REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.2176 OF 2007

JAGDISH PRASAD PATEL (DEAD)

THR. LRS.& ANOTHER …Appellants

VERSUS

SHIVNATH & OTHERS …Respondents

J U D G M E N T

R. BANUMATHI, J.

This appeal arises out of the judgment dated 05.02.2007

passed by the High Court of Madhya Pradesh at Jabalpur

dismissing the Second Appeal No.174 of 1989 filed by the

appellants, thereby affirming the decision of the first Appellate

Court in Civil Appeal No.29-A/85 holding that in the absence of any

order of abandonment or revocation of the patta given to the

forefathers of the respondents-plaintiffs, grant of patta in 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 of respondents No.2 to 10 filed a suit for declaration of title

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over the suit lands 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 except khasra No.164 against the father of the

appellants-Hanuman Din. Ram Sahai and Rameshwar - fathers of

the plaintiffs were the joint lessees of the 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 measuring 21.45 acres and

their names were included as ‘lessees’ of the above lands during

the settlement and they kept on cultivating the lands till forty years

back when a partition took place between the two and both of them

became owners of half part each. Hanuman Din never remained in

possession of any part of the lands nor he had any right or

entitlement over the suit lands; but the grandfather of the

appellants-Gaya Din got a lease in disputed lands of the

respondents which according to the respondents is a forged

document. Based on the aforesaid lease, Gaya Din got his name

entered as khatedar in respect of the khataunis of the disputed

lands.

3.Respondent-deceased Vishwanath-predecessor-in-interest of

respondents No.2 to 10 filed an application before the Collector in

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August, 1969 stating that the lease of the disputed lands was

wrongly issued by illaqedar in the name of Gaya Din and the

proceedings for cancellation of the records in the name of Gaya

Din be initiated. The matter was sent to the Revenue Inspector for

enquiry who submitted his report in favour of respondents in

respect of the ownership of the lands in dispute and the Collector

registered the report after approving it. In proceedings before the

Sub-Divisional Magistrate in Miscellaneous Case No.351/142/69

under Section 145 Cr.P.C. initiated by Hanuman Din, the

Sub-Divisional Magistrate found Hanuman Din in possession of

lands in khasra Nos.162 and 163 and respondents were found in

possession of land in khasra No.164. Respondents-plaintiffs

alleged that pursuant to the order of the Sub-Divisional Magistrate,

Hanuman Din forcibly took possession of land in khasra No.41 and

therefore, the respondents filed suit for declaration and permanent

injunction.

4.Hanuman Din resisted the suit contending that the

respondents have never remained in ownership or possession of

the disputed lands and the lands belonged to one Ram Raj Singh

but he was not cultivating the lands and gave it to the

predecessors of the respondents for cultivation on the basis of

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Batai-crop sharing and only because of this, patta was granted at

the time of settlement in their names. The appellants further

averred that the father of the respondents abandoned the lands

and since revenue tax was not being paid, the khata of the

disputed lands was cancelled. Case of the appellants-defendants

is that in the auction held by Pawaidar for lease of suit lands and

other lands, bid of Gaya Din was accepted and in this regard, a

lease was issued in his name in Samvat 1986 (1929 A.D.). The

appellants had been in continuous possession of the suit

properties and the same is reflected in the khataunis and other

revenue records.

5.The trial court vide judgment dated 02.07.1985 dismissed the

respondents’ suit by holding that Gaya Din has been holding patta-

lease (Ex.D-20) in respect of the suit lands and has been in

continuous possession of the disputed lands since 1950 and

thereafter, Hanuman Din was in possession of the same. After

referring to the orders of the Commissioner (Ex.D-1), the trial court

held that the Commissioner recorded a finding of fact that the

respondents got the entries made in the revenue records in their

names in connivance with the Patwari. The trial court held that the

lease-patta (Ex.D-20) was issued by the then iIlaqedar to Gaya Din

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and that the said document being more than thirty years old is a

genuine one. After referring to various khasras and the entries

thereon in the name of appellant’s father, it was held that the

appellants’ father Hanuman Din has been in possession of the suit

lands since 1950 or prior to that. The trial court further held that the

suit was instituted on 17.10.1975 which is beyond twelve years and

that the suit is barred by time.

6.In appeal, the first Appellate Court vide its judgment dated

03.04.1989 held that at the time of settlement, patta was granted in

the name of father of the respondents and this has not been

disputed by the appellants and the appellants could not establish

abandonment of the lands by the father of the respondents and

therefore, the respondents ought to be treated as owners of the

suit properties. The first Appellate Court further held that the lease

Ex.D-20 produced by the appellants cannot be held to be a valid

one and in absence of order of revocation of the patta granted to

the respondents, it cannot be held that Ex.D-20 confers right of

ownership on the appellants over the disputed lands. The first

Appellate Court held that merely because of production of patta-

lease – Ex.D-20 by Hanuman Din, it cannot be said to have been

proved and therefore, it cannot be held that Hanuman Din has a

5

legal right of ownership on the disputed lands. The first Appellate

Court noted that on the basis of Ex.D-1 – order of the

Commissioner, possession of the suit properties by the appellants

cannot be held to be proved, since the respondents or their

ancestors were not parties to the said proceedings. On these

findings, the first Appellate Court set aside the judgment of the trial

court and held that the respondents are the owners of the disputed

lands and held that the respondents are entitled to get possession

of the lands in khasra Nos. 41, 131, 162 and 163 from the father of

the appellants.

7.In the second appeal, the High Court affirmed the findings of

the first Appellate Court and held that the suit lands were recorded

in the name of fathers of the respondents and that there was no

document on record to show that they have abandoned the

possession of the lands or surrendered the same in favour of

iIlaqedar. It was held that though patta-lease – Ex.D-20 was

granted in favour of grandfather of the appellants, the appellants

have not adduced any evidence to prove abandonment of the

lands in favour of iIlaqedar and no right accrued to the appellants

on the basis of the patta (Ex.D-20). Being aggrieved, the

appellants have preferred this appeal.

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8.We have heard Mr. Subodh Markandeya, learned senior

counsel for the appellants-defendants and Mr. A.K. Shrivastava,

learned senior counsel for the respondents-plaintiffs. We have

considered the submissions and carefully perused the impugned

judgment and the judgment of the courts below and other materials

on record.

9.The point falling for consideration is whether the High Court

was right in upholding the judgment of the first Appellate Court by

observing that in the absence of any order of abandonment or

revocation of the patta given to the respondents-plaintiffs, grant of

patta (Ex.D-20) in 1929 in favour of the appellants-defendants was

illegal and that the appellants-defendants cannot claim right based

upon Ex.D-20 and other documents.

10.The impugned judgment of the High Court is the concurrent

finding of the High Court and the first Appellate Court. We are

conscious that in an appeal under Article 136 of the Constitution of

India, the concurrent findings cannot be interfered with unless

warranted by compelling reasons. When the finding of the first

Appellate court and the High Court are shown to be perverse, this

Court would certainly interfere with the findings of fact recorded by

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the High Court. [Vide Mahesh Dattatray Thirthkar v. State of

Maharashtra (2009) 11 SCC 141]

11.The respondents-plaintiffs–Shiv Nath and deceased

Vishwanath filed suit for declaration of title over the suit lands in

khasra numbers 41-1.39, 131-2.70, 162-0.17, 163-3.92 and

164-2.15 total area 10.33 situated in Village Bairath General

No.782, Tehsil Gopad Banas on the plea that a lease/patta was

issued in favour of their fathers and that their names were

included as ‘lessees’ of the suit lands during settlement and that

they have been cultivating the lands till forty years back when

partition took place between the two and both Shiv Nath and

deceased Vishwanath became owners of half portion each.

12.The appellants-defendants resisted the suit contending that

Ram Raj Singh was the original owner of the lands but he was

not cultivating the lands and settlement patta was given in the

name of the fathers of respondents namely Ram Sahai and

Rameshwar on the basis of Batai-crop sharing at the time of

settlement and the predecessors of respondents-plaintiffs have

not cultivated the lands. The appellants-defendants further

averred that the forefathers of respondents-plaintiffs abandoned

the suit lands and since revenue tax was not paid, the lease of

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the suit lands in favour of respondents-plaintiffs was cancelled.

The then illaqedar accepted the bid of the defendant’s father

Gaya Din in the auction held in the year 1929-Samvat 1986. The

appellants-defendants have claimed ownership and possession

over the lands in dispute on the basis of the patta Ex.D-20 (Ex. P-

21) that was issued in their favour in Samvat 1986 (1929 A.D.)

and averred that since then they are in possession of the

disputed lands.

13.The suit of the respondents-plaintiffs is for declaration of

their title to the suit lands and consequential delivery of the suit

lands. Having filed the suit for declaration of title, the plaintiffs

could succeed in their suit only by adducing sufficient evidence to

establish their title. But the plaintiffs 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 have produced the

report of the Revenue Inspector dated 05.10.1969 (Ex. P-3) as

per which on the application of Vishwanath, an enquiry was made

and it was found that the name of pattedar is Gaya Din. Gaya

Din and Shiv Nath are shown as lease holders. In Ex.P-3, it is

further stated that in Khatauni No.58/59, it was found that names

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of Ram Sahai and Rameshwar 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 stated that the patta illaqa of the

above numbers are found registered in the name of Gaya Din.

Ex.P-3-report notes the entries in Ex.D-20-patta to the effect that

permission to make entry in respect of the patta granted vide

order No.146/1960 dated 21.11.1960 issued by the Tahsildar in

the official record has been given after due inspection and entry

in khasra is found made by the concerned Patwari on 10.01.1961.

14.In his evidence, PW-1 has stated that patta-lease was

issued in the name of his father. In his written statement,

defendant Hanuman Din also admitted that the plaintiffs-

respondents’ fathers were lessees and patta-lease was originally

granted in their favour during the settlement period for cultivation

on the basis of Batai-crop sharing. The trial court as well as the

first appellate court held that the lease was granted in favour of

father of respondents-plaintiffs at time of the settlement and they

were held to be original lessees. The trial court while deciding

issue No.2(A), observed that the grant of lease in the name of

father of respondents-plaintiffs in the settlement is not rebutted by

the appellants-defendants. Drawing our attention to the findings

10

of the trial court that patta was granted in favour of the father of

the respondents-plaintiffs, the learned senior counsel for the

respondents-plaintiffs submitted that this amounts to admission

and in terms of Section 58 of the Evidence Act, admitted facts

need not be proved. Placing reliance upon Nagindas Ramdas v.

Dalpatram Iccharam alias Brijram and others (1974) 1 SCC

242 and Executive Officer, Arulmigu Chokkanatha Swamy

Koil Trust, Virudhunagar v. Chandran and others (2017) 3

SCC 702, it was submitted that in view of clear admission of grant

of lease in the name of father of respondents-plaintiffs, the said

admitted fact need not be proved.

15.Section 58 of the Evidence Act, no doubt, postulates that

the things admitted need not be proved. However, proviso to

Section 58 of the Evidence Act gives full discretion to the court to

require the facts admitted to be proved otherwise than by such

admission. When the respondents-plaintiffs have filed the suit for

declaration of their title, the respondents-plaintiffs cannot isolate

few sentences in the written statement and take advantage of

only those part of the written statement which are favourable to

them. The written statement filed by the appellants-defendants

has to be read in toto. It is pertinent to note that in para No.(2) of

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the written statement, the appellants-defendants averred that the

lands were in the ownership of Ram Raj Singh at the time of the

settlement, but because he was not in a position to cultivate the

same himself, the lands were given to the father of the

respondents-plaintiffs for cultivation on the basis of Batai-crop

sharing. It is further averred that the then Halkedar cancelled the

lease in respect of disputed lands and the same were auctioned

in which the bid of the defendants’ father Gaya Din was accepted

and the disputed lands were transferred in his name in the sale in

Samvat 1986 i.e. 1929 A.D. The lease of the lands was issued in

the name of Gaya Din. The admission of the defendants as to

the lease of the plaintiffs’ father was the lease earlier granted in

favour of the forefathers of the respondents. In the light of the

pleadings and the oral and documentary evidence adduced by

the defendants, notwithstanding the admission in the written

statement, the burden lies upon the respondents-plaintiffs to

prove that the patta-lease continues to be in their favour and that

they are the holders of patta and that they are in continued

possession of the suit properties.

16.In his cross-examination, PW-1 stated that his father left for

Jabalpur about forty years prior to the institution of the suit. In the

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cross-examination, PW-1 however denied the suggestion that

when his father left for Jabalpur, he handed over the disputed

lands to Pawaidar and 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 is evident that the father of Vishwanath

had started living in Jabalpur forty years back prior to institution of

the suit and settled there. In the light of the evidence adduced,

the trial court rightly accepted the case of the defendants that in

Samvat 1986 (1929 A.D.), in the auction held by Pawaidar for

lease of suit lands and other lands, bid of Gaya Din was accepted

and the suit properties along with other lands were given on lease

to Gaya Din. We find substance in the submission of the learned

senior counsel for the appellants that if the lands were not left so

abandoned by the father of respondents-plaintiffs, it would not

have been possible for the Pawaidar to auction the lease of the

suit lands and grant lease of the lands in favour of Gaya Din.

17.Case of the appellants-defendants that in Samvat 1986

(1929 A.D.), in the auction held by Pawaidar for lease of suit

lands and other lands, the suit properties along with other lands

were given on lease to Gaya Din, is strengthened by revenue

records and ample evidence. The Pawaidar sanctioned entries

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regarding grant of patta to Gaya Din to be made in the

Government records. The appellants-defendants produced their

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 order of the Hon’ble Shri Rai Saheb Churhat, Halka

Patwari No.1, Region Churhat, State Rewa, Location Mauja

Kother, in Samvat 1986 in the name of Gaya Din as

farmer/cultivator for the suit properties granted for agricultural

purpose. From Ex. D-20, it is seen that as per Tahsildar order

No.146/1960 dated 21.11.1960, Pawaidar has been allowed to

enter in government serial. As per the order of the Tahsildar,

entry has been made accordingly in Pawai Khasra as is clear

from the endorsement made by Patwari dated 10.01.1961 in

Ex.D-20.

18.Ex. D-20-patta in favour of Gaya Din was validly granted by

the iIIaqedar to Gaya Din in the year 1929. The said documents

issued by the Tahsildar were produced from the custody of the

appellants. The contents thereon show that as per the

Government records, the lands had been given to Gaya Din. The

documents being more than thirty years old, the trial court rightly

presumed the Ex.D-20-patta of genuine. It was then up to the

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respondents to rebut the presumption. This has not been

controverted by the respondents-plaintiffs.

19.Ex. D-20 being thirty year old document gives rise to

presumption as to its genuineness. Contention of the

respondents-plaintiffs is that Section 90 of the Evidence Act has

no application to Ex. D-20 and the presumption cannot be raised

as to the genuineness of the contents of the document. Section

90 of the Evidence Act enables the court to draw presumption

about the genuineness of the document which is thirty years old.

Section 90 lays down that the court “may presume” that the

document is genuine. Since the patta granted in favour of Gaya

Din is of Samvat 1986 (1929 A.D.) which is more than thirty years

old, Section 90 raises presumption as to the authenticity of the

document. Mere allegations of fraud would not be sufficient to

rebut the presumption raised under Section 90 of the Evidence

Act.

20.The respondents-plaintiffs have produced the copies of

khasras of several years. However, 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 to 1954-55 (Ex. P-8) and subsequent khasras

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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 of the appellants-defendants. The lease was

granted in favour of Gaya Din and that he and Hanuman Din had

been continuously in possession of the properties is 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 in possession of the suit lands from the year

1950-51 to 1954-55 (Ex. P-8) and thereafter, the subsequent

khasras 1960-61 onwards. The names of the appellants-

defendants being mentioned in the khasra 1950-51 to 1954-55 is

very crucial. The reason being Vindhya Pradesh Abolition of

Jagirs and Land Reforms Act, 1952 (Vindhya Pradesh Act) came

into force on 30.07.1953. Ex. D-20 (Ex. P-21) - lease was

granted in favour of the predecessors of the appellants-

defendants namely Gaya Din by Pawaidar under Section 44 of

the Rewa State Malgujari and Kashtkari Act, 1935 (Rewa Land

Revenue and Tenancy Act, 1935). After referring to Ex. D-20, the

trial court rightly held that the Pawaidar was empowered to issue

the lease and that lease (Ex. D-20) was issued under

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Section 141 of the Act. It was therefore rightly held by the trial

court that the lease (Ex. D-20) is valid and that the appellants-

defendants have proved that the lease of the lands was legally

given by illaqedar in favour of their father.

22.The revenue records produced by the appellants for several

years 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 properties for several years. The oral and documentary

evidence clearly establish that the father of the respondents-

plaintiffs has abandoned the suit properties, pursuant to which,

auction was held by the Pawaidar and lease was issued by

illaqedar in favour of Gaya Din and that he was in continuous

possession of the suit properties.

23.In the plaint, the respondents/plaintiffs have alleged that

Ex. D-20-patta is a forged one. In para No.(4) of the plaint, it is

alleged that without knowledge of the respondents/plaintiffs’

father, defendants’ father Gaya Din got the lease from Ilaqa

Churhat by illegal means and Gaya Din never remained in

possession of the properties. The respondents-plaintiffs have not

produced any document to prove that Ex. D-20 is a forged one.

The plaintiffs at one place averred that without the knowledge of

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the plaintiffs and their father, Gaya Din succeeded in getting the

lease by illegal means of the disputed lands from iIlaqa therein;

whereas in para No.(5), the respondents-plaintiffs alleged that the

document is a forged one. In fact, as pointed out earlier, the

respondents themselves have filed the patta granted in favour of

the appellants-defendants. It is pertinent to note that Vishwanath

had given an application for inspection of the area (patta) in

respect of land numbers 41, 131, 162, 163 and 164 situated in

Village Bairath. The Collector called for the report from the

Revenue Inspector and as per the Report of the Revenue

Inspector (Ex. P-3), though the names of Ram Sahai and

Rameshwar are found recorded as owners of the said lands,

patta illaqa of the above land numbers was found registered in

the name of Gaya Din. The report of the Revenue Inspector

refers to the entry in respect of patta granted vide order

No.146/1960 dated 21.11.1960 issued by the Tahsildar. It also

refers to entry in khasra made by the concerned Patwari on

10.01.1961 which is in possession of Hanuman Din-predecessor

of the appellants. Ex. P-3-Report of Revenue Inspector states

that the patta-Ex. D-20 was granted in favour of Gaya Din.

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24.The entries which are consistently in favour of the

appellants ought not to have been ignored in preference to the

entries in favour of the 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 be genuine. The first

Appellate Court and the High Court were not right in brushing

aside Ex. P-21 (Ex.D-20) patta granted in the name of the

appellants and other crucial documents like report of the Revenue

Inspector (Ex. P-3) which notes that patta illaqa is in the name of

Gaya Din and the several entries in the revenue records are in

the name of the appellants. In the absence of the contra

evidence adduced by the respondents-plaintiffs, the trial court

rightly held that the appellants have been in continuous

possession of the suit properties and that the respondents have

failed to prove their right over the suit properties prior to 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, an application was filed before the District Collector alleging

interpolation by patwari in the gashti – khasras at the behest of

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the plaintiffs-respondents–Vishwanath, Shiv Nath and Jairaj

Kumari in respect of khasra Nos. 131,151,161,162,163 and 411.

The order of the Commissioner refers to the order passed by

Tahsildar dated 28.07.1971 upholding the entries in favour of

appellants’ father Hanuman Din and rejecting the plaintiffs-

respondents’ claim. After personally perusing the relevant

khasras, the Tahsildar held that entries for the years 1963-64 to

1968-69 made in favour of plaintiffs-respondents were

subsequently made and Tahsildar directed correction of khasra

entries in favour of appellant’s father. In revision, the Collector

upheld the said order of the Tahsildar dated 28.07.1971.

26.In revision against the order of the Collector, the

Commissioner vide order dated 17.07.1973 upheld the order of

Tahsildar observing that from perusal of SDO’s report dated

21.10.1969 and the order of Tahsildar dated 28.07.1971, the

mischief of patwari was proved beyond shadow of doubt. These

orders were not challenged by the plaintiffs-respondents and are

binding on them. The relevant portion of the order of 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

20

……….

2.A perusal of the records of the lower courts reveals that

N.A. Hanuman filed an application dated 19.09.1969 before

Collector Sidhi alleging interpolation by Patwari in the Gashti-

Khasaras in respect of Khasra Nos.131, 151, 161, 162, 163 and

41 of Village Bairath, Tehsil Gopadbanas. The application was

sent to SDO for enquiry. SDO reported vide his report dated

21.10.1969 that the allegations are true and the patwari was

guilty of grave misconduct. The charge of interpolation is

amply proved. Collector also found the report to be true,

but ordered that Tehsildar should hear the opposite party

before ordering correction (Order Sheet dated 23.10.1969).

Tehsildar held the enquiry and on the basis of documents

and oral evidence ordered correction of khasra entries for

the year 1963-64 to 1968-69 vide his order dated 28.07.1971.

The perusal of SDO’s report dated 21.10.1969 and the order

of Tehsildar dated 28.07.1971 reveals that the mischief of

patwari was proved beyond a shadow of doubt. The order

passed by the Tehsildar has to be treated as administrative 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. Land

Revenue Code, 1959 are concerned, they do not lie.

Administratively, I uphold the order dated 28.07.1971 passed by

the 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 the

other revenue authorities, it is clear that the plaintiffs-respondents

have made interpolation in the revenue entries in connivance with

Patwari and got the revenue entries recorded in their names. The

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High Court and the first Appellate Court erred in not considering

Ex.D-1-order of the Commissioner in its proper perspective.

27.Application filed for receiving additional evidence:- The

question may arise that though the number of orders were

passed in various proceedings before the Revenue Authorities,

why the respondents-plaintiffs have not challenged the same then

and there. The real fact is that the respondents-plaintiffs did

challenge various orders passed by the revenue authorities

before the concerned authorities and lost. Unfortunately, those

documents have not been filed by the appellants-defendants in

the courts below. Before this Court, the appellants-defendants

have filed an application to receive three additional documents

which are the orders passed by the Naib Tahsildar dated

01.09.1962, order of Tahsildar dated 28.07.1971 and order of

Collector dated 21.11.1972. The three documents which

according to the appellants are relevant are:-

S.No. Documents Remarks

1.01.09.1962 – Order passed by the Naib

Tahsildar, Gopad Banas in the suit filed

by Shivnath, son of Ram Sahai and

Shivnath, son of Rameshwar under

Section 250 of M.P. Land Revenue

Code, 1959.

Application was

dismissed holding that the

patta of the land was

issued by the Tahsildar in

favour of 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,

District Siddi

-

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The learned senior counsel for the respondents submitted that

there is a clear bar to adduce additional evidence in the appellate

court subject to circumstances stated under Order XLI Rule 27

CPC and no such circumstance has been set-forth in the

application filed by the appellants. It was submitted that there was

no pleading to that effect in the written statement and if the

application to receive additional evidence is allowed then it would

amount to de novo trial of the suit which was filed nearly after

forty-nine years. It was further submitted that when these

documents were neither filed in the trial court nor before the first

appellate court nor before the High Court, the Supreme Court

cannot entertain the documents filed as additional evidence. In

support of his contention, the learned senior counsel relied upon

Karewwa and others v. Hussensab Khansaheb Wajantri and

others (2002) 10 SCC 315 and Roop Chand v. Gopi Chand

Thelia (1989) 2 SCC 383 and other decisions.

28.Under Order XLI Rule 27 CPC, production of additional

evidence, whether oral or documentary, is permitted only under

three circumstances which are: (I) Where the trial Court had

refused to admit the evidence though it ought to have been

admitted; (II) the evidence was not available to the party despite

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exercise of due diligence; and (III) the appellate Court required

the additional evidence so as to enable it to pronounce judgment

or for any other substantial cause of like nature. An application for

production of additional evidence cannot be allowed if the

appellant was not diligent in producing the relevant documents in

the lower court. However, in the interest of justice and when

satisfactory reasons are given, court can receive additional

documents.

29.In Union of India v. Ibrahim Uddin & Another, (2012) 8

SCC 148, this Court held as under:-

“36. The general principle is that the appellate court should not

travel outside the record of the lower court and cannot take any

evidence in appeal. However, as an exception, Order 41 Rule 27

CPC enables the appellate court to take additional evidence in

exceptional circumstances. The appellate court may permit

additional evidence only and only if the conditions laid down in

this Rule are found to exist. The parties are not entitled, as of

right, to the admission of such evidence. Thus, the provision

does not apply, when on the basis of the evidence on record, the

appellate court can pronounce a satisfactory judgment. The

matter is entirely within the discretion of the court and is to be

used sparingly. Such a discretion is only a judicial discretion

circumscribed by the limitation 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

Syed Abdul Khader v. Rami Reddy (1979) 2 SCC 601.)

24

37. The appellate court should not ordinarily allow new evidence

to be adduced in order to enable a party to raise a new point in

appeal. Similarly, where a party on whom the onus of proving a

certain point lies fails to discharge the onus, he is not entitled to

a fresh opportunity to produce evidence, as the court can, in

such a case, pronounce judgment against him and does not

require any additional evidence to enable it to pronounce

judgment. (Vide Haji Mohammed Ishaq v. Mohd. Iqbal and

Mohd. Ali and Co. (1978) 2 SCC 493)

…….

40. The inadvertence of the party or his inability to understand

the legal issues involved or the wrong advice of a pleader or the

negligence of a pleader or that the party did not realise the

importance of a document does not constitute a “substantial

cause” within the meaning of this Rule. The mere fact that

certain evidence is important, is not in itself a sufficient ground

for admitting that evidence in appeal.”

“47. Where the additional evidence sought to be adduced

removes the cloud of doubt over the case and the evidence has

a direct and important bearing on the main issue in the suit and

interest of justice clearly renders it imperative that it may be

allowed to be permitted on record, such application may be

allowed.”

30.The order of the Commissioner dated 17.07.1973 refers to

the order of the Tahsildar dated 28.07.1971 and also the report of

the SDO dated 21.10.1969. We are inclined to receive the order

of Tahsildar dated 28.07.1971 as additional evidence. From the

order of the Tahsildar dated 28.07.1971, in Civil Suit

No.26A74/70-71 filed before Tahsildar, it is seen that Hanuman

25

Din-applicant thereon filed an application before the Collector,

Sidhi stating that he is the land owner-cultivator of the land

numbers 131, 151, 161, 162, 163, 41 of the village Bairath and

has been in possession of the lands and that the non-applicants

(Vishwanath, Shiv Nath and Jairaj Kumari) got their names

recorded in revenue entries in connivance with Shri Bansh

Bahadur Singh, Patwari and prayed for rectification of the entries.

A report was called from the SDO who held a detailed enquiry

and submitted a report. Based upon such enquiry and report of

the SDO dated 21.10.1969, the Tahsildar held that the entry in

regard to possession of the non-applicants (Vishwanath, Shiv

Nath, Jairaj Kumari) in respect of land numbers 41, 131, 162, 163

was found to be made subsequently and held as under:-

“9. As far as the rectification in the Khasra entries for the years

1968-69 or prior to it is concerned, application is allowed as per

para 8 and therefore, question regarding dispute in regard to

subsequent years of the above years does not arise at all. I have

personally perused the Khasra for the years 1963-64 to 1967-68

and I find that apart from the entries made in the column No.12

of the Khasra pertaining to the land No.41 at the time of inquiry,

“Vishwanath, Shivnath Kurmi, R/o Deh 41/1.39” it specifically

appears to be made subsequently.…... Thus, it is proved that the

entry in regard to the possession of non applicants Vishwanath,

Shivnath and Jairaj Kumri in respect of land No.41, 151, 162 and

163 is found proved to be made subsequently.”

26

“10. Now, it is to be seen that who was in the possession of the

disputed land prior to the disputed years. In this regard, none of

the parties has produced any evidence. Hence in the interest of

justice, 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,

non applicants are not found to be in the possession of the

above land. In such circumstances, it is clear that Patwari Halqa

with the intention to create dispute in respect of the disputed land

has committed forgery before his retirement.

Thus, the entries for the year 1963-64 to 1968-69 in

relation to possession of the applicants on the land No.41, 151,

161, 162 and 163 be recorded rectified in place of the non

applicants on the basis 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 the Tahsildar dated 28.07.1971 in Civil Suit No.26A74/70-

71 cannot be received as additional evidence and cannot be

looked into as the said documents were not produced before the

trial court nor were there reference to those documents in the

written statement. We find no merit in the contention that the

order of the Tahsildar dated 28.07.1971 cannot be looked into on

the ground that they were not adduced as evidence before the

trial court. Order of the Commissioner, Rewa in Case No.52A

61/71-73 marked as Ex. D-1 dated 17.07.1973 makes a clear

reference to the order of the Tahsildar dated 28.07.1971. Since in

27

Ex.D-1 (17.07.1973), there is reference to the order of the

Tahsildar dated 28.07.1971, the same is received as additional

evidence. The order of the Tahsildar dated 28.07.1971 has a

direct bearing on the main issue in the suit and in the interest of

justice, the same has to be received as additional evidence.

Since Ex. D-1 makes a reference to the order of the Tahsildar, in

our view, there is no impediment in receiving the order of the

Tahsildar dated 28.07.1971 as additional documents and

considering the same. Since the order of the Tahsildar has been

referred to in the order of the Commissioner dated 17.07.1973

(Ex.D-1), in our view, it will not have the effect of introducing new

case necessitating remittance of the matter. So far as the other

two additional documents 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 dated 21.11.1972, they are not received as additional

evidence.

32.The order of the Commissioner dated 17.07.1973 makes a

reference to the order of the Tahsildar dated 28.07.1971 which in

turn refers to the suit filed by the predecessors of the plaintiffs-

respondents under Section 250 of the MP Code in which

28

plaintiffs-respondents were unsuccessful in challenging the lease

in favour of Gaya Din/Hanuman Din. This document was not

produced before the Courts below and now only produced as

additional evidence. As discussed earlier, we are not inclined to

receive this document as additional evidence. In our considered

view, the first Appellate Court and the High Court fell in error in

not taking into consideration the categorical findings recorded in

the order of the Commissioner (Ex. D-1) that the plaintiffs-

respondents got the entries in the revenue records in connivance

with the Patwari and that the Patwari was guilty of grave

misconduct.

33.Limitation:- The respondents’ suit was for the reliefs of

declaration of title and consequential possession of the suit lands.

The suit was instituted on 17.10.1975. The appellants contended

that the suit is hopelessly time barred as according to them, the

cause of action arose for the first time in the year 1929, when the

patta was issued in favour of the appellants’ grandfather Gaya

Din and then in the year 1935, when the Act was promulgated by

the Maharaja of Rewa and then in the year 1952, when Jagirdari

was abolished and Hanuman Din became the tenant of the State

instead of Jagirdar and lastly on 02.11.1960, when the name of

29

Hanuman Din was entered by the Tahsildar as bhumiswami. By

dismissing the suit, the trial court held that the

respondents/plaintiffs must have filed the suit within twelve years

of possession of the defendants or dispossession of the plaintiffs.

In the plaint, the respondents have averred that they came to

know about the lease of the lands in favour of Gaya Din only in

the month of August, 1969 whereas the first Appellate Court held

that the suit was within the period of limitation of twelve years by

treating the cause of action to have arisen on 06.11.1974 i.e. on

the date of order of the Sub-Divisional Magistrate in Section 145

proceedings. Since we considered the matter at length on merits,

we are not inclined to go into the question of limitation.

34.Case of the respondents-plaintiffs is that as per Section 5 of

the Vindhya Pradesh Abolition of Jagirs and Land Reforms Act,

1952, all the Jagir Lands were resumed by the then Vindhya

Pradesh Government on 23.06.1953. On that date, illaqedar was

not authorised and was not having jurisdiction to issue patta. The

merit of the contention is to be considered in the light of the

provisions of Rewa Land Revenue and Tenancy Act, 1935 (Rewa

Act) and Vindhya Pradesh Act, 1952.

30

35.The learned senior counsel for the appellants stated that in

1929, there was no codified revenue law in the State of Rewa. In

1935, Maharaja of Rewa promulgated the Rewa Land Revenue

and Tenancy Act, 1935. Section 2 of the Rewa Act repealed all

earlier government notices, rules, circulars, orders, notifications

etc. that are inconsistent to the said Act; but saved the action

taken thereunder. Thus, the action taken thereunder the said Act

like grant of patta etc. was saved. Case of the appellants-

defendants is that by virtue of Section 2 of the Rewa Act, grant of

patta to Gaya Din is saved. It is also their case that Section 3 of

the Rewa Act saved the existing proceedings and the fathers of

the respondents could have proceeded against the appellants

under Sections 46 and 142 of the Rewa Act. However, they have

not initiated any proceedings under the said provisions of the Act.

In 1948, the State of Rewa acceded to India and became part of

the State of Vindhya Pradesh. In 1952, the State of Vindhya

Pradesh abolished the system of Jagirdari by the Vindhya

Pradesh Abolition of Jagirs and Land Reforms Act, 1952. Under

Section 26 of the Vindhya Pradesh Act, the appellants’ father

Hanuman Din became direct tenant of the State in place of

31

Jagirdar and under Section 28 of the Act, he became a pattedar-

tenant.

36.By the States Reorganization Act, 1956, the erstwhile State

of Vindhya Pradesh became a part of larger Madhya Pradesh.

Subsequent to which, the State of Madhya Pradesh enacted the

M.P. Land Revenue Code, 1959 (M.P. Code) whereby the

appellants’ predecessor Hanuman Din being a pattedar-tenant in

Vindhya Pradesh in possession of the lands, became their

Bhumiswami under Section 158(1)(d)(i) of the M.P. Code. After

following the due procedure laid down under Sections 109 and

110 of the M.P. Code, his name was entered in revenue records.

37.The trial court rightly held that the disputed lands belonged

to the iIlaqa and the Pawaidar was empowered under the

provisions of Section 44 of the Rewa Act to issue the said lease

(Ex. D-20). Section 44 of the Rewa Land Revenue and Tenancy

Act, 1935 reads as under:-

“44. Conferment of Pattas – (1) In a kothar village, the

following revenue officers are authorised to confer a patta:-

……….

(2)In a pawai, the following persons may confer a patta:-

(a)at a revision of settlement – the Settlement Officer and

Assistant Settlement Officers,

(b)during the currency of Settlement –

32

A pawaidar in pawai land not included in a sub-pawai;

A sub-pawaidar in respect of land included in his sub-

pawai;

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;

……..”

38.The learned senior counsel for the respondents-plaintiffs

submitted that upon consideration of the evidence of Hanuman

Din (DW-1), the first appellate court recorded a finding of fact that

in the year 1954, patta was granted in favour of Gaya Din

(defendants’ father) and as per the testimony of Hanuman Din

(DW-1), when patta was issued, Hanuman Din was 35 years old.

It was submitted that based on the evidence of Hanuman Din, the

first appellate court recorded finding that patta was granted in

favour of Gaya Din in the year 1954 by which time, the tradition of

Pawai has been removed and therefore, patta granted in favour

of Gaya Din is not a valid one. The first appellate court arrived at

such a finding without proper facts and by drawing an inference

noting that when DW-1 was examined in 1984, he was aged 65

years from which the first Appellate Court inferred that DW-1 must

have been born in 1919. Referring to the statement of DW-1 that

when patta was issued, he was aged 35 years, the first appellate

33

court inferred that 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 that as per Section 5 of the

Vindhya Pradesh Act, all the Jagir Lands were resumed in the

then Vindhya Pradesh Government on 23.06.1953, hence, on this

date, Pawaidar/iIlaqedar/Jagirdar were not authorised and were

not having jurisdiction to issue patta and therefore, the finding of

the first appellate court that the patta issued in the name of Gaya

Din in the year 1954 is not a valid one and the said findings of

fact cannot be interfered with.

39.The finding of the first appellate court that the patta was

granted to Gaya Din in 1954 and that illaqedar was not competent

to issue patta is misconceived. As discussed earlier, patta was

granted to Gaya Din not in 1954 but in Samvat 1986 (1929 A.D.)

when admittedly the illaqedar had such power. That apart, the

validity of patta so granted cannot be determined based on the

inference drawn as to the age of DW-1-Hanuman Din. The

learned senior counsel appearing for the appellants has drawn

our attention to the provisions of Vindhya Pradesh Act and

submitted that as per Section 5 of the said Act, the State

34

Government by a notification appointed a date for the resumption

of any class of Jagir Lands and the consequences of such

resumption are set out in Section 6 of the said Act. We find

substance in the submission of the learned senior counsel for the

appellants that in terms of Section 28 of the said Act, the

appellants who were till then the tenants of intermediary/Jagirdar

shall be deemed to be pattedar tenant in respect of the said

lands. Section 28 of the Vindhya Pradesh Abolition of Jagirs and

Land Reforms Act, 1952 reads as under:-

28. Certain occupants of lands to be pattedar tenants. – (1)

Subject to the provisions of sub-section (2) every person who is

entered in the revenue record for a continuous period of three

years as an occupant of any Jagir-land at the date of resumption,

shall be deemed to be pattedar tenant in respect of such land

which shall be assessed at the village rate.

(2) Nothing in sub-section (1) shall apply to any sir or khudkasht

land which is allotted to the Jagirdar under Section 22 or any

grove land possession of which the Jagirdar is entitled to retain

under clause (c) of Section 7.

In view of the provisions of the above Act, the first appellate court

erred in saying that the patta in favour of Gaya Din was granted in

the year 1954 and by that time, Pawaidar/iIlaqedar was not

having jurisdiction to issue patta.

35

40.Re: Finding of the first appellate court: Ownership of

the respondents not terminated in a legal way:- The first

appellate court held that the ownership of Rameshwar and Ram

Sahai was not terminated in a legal way and therefore, they are to

be treated as owners of the suit properties. The first Appellate

Court further held that since the ownership of Rameshwar and

Ram Sahai was not terminated in a legal way, the lease deed-

Ex.D-20 which has been produced on behalf of defendant No.1

cannot be treated to be a proved document and on those

findings, set aside the finding of the trial court that defendant No.1

is having a legal right of ownership of the disputed lands. The first

Appellate Court, in our view, was not right in doubting the

correctness of Ex. D-20 and not right in observing that defendant

No.1 is not having a legal right of ownership on the disputed

lands. The first appellate court and 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 Tahsildar dated 28.07.1971

and other documents showing grant of lease/patta in the name of

Gaya Din and the continued possession of Gaya Din and his son-

Hanuman Din and the appellants. The first Appellate Court and

the High Court erred in brushing aside the findings recorded by

36

the Commissioner dated 17.07.1973 as to the misconduct of the

patwari in making 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 not on the weakness of the case of the defendants-

appellants. The burden is on the plaintiffs-respondents to

establish their title to the suit properties to show that they are

entitled for a decree for declaration. The plaintiffs-respondents

have neither produced the title document i.e. patta-lease which

the plaintiffs-respondents are relying upon nor proved their right

by adducing any other evidence. As noted above, the revenue

entries relied on by them are also held to be not genuine. In any

event, revenue entries for few Khataunis are not proof of title; but

are mere statements for revenue purpose. They cannot confer

any right or title on the party relying on them for proving their title.

Observing that in a suit for declaration of title, the plaintiffs-

respondents are to succeed only on the strength of their own title

irrespective of whether the defendants-appellants have proved

their case or not, in Union of India and others v. Vasavi Co-

operative Housing Society Limited and others (2014) 2 SCC

269, it was held as under:-

37

“15. It is trite law that, in a suit for declaration of title, the burden

always lies on the plaintiff to make out and establish a clear case

for granting such a declaration and the weakness, if any, of the

case set up by the defendants would not be a ground to grant

relief to the plaintiff.”

42.Upon appreciation of evidence, the trial court has recorded

findings on various issues which was reversed by the first

Appellate Court. Since the first Appellate Court reversed the

judgment of the trial court, in the second appeal, the High Court

ought to have weighed and considered the evidence and

materials. The order of the High Court dismissing the appellant’s

appeal by affirming the findings of the first Appellate Court is

mainly on the ground that in the absence of any order of

abandonment or revocation of the patta granted to the

respondents-plaintiffs, grant of patta (Ex.D-20) in favour of the

appellants-defendants was 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 the competent authority in 1929

and the report of the Revenue Inspector dated 05.10.1969. The

first Appellate Court and the High Court did not consider Ex.D-1-

Order of the Commissioner dated 17.07.1973 and the report of

the SDO dated 21.10.1969 and other revenue records showing

38

that the forefather of the appellants-defendants namely Gaya Din

was given the patta (Ex.D-20) and since then, Gaya Din and

Hanuman Din were in possession of the properties. The High

Court has not properly appreciated the evidence and materials on

record and the impugned judgment is liable to be set aside.

43.In the result, the judgment of the High Court in the Second

Appeal No.174 of 1989 dated 05.02.2007 is set aside and this

appeal is allowed. The Suit No.68-A/75 filed by the respondents-

plaintiffs is dismissed and the judgment of the trial court shall

stand restored. No order as to cost.

.....………………………….J.

[R. BANUMATHI]

…..………………………….J.

[R. SUBHASH REDDY]

New Delhi;

April 09, 2019.

39