# JAGDISH PRASAD PATEL (DEAD) THR. LRS.& ANOTHER v. SHIVNATH & OTHERS

- **Citation:** [2019] 6 S.C.R. 518
- **Court:** Supreme Court of India
- **Decided:** 2019-04-09
- **Case number:** Civil Appeal No. 2176 of 2007
- **Bench:** R. Banumathi, R. Subhash Reddy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/jagdish-prasad-patel-dead-thr-lrs-another-v-shivnath-others-33875
- **Pages:** 31

## Headnote

Suit:
Suit for declaration of title and possession - Filed by
respondents-plaintiffs - Suit contested on the ground that the suit
land was abandoned by respondent-plaintiff and lease was issued
to the predecessor-in-interest of the appellants-defendants - Trial
court dismissed the suit holding that patta-lease (Ex.D-20) in respect
of suit land was issued by the Illaquedar to the defendants and since
then they were in possession of the same and also held that plaintiffs
got the entries of their names in the revenue records in connivance
with the patwari - First appellate court doubting the correctness of
Ex.D-20 decreed the suit - In second appeal High Court affirmed
the findings of first appellate court - Appeal to Supreme Court -
Held: In a suit for title and possession, plaintiffs can succeed only
on the strength of their own title and not on the weakness of the
case of the defendants - The burden was on the plaintiffsrespondents to establish their title - They have failed to produce
title document or any other evidence to prove their title - The oral
and documentary evidence clearly establish that patta-lease (Ex.D20) was issued to predecessor-in-interest of the defendents and they
were in continuous possession of the suit land - Trial court had
rightly dismissed the suit.
Constitution of India:
Art.136 - Special Leave Petition - Scope of - Concurrent
finding of fact - Interference with - Held: Concurrent finding of
fact cannot be interfered with, unless warranted by compelling
reasons - When the findings of courts below are perverse,
interference with the findings of fact are warranted.
[2019] 6 S.C.R. 518
 518
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Evidence Act, 1872:
s. 58 Proviso - Admitted facts - Whether need to be proved -
Held: s. 58 postulates that things admitted need not be proved -
However, proviso to s. 58 gives full discretion to the court to require
the admitted facts to be proved.
s. 90 - Presumption - As to genuineness of a document -
Held: Court 'may presume' that the document is genuine - Mere
allegation of fraud would not be sufficient to rebut such presumption.
Code of Civil Procedure, 1908:
Or. XLI, r. 27 - Production of additional evidence - When
permissible - Discussed.
Deeds and Documents:
Revenue entries - Evidentiary value - Held: Revenue entries
for few Khataunis are not proof of title, but are mere statements for
revenue purpose.
Allowing the appeal, the Court
HELD: 1. 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 the High Court. [Para 10][530-E]
Mahesh Dattatray Thirthkar v. State of Maharashtra
(2009) 11 SCC 141 : [2009] 3 SCR 1122 - relied on.
2. The suit of the respondents-plaintiffs was 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. [Para 13][531-D]
3. In the written statement, defendant also admitted that
the plaintiffs-respondents' fathers were lessees and patta-lease
JAGDISH PRASAD PATEL (DEAD) THR. LRS.& ANR. v.
SHIVNATH & ORS.
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was originally granted in their favour during the settlement period
for cultivation on the basis of Batai/crop-sharing. [Para 14]
[531-H; 532-A]
Nagindas Ramdas v. Dalpatram Iccharam alias Brijram
and Others (1974) 1 SCC 242 : [1974] 2 SCR 544;
Executive Officer, Arulmigu Chokkanatha Swamy Koil
Trust, Virudhunagar v. Chandran and Others
(2017) 3 SCC 702 : [2017] 5 SCR 473 - referred to.
4. Section 58 of the Evidence Act, no doubt, postulates that
the things admitted need not be pr

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JAGDISH PRASAD PATEL (DEAD) THR. LRS.& ANOTHER
v.
 SHIVNATH & OTHERS
 (Civil Appeal No. 2176 of 2007)
 APRIL 09, 2019
[R. BANUMATHI AND R. SUBHASH REDDY, JJ.]
Suit:
Suit for declaration of title and possession - Filed by
respondents-plaintiffs - Suit contested on the ground that the suit
land was abandoned by respondent-plaintiff and lease was issued
to the predecessor-in-interest of the appellants-defendants - Trial
court dismissed the suit holding that patta-lease (Ex.D-20) in respect
of suit land was issued by the Illaquedar to the defendants and since
then they were in possession of the same and also held that plaintiffs
got the entries of their names in the revenue records in connivance
with the patwari - First appellate court doubting the correctness of
Ex.D-20 decreed the suit - In second appeal High Court affirmed
the findings of first appellate court - Appeal to Supreme Court -
Held: In a suit for title and possession, plaintiffs can succeed only
on the strength of their own title and not on the weakness of the
case of the defendants - The burden was on the plaintiffsrespondents to establish their title - They have failed to produce
title document or any other evidence to prove their title - The oral
and documentary evidence clearly establish that patta-lease (Ex.D20) was issued to predecessor-in-interest of the defendents and they
were in continuous possession of the suit land - Trial court had
rightly dismissed the suit.
Constitution of India:
Art.136 - Special Leave Petition - Scope of - Concurrent
finding of fact - Interference with - Held: Concurrent finding of
fact cannot be interfered with, unless warranted by compelling
reasons - When the findings of courts below are perverse,
interference with the findings of fact are warranted.
[2019] 6 S.C.R. 518
 518
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Evidence Act, 1872:
s. 58 Proviso - Admitted facts - Whether need to be proved -
Held: s. 58 postulates that things admitted need not be proved -
However, proviso to s. 58 gives full discretion to the court to require
the admitted facts to be proved.
s. 90 - Presumption - As to genuineness of a document -
Held: Court 'may presume' that the document is genuine - Mere
allegation of fraud would not be sufficient to rebut such presumption.
Code of Civil Procedure, 1908:
Or. XLI, r. 27 - Production of additional evidence - When
permissible - Discussed.
Deeds and Documents:
Revenue entries - Evidentiary value - Held: Revenue entries
for few Khataunis are not proof of title, but are mere statements for
revenue purpose.
Allowing the appeal, the Court
HELD: 1. 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 the High Court. [Para 10][530-E]
Mahesh Dattatray Thirthkar v. State of Maharashtra
(2009) 11 SCC 141 : [2009] 3 SCR 1122 - relied on.
2. The suit of the respondents-plaintiffs was 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. [Para 13][531-D]
3. In the written statement, defendant also admitted that
the plaintiffs-respondents' fathers were lessees and patta-lease
JAGDISH PRASAD PATEL (DEAD) THR. LRS.& ANR. v.
SHIVNATH & ORS.
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was originally granted in their favour during the settlement period
for cultivation on the basis of Batai/crop-sharing. [Para 14]
[531-H; 532-A]
Nagindas Ramdas v. Dalpatram Iccharam alias Brijram
and Others (1974) 1 SCC 242 : [1974] 2 SCR 544;
Executive Officer, Arulmigu Chokkanatha Swamy Koil
Trust, Virudhunagar v. Chandran and Others
(2017) 3 SCC 702 : [2017] 5 SCR 473 - referred to.
4. 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. In the written statement, the appellantsdefedants averred that the lands were in the ownership of 'R' 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 was
accepted and the disputed lands were transferred in his name in
the sale in Samvat 1986 i.e. 1929 A.D. 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 plaintiffsrespondents. 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 pattalease 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. [Para 15][532-E-H; 533-A-B]
5. From the statement of PW-1 and PW-2, it is evident that
the father of PW-1 had started living in Jabalpur forty years back
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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
their grandfather was accepted and the suit properties along with
other lands were given on lease to him. 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 grandfather of
defendants. [Para 16][533-C]
6. 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 their grandfather is strengthened by
revenue records and ample evidence. Ex. D-20 [Patta in favour
of grandfather of defendants] 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 [Ex.D-20] 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. [Para 17-19][533-F; 534-C-E]
7. Only the copies of khasra for the years 1955-56 (Ex. P9) and 1956-57 (Ex. P-10) are in the name of respondentsplaintiffs; and in the previous khasras for the years 1950-51 to
1954-55 (Ex. P-8) and subsequent khasras for 1960-61 (Ex. P12), 1963-64 to 1965-66 (Ex. P-13), 1968-69 (Ex. P-14) and 197071 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
grand father of defendants and that he and father of defendants
had been continuously in possession of the properties is thus
established by the revenue records. [Para 20][535-F-G]
JAGDISH PRASAD PATEL (DEAD) THR. LRS.& ANR. v.
SHIVNATH & ORS.
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8. 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 grand father of appellantdefendent and that he was in continuous possession of the suit
properties. The respondents-plaintiffs have not produced any
document to prove that Ex. D-20 is a forged one. In fact, the
respondents themselves have filed the patta granted in favour of
the appellants-defendants. [Paras 22 and 23][535-D-E; F-G]
9. The entries which were 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. 195556 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
grandfather of appellants 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. [Para 24][536-C-E]
10. From the order of the Commissioner dated 17.7.1973
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 High Court and the first Appellate
Court erred in not considering Ex.D-1-order of the Commissioner
in its proper perspective. [Para 26][538-B]
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11. 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
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. [Para 28][539-C-E]
Union of India v. Ibrahim Uddin & Another, (2012) 8
SCC 148 : [2012] 8 SCR 35 - relied on.
Karewwa and others v. Hussensab Khansaheb Wajantri
and Others (2002) 10 SCC 315 ; Roop Chand v. Gopi
Chand Thelia (1989) 2 SCC 383 : [1989] 2 SCR 184
- referred to.
12. In the present case, the Court is inclined to receive
the order of Tahsildar dated 28.07.1971 as additional evidence.
From the order of the Tahsildar dated 28.07.1971, it is seen that
the applicant thereon (appellant) had filed an application before
the Collector, stating that he was the land owner-cultivator of the
land numbers 131, 151, 161, 162, 163, 41 and has been in
possession of the lands and that the non-applicants (respondentsplaintiffs) got their names recorded in revenue entries in
connivance with 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 in respect of land
numbers 41, 131, 162, 163 was found to be made subsequently.
[Para 30][540-G-H; 541-A-B]
13. It is wrong to say that the order of the Tahsildar dated
28.07.1971 cannot be looked into on the ground that they were
JAGDISH PRASAD PATEL (DEAD) THR. LRS.& ANR. v.
SHIVNATH & ORS.
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not adduced as evidence before the trial court. Order of the
Commissioner, marked as Ex. D-1 makes a clear reference to
the order of the Tahsildar dated 28.07.1971. Since in 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, there is no impediment
in receiving the order of the Tahsildar dated 28.07.1971 as
additional documents and considering the same. [Para 31]
[541-H; 542-A-D]
14. Since the order of the Tahsildar has been referred to in
the order of the Commissioner dated 17.07.1973 (Ex.D-1), 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.
[Para 31][542-D-E]
15. 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. [Para 32][542-G-H]
16. The finding of the first appellate court that the patta
was granted to grandfather of appellant-defendants in 1954 and
that illaqedar was not competent to issue patta is misconceived.
The Patta was granted 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[father of defendant]. As
per Section 5 of the Vindhya Pradesh Act, the State 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. In terms of Section 28 of the said
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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. In view of the provisions of the above Act, the first
appellate court erred in saying that the patta was granted in the
year 1954 and by that time, Pawaidar/iIlaqedar was not having
jurisdiction to issue patta. [Para 39][545-F-H; 546-A-D]
17. The first Appellate Court 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
grandfather of the appellants-defendants and their continued
possession. The first Appellate Court and the High Court erred
in brushing aside the findings recorded by the Commissioner
dated 17.07.1973 as to the misconduct of the patwari in making
entries in the revenue records. [Para 40][546-F-H; 547-A]
18. 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 defendantsappellants. 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. 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.
[Para 41][547-B-D]
Union of India and Others v. Vasavi Co-operative
Housing Society Limited and others (2014) 2 SCC
269 : [2014] 1 SCR 180 - relied on.
19. Upon appreciation of evidence, the trial court has
recorded findings on various issues which was reversed by the
JAGDISH PRASAD PATEL (DEAD) THR. LRS.& ANR. v.
SHIVNATH & ORS.
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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 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-1Order of the Commissioner dated 17.07.1973 and the report of
the SDO dated 21.10.1969 and other revenue records showing
that the forefather of the appellants-defendants namely Gaya Din
was given the patta (Ex.D-20) and since then, he and his
descendants 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.
[Para 42][547-F-H; 548-A-B]
Case Law Reference
[2009] 3 SCR 1122
relied on
Para 10
[1974] 2 SCR 544
referred to
Para 14
[2017] 5 SCR 473
referred to
Para 14
(2002) 10 SCC 315
referred to
Para 27
[1989] 2 SCR 184
referred to
Para 27
[2012] 8 SCR 35
 referred to
Para 29
[2014] 1 SCR 180
referred to
Para 41
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2176
OF 2007.
From the Judgment and Order dated 05.02.2007 of the High Court
of Madhya Pradesh at Jabalpur in Second Appeal No. 174 of 1989
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Subodh Markandeya, Sr. Adv., Suresh C. Gupta, Birendra Kumar
Mishra, Ms. Poonam Atey, Rahul Aggarwal, Amit Pratap Singh, Advs.
for the Appellants.
A. K. Shrivastava, Sr. Adv., Akshat Shrivastava, Mrs. Pooja
Shrivastava, Ms. Manjeet Kirpal, Advs. for the Respondents.
The Judgment of the Court was delivered by
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 appellantsdefendants cannot claim any right over the suit properties.
2. Case of Respondents-plaintiffs is as under:- RespondentsShiv Nath and deceased Vishwanath/predecessor in interest of
respondents No.2 to 10 filed a 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 1642.15 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.
JAGDISH PRASAD PATEL (DEAD) THR. LRS.& ANR. v.
SHIVNATH & ORS.
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3. Respondent-deceased Vishwanath-predecessor-in-interest of
respondents No.2 to 10 filed an application before the Collector in 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 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
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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 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 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
JAGDISH PRASAD PATEL (DEAD) THR. LRS.& ANR. v.
SHIVNATH & ORS. [R. BANUMATHI, J.]
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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.
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.D20) 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 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.
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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 appellantsdefendants further averred that the forefathers of respondents-plaintiffs
abandoned the suit lands and since revenue tax was not paid, the lease
of 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-1Vishwanath, 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. P3) 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 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
JAGDISH PRASAD PATEL (DEAD) THR. LRS.& ANR. v.
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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 appellantsdefendants. Drawing our attention to the findings 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 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
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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
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 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 respondentsplaintiffs (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
JAGDISH PRASAD PATEL (DEAD) THR. LRS.& ANR. v.
SHIVNATH & ORS. [R. BANUMATHI, J.]
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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 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 195051 to 1954-55 (Ex. P-8) and subsequent khasras for 1960-61 (Ex. P12), 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 appellantsdefendants. 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)
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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.