JAGDISH PRASAD PATEL (DEAD) THR. LRS.& ANOTHER versus SHIVNATH & OTHERS on 9 April 2019

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SUPREME COURT REPORTS

[2019] 6 S.C.R.

AJAGDISH PRASAD PATEL (DEAD) THR. LRS.& ANOTHER

v.

SHIVNATH & OTHERS

(Civil Appeal No. 2176 of 2007)

B APRIL 09, 2019

[R. BANUMATHI AND R. SUBHASH REDDY, JJ.]

Suit:

Suit for declaration of title and possession – Filed byCrespondents-plaintiffs – Suit contested on the ground that the suitland was abandoned by respondent-plaintiff and lease was issuedto the predecessor-in-interest of the appellants-defendants – Trialcourt dismissed the suit holding that patta-lease (Ex.D-20) in respectof suit land was issued by the Illaquedar to the defendants and sincethen they were in possession of the same and also held that plaintiffsDgot the entries of their names in the revenue records in connivancewith the patwari – First appellate court doubting the correctness ofEx.D-20 decreed the suit – In second appeal High Court affirmedthe findings of first appellate court – Appeal to Supreme Court –Held: In a suit for title and possession, plaintiffs can succeed onlyEon the strength of their own title and not on the weakness of thecase of the defendants – The burden was on the plaintiffs-respondents to establish their title – They have failed to producetitle document or any other evidence to prove their title – The oraland documentary evidence clearly establish that patta-lease (Ex.D-20) was issued to predecessor-in-interest of the defendents and theyFwere in continuous possession of the suit land – Trial court hadrightly dismissed the suit.

Constitution of India:

Art.136 – Special Leave Petition – Scope of – ConcurrentGfinding of fact – Interference with – Held: Concurrent finding offact cannot be interfered with, unless warranted by compellingreasons – When the findings of courts below are perverse,interference with the findings of fact are warranted.

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Evidence Act, 1872:

s. 58 Proviso – Admitted facts – Whether need to be proved –Held: s. 58 postulates that things admitted need not be proved –However, proviso to s. 58 gives full discretion to the court to requirethe admitted facts to be proved.

s. 90 – Presumption – As to genuineness of a document –Held: Court ‘may presume’ that the document is genuine – Mereallegation of fraud would not be sufficient to rebut such presumption.

Code of Civil Procedure, 1908:

Or. XLI, r. 27 – Production of additional evidence – Whenpermissible – Discussed.

Deeds and Documents:

Revenue entries – Evidentiary value – Held: Revenue entriesfor few Khataunis are not proof of title, but are mere statements forrevenue purpose.

Allowing the appeal, the Court

HELD: 1. In an appeal under Article 136 of the Constitutionof India, the concurrent findings cannot be interfered with unlesswarranted by compelling reasons. When the finding of the firstappellate court and the High Court are shown to be perverse,this Court would certainly interfere with the findings of factrecorded by the High Court. [Para 10][530-E]

Mahesh Dattatray Thirthkar v. State of Maharashtra(2009) 11 SCC 141 : [2009] 3 SCR 1122 – relied on.

2. The suit of the respondents-plaintiffs was for declarationof their title to the suit lands and consequential delivery of thesuit lands. Having filed the suit for declaration of title, the plaintiffscould succeed in their suit only by adducing sufficient evidenceto establish their title. But the plaintiffs have not produced thepatta granted to their fathers. [Para 13][531-D]

3. In the written statement, defendant also admitted thatthe plaintiffs-respondents’ fathers were lessees and patta-lease A

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Awas originally granted in their favour during the settlement periodfor cultivation on the basis of Batai/crop-sharing. [Para 14][531-H; 532-A]

Nagindas Ramdas v. Dalpatram Iccharam alias Brijramand Others (1974) 1 SCC 242 : [1974] 2 SCR 544;BExecutive Officer, Arulmigu Chokkanatha Swamy KoilTrust, Virudhunagar v. Chandran and Others(2017) 3 SCC 702 : [2017] 5 SCR 473 – referred to.

4. Section 58 of the Evidence Act, no doubt, postulates thatthe things admitted need not be proved. However, proviso toCSection 58 of the Evidence Act gives full discretion to the courtto require the facts admitted to be proved otherwise than by suchadmission. When the respondents-plaintiffs have filed the suitfor declaration of their title, the respondents-plaintiffs cannotisolate few sentences in the written statement and take advantageof only those part of the written statement which are favourableDto them. The written statement filed by the appellants-defendantshas to be read in toto. In the written statement, the appellants-defedants averred that the lands were in the ownership of ‘R’ atthe time of the settlement, but because he was not in a positionto cultivate the same himself, the lands were given to the fatherEof the respondents-plaintiffs for cultivation on the basis of Batai/crop-sharing. It is further averred that the then Halkedarcancelled the lease in respect of disputed lands and the samewere auctioned in which the bid of the defendants’ father wasaccepted and the disputed lands were transferred in his name inthe sale in Samvat 1986 i.e. 1929 A.D. The admission of theFdefendants as to the lease of the plaintiffs’ father was the leaseearlier granted in favour of the forefathers of the plaintiffs-respondents. In the light of the pleadings and the oral anddocumentary evidence adduced by the defendants,notwithstanding the admission in the written statement, the-Gburden lies upon the respondents-plaintiffs to prove that the pattalease continues to be in their favour and that they are the holdersof patta and that they are in continued possession of the suitproperties. [Para 15][532-E-H; 533-A-B]5. From the statement of PW-1 and PW-2, it is evident thatHthe father of PW-1 had started living in Jabalpur forty years back prior to institution of the suit and settled there. In the light ofthe evidence adduced, the trial court rightly accepted the case ofthe defendants that in Samvat 1986 (1929 A.D.), in the auctionheld by Pawaidar for lease of suit lands and other lands, bid oftheir grandfather was accepted and the suit properties along withother lands were given on lease to him. If the lands were not leftso abandoned by the father of respondents-plaintiffs, it would nothave been possible for the Pawaidar to auction the lease of thesuit lands and grant lease of the lands in favour of grandfather ofdefendants. [Para 16][533-C]

6. Case of the appellants-defendants that in Samvat 1986(1929 A.D.), in the auction held by Pawaidar for lease of suitlands and other lands, the suit properties along with other landswere given on lease to their grandfather is strengthened byrevenue records and ample evidence. Ex. D-20 [Patta in favourof grandfather of defendants] being thirty year old document givesrise to presumption as to its genuineness. Contention of therespondents-plaintiffs is that Section 90 of the Evidence Act hasno application to Ex. D-20 and the presumption cannot be raisedas to the genuineness of the contents of the document. Section90 of the Evidence Act enables the court to draw presumptionabout the genuineness of the document which is thirty years old.Section 90 lays down that the court “may presume” that thedocument is genuine. Since the patta [Ex.D-20] is more thanthirty years old, Section 90 raises presumption as to theauthenticity of the document. Mere allegations of fraud wouldnot be sufficient to rebut the presumption raised under Section90 of the Evidence Act. [Para 17-19][533-F; 534-C-E]

7. Only the copies of khasra for the years 1955-56 (Ex. P-9) and 1956-57 (Ex. P-10) are in the name of respondents-plaintiffs; and in the previous khasras for the years 1950-51 to1954-55 (Ex. P-8) and subsequent khasras for 1960-61 (Ex. P-12), 1963-64 to 1965-66 (Ex. P-13), 1968-69 (Ex. P-14) and 1970-71 to 1975 (Ex. D-2), the entries are in the name of the father ofthe appellants-defendants. The lease was granted in favour ofgrand father of defendants and that he and father of defendantshad been continuously in possession of the properties is thusestablished by the revenue records. [Para 20][535-F-G]

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A8. The revenue records produced by the appellants forseveral years amply strengthen the case of the appellants thatpatta (Ex. D-20) was granted to them and that they are inpossession of the suit properties for several years. The oral anddocumentary evidence clearly establish that the father of therespondents-plaintiffs has abandoned the suit properties,Bpursuant to which, auction was held by the Pawaidar and leasewas issued by illaqedar in favour of grand father of appellant-defendent and that he was in continuous possession of the suitproperties. The respondents-plaintiffs have not produced anydocument to prove that Ex. D-20 is a forged one. In fact, theCrespondents themselves have filed the patta granted in favour ofthe appellants-defendants. [Paras 22 and 23][535-D-E; F-G]

9. The entries which were consistently in favour of theappellants ought not to have been ignored in preference to theentries in favour of the respondents only for two years i.e. 1955-D56 and 1956-57. Moreover, in the light of the findings by therevenue authorities on several occasions, the said entries in thename of the respondents cannot be said to be genuine. The firstAppellate Court and the High Court were not right in brushingaside Ex. P-21 (Ex.D-20) patta granted in the name of theappellants and other crucial documents like report of the RevenueEInspector (Ex. P-3) which notes that patta illaqa is in the name ofgrandfather of appellants and the several entries in the revenuerecords are in the name of the appellants. In the absence of thecontra evidence adduced by the respondents-plaintiffs, the trialcourt rightly held that the appellants have been in continuousFpossession of the suit properties and that the respondents havefailed to prove their right over the suit properties prior to filingof the suit. [Para 24][536-C-E]

10. From the order of the Commissioner dated 17.7.1973and the report of the other revenue authorities, it is clear thatGthe plaintiffs-respondents have made interpolation in the revenueentries in connivance with Patwari and got the revenue entriesrecorded in their names. The High Court and the first AppellateCourt erred in not considering Ex.D-1-order of the Commissionerin its proper perspective. [Para 26][538-B]

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11. Under Order XLI Rule 27 CPC, production of additionalevidence, whether oral or documentary, is permitted only underthree circumstances which are: (I) Where the trial Court hadrefused to admit the evidence though it ought to have beenadmitted; (II) the evidence was not available to the party despiteexercise of due diligence; and (III) the appellate Court requiredthe additional evidence so as to enable it to pronounce judgmentor for any other substantial cause of like nature. An applicationfor production of additional evidence cannot be allowed if theappellant was not diligent in producing the relevant documentsin the lower court. However, in the interest of justice and whensatisfactory reasons are given, court can receive additionaldocuments. [Para 28][539-C-E]

Union of India v. Ibrahim Uddin & Another, (2012) 8SCC 148 : [2012] 8 SCR 35 – relied on.

Karewwa and others v. Hussensab Khansaheb Wajantriand Others (2002) 10 SCC 315 ; Roop Chand v. GopiChand Thelia (1989) 2 SCC 383 : [1989] 2 SCR 184– referred to.

12. In the present case, the Court is inclined to receivethe order of Tahsildar dated 28.07.1971 as additional evidence.From the order of the Tahsildar dated 28.07.1971, it is seen thatthe applicant thereon (appellant) had filed an application beforethe Collector, stating that he was the land owner-cultivator of theland numbers 131, 151, 161, 162, 163, 41 and has been inpossession of the lands and that the non-applicants (respondents-plaintiffs) got their names recorded in revenue entries inconnivance with Patwari and prayed for rectification of the entries.A report was called from the SDO who held a detailed enquiryand submitted a report. Based upon such enquiry and report ofthe SDO dated 21.10.1969, the Tahsildar held that the entry inregard to possession of the non-applicants in respect of landnumbers 41, 131, 162, 163 was found to be made subsequently.[Para 30][540-G-H; 541-A-B]

13. It is wrong to say that the order of the Tahsildar dated28.07.1971 cannot be looked into on the ground that they were A

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524SUPREME COURT REPORTS

Anot adduced as evidence before the trial court. Order of theCommissioner, marked as Ex. D-1 makes a clear reference tothe 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 dated28.07.1971, the same is received as additional evidence. Theorder of the Tahsildar dated 28.07.1971 has a direct bearing onBthe main issue in the suit and in the interest of justice, the samehas to be received as additional evidence. Since Ex. D-1 makesa reference to the order of the Tahsildar, there is no impedimentin receiving the order of the Tahsildar dated 28.07.1971 asadditional documents and considering the same. [Para 31]C[541-H; 542-A-D]

14. Since the order of the Tahsildar has been referred to inthe order of the Commissioner dated 17.07.1973 (Ex.D-1), it willnot have the effect of introducing new case necessitatingremittance of the matter. So far as the other two additionalDdocuments 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 dated21.11.1972, they are not received as additional evidence.[Para 31][542-D-E]E15. The first Appellate Court and the High Court fell inerror in not taking into consideration the categorical findingsrecorded in the order of the Commissioner (Ex. D-1) that theplaintiffs-respondents got the entries in the revenue records inconnivance with the Patwari and that the Patwari was guilty ofgrave misconduct. [Para 32][542-G-H]F

16. The finding of the first appellate court that the pattawas granted to grandfather of appellant-defendants in 1954 andthat illaqedar was not competent to issue patta is misconceived.The Patta was granted not in 1954 but in Samvat 1986 (1929 A.D.)when admittedly the illaqedar had such power. That apart, theGvalidity of patta so granted cannot be determined based on theinference drawn as to the age of DW-1[father of defendant]. Asper Section 5 of the Vindhya Pradesh Act, the State Governmentby a notification appointed a date for the resumption of any classof Jagir Lands and the consequences of such resumption are setout in Section 6 of the said Act. In terms of Section 28 of the saidH

Act, the appellants who were till then the tenants of intermediary/Jagirdar shall be deemed to be pattedar tenant in respect of thesaid lands. In view of the provisions of the above Act, the firstappellate court erred in saying that the patta was granted in theyear 1954 and by that time, Pawaidar/iIlaqedar was not havingjurisdiction to issue patta. [Para 39][545-F-H; 546-A-D]

17. The first Appellate Court was not right in doubting thecorrectness of Ex. D-20 and not right in observing that defendantNo.1 is not having a legal right of ownership on the disputedlands. The first appellate court and the High Court fell in error innot taking into consideration Ex.D-1-order of the Commissionerdated 17.07.1973 and the order of the Tahsildar dated 28.07.1971and other documents showing grant of lease/patta in the name ofgrandfather of the appellants-defendants and their continuedpossession. The first Appellate Court and the High Court erredin brushing aside the findings recorded by the Commissionerdated 17.07.1973 as to the misconduct of the patwari in makingentries in the revenue records. [Para 40][546-F-H; 547-A]

18. In the suit for declaration for title and possession, theplaintiffs-respondents could succeed only on the strength of theirown title and not on the weakness of the case of the defendants-appellants. The burden is on the plaintiffs-respondents toestablish their title to the suit properties to show that they areentitled for a decree for declaration. The plaintiffs-respondentshave neither produced the title document i.e. patta-lease whichthe plaintiffs-respondents are relying upon nor proved their rightby adducing any other evidence. The revenue entries relied onby them are also held to be not genuine. In any event, revenueentries for few Khataunis are not proof of title; but are merestatements for revenue purpose. They cannot confer any rightor title on the party relying on them for proving their title.[Para 41][547-B-D]

Union of India and Others v. Vasavi Co-operativeHousing Society Limited and others (2014) 2 SCC269 : [2014] 1 SCR 180 – relied on.

19. Upon appreciation of evidence, the trial court hasrecorded findings on various issues which was reversed by the A

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Afirst Appellate Court. Since the first Appellate Court reversedthe judgment of the trial court, in the second appeal, the HighCourt ought to have weighed and considered the evidence andmaterials. The order of the High Court dismissing the appellant’sappeal by affirming the findings of the first Appellate Court ismainly on the ground that in the absence of any order ofBabandonment or revocation of the patta granted to therespondents-plaintiffs, grant of patta (Ex.D-20) in favour of theappellants-defendants was illegal. The High Court did notappreciate the patta (Ex.D-20) granted in favour of the forefathersof the appellants by the competent authority in 1929 and theCreport of the Revenue Inspector dated 05.10.1969. The firstAppellate Court and the High Court did not consider Ex.D-1-Order of the Commissioner dated 17.07.1973 and the report ofthe SDO dated 21.10.1969 and other revenue records showingthat the forefather of the appellants-defendants namely Gaya Din was given the patta (Ex.D-20) and since then, he and hisDdescendants were in possession of the properties. The HighCourt has not properly appreciated the evidence and materialson record and the impugned judgment is liable to be set aside.[Para 42][547-F-H; 548-A-B]

Case Law Reference

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From the Judgment and Order dated 05.02.2007 of the High Courtof Madhya Pradesh at Jabalpur in Second Appeal No. 174 of 1989

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Subodh Markandeya, Sr. Adv., Suresh C. Gupta, Birendra KumarMishra, Ms. Poonam Atey, Rahul Aggarwal, Amit Pratap Singh, Advs.for the Appellants.

A. K. Shrivastava, Sr. Adv., Akshat Shrivastava, Mrs. PoojaShrivastava, Ms. Manjeet Kirpal, Advs. for the Respondents.

The Judgment of the Court was delivered by

R. BANUMATHI, J.

This appeal arises out of the judgment dated 05.02.2007 passedby the High Court of Madhya Pradesh at Jabalpur dismissing the SecondAppeal No.174 of 1989 filed by the appellants, thereby affirming thedecision of the first Appellate Court in Civil Appeal No.29-A/85 holdingthat in the absence of any order of abandonment or revocation of thepatta given to the forefathers of the respondents-plaintiffs, grant of pattain favour of the appellants/defendants was illegal and that the appellants-defendants cannot claim any right over the suit properties.

2. Case of Respondents-plaintiffs is as under:- Respondents-Shiv Nath and deceased Vishwanath/predecessor in interest ofrespondents No.2 to 10 filed a suit for declaration of title over the suitlands 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 exceptkhasra No.164 against the father of the appellants-Hanuman Din. RamSahai and Rameshwar - fathers of the plaintiffs were the joint lessees ofthe 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 measuring21.45 acres and their names were included as ‘lessees’ of the abovelands during the settlement and they kept on cultivating the lands tillforty years back when a partition took place between the two and bothof them became owners of half part each. Hanuman Din never remainedin possession of any part of the lands nor he had any right or entitlementover the suit lands; but the grandfather of the appellants-Gaya Din got alease in disputed lands of the respondents which according to therespondents is a forged document. Based on the aforesaid lease, GayaDin got his name entered as khatedar in respect of the khataunis ofthe disputed lands.

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A3. Respondent-deceased Vishwanath-predecessor-in-interest ofrespondents No.2 to 10 filed an application before the Collector in August,1969 stating that the lease of the disputed lands was wrongly issued byillaqedar in the name of Gaya Din and the proceedings for cancellationof the records in the name of Gaya Din be initiated. The matter was sentto the Revenue Inspector for enquiry who submitted his report in favourBof respondents in respect of the ownership of the lands in dispute andthe Collector registered the report after approving it. In proceedingsbefore the Sub-Divisional Magistrate in Miscellaneous Case No.351/142/69 under Section 145 Cr.P.C. initiated by Hanuman Din, theSub-Divisional Magistrate found Hanuman Din in possession of lands inCkhasra Nos.162 and 163 and respondents were found in possession ofland in khasra No.164. Respondents-plaintiffs alleged that pursuant tothe order of the Sub-Divisional Magistrate, Hanuman Din forcibly tookpossession of land in khasra No.41 and therefore, the respondents filedsuit for declaration and permanent injunction.

D4. Hanuman Din resisted the suit contending that the respondentshave never remained in ownership or possession of the disputed landsand the lands belonged to one Ram Raj Singh but he was not cultivatingthe lands and gave it to the predecessors of the respondents for cultivationon the basis of Batai-crop sharing and only because of this, patta wasgranted at the time of settlement in their names. The appellants furtherEaverred that the father of the respondents abandoned the lands and sincerevenue tax was not being paid, the khata of the disputed lands wascancelled. Case of the appellants-defendants is that in the auction heldby Pawaidar for lease of suit lands and other lands, bid of Gaya Dinwas accepted and in this regard, a lease was issued in his name in SamvatF1986 (1929 A.D.). The appellants had been in continuous possession ofthe suit properties and the same is reflected in the khataunis and otherrevenue records.

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5. The trial court vide judgment dated 02.07.1985 dismissed therespondents’ suit by holding that Gaya Din has been holding patta-leaseG(Ex.D-20) in respect of the suit lands and has been in continuouspossession of the disputed lands since 1950 and thereafter, HanumanDin was in possession of the same. After referring to the orders of theCommissioner (Ex.D-1), the trial court held that the Commissionerrecorded a finding of fact that the respondents got the entries made in H

the revenue records in their names in connivance with the Patwari. Thetrial court held that the lease-patta (Ex.D-20) was issued by the theniIlaqedar to Gaya Din and that the said document being more thanthirty years old is a genuine one. After referring to various khasras andthe entries thereon in the name of appellant’s father, it was held that theappellants’ father Hanuman Din has been in possession of the suit landssince 1950 or prior to that. The trial court further held that the suit wasinstituted on 17.10.1975 which is beyond twelve years and that the suitis barred by time.

6. In appeal, the first Appellate Court vide its judgment dated03.04.1989 held that at the time of settlement, patta was granted in thename of father of the respondents and this has not been disputed by theappellants and the appellants could not establish abandonment of thelands by the father of the respondents and therefore, the respondentsought to be treated as owners of the suit properties. The first AppellateCourt further held that the lease Ex.D-20 produced by the appellantscannot be held to be a valid one and in absence of order of revocation ofthe patta granted to the respondents, it cannot be held that Ex.D-20confers right of ownership on the appellants over the disputed lands.The first Appellate Court held that merely because of production ofpatta-lease – Ex.D-20 by Hanuman Din, it cannot be said to have beenproved and therefore, it cannot be held that Hanuman Din has a legalright of ownership on the disputed lands. The first Appellate Court notedthat on the basis of Ex.D-1 – order of the Commissioner, possession ofthe suit properties by the appellants cannot be held to be proved, sincethe respondents or their ancestors were not parties to the said proceedings.On these findings, the first Appellate Court set aside the judgment of thetrial court and held that the respondents are the owners of the disputedlands and held that the respondents are entitled to get possession of thelands in khasra Nos. 41, 131, 162 and 163 from the father of theappellants.

7. In the second appeal, the High Court affirmed the findings ofthe first Appellate Court and held that the suit lands were recorded inthe name of fathers of the respondents and that there was no documenton record to show that they have abandoned the possession of the landsor surrendered the same in favour of iIlaqedar. It was held that thoughpatta-lease – Ex.D-20 was granted in favour of grandfather of the AB

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Aappellants, the appellants have not adduced any evidence to proveabandonment of the lands in favour of iIlaqedar and no right accrued tothe appellants on the basis of the patta (Ex.D-20). Being aggrieved, theappellants have preferred this appeal.

8. We have heard Mr. Subodh Markandeya, learned senior counselBfor the appellants-defendants and Mr. A.K. Shrivastava, learned seniorcounsel for the respondents-plaintiffs. We have considered thesubmissions and carefully perused the impugned judgment and thejudgment of the courts below and other materials on record.

9. The point falling for consideration is whether the High CourtCwas right in upholding the judgment of the first Appellate Court byobserving that in the absence of any order of abandonment or revocationof the patta given to the respondents-plaintiffs, grant of patta (Ex.D-20) in 1929 in favour of the appellants-defendants was illegal and thatthe appellants-defendants cannot claim right based upon Ex.D-20 andother documents.D

10. The impugned judgment of the High Court is the concurrentfinding of the High Court and the first Appellate Court. We are consciousthat in an appeal under Article 136 of the Constitution of India, theconcurrent findings cannot be interfered with unless warranted bycompelling reasons. When the finding of the first Appellate court andEthe High Court are shown to be perverse, this Court would certainlyinterfere with the findings of fact recorded by the High Court. [VideMahesh Dattatray Thirthkar v. State of Maharashtra (2009) 11 SCC141]

11. The respondents-plaintiffs–Shiv Nath and deceasedFVishwanath filed suit for declaration of title over the suit lands in khasranumbers 41-1.39, 131-2.70, 162-0.17, 163-3.92 and 164-2.15 totalarea 10.33 situated in Village Bairath General No.782, Tehsil GopadBanas on the plea that a lease/patta was issued in favour of their fathersand that their names were included as ‘lessees’ of the suit lands duringGsettlement and that they have been cultivating the lands till forty yearsback when partition took place between the two and both Shiv Nath anddeceased Vishwanath became owners of half portion each.

12. The appellants-defendants resisted the suit contending thatRam Raj Singh was the original owner of the lands but he was notcultivating the lands and settlement patta was given in the name of thefathers of respondents namely Ram Sahai and Rameshwar on the basisof Batai-crop sharing at the time of settlement and the predecessors ofrespondents-plaintiffs have not cultivated the lands. The appellants-defendants further averred that the forefathers of respondents-plaintiffsabandoned the suit lands and since revenue tax was not paid, the leaseof the suit lands in favour of respondents-plaintiffs was cancelled. Thethen illaqedar accepted the bid of the defendant’s father Gaya Din inthe auction held in the year 1929-Samvat 1986. The appellants-defendantshave claimed ownership and possession over the lands in dispute on thebasis of the patta Ex.D-20 (Ex. P-21) that was issued in their favour inSamvat 1986 (1929 A.D.) and averred that since then they are inpossession of the disputed lands.

13. The suit of the respondents-plaintiffs is for declaration of theirtitle to the suit lands and consequential delivery of the suit lands. Havingfiled the suit for declaration of title, the plaintiffs could succeed in theirsuit only by adducing sufficient evidence to establish their title. But theplaintiffs have not produced the patta granted to their fathers. PW-1-Vishwanath, in his deposition, stated that the original patta was very old,torn and the same is not with them. The respondents-plaintiffs haveproduced the report of the Revenue Inspector dated 05.10.1969 (Ex. P-3) as per which on the application of Vishwanath, an enquiry was madeand it was found that the name of pattedar is Gaya Din. Gaya Din andShiv Nath are shown as lease holders. In Ex.P-3, it is further stated thatin Khatauni No.58/59, it was found that names of Ram Sahai andRameshwar Kurmi are found recorded as owners of land numbers 51/1.38, 162/0.17, 163/3.72, 164/2.65 and 131/2.70. It was further statedthat the patta illaqa of the above numbers are found registered in thename of Gaya Din. Ex.P-3-report notes the entries in Ex.D-20-patta tothe effect that permission to make entry in respect of the patta grantedvide order No.146/1960 dated 21.11.1960 issued by the Tahsildar in theofficial record has been given after due inspection and entry in khasrais found made by the concerned Patwari on 10.01.1961.

14. In his evidence, PW-1 has stated that patta-lease was issuedin the name of his father. In his written statement, defendant Hanuman AB

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ADin also admitted that the plaintiffs-respondents’ fathers were lesseesand patta-lease was originally granted in their favour during the settlementperiod for cultivation on the basis of Batai-crop sharing. The trialcourt as well as the first appellate court held that the lease was grantedin favour of father of respondents-plaintiffs at time of the settlement andthey were held to be original lessees. The trial court while decidingBissue No.2(A), observed that the grant of lease in the name of father ofrespondents-plaintiffs in the settlement is not rebutted by the appellants-defendants. Drawing our attention to the findings of the trial court thatpatta was granted in favour of the father of the respondents-plaintiffs,the learned senior counsel for the respondents-plaintiffs submitted thatCthis amounts to admission and in terms of Section 58 of the EvidenceAct, admitted facts need not be proved. Placing reliance upon NagindasRamdas v. Dalpatram Iccharam alias Brijram and others (1974) 1SCC 242 and Executive Officer, Arulmigu Chokkanatha Swamy KoilTrust, Virudhunagar v. Chandran and others (2017) 3 SCC 702, it was submitted that in view of clear admission of grant of lease in theDname of father of respondents-plaintiffs, the said admitted fact need notbe proved.

15. Section 58 of the Evidence Act, no doubt, postulates that thethings admitted need not be proved. However, proviso to Section 58 ofthe Evidence Act gives full discretion to the court to require the factsEadmitted to be proved otherwise than by such admission. When therespondents-plaintiffs have filed the suit for declaration of their title, therespondents-plaintiffs cannot isolate few sentences in the writtenstatement and take advantage of only those part of the written statementwhich are favourable to them. The written statement filed by theFappellants-defendants has to be read in toto. It is pertinent to note thatin para No.(2) of the written statement, the appellants-defendants averredthat the lands were in the ownership of Ram Raj Singh at the time of thesettlement, but because he was not in a position to cultivate the samehimself, the lands were given to the father of the respondents-plaintiffs

for cultivation on the basis of Batai-crop sharing. It is further averredGthat the then Halkedar cancelled the lease in respect of disputed landsand the same were auctioned in which the bid of the defendants’ fatherGaya Din was accepted and the disputed lands were transferred in hisname in the sale in Samvat 1986 i.e. 1929 A.D. The lease of the landswas issued in the name of Gaya Din. The admission of the defendants H

as to the lease of the plaintiffs’ father was the lease earlier granted infavour of the forefathers of the respondents. In the light of the pleadingsand the oral and documentary evidence adduced by the defendants,notwithstanding the admission in the written statement, the burden liesupon the respondents-plaintiffs to prove that the patta-lease continuesto be in their favour and that they are the holders of patta and that theyare in continued possession of the suit properties.

16. In his cross-examination, PW-1 stated that his father left forJabalpur about forty years prior to the institution of the suit. In thecross-examination, PW-1 however denied the suggestion that when hisfather left for Jabalpur, he handed over the disputed lands to Pawaidarand 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 isevident that the father of Vishwanath had started living in Jabalpur fortyyears back prior to institution of the suit and settled there. In the light ofthe evidence adduced, the trial court rightly accepted the case of thedefendants that in Samvat 1986 (1929 A.D.), in the auction held byPawaidar for lease of suit lands and other lands, bid of Gaya Din wasaccepted and the suit properties along with other lands were given onlease to Gaya Din. We find substance in the submission of the learnedsenior counsel for the appellants that if the lands were not left soabandoned by the father of respondents-plaintiffs, it would not have beenpossible for the Pawaidar to auction the lease of the suit lands andgrant lease of the lands in favour of Gaya Din.

17. Case of the appellants-defendants that in Samvat 1986 (1929A.D.), in the auction held by Pawaidar for lease of suit lands and otherlands, the suit properties along with other lands were given on lease toGaya Din, is strengthened by revenue records and ample evidence. ThePawaidar sanctioned entries regarding grant of patta to Gaya Din to bemade in the Government records. The appellants-defendants producedtheir patta-Ex. D-20 which has also been produced by the respondents-plaintiffs (Ex. P-21). Ex. D-20 is the patta kashtkari as per the orderof the Hon’ble Shri Rai Saheb Churhat, Halka Patwari No.1, RegionChurhat, State Rewa, Location Mauja Kother, in Samvat 1986 inthe name of Gaya Din as farmer/cultivator for the suit properties grantedfor agricultural purpose. From Ex. D-20, it is seen that as per Tahsildarorder No.146/1960 dated 21.11.1960, Pawaidar has been allowed to AB

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Aenter in government serial. As per the order of the Tahsildar, entry hasbeen made accordingly in Pawai Khasra as is clear from theendorsement made by Patwari dated 10.01.1961 in Ex.D-20.

18. Ex. D-20-patta in favour of Gaya Din was validly granted bythe iIIaqedar to Gaya Din in the year 1929. The said documents issuedBby the Tahsildar were produced from the custody of the appellants. Thecontents thereon show that as per the Government records, the landshad been given to Gaya Din. The documents being more than thirtyyears old, the trial court rightly presumed the Ex.D-20-patta of genuine.It was then up to the respondents to rebut the presumption. This has notbeen controverted by the respondents-plaintiffs.C

19. Ex. D-20 being thirty year old document gives rise topresumption as to its genuineness. Contention of the respondents-plaintiffsis that Section 90 of the Evidence Act has no application to Ex. D-20and the presumption cannot be raised as to the genuineness of the contentsof the document. Section 90 of the Evidence Act enables the court toDdraw presumption about the genuineness of the document which is thirtyyears old. Section 90 lays down that the court “may presume” that thedocument is genuine. Since the patta granted in favour of Gaya Din isof Samvat 1986 (1929 A.D.) which is more than thirty years old, Section90 raises presumption as to the authenticity of the document. MereEallegations of fraud would not be sufficient to rebut the presumptionraised under Section 90 of the Evidence Act.

20. The respondents-plaintiffs have produced the copies of khasrasof several years. However, only the copies of khasra for the years1955-56 (Ex. P-9) and 1956-57 (Ex. P-10) are in the name ofFrespondents-plaintiffs; and in the previous khasras for the years 1950-51 to 1954-55 (Ex. P-8) and subsequent khasras for 1960-61 (Ex. P-12), 1963-64 to 1965-66 (Ex. P-13), 1968-69 (Ex. P-14) and 1970-71 to1975 (Ex. D-2), the entries are in the name of the father of the appellants-defendants. The lease was granted in favour of Gaya Din and that heand Hanuman Din had been continuously in possession of the propertiesGis thus established by the revenue records.

21. 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 inpossession of the suit lands from the year 1950-51 to 1954-55 (Ex. P-8)

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and thereafter, the subsequent khasras 1960-61 onwards. The namesof the appellants-defendants being mentioned in the khasra 1950-51 to1954-55 is very crucial. The reason being Vindhya Pradesh Abolition ofJagirs and Land Reforms Act, 1952 (Vindhya Pradesh Act) came intoforce on 30.07.1953. Ex. D-20 (Ex. P-21) - lease was granted in favourof the predecessors of the appellants-defendants namely Gaya Din byPawaidar under Section 44 of the Rewa State Malgujari and KashtkariAct, 1935 (Rewa Land Revenue and Tenancy Act, 1935). After referringto Ex. D-20, the trial court rightly held that the Pawaidar was empoweredto issue the lease and that lease (Ex. D-20) was issued under Section141 of the Act. It was therefore rightly held by the trial court that thelease (Ex. D-20) is valid and that the appellants-defendants have provedthat the lease of the lands was legally given by illaqedar in favour oftheir father.

22. The revenue records produced by the appellants for severalyears 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 propertiesfor several years. The oral and documentary evidence clearly establishthat the father of the respondents-plaintiffs has abandoned the suitproperties, pursuant to which, auction was held by the Pawaidar andlease was issued by illaqedar in favour of Gaya Din and that he was incontinuous possession of the suit properties.

23. In the plaint, the respondents/plaintiffs have alleged thatEx. D-20-patta is a forged one. In para No.(4) of the plaint, it is allegedthat without knowledge of the respondents/plaintiffs’ father, defendants’father Gaya Din got the lease from Ilaqa Churhat by illegal means andGaya Din never remained in possession of the properties. Therespondents-plaintiffs have not produced any document to prove thatEx. D-20 is a forged one. The plaintiffs at one place averred that withoutthe knowledge of the plaintiffs and their father, Gaya Din succeeded ingetting the lease by illegal means of the disputed lands from iIlaqa therein;whereas in para No.(5), the respondents-plaintiffs alleged that thedocument is a forged one. In fact, as pointed out earlier, the respondentsthemselves have filed the patta granted in favour of the appellants-defendants. It is pertinent to note that Vishwanath had given an applicationfor inspection of the area (patta) in respect of land numbers 41, 131,162, 163 and 164 situated in Village Bairath. The Collector called for A

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Athe report from the Revenue Inspector and as per the Report of theRevenue Inspector (Ex. P-3), though the names of Ram Sahai andRameshwar are found recorded as owners of the said lands, patta illaqaof the above land numbers was found registered in the name of GayaDin. The report of the Revenue Inspector refers to the entry in respectof patta granted vide order No.146/1960 dated 21.11.1960 issued by theBTahsildar. It also refers to entry in khasra made by the concernedPatwari on 10.01.1961 which is in possession of HanumanDin-predecessor of the appellants. Ex. P-3-Report of Revenue Inspectorstates that the patta-Ex. D-20 was granted in favour of Gaya Din.

24. The entries which are consistently in favour of the appellantsCought not to have been ignored in preference to the entries in favour ofthe 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 begenuine. The first Appellate Court and the High Court were not right inDbrushing aside Ex. P-21 (Ex.D-20) patta granted in the name of theappellants and other crucial documents like report of the RevenueInspector (Ex. P-3) which notes that patta illaqa is in the name ofGaya Din and the several entries in the revenue records are in the nameof the appellants. In the absence of the contra evidence adduced by therespondents-plaintiffs, the trial court rightly held that the appellants haveEbeen in continuous possession of the suit properties and that therespondents have failed to prove their right over the suit properties priorto filing of the suit.

25. Ex. D-1– Order of the Commissioner dated 17.07.1973:-In the proceeding initiated by the appellants’ father – Hanuman Din, anFapplication was filed before the District Collector alleging interpolationby patwari in the gashti – khasras at the behest of the plaintiffs-respondents–Vishwanath, Shiv Nath and Jairaj Kumari in respect ofkhasra Nos. 131,151,161,162,163 and 411. The order of theCommissioner refers to the order passed by Tahsildar dated 28.07.1971Gupholding the entries in favour of appellants’ father Hanuman Din andrejecting the plaintiffs-respondents’ claim. After personally perusing therelevant khasras, the Tahsildar held that entries for the years 1963-64to 1968-69 made in favour of plaintiffs-respondents were subsequentlymade and Tahsildar directed correction of khasra entries in favour of appellant’s father. In revision, the Collector upheld the said order of theTahsildar dated 28.07.1971.

26. In revision against the order of the Collector, the Commissionervide order dated 17.07.1973 upheld the order of Tahsildar observingthat from perusal of SDO’s report dated 21.10.1969 and the order ofTahsildar dated 28.07.1971, the mischief of patwari was proved beyondshadow of doubt. These orders were not challenged by the plaintiffs-respondents and are binding on them. The relevant portion of the orderof the Commissioner reads as under:- “In the Court of Shri Jagat Swarup, Commissioner Rewa Divn.

Rewa, M.P.

Case No.52/A.61/71-73:Dated 17.07.1973

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2. A perusal of the records of the lower courts reveals that N.A.Hanuman filed an application dated 19.09.1969 before CollectorSidhi alleging interpolation by Patwari in the Gashti-Khasaras inrespect of Khasra Nos.131, 151, 161, 162, 163 and 41 of VillageBairath, Tehsil Gopadbanas. The application was sent to SDOfor enquiry. SDO reported vide his report dated 21.10.1969that the allegations are true and the patwari was guilty ofgrave misconduct. The charge of interpolation is amplyproved. Collector also found the report to be true, butordered that Tehsildar should hear the opposite partybefore ordering correction (Order Sheet dated 23.10.1969).Tehsildar held the enquiry and on the basis of documentsand oral evidence ordered correction of khasra entries forthe year 1963-64 to 1968-69 vide his order dated28.07.1971. The perusal of SDO’s report dated 21.10.1969and the order of Tehsildar dated 28.07.1971 reveals thatthe mischief of patwari was proved beyond a shadow ofdoubt. The order passed by the Tehsildar has to be treated asadministrative in nature and cannot be set aside u/s 50 of the M.P.Land Revenue Code, 1959.

3. So far as the present proceedings u/s 50 of the M.P. LandRevenue Code, 1959 are concerned, they do not lie.

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AAdministratively, I uphold the order dated 28.07.1971 passed bythe Tehsildar, because it is based on unassailable logic. After all,patwari cannot be the final arbiter of the destinies of cultivators.”

From the above order of the Commissioner and the report of theother revenue authorities, it is clear that the plaintiffs-respondents haveBmade interpolation in the revenue entries in connivance with Patwariand got the revenue entries recorded in their names. The High Courtand the first Appellate Court erred in not considering Ex.D-1-order ofthe Commissioner in its proper perspective.

27. Application filed for receiving additional evidence:- TheCquestion may arise that though the number of orders were passed invarious proceedings before the Revenue Authorities, why therespondents-plaintiffs have not challenged the same then and there. Thereal fact is that the respondents-plaintiffs did challenge various orderspassed by the revenue authorities before the concerned authorities andlost. Unfortunately, those documents have not been filed by theDappellants-defendants in the courts below. Before this Court, theappellants-defendants have filed an application to receive three additionaldocuments which are the orders passed by the Naib Tahsildar dated01.09.1962, order of Tahsildar dated 28.07.1971 and order of Collectordated 21.11.1972. The three documents which according to the appellantsEare relevant are:- S.No.DocumentsRemarks1. 01.09.1962 – Order passed by the Naib Application was dismissed Tahsildar, Gopad Banas in the suit filed by holding that the patta of the Shivnath, son of Ram Sahai and Shivnath, land was issued by the Fson of Rameshwar under Section 250 of Tahsildar in favour of M.P. Land Revenue Code, 1959. Gayadin – father of the appellant-defendant. 2. 28.07.1971 – Order of Tahsildar, Gopad - Banas in Civil Suit No.26 A74/70-71 in the suit filed by Hanuman – son of Gayadin 3.21.11.1972 –Order of the Collector, -GDistrict Siddi H

The learned senior counsel for the respondents submitted thatthere is a clear bar to adduce additional evidence in the appellate court

subject to circumstances stated under Order XLI Rule 27 CPC and nosuch circumstance has been set-forth in the application filed by theappellants. It was submitted that there was no pleading to that effect inthe written statement and if the application to receive additional evidenceis allowed then it would amount to de novo trial of the suit which wasfiled nearly after forty-nine years. It was further submitted that whenthese documents were neither filed in the trial court nor before the firstappellate court nor before the High Court, the Supreme Court cannotentertain the documents filed as additional evidence. In support of hiscontention, the learned senior counsel relied upon Karewwa and othersv. Hussensab Khansaheb Wajantri and others (2002) 10 SCC 315and Roop Chand v. Gopi Chand Thelia (1989) 2 SCC 383 and otherdecisions.

28 Under Order XLI Rule 27 CPC, production of additionalevidence, whether oral or documentary, is permitted only under threecircumstances which are: (I) Where the trial Court had refused to admitthe evidence though it ought to have been admitted; (II) the evidencewas not available to the party despite exercise of due diligence; and (III)the appellate Court required the additional evidence so as to enable it topronounce judgment or for any other substantial cause of like nature. Anapplication for production of additional evidence cannot be allowed ifthe appellant was not diligent in producing the relevant documents in thelower court. However, in the interest of justice and when satisfactoryreasons are given, court can receive additional documents.

29. In Union of India v. Ibrahim Uddin & Another, (2012) 8SCC 148, this Court held as under:- “36. The general principle is that the appellate court should nottravel outside the record of the lower court and cannot take anyevidence in appeal. However, as an exception, Order 41 Rule 27CPC enables the appellate court to take additional evidence inexceptional circumstances. The appellate court may permitadditional evidence only and only if the conditions laid down inthis Rule are found to exist. The parties are not entitled, as ofright, to the admission of such evidence. Thus, the provision doesnot apply, when on the basis of the evidence on record, the appellatecourt can pronounce a satisfactory judgment. The matter is entirelywithin the discretion of the court and is to be used sparingly. Such AB

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a discretion is only a judicial discretion circumscribed by thelimitation specified in the Rule itself. (Vide K. Venkataramiah v.A. Seetharama Reddy AIR 1963 SC 1526, Municipal Corpn.of Greater Bombay v. Lala Pancham AIR 1965 SC 1008,Soonda Ram v. Rameshwarlal (1975) 3 SCC 698 and SyedAbdul Khader v. Rami Reddy (1979) 2 SCC 601.)

37. The appellate court should not ordinarily allow new evidenceto be adduced in order to enable a party to raise a new point inappeal. Similarly, where a party on whom the onus of proving acertain point lies fails to discharge the onus, he is not entitled to afresh opportunity to produce evidence, as the court can, in such acase, pronounce judgment against him and does not require anyadditional evidence to enable it to pronounce judgment. (Vide HajiMohammed Ishaq v. Mohd. Iqbal and Mohd. Ali and Co.(1978) 2 SCC 493)

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40. The inadvertence of the party or his inability to understandthe legal issues involved or the wrong advice of a pleader or thenegligence of a pleader or that the party did not realise theimportance of a document does not constitute a “substantial cause”within the meaning of this Rule. The mere fact that certain evidenceis important, is not in itself a sufficient ground for admitting thatevidence in appeal.”

“47. Where the additional evidence sought to be adduced removesthe cloud of doubt over the case and the evidence has a directand important bearing on the main issue in the suit and interest ofjustice clearly renders it imperative that it may be allowed to bepermitted on record, such application may be allowed.”

30. The order of the Commissioner dated 17.07.1973 refers tothe order of the Tahsildar dated 28.07.1971 and also the report of theSDO dated 21.10.1969. We are inclined to receive the order of Tahsildardated 28.07.1971 as additional evidence. From the order of the Tahsildardated 28.07.1971, in Civil Suit No.26A74/70-71 filed before Tahsildar, itis seen that Hanuman Din-applicant thereon filed an application beforethe Collector, Sidhi stating that he is the land owner-cultivator of the landnumbers 131, 151, 161, 162, 163, 41 of the village Bairath and has been in possession of the lands and that the non-applicants (Vishwanath, ShivNath and Jairaj Kumari) got their names recorded in revenue entries inconnivance with Shri Bansh Bahadur Singh, Patwari and prayed forrectification of the entries. A report was called from the SDO who helda detailed enquiry and submitted a report. Based upon such enquiry andreport of the SDO dated 21.10.1969, the Tahsildar held that the entry inregard to possession of the non-applicants (Vishwanath, Shiv Nath, JairajKumari) in respect of land numbers 41, 131, 162, 163 was found to bemade subsequently and held as under:- “9. As far as the rectification in the Khasra entries for the years1968-69 or prior to it is concerned, application is allowed as perpara 8 and therefore, question regarding dispute in regard tosubsequent years of the above years does not arise at all. I havepersonally perused the Khasra for the years 1963-64 to 1967-68and I find that apart from the entries made in the column No.12 ofthe Khasra pertaining to the land No.41 at the time of inquiry,“Vishwanath, Shivnath Kurmi, R/o Deh 41/1.39” it specificallyappears to be made subsequently.…... Thus, it is proved that theentry in regard to the possession of non applicants Vishwanath,Shivnath and Jairaj Kumri in respect of land No.41, 151, 162 and163 is found proved to be made subsequently.”

“10. Now, it is to be seen that who was in the possession of thedisputed land prior to the disputed years. In this regard, none ofthe parties has produced any evidence. Hence in the interest ofjustice, I have called for the Khasra for the years 1961-62, 1962-63 and gone through it and then apart from the Land No.131, nonapplicants are not found to be in the possession of the above land.In such circumstances, it is clear that Patwari Halqa with theintention to create dispute in respect of the disputed land hascommitted forgery before his retirement.

Thus, the entries for the year 1963-64 to 1968-69 in relation topossession of the applicants on the land No.41, 151, 161, 162 and163 be recorded rectified in place of the non applicants on thebasis of entries for the year 1962-63 …..”

31. The learned senior counsel appearing for the plaintiffs-respondents raised strong objections contending that the said order of A

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Athe Tahsildar dated 28.07.1971 in Civil Suit No.26A74/70-71 cannot bereceived as additional evidence and cannot be looked into as the saiddocuments were not produced before the trial court nor were therereference to those documents in the written statement. We find nomerit in the contention that the order of the Tahsildar dated 28.07.1971cannot be looked into on the ground that they were not adduced asBevidence before the trial court. Order of the Commissioner, Rewa inCase No.52A 61/71-73 marked as Ex. D-1 dated 17.07.1973 makes aclear reference to the order of the Tahsildar dated 28.07.1971. Since inEx.D-1 (17.07.1973), there is reference to the order of the Tahsildardated 28.07.1971, the same is received as additional evidence. The orderCof the Tahsildar dated 28.07.1971 has a direct bearing on the main issuein the suit and in the interest of justice, the same has to be received asadditional evidence. Since Ex. D-1 makes a reference to the order ofthe Tahsildar, in our view, there is no impediment in receiving the orderof the Tahsildar dated 28.07.1971 as additional documents and consideringthe same. Since the order of the Tahsildar has been referred to in theDorder of the Commissioner dated 17.07.1973 (Ex.D-1), in our view, itwill not have the effect of introducing new case necessitating remittanceof the matter. So far as the other two additional documents namely,order of the Naib Tahsildar dated 01.09.1962 – order passed in the suitfiled under Section 250 of the M.P. Land Revenue Code and the orderEof the District Collector dated 21.11.1972, they are not received asadditional evidence.

32. The order of the Commissioner dated 17.07.1973 makes areference to the order of the Tahsildar dated 28.07.1971 which in turnrefers to the suit filed by the predecessors of the plaintiffs-respondentsFunder Section 250 of the MP Code in which plaintiffs-respondents wereunsuccessful in challenging the lease in favour of Gaya Din/HanumanDin. This document was not produced before the Courts below and nowonly produced as additional evidence. As discussed earlier, we are notinclined to receive this document as additional evidence. In our considered view, the first Appellate Court and the High Court fell in error in notGtaking into consideration the categorical findings recorded in the orderof the Commissioner (Ex. D-1) that the plaintiffs-respondents got theentries in the revenue records in connivance with the Patwari and thatthe Patwari was guilty of grave misconduct.

33. Limitation:-The respondents’ suit was for the reliefs ofdeclaration of title and consequential possession of the suit lands. Thesuit was instituted on 17.10.1975. The appellants contended that the suitis hopelessly time barred as according to them, the cause of action arosefor the first time in the year 1929, when the patta was issued in favourof the appellants’ grandfather Gaya Din and then in the year 1935, whenthe Act was promulgated by the Maharaja of Rewa and then in the year1952, when Jagirdari was abolished and Hanuman Din became the tenantof the State instead of Jagirdar and lastly on 02.11.1960, when the nameof Hanuman Din was entered by the Tahsildar as bhumiswami. Bydismissing the suit, the trial court held that the respondents/plaintiffs musthave filed the suit within twelve years of possession of the defendantsor dispossession of the plaintiffs. In the plaint, the respondents haveaverred that they came to know about the lease of the lands in favour ofGaya Din only in the month of August, 1969 whereas the first AppellateCourt held that the suit was within the period of limitation of twelveyears by treating the cause of action to have arisen on 06.11.1974 i.e. onthe date of order of the Sub-Divisional Magistrate in Section 145proceedings. Since we considered the matter at length on merits, we arenot inclined to go into the question of limitation.

34. Case of the respondents-plaintiffs is that as per Section 5 ofthe Vindhya Pradesh Abolition of Jagirs and Land Reforms Act, 1952,all the Jagir Lands were resumed by the then Vindhya PradeshGovernment on 23.06.1953. On that date, illaqedar was not authorisedand was not having jurisdiction to issue patta. The merit of the contentionis to be considered in the light of the provisions of Rewa Land Revenueand Tenancy Act, 1935 (Rewa Act) and Vindhya Pradesh Act, 1952.

35. The learned senior counsel for the appellants stated that in1929, there was no codified revenue law in the State of Rewa. In 1935,Maharaja of Rewa promulgated the Rewa Land Revenue and TenancyAct, 1935. Section 2 of the Rewa Act repealed all earlier governmentnotices, rules, circulars, orders, notifications etc. that are inconsistent tothe said Act; but saved the action taken thereunder. Thus, the actiontaken thereunder the said Act like grant of patta etc. was saved. Caseof the appellants-defendants is that by virtue of Section 2 of the RewaAct, grant of patta to Gaya Din is saved. It is also their case that Section3 of the Rewa Act saved the existing proceedings and the fathers of the A

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Arespondents could have proceeded against the appellants under Sections46 and 142 of the Rewa Act. However, they have not initiated anyproceedings under the said provisions of the Act. In 1948, the State ofRewa acceded to India and became part of the State of Vindhya Pradesh.In 1952, the State of Vindhya Pradesh abolished the system of Jagirdariby the Vindhya Pradesh Abolition of Jagirs and Land Reforms Act, 1952.BUnder Section 26 of the Vindhya Pradesh Act, the appellants’ fatherHanuman Din became direct tenant of the State in place of Jagirdar andunder Section 28 of the Act, he became a pattedar-tenant.

36. By the States Reorganization Act, 1956, the erstwhile State ofVindhya Pradesh became a part of larger Madhya Pradesh. SubsequentCto which, the State of Madhya Pradesh enacted the M.P. Land RevenueCode, 1959 (M.P. Code) whereby the appellants’ predecessor HanumanDin being a pattedar-tenant in Vindhya Pradesh in possession of thelands, became their Bhumiswami under Section 158(1)(d)(i) of the M.P.Code. After following the due procedure laid down under Sections 109Dand 110 of the M.P. Code, his name was entered in revenue records.

37. The trial court rightly held that the disputed lands belonged tothe iIlaqa and the Pawaidar was empowered under the provisions ofSection 44 of the Rewa Act to issue the said lease (Ex. D-20). Section44 of the Rewa Land Revenue and Tenancy Act, 1935 reads as under:- E“44. Conferment of Pattas – (1) In a kothar village, the followingrevenue officers are authorised to confer a patta:-

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(2) In a pawai, the following persons may confer a patta:-(a) at a revision of settlement – the Settlement Officer andFAssistant Settlement Officers, (b) during the currency of Settlement –

A pawaidar in pawai land not included in a sub-pawai; A sub-pawaidar in respect of land included in his sub-pawai; G

A mortgagee in possession;

A mortgagor in possession;

The Court of Wards in land under its superintendence; A widow having life interest in a pawai or sub-pawai; H……..”

38. The learned senior counsel for the respondents-plaintiffssubmitted that upon consideration of the evidence of Hanuman Din (DW-1), the first appellate court recorded a finding of fact that in the year1954, patta was granted in favour of Gaya Din (defendants’ father) andas per the testimony of Hanuman Din (DW-1), when patta was issued,Hanuman Din was 35 years old. It was submitted that based on theevidence of Hanuman Din, the first appellate court recorded finding thatpatta was granted in favour of Gaya Din in the year 1954 by whichtime, the tradition of Pawai has been removed and therefore, pattagranted in favour of Gaya Din is not a valid one. The first appellatecourt arrived at such a finding without proper facts and by drawing aninference noting that when DW-1 was examined in 1984, he was aged65 years from which the first Appellate Court inferred that DW-1 musthave been born in 1919. Referring to the statement of DW-1 that whenpatta was issued, he was aged 35 years, the first appellate court inferredthat patta must have been issued in 1954 (DW-1 born in 1919 + 35=1954)and by that time, system of Pawai had been removed. In this regard,the learned senior counsel for the respondents-plaintiffs submitted thatas per Section 5 of the Vindhya Pradesh Act, all the Jagir Lands wereresumed in the then Vindhya Pradesh Government on 23.06.1953, hence,on this date, Pawaidar/iIlaqedar/Jagirdar were not authorised andwere not having jurisdiction to issue patta and therefore, the finding ofthe first appellate court that the patta issued in the name of Gaya Din inthe year 1954 is not a valid one and the said findings of fact cannot beinterfered with.

39. The finding of the first appellate court that the patta wasgranted to Gaya Din in 1954 and that illaqedar was not competent toissue patta is misconceived. As discussed earlier, patta was granted toGaya Din not in 1954 but in Samvat 1986 (1929 A.D.) when admittedlythe illaqedar had such power. That apart, the validity of patta so grantedcannot be determined based on the inference drawn as to the age ofDW-1-Hanuman Din. The learned senior counsel appearing for theappellants has drawn our attention to the provisions of Vindhya PradeshAct and submitted that as per Section 5 of the said Act, the StateGovernment by a notification appointed a date for the resumption of anyclass of Jagir Lands and the consequences of such resumption are setout in Section 6 of the said Act. We find substance in the submission ofthe learned senior counsel for the appellants that in terms of Section 28

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Aof the said Act, the appellants who were till then the tenants ofintermediary/Jagirdar shall be deemed to be pattedar tenant in respectof the said lands. Section 28 of the Vindhya Pradesh Abolition of Jagirsand Land Reforms Act, 1952 reads as under:-

28. Certain occupants of lands to be pattedar tenants. – (1)BSubject to the provisions of sub-section (2) every person who isentered in the revenue record for a continuous period of threeyears as an occupant of any Jagir-land at the date of resumption,shall be deemed to be pattedar tenant in respect of such landwhich shall be assessed at the village rate.

C(2) Nothing in sub-section (1) shall apply to any sir or khudkashtland which is allotted to the Jagirdar under Section 22 or anygrove land possession of which the Jagirdar is entitled to retainunder clause (c) of Section 7.

In view of the provisions of the above Act, the first appellateDcourt erred in saying that the patta in favour of Gaya Din was granted inthe year 1954 and by that time, Pawaidar/iIlaqedar was not havingjurisdiction to issue patta.

40. Re: Finding of the first appellate court: Ownership of-the respondents not terminated in a legal way:The first appellateEcourt held that the ownership of Rameshwar and Ram Sahai was notterminated in a legal way and therefore, they are to be treated as ownersof the suit properties. The first Appellate Court further held that sincethe ownership of Rameshwar and Ram Sahai was not terminated in alegal way, the lease deed-Ex.D-20 which has been produced on behalfof defendant No.1 cannot be treated to be a proved document and onFthose findings, set aside the finding of the trial court that defendant No.1is having a legal right of ownership of the disputed lands. The firstAppellate Court, in our view, was not right in doubting the correctness ofEx. D-20 and not right in observing that defendant No.1 is not having alegal right of ownership on the disputed lands. The first appellate courtGand 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 Tahsildardated 28.07.1971 and other documents showing grant of lease/patta inthe name of Gaya Din and the continued possession of Gaya Din and hisson-Hanuman Din and the appellants. The first Appellate Court and the High Court erred in brushing aside the findings recorded by theCommissioner dated 17.07.1973 as to the misconduct of the patwari inmaking entries in the revenue records.

41. In the suit for declaration for title and possession, the plaintiffs-respondents could succeed only on the strength of their own title and noton the weakness of the case of the defendants-appellants. The burdenis on the plaintiffs-respondents to establish their title to the suit propertiesto show that they are entitled for a decree for declaration. The plaintiffs-respondents have neither produced the title document i.e. patta-leasewhich the plaintiffs-respondents are relying upon nor proved their rightby adducing any other evidence. As noted above, the revenue entriesrelied on by them are also held to be not genuine. In any event, revenueentries for few Khataunis are not proof of title; but are mere statementsfor revenue purpose. They cannot confer any right or title on the partyrelying on them for proving their title. Observing that in a suit fordeclaration of title, the plaintiffs-respondents are to succeed only on thestrength of their own title irrespective of whether the defendants-appellants have proved their case or not, in Union of India andothers v. Vasavi Co-operative Housing Society Limited and others(2014) 2 SCC 269, it was held as under:- “15. It is trite law that, in a suit for declaration of title, the burdenalways lies on the plaintiff to make out and establish a clear casefor granting such a declaration and the weakness, if any, of thecase set up by the defendants would not be a ground to grantrelief to the plaintiff.”

42. Upon appreciation of evidence, the trial court has recordedfindings on various issues which was reversed by the first AppellateCourt. Since the first Appellate Court reversed the judgment of the trialcourt, in the second appeal, the High Court ought to have weighed andconsidered the evidence and materials. The order of the High Courtdismissing the appellant’s appeal by affirming the findings of the firstAppellate Court is mainly on the ground that in the absence of any orderof abandonment or revocation of the patta granted to the respondents-plaintiffs, grant of patta (Ex.D-20) in favour of the appellants-defendantswas 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 thecompetent authority in 1929 and the report of the Revenue Inspector A

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Adated 05.10.1969. The first Appellate Court and the High Court did notconsider Ex.D-1-Order of the Commissioner dated 17.07.1973 and thereport of the SDO dated 21.10.1969 and other revenue records showingthat the forefather of the appellants-defendants namely Gaya Din wasgiven the patta (Ex.D-20) and since then, Gaya Din and Hanuman Dinwere in possession of the properties. The High Court has not properlyBappreciated the evidence and materials on record and the impugnedjudgment is liable to be set aside.

43. In the result, the judgment of the High Court in the SecondAppeal No.174 of 1989 dated 05.02.2007 is set aside and this appeal isallowed. The Suit No.68-A/75 filed by the respondents-plaintiffs isCdismissed and the judgment of the trial court shall stand restored. No order as to cost.

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Kalpana K. Tripathy

Appeal allowed.

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