# HIRA LAL AND ANOTHER v. GAJJAN AND OTHERS

- **Citation:** [1990] 1 S.C.R. 164
- **Court:** Supreme Court of India
- **Decided:** 1990-01-30
- **Case number:** Civil Appeal No. 3154 of 1982
- **Bench:** K.N. Saikia, M. Fathima Beevi
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/hira-lal-and-another-v-gajjan-and-others-10568
- **Pages:** 8

## Headnote

U. P. Zamindari Abolition and Land Reforms Act, 1950: Section
20(b)(i)-Adhivasi rights-Khasra entry-Acceptance of-No enquiries into possession-Assumption as to correctness-Rebuttal-Burden
C ofproof.
Code of Civil Procedure 1908: Section JOO-Circumstances
under which High Court could reappreciate evidence and come to its
own independent conclusion.
D
The plaintiff-respondent claimed that before the U.P. Zamindari
Abolition and Land Refoms Act, 1950 came into force, his father was a
sub-tenant under defendants 3 to 25 and after his father's death, the
other 3 sons separated from· the plaintiff and consequently he has
become the sole-tenant. According to him, his father was recorded
oecupant of Khasra 1356 Fasli (I.7.1948 to 30.6.1949) and was in
E cultivatory possession in Khasra 1359 Fasli (1.7.1951to30.6.1952) as a
result of which he had acquired adhivasi rights and sirdari rights, and
the rights of defendants 3 to 25 extinguished under section 240-A of the
said Act. He alleged that in 1968, defenda.nts 1 and 2 obtained fictitious
sale deed from defendants Nos. 3 to 25 in respect of the said land and started
interfering with his possession. He, therefore, filed a suit for permanent
F
injunction. The suit was contested by some of the defendants who
pleaded that neither the plaintiff nor his father was in possession of the
said land at. any point of time and there was no question of sub-tenancy
or acquiring of adhivasi/sirdari rights. The trial court dismissed the
suit. The appeal preferred by the plaintiff-respondent was dismissed by
the first appellant court.
G
The trial court as also the first appellate court held that the
respondent was not entitled to become an adhivasi under section
20(b )(i) of the Act since his father died in 1951 before the date of vesting
'"<
i.e. I.7 .1952. Both the courts also held that his father was not in
cultivatory possession of Khasra 1359 Fasli and, therefore, h.e could not
H
get ,adhivasi rights under section 3 of the U.P. Land Reforms \Supple164
,
t
l
t'
HIRA LAL v. GAJJAN
165
.mentary) Act, 1952. It was also held that there was no contract or
sub-teqancy in the name of his father.
The plaintiff-respondent preferred an appeal before the High
Court which allowed the appeal and granted a decree reversing the
decision of the courts below.
Aggrieved, the appellants have filed the present appeal contending
inter alia that since there were concurrent findings of facts by the trial
court and the first appellate court, and in the absence of any substantial
question of law, the High Court had no jurisdiction under section 100
C.P.C. to disturb the concurrent findings of facts.
Dismissing the appeal, this Court,
HELD: 1. Section IOO(l)(c) of the Code of Civil Procedure refers
to a substantial error or defect in the procedure. The error or defect in
A
B
c
the procedure to which the clause refers is not an error or defect in the
appreciation of evidence adduced by the parties on the merits. Even .if o
the appreciation of evidence made is patently erroneous and the finding
of fact recorded in~ consequence is grossly_ erroneous, that cannot ·be said
to introduce a substantial error or defect in the procedure. If in dealing
with a question of fact the lower appellate court has placed the onus on
wrong party and its finding of fact is the result substantially of this
wrong approach that may be regarded as a defect in procedure. When
);::
the first appellate court discarded the evidence as inadmissible and the
'
High Court is satisfied that the evidence was admissible that may introduce an error or defect in procedure. So also in a case where the court
below ignored the weight of evidence and allowed the judgment to be
influenced by inconseqnent matters, the High Court would be justified
in reappreciating the evidence and coming to its own independent
F
decision. [I68H; 169A-C]
Madan La/v. Gopi, AIR 1980 SC 1754 relied on.
V. Ramachandra Ayyar & Anr. v. Ramalingam Chettiar & Anr.,
AIR 1963 SC-302 referred t

## Text

A
HIRA LAL AND ANOTHER
v.
GAJJAN AND OTHERS
JANUARY 30, 1990
B
(K.N. SAIKIA AND M. FATHIMA BEEVI, JJ.]
U. P. Zamindari Abolition and Land Reforms Act, 1950: Section
20(b)(i)-Adhivasi rights-Khasra entry-Acceptance of-No enquiries into possession-Assumption as to correctness-Rebuttal-Burden
C ofproof.
Code of Civil Procedure 1908: Section JOO-Circumstances
under which High Court could reappreciate evidence and come to its
own independent conclusion.
D
The plaintiff-respondent claimed that before the U.P. Zamindari
Abolition and Land Refoms Act, 1950 came into force, his father was a
sub-tenant under defendants 3 to 25 and after his father's death, the
other 3 sons separated from· the plaintiff and consequently he has
become the sole-tenant. According to him, his father was recorded
oecupant of Khasra 1356 Fasli (I.7.1948 to 30.6.1949) and was in
E cultivatory possession in Khasra 1359 Fasli (1.7.1951to30.6.1952) as a
result of which he had acquired adhivasi rights and sirdari rights, and
the rights of defendants 3 to 25 extinguished under section 240-A of the
said Act. He alleged that in 1968, defenda.nts 1 and 2 obtained fictitious
sale deed from defendants Nos. 3 to 25 in respect of the said land and started
interfering with his possession. He, therefore, filed a suit for permanent
F
injunction. The suit was contested by some of the defendants who
pleaded that neither the plaintiff nor his father was in possession of the
said land at. any point of time and there was no question of sub-tenancy
or acquiring of adhivasi/sirdari rights. The trial court dismissed the
suit. The appeal preferred by the plaintiff-respondent was dismissed by
the first appellant court.
G
The trial court as also the first appellate court held that the
respondent was not entitled to become an adhivasi under section
20(b )(i) of the Act since his father died in 1951 before the date of vesting
'"<
i.e. I.7 .1952. Both the courts also held that his father was not in
cultivatory possession of Khasra 1359 Fasli and, therefore, h.e could not
H
get ,adhivasi rights under section 3 of the U.P. Land Reforms \Supple164
,
t
l
t'
HIRA LAL v. GAJJAN
165
.mentary) Act, 1952. It was also held that there was no contract or
sub-teqancy in the name of his father.
The plaintiff-respondent preferred an appeal before the High
Court which allowed the appeal and granted a decree reversing the
decision of the courts below.
Aggrieved, the appellants have filed the present appeal contending
inter alia that since there were concurrent findings of facts by the trial
court and the first appellate court, and in the absence of any substantial
question of law, the High Court had no jurisdiction under section 100
C.P.C. to disturb the concurrent findings of facts.
Dismissing the appeal, this Court,
HELD: 1. Section IOO(l)(c) of the Code of Civil Procedure refers
to a substantial error or defect in the procedure. The error or defect in
A
B
c
the procedure to which the clause refers is not an error or defect in the
appreciation of evidence adduced by the parties on the merits. Even .if o
the appreciation of evidence made is patently erroneous and the finding
of fact recorded in~ consequence is grossly_ erroneous, that cannot ·be said
to introduce a substantial error or defect in the procedure. If in dealing
with a question of fact the lower appellate court has placed the onus on
wrong party and its finding of fact is the result substantially of this
wrong approach that may be regarded as a defect in procedure. When
);::
the first appellate court discarded the evidence as inadmissible and the
'
High Court is satisfied that the evidence was admissible that may introduce an error or defect in procedure. So also in a case where the court
below ignored the weight of evidence and allowed the judgment to be
influenced by inconseqnent matters, the High Court would be justified
in reappreciating the evidence and coming to its own independent
F
decision. [I68H; 169A-C]
Madan La/v. Gopi, AIR 1980 SC 1754 relied on.
V. Ramachandra Ayyar & Anr. v. Ramalingam Chettiar & Anr.,
AIR 1963 SC-302 referred to.
G
2. Section 20(b)(i) of the Act eliminates enquiries into possession
in accepting the record in the Khasra. In the instant case the Khasra
entry for 1356 Fasli showed that the appellant's father was the subtenant. It is not for the appellant to prove that this entry is incorrect. It
was for the defendants t(l show that the entry had· been introduced
H
166
SUPREME COURT REPORTS
[ 1990] 1 S.C.R.
A
surreptitiously out of ill-will of hostility. In the absence of such proof,
the genuineness has to be presumed and the entry accepted aS\.evidenre
1
of the sub-tenancy in favour of the appellant's father. The Khasra entry
·
of 1371 Fasli and 1372 show the appellant's name as person in posSEssion. It is clear indicatfon that possession of the sub-tenant continued
B
with the appellant. The rent receipts of the year 1929 and subsequent
years are not required to be proved by the appellant as pointed out !Jy
the learned Judge. These furnish evidence of possession as sub-tenant.
The lower appellate court was not justified in ignoring these docu-
~ .,
ments. The High Court was, therefore, well within its power in
appreciating the evidence and arriving at its own conclusion. ll70B, E-G]
C
Amba Prasad v. Abdul Noor Khan & Ors., [1964] 7 SCR 800 and
Nath Singh & Ors. v. The Board of Revenue & Ors., [1968] 3 SCR 498
relied on.
3. Though the revenue courts had exclusive jurisdiction, the civil·
D court had jurisdiction to try the suit for injunction when the question of
title arose only incidentally. [ 17 IB]
E
4. The High Court was right in holding that the appeal did not
abate on account of non-filing of substitution application after the death
of certain defendants. [170H]
The State of Punjab v. Nathu Ram, [1962] 2 SCR 636 relied on.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3154
of 1982.
F
From the Judgment and Order dated 28.9.1981 of the Allahabad
High Court in S.A. No. 1874 of 1970.
G
Salish Chandra, S.N. Singh, T.N. Singh, H.L. Srivastava and
Sudama Ojha for the Appellants.
U.R. Lalit and R.D. Upadhyaya for the Respondents.
The Judgment of the Court was delivered by
FATHIMA BEEVI, J. This appeal is directed against the judgment dated 28-9-1981 of the High Court of Allahabad in Second
H Appeal No. 1874 of 1970.
l ;
HIRA LAL v. GAJJAN [FATHIMA BEEVI. J.]
167
The plaintiff-respondent filed the suit alleging inter alia that
before enforcement of the U .P. Zamindari Abolition and Land
Reforms Act, 1950, hereinafter referred to as "Zamindari Abolition
Act", defendants Nos. 3 to 25 were the tenants-in-chief of the plots in
suit and his father Munni Lal was their sub-tenant; that Munni Lal died
in 1951 leaving behind four sons including the plaintiff-respondent;
. that remaining three brothers of the plaintiff had separated and consequently the plaintiff became sole-tenant; that Munni Lal was recorded
occupant in Khasra 1356 Fasli and in cultivatory possession in Khasra
1359 Fasli and consequentially he acquired adhivasi rights and then
sirdari rights, the rights of defendants 3 to 25 extinguished under section 240-A of the Zamindari Abolition Act; that in 1968, however,
defendants Nos. 1 and 2 obtained fictitious sale deed from defendants
Nos. 3 to 25 in respect of the plots in suit. They had started interfering
with the plaintiff's possession and, hence, the plaintiU:respondent
filed the suit for permanent injunction.
A
B
c
Defendants Nos. 1to3, 5 to 7, 13 and 14contested the suit. They
denied the plaintiff's claim and disputed that the plaintiff's father,
D
Munni Lal, was the sub-tenant or that he acquired adhivasi rights or
sirdari rights. It was further pleaded that the plaintiff or his father was
never in possession of the plots in suit. The suit for permanent injunction was dismissed.
Against the judgment of the trial court, the plaintiff-respondent
E
preferred Appeal No. 321 of 1969 which was dismissed by the first
appellate court. The Second Appeal No. 1874 of 1970, filed before the
High Court of Allahabad against the judgment of the first appellate
court, was allowed on 28-9-1981.
The respondent based his title on three grounds, namely, (i) that
F
his father Munni Lal was recorded occupant in Khasra 1356 Fasli (beginning from 1.7.1948 and ending with 30.6.1949) and became adhivasi
under section 20(b )(i) of the Zamindari Abolition Act; (2) that his
father Munni Lal was in cultivatory possession of the disputed land in
Khasra 1359 Fasli (beginning from 1. 7 .1951 and ·ending with 30.6.1952)
and consequently he became adhivasi under section 3 of the U .P. Land
G
Reforms (Supplementary) Act, (U.P. Act No. 31of1952); and (3) that
his father Munni Lal was sub-tenant over the disputed land and, therefore, he became an adhivasi and consequently the sirdar under the
provisions of the zamindari Abolition Act.
The trial court and the first appellate court recorded finding of
H
A
B
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168
SUPREME COURT REPORTS
[1990] 1 S.C.R.
facts to the effect that the plaintiff's father Munni Lal was not in
cultivatory possession of 1359 Fasli and therefore he could not get
adhivasi right under section 3 of the U.P. Land Reforms (Supplementary) Act, 1952. Both the courts further observed that the
plaintiff's father was not a recorded occupant within the meaning of
section 20(b)(i) of the Zamindari Abolition Act, as the entry of his
name in column 6 of the Khasra 1356 Fasli was suspicious, not being
supported by Kha ta uni entry. It was further held that as his father died
in 1951 before the date of vesting i.e. 1.7.1952 (when the zamindari
was abolished in U .P. under the provisions of Zamindari Abolition
Act), the plaintiff is not entitled to the benefit of becoming adhivasi
under section 20(b )(i) of the Zamindari Abolition Act.
The trial court and the first appellate court also found that no
contract or sub-tenancy between Munni Lal and the proforma
defendants was proved. The High Court held the view that the
approach made by the courts below was wrong. The question that
arose for decision in the suit was whether the appellant's father was a
D sub-tenant? The learned Single Judge noticed that if Munni Lal was a
sub-tenant, his heir being the adhivasi and the appellant must, therefore, succeed. The evidence relating to the sub-tenancy and consequent possession was therefore, considered in detail and the learned
Judge concluded that Munni Lal was in cultivatory possession of the
E
land in 1356 Fasli as a sub-tenant. His rights as sub-tenant devolved on
the appellant who continued in possession as such and became adhivasi
and rights of defendants 3 to 14 were extinguished under the
Zamindari Abolition Act and defendants could not interfere with
appellants possession. In this view the appellant was granted a decree
reversing the decision of the lower courts.
F
The main contention advanced on behalf of the appellants before
us is that the decision having been rendered by the trial court and the
first appellate court on the basis of the finding of fact regarding the
right claimed and the possession alleged, in the absence of any substantial question of law, there was no jurisdiction of the High Court
under section 100 C.P.C. to disturb the finding of a concurrent nature
G
and upset the decision. The High Court, while exercising its power
under section 100 C.P.C., has no jurisdiction to interfere with the
finding of fact recorded by the first appellate court. Reliance was
placed on V. Ramachandra Ayyar & Anr. v. Ramalingam Chettiar &
Anr., AIR 1963 SC-302. Section lOO(l)(c) refers to a substantial error
or defect in the procedure. The error or defect in the procedure to
H
which the clause refers is not an error or defect in the appreciation of
HIRA LAL v. GAJJAN [FATHIMA BEEVI, J.]
169
evidence adduced by the parties on the merits. Even if the appreciation of evidence made is patently erroneous and the finding of fact
recorded in consequence is grossly erroneous, that cannot he said to
introduce a substantial error or defect in the procedure. If in dealing
with a question of fact the lower appellate court has placed the onus on
wrong party and its finding of fact is the result substantially of this
wrong approach that may be regarded as a defect in procedure. When
the first appellate court discarded the evidence as inadmissible and the
High Court is satisfied that the evidence was admissible that may
introduce an error or defect in procedure. So also in a case where the
court below ignored the weight of evidence and allowed the judgment
to be influenced by inconsequential matters, the High Court would be
justified in reappreciating the evidence and coming to its own independent decision as held in Madan La/v. Gopi, AIR 1980 SC 1754.
The substantial issue in- the present suit was whether the respondent was in possession of the dispnted land. The respondent claimed
possession under his father as sub-tenant and thereafter as sirdar. In
support of his claim respondent relied on the entries in the revenue
records and the receipts for payment of rent. The effect of these documents had been wholly ignored by the lower courts on the assumption
that these were fabricated. The U .P. Zamindari Abolition Act came
into force on July 1, 1952. Section 20(b )(i) of the Act provided that
every person, recorded as occupant of a land in the Khasra or
Kha ta uni of 1356 Fasli prepared under sections 28 and 33 of the U .P.
Land Revenue Act 1901, be called the adhivasi of the land. This Court
in Amba Prasad v. Abdul Noor Khan & Ors., (1964] 7_J)CR 800
examined the scheme of the section and held that the title to possession as adhivasi depends on the entry in the Khasra of 1356 Fasli. The
section eliminates enquiries into possession in accepting the record in
the Khasra.
The Court observed at page 808:
A
B
c
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E
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"The word 'occupant' is not defined in the Act. Since
khasra records possession and enjoyment the word
'occupant' must mean a person holding the land in possesG
sion or actual enjoyment. The khasra, however, may
mention the proprietor, the tenant, the sub-tenant and
other person in actual possession, as the case may be. If
by occupant is meant the person in actual Jlossession it is
clear that between a proprietor and a tenant the tenant
and between a tenant· and. the sub-tenant the latter, and. H
A
170
SUPREME COURT REPORTS
[1990] 1 S.C.R.
between him and a person recorded in the remarks
column as "Dawedar qabiz" the dawedar qabiz are the
occupants.''
In Nath Singh & Ors. v: The Board of Revenue & Ors., [1968] 3
SCR 498 in answering the contention that the correctness of the entry
B in the record of Khasra of 1356 Fasli could be gone into and where the
respondents are recorded only as sub-tenant and not as occupant, they
could not get the benefit of section 20(b )(i) of the Act, this Court held
as under:
c
D
"The record of rights for the year 1356F. had not been
corrected afterwards. We have to go by the entry in the
record of rights and no enquiry need be made as to when
the respondents became sub-tenants after the decision in
favour of the landlord, Ram Dhani Singh. The last decision
of this Court also shows that as between the tenant and the
sub-tenant the entry in the record of rights in favour of the
sub-tenant makes him the occupant entitled to the adhivasi
rights under section 20 of the Act."
In this case the Khasra entry for 1356 Fasli Ex-4 showed that the
respondent's father Munni Lal was sub-tenant. As rightly stated by the
High Court,, it is not for the plaintiff to prove that this entry is correct.
E It was for the defendants to show that the entry had been introduced
surreptitiously out of ill-will or hostility. In the absence of such proof,
the genuineness has to be presumed and the entry accepted as evidence of the sub-tenancy in favour of the respondent's father. The
Khasra entry of 1371 Fasli and 1372 show the respondent's name as
person in possession. It is clear indication that possession of the subF tenant continued with the respondent. The rent receipts of the year
1929 and subsequent years are not required to be proved by the
respondent as pointed out by the learned Judge. These furnish evidence of possession as sub-tenant. We agree that the lower appellate
court was not justified in ignoring these documents. The High Court
was, therefore, well within its powers in appreciating the evidence and
G arriving at its own conclusion.
The contention that the second appeal abated on account of
non-filing of substitution application after the death of defendants
Nos. 6, 10 and 11 had been reiterated before us. These defendants
were only proforma parties and the High Court was right in holding
H that appeal did not abate. We may refer to The State of Punjab v.
•
..
l
HIRA LAL v. GAJJAN [FATHIMA BEEVI, J.]
171
Nathu Ram, [ 1962] 2 SCR 636 where it is held "that ordinarily the
considerations which weigh with the Court in deciding upon this q uestion are whether the appeal between the appellants and the respondents other than the deceased can be said to be properly constituted or
can be said to have all the necessary parties for the decision of the
controversy before the Court." The Civil Court had jurisdiction to try
the suit for injunction when the question of title arose only incidentally. The objection to jurisdiction of the Civil Court to try the suit on ·
the ground that revenue court had exclusive jurisdiction is not sustainable the suit being one for permanent injunction and the question of
title arises only incidentally.
We find no merit in the appeal which is accordingly dismissed.
No order as to costs.
G.N.
Appeal dismissed.
A
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