# VISHWA VIJAI BHARTI v. FAKHRUL HASAN & ORS

- **Citation:** [1976] Supp. 1 S.C.R. 519
- **Court:** Supreme Court of India
- **Decided:** 1976-05-04
- **Case number:** Civil Appeal Nos. 1122 and 1123 of 1970
- **Bench:** Y. V. Chandrachud, P. N. Shinghal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/vishwa-vijai-bharti-v-fakhrul-hasan-ors-7163
- **Pages:** 5

## Headnote

Civil Procedure Code-Secs. 100-103-Powers of HiRh Court to set aside
finding of facts in a second appeal-If High Court must discuss evidence while
going into questions of facts.
Entries in record of rights-Presumptive value of-Presumption if applies ta
fdrged or fraudulent entries--Efject of -fraud or forgery on a document.
Mahant Bharati of temple of Shankarji Maharaj gave lands belonging to the
temple_ on lbeka to one Sukai for a period of 10 years. The Mabant obtained
a decree for eviction against Sukai but it could not be executed because of the
objectionc; raised by the respondents on the ground that they have been cultivating the lands for several years and they were entitled to continue in po..§_session
as Sirdars in spite of the decree against Sukai. The lessor, therefore, instituted
two separate suits under Order 21 Rule 103, C.P.C. Respondents contended
A
B
c
inter a/ia, that they had become hereditary tenants and they must be deemed
D
to have become Adhivasis of the land. The trial court dismissed the suit. Tho
district court reversed the finding of the trial court in appeal and held that the
appellant being the Bhumidar of the lands was entitled to recover possession
thereof from the respondents. The district Judge held that the entries in the
record of rights showing the occupation of the respondents were fraudulent.
The Hi$h Court in second appeal upset the decree of the district court .
Allowing the appeal,
HELD : (I) The only question before the High Court was
whether the
entries on which the respondents relied were genuine or fraudulent.
This is
a question of fact and the High Court had no jurisdiction to set aside the finding on that question in second appeal. The High Court erroneously assumed
that 1he district Court had not given any finding on the question of fraud. The
district Court had given at least half a dozen reasons for holding that the entries
were fictitious and were made surreptitiously and fraudulently. [521H; 522A-H]
(2) If the High Court thought that the district court had not recorded a
clear finding on that issue and if the High Court were to determine under section
103 C.P.C. the issue under whether the entries were fraudulent or not i• was
noc.essary for it to di6cuss the evidence. But, the High Court instead placed blind
and easy reliance on the entries which are utterly uninspiring.
[523A-B]
(3) Entries in the revenue record ought generally to be accepted at their
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F
face value and courts should not embark upon an appellate enquiry into their
G
correctness. But the presumption of correctness can apply only to genuine, not
forged or fraudulent entries. The distinction may be fine but it is real. Fraud
and forgery rob a document of all its legal effect and cannot found a claim
to possessory title. [523B-CJ
ClvIL APPELLATE JURISDICTION : Civil Appeal Nos. 1122 and 1123
of 1970.
Appeals by special leave from the Judgment and order dated the
13th February 1970 of the Allahabad High Court in S.A. Nos. 267
and 268 of 1962.
H
A
520
SUPREME COURT REPORTS
[1976] SUPPLl!J.ll!NTARY
S. C. Manchanda, S. K. Bagga, (Mrs.) Sureshta Bagga and (Ml.is)
Y ash Bagga; for the Appellant.
R. N. Sharma and C. P. Lal; for Respondent.

## Text

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519
VISHWA VIJAI BHARTI
v.
FAKHRUL HASAN & ORS.
May 4, 1976
[Y. V. CHANDRACHUD AND P. N. SHINGHAL, JJ.]
Civil Procedure Code-Secs. 100-103-Powers of HiRh Court to set aside
finding of facts in a second appeal-If High Court must discuss evidence while
going into questions of facts.
Entries in record of rights-Presumptive value of-Presumption if applies ta
fdrged or fraudulent entries--Efject of -fraud or forgery on a document.
Mahant Bharati of temple of Shankarji Maharaj gave lands belonging to the
temple_ on lbeka to one Sukai for a period of 10 years. The Mabant obtained
a decree for eviction against Sukai but it could not be executed because of the
objectionc; raised by the respondents on the ground that they have been cultivating the lands for several years and they were entitled to continue in po..§_session
as Sirdars in spite of the decree against Sukai. The lessor, therefore, instituted
two separate suits under Order 21 Rule 103, C.P.C. Respondents contended
A
B
c
inter a/ia, that they had become hereditary tenants and they must be deemed
D
to have become Adhivasis of the land. The trial court dismissed the suit. Tho
district court reversed the finding of the trial court in appeal and held that the
appellant being the Bhumidar of the lands was entitled to recover possession
thereof from the respondents. The district Judge held that the entries in the
record of rights showing the occupation of the respondents were fraudulent.
The Hi$h Court in second appeal upset the decree of the district court .
Allowing the appeal,
HELD : (I) The only question before the High Court was
whether the
entries on which the respondents relied were genuine or fraudulent.
This is
a question of fact and the High Court had no jurisdiction to set aside the finding on that question in second appeal. The High Court erroneously assumed
that 1he district Court had not given any finding on the question of fraud. The
district Court had given at least half a dozen reasons for holding that the entries
were fictitious and were made surreptitiously and fraudulently. [521H; 522A-H]
(2) If the High Court thought that the district court had not recorded a
clear finding on that issue and if the High Court were to determine under section
103 C.P.C. the issue under whether the entries were fraudulent or not i• was
noc.essary for it to di6cuss the evidence. But, the High Court instead placed blind
and easy reliance on the entries which are utterly uninspiring.
[523A-B]
(3) Entries in the revenue record ought generally to be accepted at their
E
F
face value and courts should not embark upon an appellate enquiry into their
G
correctness. But the presumption of correctness can apply only to genuine, not
forged or fraudulent entries. The distinction may be fine but it is real. Fraud
and forgery rob a document of all its legal effect and cannot found a claim
to possessory title. [523B-CJ
ClvIL APPELLATE JURISDICTION : Civil Appeal Nos. 1122 and 1123
of 1970.
Appeals by special leave from the Judgment and order dated the
13th February 1970 of the Allahabad High Court in S.A. Nos. 267
and 268 of 1962.
H
A
520
SUPREME COURT REPORTS
[1976] SUPPLl!J.ll!NTARY
S. C. Manchanda, S. K. Bagga, (Mrs.) Sureshta Bagga and (Ml.is)
Y ash Bagga; for the Appellant.
R. N. Sharma and C. P. Lal; for Respondent.
The Judgment of the Court was delivered by
B
CHANDRACHUD, J .-These appeals by special leave arise ou• .cf
c
the judgment rendered by the High Court of Allahabad on February
13, 1970 in Second Appeals 267 and 268 of 1962.
··
Mahan! Vishwa Nath Bharthi, the sarbrahkar of the temple of
Shankarji Maharaj, Khowja, gave lands belonging to the temple, admeasuring about 44 acres, on Theka to one Snkai. The Thekanama
was executed on June 5, 1942 to be effective from July 1, 1942. The
lease was to enure for a period of 10 years and was due to expire on
June 30, 1952. The Thekanama contained an express term that the
Thekadar will not sub-let the leasehold property and that on the expiry
of the period of lease he shall hand over the possession of the propert-,.
to the lessor.
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In spite of this term against sub-letting, on July 27, 1942 the lesaee
executed a power of attorney in favour of his nephews Haqiqullah and
Ghani, apparently authorising them to c.ultivate the lands on his behalf. On the expiry of the period of lease the Mahan! instituted a
suit for ejectment of the lessee which was decreed on November 25,
1952.
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The Mahant then filed an application for executing the decree but
an objection was raised thereto by the respondents, Sanaullah
and
Fakhrul Hasan who are respectively the brother and cousin of Haqiqullah. They filed two separate applications objecting to the execution
of the decree on the ground that they had been cultivating lhe lands
tor several years and that they were entitled to continue in possession
as Sirdars. On June 2, 1954 the objection raised by tl1e respondents
was allowed by the executing court which passed an order that the
possession of the lands which on March 13, 1953 was given to the
decree-holder in execution of the decree should be re-delivered to the
respondents.
Accordingly, the respondents were put back in possession in July, 1954.
The lessor then instituted two separate suits under Order XXI,
Rule 103 of the Civil Procedure Code, the suit filed against Fakhrul
Hasan being No. 17 of 1954 and the one against SanauUah being No.
20 of 1954. His case was that the lands were given on lease to Sukai
on condition that he shall not sublet them, that a decree for possession
was accordingly passed against Snkai on the expiry of the lease and
that the respondents had got their names entered fraudulently in the
revenue record as the cultivators of the lands.
Respondents took np various inconsistent pleas in answer to the
suits. They contended that they were in possession of the lands with
the consent of the original lessor, that they liad become hereditllry
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V, V. BHARTI v. F. HASAN'(Chandrachud, J.)
5 21
tenants and that they must be deemed to Jrn ve become Adbivasis of
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the lands.
The learned Munsiff who tried the suits framed six issues, issue
No. 2 being whether the respondents were Sirdars of the lands as
alleged in paragraphs 17 and 18 of their written statements. This
is~ue was referred to the revenue court for decision.
The lessor havB
ing died during the pendency of those suits, the appellant was substituted in his placed as the Mahant of the Math.
The revenue court
found in favour of the respondents and accepting that finding the
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trial court dismissed the suits.
In appeal, the District Court took
< '
the view that there was no justification for referring the particular
,
issue to the revenue court and that the trial court ought to have decided all the issues for itself.
The District Court accordingly rec
manded the suit with a direction that the Munsiff should decide the
suit afresh uninfluenced by the finding given by the revenue court.
The trial court then assessed the evidence, held in favour of the respendents and dismissed both the suits by its judgment dated Kovember
17, 1961.
The District Court reversed the findings of the trial court in
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appeal and held that the appellant, being the Bhumidar of the lands,
wa~ entitled to recover possession thereof from the respondents.
The appeals were accordingly allowed by the District Court by its
judgment dated April 18, 1962.
The respondents filed Second Appeals Nos. 267 and 268 of 1962
against the decrees passed by the District Court. The High Court
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having allowed those appeals the Mahan! of the Math has filed these
appeals by special leave.
The decision of these appeals involves a very narrow question as
regards the power of the High Court in second appeal.
Section l 00
of the Code of Civil Procedure provides to the cxtci1t material that
an appeal can lie to the High Court from a decree passed in appeal
by any court subordinate to it if the decision is contrary to law or to
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some usage having the force of law.
The only question for decision
before the High Court was whether the respondents were entitled ·to
the protection of section ZO(b) (ii) of the U.P. Zamindari Abolition
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and Land Reforms Act, 1 of 1951.
That section provides, in so far
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as material, that every person who was recorded as an occupant of
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any land in the Khasra or Khatauui of 1356 Fasli but who was not
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in possession in the year 1359 Fasli shall be called an 'Adhivasi' of
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the land and shall be entitled to retain possession thereof. The names
of the respondents were entered as occupants in the revenue record
of 1356 Fasli but after considering the entire evidence, the District
t ,,
Court rejected those entries on the ground that they were fraudulent.
Thus, the only qnestion before the High Court was whether the entries
on which the respondents relied were genuine or fraudulent.
That
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is a question of fact and the High Court had no jurisdiction to set
aside in second appeal the finding recorded on that question by the
District Court.
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522
SUPREME COURT REPORTS
(1976] SUPPLEMENTARY
The High Court assumed erroneously that the District Court had
not given any finding on the question of fraud and on that assumption, it accepted mechanically the entries in the revenue record showing that the respondents were in possession of the lands as occupants.
The learned District Judge, by his judgment dated April 18, 1962
had gone in great details mto the question whether the particular
entries showing that the respondents were occupants of the land
were genuine or fraudulent.
Those entries are Bxs. A-5 to A-12.
As pointed out by the learned Judge, the original lessee Sukai had
migrated to Bombay after handing over the charge of the lands to
his nephews who got the names of the respondents entered in the
revenue record "surreptitiously". The learned Judge points out that
Fakhrul Hasan, who alone was examined on behalf of the respondents, was just a lad of 10 at the time when he is alleged to have
entered into adverse possession of the lands.
Neither Sukai, who
was the original lessee, nor Haqiqullah and Ghani who were said to
be cultivating the lands under a power of attorney executed by Sukai,
were examined by the respondents. The other respondent Sanaullah
was not living in the village at all and is said to have been doing
business in second-hand spares in Bombay.
Haqiqullah was summoned by the appellant for producing the power of attorney dated
July 27, 1942 and taking advantage of that opportunity the respondents cross-examined him. Haqiqullah, being a close relation of the
respondents was only too willing to oblige them by giving pre-conceived answers in the so-called cross-examination.
But the learned
trial Judge overlooked that Haqiqullah was only summoned to produce a document and by reason of section 139 of the Evidence Act,
he could not become a witness in the case and could not therefore
have been cross-examined on the merits of the case. But, even after
considering the evidence of Haqiqullah the learned District Judge
recorded a finding that "The entries were all fictitious".
He then
proceeded to examine the documentary evidence in the case and held:
"After a careful consideration of the pros and cons of
the whole case I am of opinion that the Thekedar Sukai had
cultivated the Sir and Khudkashi of the temple land which
was given to him on Theka through his brother and his
cousin, namely Haqiqullah and Ghani and these two persons in order to create permanent rights in the Theka property, had fraudulently got the names of their boys entered
in the revenue records right from the inception.
I am also
of the opinion that these boys of the house-hold never cultivated the land and they acquired no right, title or interest
in the Theka land."
We find it quite difficult to understand how the High Court could
hold that the District Court had not recorded any "clear finding"
that the entries in the revenue record for the year 1356 Fasli were
H
fraudulent. Evidently, the attention of the High Court was not
drawn to at least half a dozen reasons given by the District Court
for holding that the entries were "fictitious" and wem made "surreptitiously" and "fraudulently''.
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v. v. BHARTI v. F. HASAN (Chandrachud, !.)
5 2 3
We could have even appreciated if, under section 103
of
the
Code of Civil Procedure, the High
Court were to determine
the
issue whether the entries were fraudulent, if it thought, wrongly though,
that the District Court had not recorded a clear finding on that issue.
But the High Court did not discuss the evidence at all and chose
instead to place a blind and easy reliance on the entries which are
utterly uninspiring.
It is true that the entries in the revenue record ought, generally,
to be accepted at their face value and courts should not embark upon
an appellate inquiry in to their correctness. But the presumption of
correctness can apply only to genuine, not forged or fraudulent, entries. The distinction may be fine but it is real. The distinction is
that one cannot challenge the correctness of what the entry in the
revenue record states but the entry is open to the attack that it was
made fraudulently or surreptitiously. 'Fraud and forgery rob a document of all its legal effect and cannot found a claim to possessory
title.
In Amba Prasad v. Abdul Noor Khan and Ors.('), it was held
by this Court that section 20 of the U.P. Act 1 of 1951 does not require proof of actual possession and that its purpose is to eliminate
inquiries into disputed possession by acceptance of the entries in the
Khasra or Khatauni of 1356 Fasli. While commenting on this decision, this Court observed in Sonawati and Ors., v. Sri Ram and Anr. ( 2 )
that "the Civil Court in ad judging a claim of a person to the rights
of an adhivasi is not called upon to make an enquiry whether the
claimant was actually in possession of the land or held the right as an
occupant : cases of fraud apart, the entry in the record alone is relevant". We have supplied the emphasis in order to show that the normal presumption of corectness attaching to entries in the revenue record, which by law COJ!Stitutc evidence of a legal title, is displaced by
proof of fraud.
For these masons we allow these appeals, set aside the judgment
of the High Court and restore that of the District Court.
The suits filed by the appellant shall stand decreed. Respondents
shall pay to the appellant the costs of these appeals in one set.
P.H.P.
Appeals allowed.
(I) [1964]7 S.C.R. 800.
(2) [1968] I S.C.R. 617, 620.
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