PARTAP SINGH (DEAD) THROUGH LRS. & ORS. versus SHIV RAM (DEAD) THROUGH LRS. on 20 February 2020

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SUPREME COURT REPORTS

[2020] 1 S.C.R.

ASHRI PARTAP SINGH (DEAD) THROUGH LRS. & ORS.

v.

SHIV RAM (DEAD) THROUGH LRS.

(Civil Appeal No. 1511 of 2020)

BFEBRUARY 20, 2020

[L. NAGESWARA RAO AND HEMANT GUPTA, JJ.]

Himachal Land Revenue Act, 1954: ss. 32(2)(a) , 34 – Record-of-rights and periodical record – Presumption in favour of entriestherein – Rebuttal of – Held: Presumption of truth attached to theCrecord-of-rights can be rebutted only if there is a fraud in the entryor the entry was surreptitiously made or that prescribed procedurewas not followed – Reliance cannot be placed on the oral evidenceto rebut the statutory presumption as the credibility of oral evidencevis-a-vis documentary evidence is at a much weaker level – BurdenDof proving relationship of tenancy is on the person who assertssuch a relationship as per s. 109 of the Evidence Act – On facts, norelationship of landlord and tenant is mentioned in the revenue record– In the absence of entry in the revenue record, which is alsoexpected to contain the entry of rent and possession, the tenancycannot be treated to be in existence only on the basis of oral evidenceE– Burden of proving the relationship was on the defendant –Presumption of truth attached to the revenue record can be rebuttedonly on the basis of evidence of impeccable integrity and reliability– Defendant failed to rebut the presumption of truth on the basis ofreliable, trustworthy and cogent documentary evidence to proveFthe relationship of a tenant – High Court erred in allowing thedefendant’s appeal relying upon oral evidence to rebut the statutorypresumption of truth attached to the revenue record – Order of theHigh Court is set aside and the judgment passed by the first appellatecourt is upheld.GAllowing the appeal, the Court HELD: 1.1 As per Section 32(2)(a) of the Himachal LandRevenue Act, 1954, record-of-rights, i.e. Jamabandi, shall includethe name of persons who are landowners, tenants or assigneesof land revenue and also the rent, land revenue, rates, cesses or H

other payments due from and to each of those persons and to theGovernment. On the other hand, the periodical record, i.e. KhasraGirdawari, as mentioned in Section 34 of the Act, is to be preparedevery year as the proof of the statements, as mentioned in sub-section (2) clause (a) of Section 32, which includes the name ofthe landowners, tenants and the rent and land revenue payable.In terms of Section 45 of the 1954 Act, the record-of-rights asprepared in terms of Sections 32 and 34 of the 1954 Act carries apresumption of truth. Still further, any person who is aggrievedby any entry in the record-of-rights or in a periodical record hasa right to invoke the jurisdiction of the Civil Court for correctionof the entries in terms of Section 46 of the 1954 Act. [Para 15][703-E-F]

1.2 The detailed procedure for recording of periodicalrecord-of-rights as well as the record-of-rights in terms of Sections32 & 34 of the 1954 Act has been prescribed. The record-of-rights contains entries of the revenue record for the four years.Such record-of-rights carries the presumption of correctness interms of Section 45 of the 1954 Act and also Section 35 of theIndian Evidence Act, 18721. Section 109 of the Evidence Actfurther contemplates that whether there exists a relationship oflandowner and tenant and the burden of proving such a relationshipis on the person who affirms it. [Para 16][703-G-H; 704-A]

1.3 In the State of Himachal Pradesh, Jamabandi, underSection 32 of the 1954 Act as well as Khasra Girdawari, underSection 34 of 1954 Act, both are record-of-rights in terms ofSection 32 of the 1954 Act, and have statutory presumption oftruth. [Para 17][704-E-F]

1.4 The instant is a case where no relationship of landlordand tenant is mentioned in the revenue record though requiredin terms of Section 32(2)(a) of 1954 Act. In the absence of entryin the revenue record, which is also expected to contain the entryof rent and possession, the tenancy cannot be treated to be inexistence only on the basis of oral evidence of the witnessesexamined by the defendant. The burden of proving the relationshipwas on the defendant. Such burden cannot be said to be rebuttedonly by oral evidence. The witnesses may lie but the documents AB

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Ado not, is a golden rule. The presumption of truth attached to therevenue record can be rebutted only on the basis of evidence ofimpeccable integrity and reliability. The oral evidence can alwaysbe adduced contrary to the revenue record but such oraltestimony will not be sufficient to hold that the statutorypresumption stands rebutted. The presumption of truth attachedBto the record-of-rights can be rebutted only if there is a fraud inthe entry or the entry was surreptitiously made or that prescribedprocedure was not followed. It will not be proper to rely on theoral evidence to rebut the statutory presumption as the credibilityof oral evidence vis-a-vis documentary evidence is at a muchCweaker level. [Paras 18, 24][705-D-F; 707-G]

1.5 The High Court erred in law in allowing the defendant’sappeal relying upon oral evidence to rebut the statutorypresumption of truth attached to the revenue record. The onusof proof was placed on the defendant by the trial court. The burdenDis on the person who asserts such a relationship as per Section109 of the Evidence Act. The defendant has failed to rebut thepresumption of truth on the basis of reliable, trustworthy andcogent documentary evidence to prove the relationship of a tenant.The order of the High Court is set aside and the judgment anddecree passed by the First Appellate Court is affirmed. [ParasE25, 26][708-A-C]

Vishwa Vijai Bharti v. Fakhrul Hasan & Ors. (1976) 3SCC 642; Bhimappa Channappa Kapali (Dead) by LRS.v. Bhimappa Satyappa Kamagouda (Dead) by LRS. andOthers (2012) 13 SCC 759; Guru Amarjit Singh v.FRattan Chand and Others AIR 1994 SC 227 – reliedon.

Harish Chander and Others v. Ghisa Ram and Another(1981) 1 SCC 431; Sodhi Transport Co. and Others v.State of U.P. and Others (1986) 2 SCC 486; KumarGExports v. Sharma Carpets (2009) 2 SCC 513 –referred to.

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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1511 of2020.

From the Judgment and Order dated 19.09.2016 of the High Courtof Himachal Pradesh at Shimla in RSA No. 258 of 2006.

Ms. Bina Madhavan, Ms. Sweena Nair, M/s. Lawyer S. Knit &Co, Advs. for the Appellants.

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Abhimanyu Jhamba, Ms. Thonpinao Thangal, Ms. Hemlata Ranga,Hatneimawi, Saroj Shaji, Mohit Poswal, Samir Ali Khan, Gagan Gupta,Advs. for the Respondents.

The Judgment of the Court was delivered by D

HEMANT GUPTA, J.

1. The present appeal is directed against an order passed by theHigh Court of Himachal Pradesh on 19th September 2016 whereby thedefendant’s second appeal was allowed and the suit for a permanentinjunction, mandatory injunction and rendition of accounts was dismissed.

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2. The suit was filed by plaintiff No. 1 claiming himself to be theowner of land measuring 53 Bighas 11 Biswas and plaintiff No. 2 claimingherself to be the owner of land measuring 12 Bighas 16 Biswas. Theplaintiff No. 1 claimed to be ex-ruler of an erstwhile princely state ofDhami and that had been getting his property managed through variouspersons. The assertion of the plaintiffs is that the defendant was appointedas a Manager to look after and manage the property and was liable torender accounts to the plaintiffs after each crop harvest i.e. twice ayear. The defendant had been rendering the accounts and used to bepaid 10% management charges of the income of properties. Thedefendant was also required to maintain a register for keeping the accountof income and expenditure as well as an inventory of the property of theplaintiffs.

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3. The plaintiffs allege that there was misfeasance by thedefendant, therefore, they terminated the agency and asked him to hand H

Aover the charge of the properties. In view of the said assertion, the suitfor a permanent injunction, mandatory injunction and for possession of 8plots of land measuring 13 Bighas 14 Biswas was filed.

4. In the written statement, the defendant asserted that he is atenant and that suit is exclusively triable by the Revenue Court. HeBfurther stated that he is paying one half Galla batai in respect of landmeasuring 13 Bighas 2 Biswas for the last 12 years. The relevantassertion made by the defendant reads thus:

“2. That in view of the submissions made in the subsequent parasof this written statement, it is manifestly clear that this is a disputeCbetween a land owner and a tenant and as such, this Court hasgot no jurisdiction to try and determine the suit. The suit isexclusively triable by Revenue Court and, therefore, it deservesto be stayed.

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The facts which have not been specifically admitted shall bedeemed to have been denied by necessary implication in the writtenstatement hereinbelow.

1. Para 1 is admitted to the extent that the Plaintiff is the owner ofEthe land described in this para of the Plaint. However, it may besubmitted that the Defendant is a tenant on payment of ½ Galla-batai in respect of land measuring 13 Bighas 2 Biswas Kitas 7Khewat Khatauni No.1/1 Khasra Nos. 50(6 Biswas), Khasra No.51 (3 Biswas) Khasra No. 302/52/1 (2 Bighas), Khasra No. 302/F52/3 (17 Biswas), Khasra No. 303/52/1 (6 Bighas 17 Biswa),Khasra No. 52(2 Bighas 10 Biswas) and Khasra No. 68 (9 Biswas)situate in Village Kannauri, Pargana Dhamer, Tehsil and DistrictShimla for the last more than 12 years. The Defendant has nothingto do with the other land described in this para of the Plaint. Theentries made in the Jamabandi 1981-82 referred to in this para inGrespect of the land described in this para of the written statementare not correct and are contrary to the facts on the spot.”

5. The learned trial court framed as many as 12 issues but for thepurpose of deciding the present appeal, Issue No. 3 is relevant whichreads thus:

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“Whether there is a relationship of landlord and tenant betweenthe parties as alleged. If so, regarding what property?”

6. The plaintiff appeared as PW-1 and examined some otherwitnesses. The plaintiffs in evidence produced the revenue record i.e.Jamabandi (Ex.P/1 to Ex.P/4) and Khasra Girdawari (Ex.P/5 to P/12)wherein the property in dispute has been shown to be in the ownershipand possession of the plaintiffs.

7. The learned trial court considering the oral evidence led by thedefendant returned a finding that the presumption of truth to the revenuerecord, specially Jamabandi, stands rebutted as the witness of thedefendant has deposed that the defendant is in possession on paymentof one half Galla batai. The defendant has examined Iqwal Ali (DW-2)and also examined Tulsi Ram(DW-5), in support of the defendant’s pleathat he is a tenant on payment of one half Galla batai. Iqwal Ali (DW-2)claims himself to be in possession prior to induction of the defendant astenant whereas Tulsi Ram and Gosaun are said to be the persons whowere collecting rent for the plaintiffs. Such witnesses have deposed thatthey were paying rent on behalf of the defendant. On the basis of theevidence recorded, the learned trial court returned a finding that thoughplaintiffs have proved themselves to be the owners of the suit land butthe land measuring 13 Bighas 2 Biswas was found to be in possession ofthe defendant as a tenant, thus granted decree for prohibitory injunctionexcept in respect of land found in possession of defendant as tenant.

8. The first appeal against the said judgment was allowed by thelearned District Judge on 26th May 1997. However, in the second appealpreferred by the defendant, the High Court remitted the matter to theFirst Appellate Court to examine the following two questions:

“1. Whether the defendant is in possession of the land measuring13 Bighas 2 Biswas (detailed above) as a tenant or a trespasser?

2. Whether the plaintiffs are entitled to a decree for possession ofthe said land?”

9. The learned Additional District Judge after the remand allowedthe appeal, inter alia, for the reason that the pleading did not showwhen the tenancy was created and, if so, whom and what were theterms and conditions of the tenancy.

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A10. It may be noticed that the plaintiffs have claimed the defendantto be the Manager of their Estate but there is concurrent finding thatplaintiffs have failed to prove that the defendant was their Manager.The defendant has admitted the ownership of the plaintiffs over the suitland but asserted himself to be the tenant. The onus of proof of IssueNo. 3 was on the defendant. The ownership of the plaintiffs over theBsuit land not being in dispute, the onus of proof of relationship of landlordand tenant was rightly placed on the defendant. Therefore, the questionrequired to be examined is as to whether the entries in revenue recordsuch as Jamabandi (Ex.P/1 to P/4) and Khasra Girdawari (Ex.P/5 to P/12) carrying presumption of truth stand rebutted by the oral testimony.CSome of the provisions of the Himachal Land Revenue Act, 1954[1] readas under:- “32. Record-of-rights and documents included therein.

(1) Save as otherwise provided by this Chapter, there shall be arecord-of-rights for each estate.D(2) The record-of-rights for an estate shall include the followingdocuments, namely:- (a) Statements showing, so far as may be practicable:

(i) the persons who are land-owners, tenants or assignees of landErevenue [in the estate of who] receive any of the rents, profits inthe estate, or who are entitled to the produce of the estate, or tooccupy land therein;

(ii) the nature and extent of the interests of those persons, and theconditions and liabilities attaching thereto; and

F(iii) the rent, land revenue, rates, cesses or other payments duefrom and to each of those persons and to the Government; (b) a statement of customs respecting rights and liabilities in theestate.

G(c) a map of the estate; and(d) such other documents as the Financial Commissioner may,with the previous sanction of the State Government prescribe.

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Section 34. [Periodical] Record. – (1) The Collector shall causeto be prepared by the patwari of each estate yearly, or at suchother intervals as the Financial Commissioner may prescribe, anedition of the record of rights amended in accordance with theprovisions of this Chapter.

(2). This edition of the records of rights shall [omitted the Act no.21 of 1976] comprise the statements mentioned in sub-section (2)clause (a) of Section 32 and as such other documents, if any, asthe Financial Commissioner may, with the previous sanction ofthe State Government prescribe.

(3) For the purpose of the preparation of the annual record, theCollector shall cause to be kept up by the patwari of each estatea register of mutations and such other register as the FinancialCommissioner may prescribe.

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Section 45. Presumption in favour of entries in records-of-rights and [periodical] records. - An entry made in a record-of-rights in accordance with the law for the time being in force, or[periodical] record in accordance with the provisions of thisChapter and the rules thereunder, shall be presumed to be trueuntil the contrary is proved or a new entry is lawfully substitutedtherefor:

Provided that notwithstanding anything contained in thissection any entry made, in the areas comprised in HimachalPradesh immediately before 1[st] November, 1966 [during the periodbetween the first day of April, 1948 and the first day of April,1956] in record-of-rights or in [a periodical] record where by theland is shown as under self cultivation shall not be presumed to betrue.

Section 46. - Suit for declaratory decree by persons aggrievedby an entry in a record. -if any person considers himself aggrievedas to any right of which he is in possession by an entry in a record-of-rights or in a [periodical] record, he may institute a suit for adeclaration of his right under Chapter VI of the Specified ReliefAct, 1963.”

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11. The High Court allowed the defendant’s appeal and held thatthere is nothing on record to establish that the defendant was appointedas a Manager and that he was not a tenant. The High Court held asunder:

“19. ……The plaintiffs have not brought on record anyBdocumentary evidence which demonstrates that the defendantwas managing the property of the plaintiffs as Manager and notas a tenant. The plaintiffs have placed on record copies ofjamabandi, Ex.P-1 to P-4 and copies of khasra girdawari, Ex.P-5to P-12, which depict that the suit land is in ownership andpossession of the plaintiffs. No doubt presumption of truth isCattached to the copy of jamabandi, but this presumption is alwaysrebuttable.

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28. From the above, it stands fully established on record that theDplaintiffs used to receive galla batai from the defendant for theland measuring 13.2 bighas and the presumption of truth attachedto the revenue entries showing the plaintiff as owner -in-possessionof the said land stands rebutted. Even otherwise, also as far asthe possession of the defendant qua the suit land is concerned, itis admitted by the plaintiff, but the case of plaintiff is that theEdefendant was his servant. At the same time, as has been observedhereinabove, the plaintiff has failed to bring any document onrecord with respect to the appointment of the defendant as aservant, salary paid to him and conclusion is that the defendantwas a tenant of the plaintiff on the land to the extent of 13.2Fbighas.”

12. The presumption of truth attached to the Jamabandi was saidto be rebutted on the basis of a statement of original defendant ShivRam (DW 1) who claims to be in possession of the suit land from last15-16 years. He deposed that prior to him, Iqwal Ali (DW-2) was inGpossession of the suit land. Iqwal Ali (DW-2) deposed that he used tocultivate the land prior to the defendant. Tulsi Ram (DW-5) and Gosaunwere stated to be the servants of plaintiff No. 1 and, in that capacity,they used to collect the rent from the defendant for payment to theplaintiff.

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13. The defendant also examined Lalita Chauhan (DW-8),Revenue Officer, who has produced the record of the revenueproceedings relating to correction of the revenue entries. The High Courtrelied upon the statements recorded in such revenue proceedings to holdthat in an inquiry conducted by Kanungo, pursuant to the applicationmoved by the defendant, there was a recommendation for correction ofthe revenue record.

14. The record produced by Lalita Chauhan (DW-8) for correctionof Khasra Girdawari entries is not relevant and admissible before theCivil Court. The proceedings before the Revenue Officer for correctionof revenue record are summary in nature. The statements recorded bythe Revenue Officer during the proceedings for correction of revenuerecord are not per se admissible in evidence. Maybe the evidence of thewitnesses could be used to confront the witness being a previous statementif such a statement is made on oath. Therefore, the reference ofcorrections of Khasra Girdawari proceedings is wholly unwarranted whensuch entries are not proved to be incorrect.

15. As per Section 32(2)(a) of the 1954 Act, record-of-rights, i.e.Jamabandi, shall include the name of persons who are landowners, tenantsor assignees of land revenue and also the rent, land revenue, rates, cessesor other payments due from and to each of those persons and to theGovernment. On the other hand, the periodical record, i.e. KhasraGirdawari, as mentioned in Section 34 of the 1954 Act, is to be preparedevery year as the proof of the statements, as mentioned in sub-section(2) clause (a) of Section 32, which includes the name of the landowners,tenants and the rent and land revenue payable. In terms of Section 45 ofthe 1954 Act, the record-of-rights as prepared in terms of Sections 32and 34 of the 1954 Act carries a presumption of truth. Still further, anyperson who is aggrieved by any entry in the record-of-rights or in aperiodical record has a right to invoke the jurisdiction of the Civil Courtfor correction of the entries in terms of Section 46 of the 1954 Act.

16. The detailed procedure for recording of periodical record-of-rights as well as the record-of-rights in terms of Sections 32 & 34 of the1954 Act has been prescribed. The record-of-rights contains entries ofthe revenue record for the four years. Such record-of-rights carries thepresumption of correctness in terms of Section 45 of the 1954 Act andalso Section 35 of the Indian Evidence Act, 1872[2]. Section 109 of the 2 For short “the Evidence Act”

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AEvidence Act further contemplates that whether there exists a relationshipof landowner and tenant and the burden of proving such a relationship ison the person who affirms it. The relevant provisions of the EvidenceAct read as under:

“35. Relevancy of entry in public record or an electronicBrecord made in performance of duty.—An entry in any publicor other official book, register or record or an electronic record,stating a fact in issue or relevant fact, and made by a public servantin the discharge of his official duty, or by any other person inperformance of a duty specially enjoined by the law of the countryin which such book, register, or record or an electronic record isCkept, is itself a relevant fact.

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109. Burden of Proof as to relationship in the cases ofpartners, landlord and tenant, principal and agent.- WhenDthe question is whether persons are partners, landlord and tenant,or principal and agent, and it has been shown that they have beenacting as such, the burden of proving that they do not stand, orhave ceased to stand, to each other in those relationshipsrespectively, is on the person who affirms it.”

E17. In the State of Himachal Pradesh, Jamabandi, under Section32 of the 1954 Act as well as Khasra Girdawari, under Section 34 of1954 Act, both are record-of-rights in terms of Section 32 of the 1954Act, and have statutory presumption of truth. How that presumption canbe inferred has come up for consideration before this Court in HarishChander and Others v. Ghisa Ram and Another[3].This Court heldFthat the entries in the Jamabandi carry presumption of truth but suchpresumption is rebuttable. Once that presumption is raised, still anothercomes to the aid of respondent No. 1 by reason of the rule contained inSection 109of the Evidence Act, namely, that when two persons havebeen shown to stand to each other in the relationship of landlord andGtenant, the burden of proving that such relationship has ceased, is on theparty who so asserts. It was held as under:

“2. ……Apart from the oral evidence there is no material on therecord which may indicate the falsity of any of the entries in the revenue records and we are of the opinion that the lower courtswere fully justified in relying on them.

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6. No suspicion can attach to the entries in the Jamabandi for theyear 1959-60, nor have the contents of that document been assailedbefore us. A presumption of truth attaches to those entries in viewof the provisions of Section 44 of the Punjab Land Revenue Act.That presumption is no doubt rebuttable but no attempt has beenmade to displace it. Further, once that presumption is raised, stillanother comes to the aid of Respondent 1 by reason of the rulecontained in Section 109 of the Indian Evidence Act, namely, thatwhen two persons have been shown to stand to each other in therelationship of landlord and tenant, the burden of proving that suchrelationship has ceased, is on the party who so asserts. It maytherefore be legitimately presumed that the plaintiff continued topossess the land as a tenant till the institution of the suit.”

18. The present is a case where no relationship of landlord andtenant is mentioned in the revenue record though required in terms ofSection 32(2)(a) of 1954 Act. In the absence of entry in the revenuerecord, which is also expected to contain the entry of rent and possession,the tenancy cannot be treated to be in existence only on the basis of oralevidence of the witnesses examined by the defendant. The burden ofproving the relationship was on the defendant. Such burden cannot besaid to be rebutted only by oral evidence. The witnesses may lie but thedocuments do not, is a golden rule. The presumption of truth attached tothe revenue record can be rebutted only on the basis of evidence ofimpeccable integrity and reliability. The oral evidence can always beadduced contrary to the revenue record but such oral testimony will notbe sufficient to hold that the statutory presumption stands rebutted.

19. This Court in Vishwa Vijai Bharti v. Fakhrul Hasan & Ors.[4]held that the entries in the revenue record ought to be generally acceptedat their face value and courts should not embark upon an appellate inquiryinto their correctness. But the presumption of correctness can applyonly to genuine, not forged or fraudulent entries. This Court held asunder:

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A“14. It is true that the entries in the revenue record ought, generally,to be accepted at their face value and courts should not embarkupon an appellate inquiry in to their correctness. But thepresumption of correctness can apply only to genuine, not forgedor fraudulent, entries. The distinction may be fine but it is real.The distinction is that one cannot challenge the correctness ofBwhat the entry is the revenue record states but the entry is opento the attack that it was Made fraudulently or surreptitiously. Fraudand forgery rob a document of all its legal effect and cannot founda claim to possessory title.”

20. This Court in a judgment reported as Guru Amarjit Singh v.CRattan Chand and Others[5 ]was examining a dispute of relationship oflandlord and tenant. A copy of more than thirty years old lease deed wasproduced to prove the relationship between landowner and tenant.However, the revenue record did not show any payment of rent but onlyexistence of terms of lease to pay rent. This Court held that non- Dproduction of the receipts of payment of rent clearly indicates that therewas no relationship between landlord and tenants.

21. In a judgment reported as Sodhi Transport Co. and Othersv. State of U.P. and Others[6], this Court was considering Section 28-Bof the Uttar Pradesh Sales Tax Act, 1948 which raises a presumption ofEsale of goods in a manner prescribed therein. This Court consideredSection 4 of the Evidence Act and also the previous judgments and heldas under:

“14. A presumption is not in itself evidence but only makes aprima facie case for party in whose favour it exists. It is a ruleFconcerning evidence. It indicates the person on whom the burdenof proof lies. When presumption is conclusive, it obviates theproduction of any other evidence to dislodge the conclusion to bedrawn on proof of certain facts. But when it is rebuttable it onlypoints out the party on whom lies the duty of going forward withevidence on the fact presumed, and when that party has producedGevidence fairly and reasonably tending to show that the real factis not as presumed the purpose of presumption is over. Then theevidence will determine the true nature of the fact to be established.The rules of presumption are deduced from enlightened human 5AIR 1994 SC 227H6 (1986) 2 SCC 486

knowledge and experience and are drawn from the connection,relation and coincidence of facts, and circumstances.”

22. In another judgment reported as Kumar Exports v. SharmaCarpets[7], this Court examined the presumption of fact in proceedingsunder Section 138 of the Negotiable Instrument Act, 1881. It was heldthat bare denial of the passing of the consideration and existence ofdebt, apparently would not serve the purpose of the accused. Somethingwhich is probable has to be brought on record for getting the burden ofproof shifted to the complainant. It was held as under:

“21. The accused has also an option to prove the non-existenceof consideration and debt or liability either by letting in evidenceor in some clear and exceptional cases, from the case set out bythe complainant, that is, the averments in the complaint, the caseset out in the statutory notice and evidence adduced by thecomplainant during the trial. Once such rebuttal evidence isadduced and accepted by the court, having regard to all thecircumstances of the case and the preponderance of probabilities,the evidential burden shifts back to the complainant and, thereafter,the presumptions under Section 118 and 139 of the Act will notagain come to the complainant’s rescue.”

23. The presumption of truth attached to the revenue record canbe rebutted if such entry was made fraudulently or surreptitiously (VishwaVijai Bharti’s case) or where such entry has not been made by followingthe prescribed procedure (Bhimappa Channappa Kapali (Dead) byLRS. v. Bhimappa Satyappa Kamagouda (Dead) by LRS. andOthers[8]). Even in Guru Amarjit Singh, where thirty years old leasedeed was produced, this Court had not accepted the proof of therelationship between landowner and tenant in absence of receipt ofpayment of rent.

24. Therefore, we find that the presumption of truth attached tothe record-of-rights can be rebutted only if there is a fraud in the entryor the entry was surreptitiously made or that prescribed procedure wasnot followed. It will not be proper to rely on the oral evidence to rebutthe statutory presumption as the credibility of oral evidence vis-a-visdocumentary evidence is at a much weaker level.

7 (2009) 2 SCC 513

8 (2012) 13 SCC 759

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A25. In view thereof, we find that the High Court has erred in lawin allowing the defendant’s appeal relying upon oral evidence to rebutthe statutory presumption of truth attached to the revenue record. Theonus of proof was placed on the defendant by the learned trial court.The burden is on the person who asserts such a relationship as perSection 109 of the Evidence Act. The defendant has failed to rebut theBpresumption of truth on the basis of reliable, trustworthy and cogentdocumentary evidence to prove the relationship of a tenant.

26. Consequently, the order of the High Court is set aside and thejudgment and decree passed by the First Appellate Court is affirmed.The appeal is allowed.

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Appeal allowed.

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