2026 INSC 350 Page 1 of 15

CA@SLP(C) No. 4664 of 2025

Non-Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal No………….of 2026

(@Special Leave Petition (Civil) No.4664 of 2025)

Hari Ram

...Appellant

Versus

State of Rajasthan & Ors.

...Respondents

J U D G M E N T

K. VINOD CHANDRAN , J.

Leave granted.

2. The appellant sought declaration of his ‘khatedari’ (tenant-

occupant) on a land having a total extent of 158.3 bighas in Khasra

numbers; more fully described in the plaint filed under Section 88 of

the Rajasthan Tenancy Act, 1955

1

and also sought for recovery of half

of the total land unlawfully encroached upon by the defendants. The

khatedari was claimed as a succession from his deceased father

whose name was mutated as on 26.11.1961 in the revenue records. It

was alleged that the defendants, Keshi, Bhura Ram and his son, Bhiya

1

For brevity ‘Act of 1955’

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CA@SLP(C) No. 4664 of 2025

Ram had fabricated a sale deed based on which the encroachment

was carried out. The suit was decreed as early as on 16.08.1975, the

1

st

defendant, Keshi having appeared and contested the case but

eventually declared ex-parte for non-appearance. An appeal by

Keshi long after, in the year 2006, was rejected on the ground of gross

delay. In the second appeal filed, the Board of Revenue remanded

the matter to the original authority which was affirmed by the High

Court confirmed in an intra-court appeal.

3. The Board of Revenue found that though the 1

st

defendant was

present, her presence was not consistent and there were no

signatures or thumb impressions recorded to confirm her

attendance. It was held that the original authority had provided no

opportunity to adduce evidence after the order dated 18.01.1972 and

despite the summons having not been returned as ‘served’, the trial

court proceeded ex-parte declining her reasonable opportunity to

defend the case. It was observed that the trial court failed to summon

the sale deed and ignored the mutation as on 12.07.1963 which

recorded the 1

st

defendant as a tenant. It was further held that the

plaintiff having not executed the decree, the defendant was not

aware of the decree passed especially when the mutation as of 1963

was altered in the name of the plaintiff only on 30.06.2010. The High

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CA@SLP(C) No. 4664 of 2025

Court found in favour of the defendant, especially noticing the fact

that the 1

st

defendant was a widow who was also illiterate.

4. The learned Senior Counsel, Shri Vaibhav Gaggar appearing

for the appellant took us through the proceedings before the trial

court produced as Annexure P4 to argue that the 1

st

defendant had

appeared before the trial court through a lawyer and was also

present in person on many occasions when the matter was taken up.

Defense evidence was led by examining two witnesses and later on,

at the request of the Counsel appearing for the 1

st

defendant,

summons was issued and after a period of two years it was

specifically noticed that the 1

st

defendant appeared in person after

which she was declared ex-parte and a decree passed. There was

absolutely no satisfactory reason projected for the long delay in filing

an appeal from the decree. It is argued that the contention taken up

to substantiate the allegation of fraud was improved upon at every

stage. At best, the contention before the Board of Revenue was that

the plaintiff had manipulated the appearance of an Advocate and the

1

st

defendant had never appeared before court, which is belied by

the proceedings of the trial court. Insofar as the possession is

concerned, it is asserted that the appellant is in full possession of the

entire extent of the property as of now and that is why there was no

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CA@SLP(C) No. 4664 of 2025

execution filed after the decree was passed. At the worst, the

appellant for the sake of arguments was willing to concede to the

status quo on possession as of today; which is asserted to be fully in

favour of the appellant.

5. The learned Senior Counsel, Shri Sadan Farasat appearing for

the respondent, however, would point out that the sale deed was in

the knowledge of the mother of the appellant who had initiated the

suit on behalf of the appellant, who was a minor at that point. It was

the mother who executed the sale deed. There was no attempt to seek

a declaration against the sale deed, especially since it was a voidable

document and not void ab initio. It is argued that Rule 143 of the

General Rules (Civil) 1986 prescribes signatures of the parties to be

affixed in the proceedings sheet, which has not been done, as is seen

from the produced document. The respondents who are now

contesting the proceedings have been settled with the property by

the original 1

st

defendant, thus stepping into her shoes in their status

as the assignees of the original defendant. There is clear allegation

of fraud made in the appeal memorandum based on which the

remand order has been passed; not liable to be interfered with.

6. In response, it is argued that the 1

st

defendant failed to produce

the sale deed, which was not registered, relied on in the proceedings

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CA@SLP(C) No. 4664 of 2025

as is noticed even by the Revenue Board. The plaint never disclosed

the knowledge of the specific document but only made an allegation

of an encroachment having been made on the basis of a fabricated

document. The contesting respondents in the present proceedings

are impleaded as legal representatives and if the assertion is of an

assignee, the said deed of assignment has also not been produced.

Reliance is placed on K.S. Shivappa v. K. Neelamma

2

to contend that

a voidable transaction can be repudiated by an unequivocal conduct

even without instituting a suit. Reliance is also placed on Union of

India v. Jahangir Byramji Jeejeebhoy

3

to assail the delay

condonation of 31 years carried out by the Revenue Board and

affirmed by the High Court. Gurnam Singh v. Surjit Singh

4

and Ajay

Kumar D. Amin v. Air France

5

are also relied on to advance the

contention that the refusal to produce the best evidence results in an

adverse inference being drawn.

7. We have perused the records and having given our anxious

consideration also to the arguments addressed, we are unable to

sustain the impugned orders. The plaint is filed by the mother of the

2

2025 SCC OnLine SC 2149

3

2024 SCC OnLine SC 489

4

(1975) 4 SCC 404

5

(2016) 12 SCC 566

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CA@SLP(C) No. 4664 of 2025

appellant, a minor at that time, on his behalf, produced as Annexure

P1. The course of action pleaded is an illegal encroachment carried

out by the defendants on the strength of a fraudulently executed ‘fake

sale deed’ by the defendants in favour of defendant No.1 for half of

the lands more fully described in the plaint. This is not an admission

of execution as claimed by the learned Senior Counsel for the

respondent. The plaintiff clearly speaks of his deceased father being

the ‘khatedari’ of the total extent of 158 Bighas and 3 Biswas, which he

inherited after the death of the father.

8. The 1

st

defendant filed a written statement, produced as

Annexure P2, wherein mutually destructive contentions were taken.

One that the plaintiff voluntary sold the entire lands comprised in the

specified khasra numbers along with half portion of khasra Nos.454

and 455 to the 1

st

defendant on 05.04.1963. Then, it was stated that the

deceased husband of the 1

st

defendant, who was the brother of the

plaintiff’s father, had possession and cultivation of these lands since

long time. But it was admitted that the rent receipts and other records

were in the name of the father of the plaintiff, who was the head of the

family. The defense asserted however was of purchase and not of a

co-sharer.

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CA@SLP(C) No. 4664 of 2025

9. The proceedings of the trial court produced as Annexure P4

indicate that after summons was issued first on 05.05.1965, the 1

st

defendant appeared through counsel and on many occasions was

present personally before the Court constituted under the Act of

1955. The vakalatnama filed by the 1

st

defendant is also produced as

Annexure P3. On 11.04.1972, both the counsel for the plaintiff and the

defendant were present and the latter prayed that summons be re-

issued to the defendant; presumably due to instructions having not

been received. The matter was then prolonged and on 26.02.1974

after the summons were re-issued, it was recorded that the 1

st

defendant was present in Court. On 21.05.1974, the defendant was

set ex-parte and the matter was kept for final hearing based on which

the order was passed on 16.08.1975 as per Annexure P5.

10. The learned Senior Counsel for the respondent had challenged

the presence of the 1

st

defendant before the Court relying upon Rule

143 of the General Rules (Civil), 1986, which was brought in long after

the order of 1975. This contention has been specifically taken up, on

the basis of the signature of the plaintiff, found in the proceedings on

05.02.1974. Rule 143, in any event, is not mandatory and is clearly

directory, going by the words employed of ‘so far as possible’. Even

if we take the signature of the plaintiff having been obtained on

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CA@SLP(C) No. 4664 of 2025

05.02.1974, on that date the defendant was not present and nowhere

else in the proceedings such a signature of the party or the counsel

is seen affixed. The proceedings of the Court specifically recording

the presence of the 1

st

defendant, especially when there is

appearance through an Advocate cannot be belied by a blan d

pleading, without any substantiation.

11. Further, it is to be noticed that Annexure A4, additional

document produced as per I.A. No.103563/2026 is the translated

copy of the application for condonation of delay filed before the First

Appellate Authority. The ground stated therein is that the information

about the decree was received from her lawyer on 15.02.2006; which

in terms is an admission of knowledge coupled with engagement of

a lawyer. Be that as it may, then, there is only a bland allegation that

the decree and order was obtained with unclean hands by hiding the

facts through fraud. The ground was improved upon in the second

appeal filed before the Revenue Board, which is produced as

additional document Annexure A5, wherein it was contended that no

notice was served on the 1

st

defendant nor was any Attorney

appointed by the 1

st

defendant. It was also contended that the plaintiff

manipulated the signature in the vakalatnama, especially when the

1

st

defendant was an illiterate woman who only uses thumb print. The

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CA@SLP(C) No. 4664 of 2025

aforesaid contention was not raised at the first stage when an appeal

was filed before the First Appellate Authority in 2006 numbered as

Appeal No.75/2007, renumbered as Appeal/Decree/ Jodhpur/155 of

2008 and rejected on the ground of gross delay of 31 years. The 1

st

appellate order produced as Annexure P7, clearly noticed the

appearance of the 1

st

defendant through an Advocate and evidence

having been led through two witnesses Shivdan and Bhika Ram, as

seen from the records of the trial court.

12. It is pertinent that the order of the trial court specifically

referred to DW1 Bhika Ram, who testified that the 1

st

defendant came

to the village 25 years ago and had been cultivating half of the

disputed land but admitted in cross-examination that the 1

st

defendant had only cultivated the land with defendant Nos.2 and 3 for

one or two years. DW2 Shivdan, similarly, though spoke of 1

st

defendant having cultivated the land, admitted in cross-examination

that for the past 4 years the 1

st

defendant was cultivating the land

along with Bhura Ram and Bhiya Ram, the defendant Nos.2 and 3. It

was also held that the 1

st

defendant had not produced the sale

agreement nor proved her possession, by any document other than

a mutation entry made in her name, which was of the year 1963, the

sole evidence produced before us also, as Annexure R1 along with

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CA@SLP(C) No. 4664 of 2025

the counter affidavit. No evidence as to any cultivation having been

carried out or land tax having been paid is produced before the

Revenue Court or before the higher forums.

13. In fact, Annexure P4 is an application said to have been filed by

the 1

st

defendant seeking production of certain documents, which

included the original sale deed in favour of the defendant, executed

by Smt. Jimni, the mother of the plaintiff, on his behalf. This further

belies the contention of the 1

st

defendant being unaware of the

proceedings. Despite the application made to produce documents,

the 1

st

defendant failed to produce the sale deed before Court.

Gurnam Singh

4 and Ajay Kumar D. Amin

5 relied on by the appellant

is relevant, insofar as the best evidence having not been produced

before the trial court. Gurnam Singh

4 was a case in which the

plaintiffs filed a pre-emption suit on the ground of the plaintiffs being

co-sharers by virtue of a sale deed registered of 19.03.1958, a portion

of which acquisition was admittedly sold in 1969. The subsequent

document of the admitted sale having not been produced before

Court; the claim of retention of certain properties was found to have

been not established. Ajay Kumar D. Amin

5 relied on Sections

140(g) and 103 of the Evidence Act, 1872 to hold that when a party in

possession of the best evidence, which throws light on the issue in

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CA@SLP(C) No. 4664 of 2025

controversy, withholds it, the Court is entitled to draw an adverse

inference and there is no responsibility on the Court to call upon the

party to produce the document.

14. In this context we have to examine the contention raised by the

respondents that the suit filed in 1965 by the mother of the appellant

on his behalf never sought for declaration or cancellation of the sale

deed dated 08.04.1963. We have already found that the plaint only

raises an apprehension that the encroachment was made by the

defendants on the strength of a fabricated sale deed created by them.

Though a defense was set up with respect to the sale deed, it was not

produced in which event there was no reason why the plaintiff should

seek a declaration of nullity, especially when the same was not even

a registered document available in the public domain. Apposite

would be reference to K.S. Shivappa

2, wherein this Court

categorically found that the repudiation of a voidable transaction

need not necessarily be in a suit instituted to set it aside and could as

well be, by way of an unequivocal conduct. Here, the appellant

claimed his ‘khatedari’ rights based on the mutation entries in his

father’s favour and the decree obtained thereat would be an effective

repudiation of the document.

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CA@SLP(C) No. 4664 of 2025

15. Admittedly, there is gross delay of 31 years in challenging the

decree passed on 16.08.1975 which was challenged in the year 2006

after 31 years. The contention that no execution was filed to evict the

respondents is only to be noticed to be rejected. Especially

reckoning the assertion of the appellant that he is in possession of the

entire lands as of now and in any event a claim for execution at this

stage based on the decree would also stand barred. The declaratory

decree in favour of the appellant cannot be set aside merely on the

ground that the appellant did not seek for execution since there is no

presumption that the possession remained with the defendants after

the passing of the decree; which continued possession had also not

been substantiated.

16. We cannot but notice that the delay is gross and the grounds on

which it was set aside by the Revenue Court, are all belied by the

proceedings in the suit produced as Annexure P4. Besides, the

ground of fraud taken at the 1

st

instance was not supported by any

pleading on facts and those taken at the second instance referred

only to the presence of the defendant having been manipulated by

the plaintiff. We have already found based on the proceedings in the

suit; the appearance of the counsel, the filing of an application to

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CA@SLP(C) No. 4664 of 2025

produce documents, which w ere never produced and the

examination of two witnesses, to be a deliberate falsehood.

17. We also have to notice that if there was a manipulation, there

was no reason for the suit to be kept pending from 1965 to 1975, a

period of ten years, when repeatedly summons were issued and

opportunity afforded to the defendant to adduce evidence. As has

been found in Jahangir Byramji Jeejeebhoy

3 and the various

decisions referred to therein, delay condonation cannot be an act of

generosity defeating the cause of substantial justice and causing

prejudice to the opposite party. The delay in challenging the decree

is gross and in any event the findings on the basis of the ‘khatedari’

and its succession, are unimpeachable. Though a claim of ancestral

property was raised, it was never pressed and the defense was set

up solely on the basis of the sale deed, which was never produced.

18. In this context we have to notice the sale deed produced as

Annexure A1 along with the I.A. No.30504/2026. It specifically speaks

of the vendor being a minor of 12 years of age, in which event there

ought to have been permission obtained from the Court, failing which

it is hit by Section 8(2) of the Hindu Minority and Guardianship Act,

1956. The respondents now impleaded also claimed on the basis of a

sale deed dated 25.07.2005 executed by the 1

st

defendant as per

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Annexure A3. Annexure A3 does not contain a recital as to the title of

the 1

st

defendant; the vendor in that document. We again notice K.S.

Shivappa

2 wherein also, there was a transfer of rights of a minor

without permission from the Court by a sale deed dated 13.12.1971.

The purchaser transferred the property by another sale deed dated

17.02.1993 to a third party. The minors on the other hand along with

their mother sold the property to Shivappa on their attaining

majority. Shivappa

clubbed it with another property, built a house

therein and was residing thereat. Two suits filed by the subsequent

purchasers reached this Court wherein this Court found that the third

party who purchased one of the properties by the deed of 1993

produced no proof of verification of the title of the vendor, which

recitals were also found to be absent in the deed of 1993. Annexure

A3, the deed dated 25.07.2005 produced herein, does not trace the

title of the vendor and there is no recital to that end, putting to peril

the contention of a bona fide purchase having been made in 2005.

19. On the above reasoning, we find the order as affirmed by the

learned Single Judge and Division Bench of the High Court to be

illegal, since there was no question of a remand after a period of 31

years especially when the defendant had contested the suit and had

even adduced evidence by way of examining witnesses, but refused

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CA@SLP(C) No. 4664 of 2025

to mount the box herself and produce the deed on which the defense

was set up. We set aside the aforesaid orders and restore the order

of the Revenue Court under the Act of 1955 in Revenue Case

No.94/1970 dated 16.08.1975.

20. The appeal stands allowed.

21. Pending applications, if any, shall also stand disposed of.

.………………………… …... J.

(SANJAY KUMAR)

..………… .…………………. J.

(K. VINOD CHANDRAN )

NEW DELHI;

APRIL 10, 2026.