it had torn binding and hadloose pages. Secondly, the entire register was written in blue-black inkand it is only the entry relating to the land in question regarding resumptionwas written in black ink. These two aspects casted a doubt on the veracityof the entries in the register and in particular the entry relating to theresumption. The document was, thus, a document not free from suspicionand 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, hadno explanation for the loose pages, the index i.e. the first page and thelast page being missing with no detail of the number of pages in the saidregister. Further, there was no explanation for the difference in the inkand that too only on the page by which, the entry relating to resumptionwith respect to the land in dispute was made. The courts below reliedupon the entries in the Muafiat Register only for the reason that it was adocument produced by the State and the State would have no reason tomake any kind of interpolation. There was no other supporting documentwith regard to presumption of the land in question.

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A17. Referring to the above documents and statements, counselfor the appellants submitted that grave injustice has been done to theappellant by the courts below in holding that there was a resumption, inthe absence of any credible, reliable evidence to that effect.

18. Prima facie, we find substance in submission of the learnedBcounsel for the appellants that apparently there was no evidence to provethe resumption of the grant.

19. Insofar as the issue of possession is concerned, learned counselfor the appellant submitted that it was the specific case of the defendant-appellants that they had continued in possession right from 1924 i.e. theCtime when the grant was given. It is also submitted that throughout in therevenue records, the possession of the defendant-appellant is recorded.It was also submitted that 20 bighas and odd piece of land given underthe grant was separated by a Nala(drain) with a separate piece of landmeasuring 13 bighas and odd, which was in the possession of StateDepartment of Government Garden and it was this smaller piece ofDland, which was being let out by the State of U.P., Garden Departmentby selling usufruct thereof.

20. It was next submitted that Deputy Collector in the proceedingsfor correction of records initiated by the plaintiff-respondent, had madea spot inspection not once but a couple of times. In its order datedE03.01.1961, while rejecting the application of the State for deleting thename of the defendant-appellant and recording the name of the plaintiff-respondent, had categorically recorded that the defendant-appellant wasin occupation and in possession of the land in question.

21. It may be noted that the finding recorded by a Class-I OfficerFof the State could not be easily ignored. It is true that correction ofrecord proceedings is summary in nature, but when the inspection wascarried out, such finding recorded in the order regarding possession oughtnot to have been ignored.

22. It is thus apparent that plaintiff-respondent led no evidence toGestablish that it was throughout in possession since 1930 after theresumption. The courts below have proceeded on assumptions andpresumptions to hold in favour of the State on the question of possessionand to decree the suit.

23. On the other hand, we find that that the defendant-appellantshad filed not only documentary evidence to prove their continuouspossession but also oral evidence, which has been ignored.

24. It was further submitted on behalf of the appellants that courtsbelow have placed reliance upon a letter of the defendant-appellant dated19.07.1954 to draw presumption that the defendant-appellant was not inpossession in 1954 and it is for this reason that she had applied for seekingto be put back into possession. The contents of the said letter have beenperused. According to it, there is some land of Government and aftermerger the Government Garden Department, Rampur has takenpossession over her grove and the request made was to direct theGovernment Garden Department, Rampur to remove their possessionfrom her garden so that she may have full possession of her share. Thisclearly means that there was issue of some part of the land granted tothe defendant-appellants being in possession of the Garden Department,Rampur.

25. This letter has been heavily relied upon by the courts below torecord 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-sisterinstead of getting the same verified by a hand-writing expert.

26. P.W.-3, Shakir Ali Khan, who claims to be a Clerk posted asClerk in the Garden Department Office, in his examination-in-chief hasstated that he recognizes the signature of the defendant-appellant as hiswife 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 hadnever 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 thesignature of the defendant also appears to be far-fetchedand doubtful. We may also note here that even if the saidletter contain the signature of the defendant, it’s contentcannot be read to mean that the defendant was expecting A

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complete loss of possession over her entire piece of landbut it was only with respect to part of the land where theGovernment Garden Department had apparentlyencroached upon while demarcating.

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27. Learned counsel for the plaintiff-respondent has sought toBjustify the findings recorded by the courts below referring to the variousparts of the judgments and also taking us through the evidence on record.

28. Learned Counsel for the defendant-appellant has vehementlyargued that the gift by a muslim husband to his wife during marriage willbe irrevocable. She has placed reliance upon a few judgements in supportCof the said submission. We are not inclined to enter into that question asprima facie, we are of the view that the matter requires reconsiderationby the High Court and such an issue could be raised at that stage.

29. We have given our anxious consideration to the argumentsadvanced and are of the view that the High Court fell in error in notDtaking into consideration the relevant material and instead relying uponinadmissible 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 evidenceavailable on record and only thereafter arrived at a conclusion.

E30. 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 setaside. The matter is remitted back to the High Court.

32. The Second Appeal be restored to its original number andFmay be heard and disposed of afresh in the light of the observationsmade above.

33. Learned counsel for the parties would be at liberty to raise allthe points before the High Court. They undertake to extend all co-operationin the hearing of the appeal before the High Court. We also request theGHigh Court to decide the appeal as expeditiously as possible.

Nidhi Jain(Assisted by : Shashwat Jain, LCRA)

Appeal allowed.

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