# GURBAKSH SINGH v. NIKKA SINGH

- **Citation:** [1963] Supp. 1 S.C.R. 55
- **Court:** Supreme Court of India
- **Decided:** 1963
- **Case number:** Civil Appeal No. 128 of 1960
- **Bench:** S. J. Imam, K. SuBBA RAo, N. Rajagopala Ayyangar, j. R. MUDHOLKAR
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/gurbaksh-singh-v-nikka-singh-2728
- **Pages:** 9

## Headnote

55
Second Appeal-Failure of first appellate court to give
finding on question of titk-Interference by High Court-Entry
in revenue records-Presumption as to correctness-Code of Civil
Procedure, 1908 (Act 5 of 1908), s. JOO-Punjab Land Revenue
Act, 1887 (Punj. 17 of 1887), ss. 37 and 44.
Teja Singh and Jhandha Singh were co-sharers in certain
agricultural land. They partitioned the land taking l and 7
shares respective I/ and applied for mutation of nan1es to the
revenue authorities. In the mutation by mistake the entire land
was shown against the name of Teja Singh. On discovering
the mistake Jhandha Singh applied for correction of the entry.
During the pendency of these proceedings Teja Singh died and
his brother and heir· Mula Sim;h sold the entire land in favour
of the appellant. Mula Singh appeared before the revenue
authorities and adn1itted thr n1istake. On this admission and
on the report of an enquiry inade into the nmtter by a
subor~
dinate revenue officer the authorities corrected the mistake and
the correct shares of ~feja Singh andjhandha Singh were shown
as 1/8 and 7/8. The appellant filed a suit for declaration of his
exclusive title to the lan<l.
The trial court decreed the suit
holding that the corrected mutation entry \vhich was made on
the admisson o; Mula Singh after he had already sold the property was not properly made.
On appeal the first appellate
court upheld the decree, holdi1:g that Gurbaksh Singh was a
bonafi<le
0purchaser in good hiith but \Vithout givinr~ any finding
on the question
<~f title.
In
~C'COJH..l appeal the fligh Court
reversed the finding.; and dismissed the suit. The appellant
contended that the Hi![h Court had no jurisdiction to set aside
concurrent findings of fact in second appeal and that no pre~
umption could arh>c in favour of the corrected entry.
Held, that the Hi3h Cuurt was justified in interfering in
second appeal as the first appellate court had given no finding
on the question of title.
The finding that the appellant was a
bonafide purch;i.ser in good taith \Vasn ot based upon any evidence and the onus
wa~ on the transferee to show that the
nransferor \Vas the ostensible owner. '1'he appellant had full
tkowledge of the defect in the title of Mula Singh.
1962
September 14.
1962
Gurba/uh Singh
v.
Nikko Singh
.lbbba Raa, J.
56
SUPREME COURT REPORTS [1963]SUPP.
f
. Held, further, that the presumption under s. 44 of the
Punjab Land Revenue t'.ct arose that the Cllrrected entry was
true as the entry \\'as ina<lc in accordance \Vi th la'"·· Section 37
provided that such an entry could be made in accordance \Yith
facts proved or admitted to have occurred. Though Mula Singh's
admission after he had parted with the interest in tbe property,
could not have been rehed upon, the entrv v:as n1ade in accor·
dance with the facts proved before the ;.evenue authorities by
the report of the subordinate revenue officer which recited the
terms of the partition also. The appellant did not adduce any
evidence to rebut the presumption.
·

## Text

I
1 S.C.R.
SUPREME COURT REPORTS
GURBAKSH SINGH
v.
NIKKA SINGH
(S. J. IMAM, K. SuBBA RAo, N. RAJAGOPALA
AYYANGAR AND j. R. MUDHOLKAR, jj.)
55
Second Appeal-Failure of first appellate court to give
finding on question of titk-Interference by High Court-Entry
in revenue records-Presumption as to correctness-Code of Civil
Procedure, 1908 (Act 5 of 1908), s. JOO-Punjab Land Revenue
Act, 1887 (Punj. 17 of 1887), ss. 37 and 44.
Teja Singh and Jhandha Singh were co-sharers in certain
agricultural land. They partitioned the land taking l and 7
shares respective I/ and applied for mutation of nan1es to the
revenue authorities. In the mutation by mistake the entire land
was shown against the name of Teja Singh. On discovering
the mistake Jhandha Singh applied for correction of the entry.
During the pendency of these proceedings Teja Singh died and
his brother and heir· Mula Sim;h sold the entire land in favour
of the appellant. Mula Singh appeared before the revenue
authorities and adn1itted thr n1istake. On this admission and
on the report of an enquiry inade into the nmtter by a
subor~
dinate revenue officer the authorities corrected the mistake and
the correct shares of ~feja Singh andjhandha Singh were shown
as 1/8 and 7/8. The appellant filed a suit for declaration of his
exclusive title to the lan<l.
The trial court decreed the suit
holding that the corrected mutation entry \vhich was made on
the admisson o; Mula Singh after he had already sold the property was not properly made.
On appeal the first appellate
court upheld the decree, holdi1:g that Gurbaksh Singh was a
bonafi<le
0purchaser in good hiith but \Vithout givinr~ any finding
on the question
<~f title.
In
~C'COJH..l appeal the fligh Court
reversed the finding.; and dismissed the suit. The appellant
contended that the Hi![h Court had no jurisdiction to set aside
concurrent findings of fact in second appeal and that no pre~
umption could arh>c in favour of the corrected entry.
Held, that the Hi3h Cuurt was justified in interfering in
second appeal as the first appellate court had given no finding
on the question of title.
The finding that the appellant was a
bonafide purch;i.ser in good taith \Vasn ot based upon any evidence and the onus
wa~ on the transferee to show that the
nransferor \Vas the ostensible owner. '1'he appellant had full
tkowledge of the defect in the title of Mula Singh.
1962
September 14.
1962
Gurba/uh Singh
v.
Nikko Singh
.lbbba Raa, J.
56
SUPREME COURT REPORTS [1963]SUPP.
f
. Held, further, that the presumption under s. 44 of the
Punjab Land Revenue t'.ct arose that the Cllrrected entry was
true as the entry \\'as ina<lc in accordance \Vi th la'"·· Section 37
provided that such an entry could be made in accordance \Yith
facts proved or admitted to have occurred. Though Mula Singh's
admission after he had parted with the interest in tbe property,
could not have been rehed upon, the entrv v:as n1ade in accor·
dance with the facts proved before the ;.evenue authorities by
the report of the subordinate revenue officer which recited the
terms of the partition also. The appellant did not adduce any
evidence to rebut the presumption.
·
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 128 of 1960.
Appeal by special leave from the judgment and
decree dated November 4, 1955, of the Punjab High
Court in R. S. A. No. 493 of 1950.
K. C. Sarpal, S. K. Mehta and K. L. Mehta,
for appellant.
Anant Rmn Whig and J. JJ. Aga.ru1al, for respondent No. I.
1962. September 14. The Judgment of the
Court was delivered by
SuBBA RAO, J.-This appeal by special leave
is filed against the judgment and decree of the High
Court of Punjab, at Chandigarh, in Second Appeal
No. 493 of 1!150 setting aside the order of the Subordinate Judge, Amritsar, confirming that of the
Revenue Officer, Amritsar, decreeing the appellant's
suit.
The subject-matter of the appeal is land measuring 9 kanals and 2 marlas bearing Khasra Nos. 292
and 296 in mauza Kot Syed Mahmud,in the District of
Amritsar; the previous corresponding Khasra Nos. of
the land were 324 and 328. This land formed part of
a larger area which originally belonged to a number of
co-sharers, including Teja Singh and Jhandha Singh.
There was a partition a_n?-ong the said. co-sharers and
pursuant to that partitJ.on, on April 20, 1929 an
application was filed l before the Revenue Authorities
'
'
,
I
:
1 s.c.R.
SUPREME COURT REPORTS
57
for mutation of the names in accordance with the
terms of the partition; and the petition was signed by
all the co-sharers including Teja Singh and Jhandha
Singh. It was stated in the petition, marked as Ex.D-6
in the case, that in respect of the said Khasra numbers
one share should be entered in the name of Teja
Singh and 7 shares in the name of Jhandha Singh.
This fact is not admitted. But in the mutation that
was effected on August 26, 1929 the entire extent of
the said Khasra numbers was shown against Teja
Singh alone. The mutation number was 960.
On
August 10, 1934, Jhandha Singh, discovering the
mistake committed in the revenue record, applied to
the Revenue Authorities for correcting the said mistake. The Revenue Authorities
enquired into the
matter from August 10, 1934, to October 31, 1935.
The record of that enquiry discloses that Mula Singh,
the brother of Teja Singh-T"ja Sin!;h died and Mula
Singh was his heir-admitted the mistake made in
the. revenue record before the concerned authorities.
That apart, they had before them a report of the
enquiry made by a subordinate officer of the revenue
department tracing the history of the said Khasra
numbers and also giving the relevant facts, namely,
the partition between the co-sharers and the joint
application filed by them for mutation of their names
in respect of the plots allotted to each one of them.
On the material so placed before them, the Revenue
Authorjties corrected the mistake, and against mutation 'fo. 1490 the correct shares of Teja Singh end
Jhandha Singh, namely, 1/8 and 7/8 respectively were
given.
On October 24, 1934, i.e., after Jhandha
Singh had filed the application for correcting the
mutation No. 960, Mula Singh executed a sale deed
conveying the said land bea~ing Kha0ra numbers 324
and 328 in favour of Gurbaksh Singh, the appellant,
i.e., on the very date when Mula Singh had to appear
before the Revenue Authorities.
The appellant obtained a security bond from Mula Singh lt1 indemnify
him against any loss that might be caused to him in
1962
Gurbaksh Singh
v.
Nikka Singh
Subba Rao, J.
1962
GurbakJh Singh
v •
.Nikka Singh
Subba Roo, J.
58
SUPREME COURT REPORTS (1963) SUPP.
re:;pect of the said property; he also paid the bulk of
the consideration only on October 22, 1937, i.e., after
three years of the sale deed. Jhandha Singh in his
turn sold his 7 /8 share in the said Khasra numbers,
along with others, to Gopal Singh from whom Nikka
Singh, the first respondent, purchased the said share
by a sale deed dated October 27, 1936. The appellant filed a suit under s. 117 of the Punjab Land
Revenue Act, 1887, out of which the present appeal
arises, in the revenue court for a declaration of his
exclusive title to the said twq Khasra numbers, and
in that suit Nikka Singh, the first respondent, and
Mula Singh, the second respondent, were the defenda:1ts. The suit has had a chequered career and it is
not necessary to trace it. It would be enough if we
start with the decision of the Subordinate Judge dated
February 14, 1949, to whose file the suit was transferred from the file of the revenue court by the District Judge after it was remanded by the High Court
on an earlier occasion. T::e learned
Subordinate
Judge expressed his opinion on the relevant issue
thus:
" ............ so far as the land in suit is concerned,
Mula Singh had sold it to the plaintiff on 24th
October, 1934, and any admission by him made
on 10th August, 1936 would not affect the
plaintiff. Under Section 37 of the Land Revenue Act, a mutation can be based either on
facts proved or admitted. No facts had been
proved before the Officer who attested mutation
No. 1490, and Mula Singh was nobody to
admit any facts in relation to land which he had
sold two years before to the plaintiff. The
mutation
entry
1490 was
therefore
not
properly made and I decide
is.rue No. 11
accordingly."
It will be seen from the aforesaid observations that
the learned Subordinate Judge based his finding on
the assumption that the admission of Mula Singh
,
'
..
1 S.C.R.
SUPREME COURT REPORTS
59
could not bind the appellant who purchased his property before the said admission and that there was no
other evidence before the Revenue Authorities to make
the mutation entry No. 1490.
On appeal the learned
District Judge, though he made certain observations
indicating his line of thought, did not give any definite
finding on the question of title, but he dismissed the
appeal on the finding that the appellant was a borw,
fide purchaser in good faith.
The first respondent
preferred a second appeal to the High Court. The
High Court held that the correction of the earlier
mutation No. 960 was made with the consent of both
the parties and there is a presumption attached to the
correctness of the later mutation and that the appellant was fully cognizant of the real state of affairs,
namely, that Mula Singh had only 1/8 share in the
said Khasra numbers.
On those findings, the decree
of the learned Subordinate Judge was set aside and
the plaintiff's suit was dismissed with costs throughout.
Hence the appeal.
Learned counsel for the appellant raised before
us the following points: ( 1) The High Court has no
jurisdiction under SS. 100 and 101 of the Code of
Civil Procedure to set aside concurrent findings arrived at by the two lower courts. (2) Under s. 37 of the
Punjab Land Revenue Act there is a presumption in
favour of an entry in the revenue record if it is made
in accordance with the facts proved or admitted to
have occurred; but, as in the present case the entry
was corrected on the admission of Mula Singh after
he transferred his interest in favour of the appellant,
the said admission could not constitute a legal basis
for the said entry and therefore no presumption under
that section would attach to that entry.
It is true that as early as 1931 the Privy Council
held that the High Court had no jurisdiction to entertain a second appeal on the ground of erroneous findings of fact however gross the error may seem to be,
and the said ruling has since been followed by all the
1962
Gurbak1h Singh
v.
Nikka Sin;h
Subba Rao, /,
1962
Gurbaksh Singh
v.
Nikka Singh
Subba Rao, J.
60
SUPREME COURT REPORTS [1963) SUPP.
f
courts in India and accepted by this Court in a number
of decisions. But in this case the learned District
Judge has not given any finding on the question of
title, but contented himself to dispose of the appeal
on the ground that the appellant purchased the land
in good faith from Mula Singh. The question of title
was, therefore, left open and the High Court was
certainly within its right in giving it5 own finding
thereon.
The finding given by the learned District Judge
that the appellant was a bona fide purchaser in good
faith was not based on the evidence in the case, but
was merely an ipai dixit,
Nor did the District Judge
consider the impact of the provisions of s. 41 of the
Transfer of Property Act on the facts of the case.
Such a finding arrived at without evidence and with·
out applying the correct principles of law cannot
obviously bind the High Court. Section 41 of the
Transfer of Property Act reads:
"Where, with the consent, express or implied,
of the persons interested in immoveable property, a person is the ostensible owner of such
property and transfers the same for consideration, the transfer shall not be voidable on the
ground that the transferor was not authorised· to
make it: provided that the transferee, after takir.g reasonable care to ascertain that the transferor had power to make the transfer, has acted
in good faith."
The general rule is that a person cannot confer a better
title than he has. This section is an exception to that
rule. Being an exception, the onus certainly is on
the transferee to show that the transferor was the
ostensible owner of the property and that he had,
after taking reasonable care to ascertain that the
transferor had power to make the transfer, acted in
good faith. In this case the facts arc tell-tale and
they establish beyond doubt that the appellant had
•
...
1 S.C.R.
SUPREME COURT REPORTS
61
the knowledge that the title of his transferor was in
dispute and he had taken a risk in purchasing the
same.
The appellant and Mula Singh belong to the
same village Kot Syed Mahmud.
Mula Singh sold
his property to the appellant on the very date on which
he had to appear before the Revenue Authorities.
Though the sale deed was executed on October 24,
1934, the consideration was actually paid only three
years thereafter i.e., on October 22,
1937. The
appellant also took a security bond from Mula Singh
to indemnify himself against any loss that might be
caused to him in the property in dispute. These facts
show that the appellant had knowledge of the defect
in the title of Mula Singh. It is, therefore, not. possible to hold that he had purchased it in good faith.
The High Court, having regard to the aforesaid
circumstances, held that the appellant knew that the
transaction was in respect of a property of which the
title was extremely doubtful. There are no permissible grounds for challenging the correctness of that
finding before us in an appeal under Art. 136 of the
Constitution.
Nor do we see any merits in the contention
that no presumption can be drawn in favour of the
correctness of the impugned entry in· the revenue
record on the ground that the condition given in the
section are not satisfied. Section 37 of the Punjab
Land Revenue Act reads:
"Entries in records-of-rights or in annual records,
except entries made in annual records by patwaris under clause (a) of section 35 with respect
to undisputed acquisitions of interest referred to
in that section, shall not be varied in subsequent
records otherwise than by-
.) making entries in accordance with facts
proved or admitted to have occurred;
(b) making such entries as are agreed to by all
the parties interested therein or are supported
1962
Gurbaksh Sm.fh
v.
Nikka Singh
Suhba R.,,. J.
62
SUPREME COURT REPORTS [1963] SUPP.
1962
by a decree or order binding on those
G11rhaksh Singh
parties;
v.
Nikka Singh
Subha Rao, J,
x
x
x
x
Section 44 says that an entry made in a record-ofrights in accordance with the law for the time being
in force or in an annual record in accordance with the
provisions of that Chapter and the rules thereunder,
shall be presumed to be true until the contrary is
proved or a new entry is lawfully substituted therefor.
If the entry No. 1490 substituting entry No. 960 had
been made in strict compliance with s. 37 of the
Punjab Land Revenue Act, it cannot be disputed that
there would be a presumption that the new entry was
lawfullv substituted for the old. In that event the
old ent;y should yield to the new entry. This presumption is no doubt rebuttable. There is force in the
contention of learned counsel that Mula Singh, having
parted with the interest in the property, could not have
admitted the correctness of the new entry or agreed to
have the old entrv corrected in the manner done so as
to bind a purch~ser. But that contention does not
avail him in the present casr as we arc satisfied on a
perusal of the record that mutation entry 1490 had
been made in accordance with the facts proved before
the Revenue Authorities. There were the following
pieces of evidence before the Revenue Authorities,
among others: (1) evidence of Mula Singh; (2) the
report of the subordinate revenue. officer with all the
connected annexures, including Ex. D-6, wherein the
terms of the partition. were recited.
On the -said
evidence the Revenue Authorities corrected the entry
in the record in the manner they did. It must, there
fore, be held that the provisions of s. 37(a) of the
Punjab Land Revenue Act were satisfied. If so, there
is a presumption that the later entry was correct. The
appellant did not adduce any evidence to rebut the
said presumption.
On the other hand, Ex. D-6, the
application dated April 20, 1929, for mutation of
names in the revenue record, signed by all the cosharers contained the following recital:
l S.C.R.
SUPREME COURT REPORTS
63
"Entries with respect to the following Khasra
Nos. may be made in the revenue papers in the
name of Teja Singh, co-sharer No. 5 to the
tune of one share and Bhai Jhandha Singh
co-sharer No. 2,
to the tune of seven shares:
324/3.16, 328/5.06 etc.
The High Court was, therefore, right in holding that
there was a presumption in favour of the correctness
of the entry and the appellant had failed to rebut the
same. The judgment of the High Court is correct and
the appeal fails and is dismissed with costs.
Appeal dismissed.
M. S. ANIRUDHAN
v.
THE THOMCO'S BANK LTD.
(J. L. KAPUR, A. K. SARKAR AND
M. HIDAYATULLAH, .lJ.)
Guarantee-Surety-Alterat-ion of terms of letter of guarantee by principal debtor-Discharge of surety's liability.
The appellant agreed to stand surety for an overdraft
allowed by the respondent Bank to S. A blank form of guarantee
was given by the Bani< to S, who then had it filled up by the
appellant stating thc maximum amount which he guaranteed
as Rs. 25000/-.
When S brought the letter of guarantee duly
signed by the appellant and himself to the Bank the latter refused to accept the guarantee up to that limit as it was not
prepared to give S accommodation for a larger sum than
Rs. 20000/- and wanted it to be limited to Rs. 20000/-. S then
made alterations in the letter with the amount of the maximum
limit corrected to Rs. 20000/- and gave it to the Bank, In a suit
instituted by the Bank against the principal debtor, S, and the
appellant on the hasis of the contract of
guarantee for
lls. 20000/-, the appellant pleaded that as the document was
altered without his knowledge or consent, he was discharged
from his liability.
Held, (per Kapur aud Hidayatullah, lJ., Sarkar, J.,
dissenting), that the appellant was not discharged from his
liability under the contract of guarantee.
1962
< urhakJh Sing,h
v.
Nikka Singh
Subba Rao, J.
1962
Sr.ptrmbtr, 14