Himachal Pradesh High Court
Lalit Kumar And Others vs Bhagat Ram And Another on 29 September, 2023
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 615 of 2007 .
Reserved on: 01.09.2023 Date of Decision: 29.09.2023 Lalit Kumar and others ...Appellants.
of Versus Bhagat Ram and another ...Respondents.
rt Coram Hon'ble Mr. Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No. For the Appellants : Mr. Ajay Kumar, Sr. Advocate, with Mr. Rohit, Advocate, for the appellants.
For the Respondents : Mr. K.D. Sood, Sr. Advocate, with Mr. Rahul, Advocate, for the respondents.
Rakesh Kainthla, Judge The present appeal is directed against the judgment & decree dated 30.8.2007, passed by the learned District Judge, Bilaspur, District Bilaspur, H.P., vide which the appeal filed by the appellants (plaintiffs before the learned Trial Court) was 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 29/09/2023 20:35:17 :::CIS 2dismissed. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for .
convenience).
2. Briefly stated, the facts giving rise to the present appeal are that the plaintiffs filed a civil suit before learned Trial Court for seeking permanent prohibitory injunction for of restraining the defendants from interfering, raising rt construction or changing the nature of the suit land comprised in Khata/Khatauni No.77/111, Khasra No.400/397/389, measuring 3-16 bighas, situated in Village Sai Fardian, Pargna and Tehsil Sadar, District Bilaspur, H.P., as entered in the jamabandi for the year 2000-01, (hereinafter referred to as the suit land). The recovery of possession after demolishing the structure raised, if any, during the pendency was also sought.
3. It was pleaded that the plaintiffs are joint owners in possession of the suit land and the defendants are residents of Village Sai Fardian who have no right, title or interest over the suit land. They started interfering with the suit land. They were requested not to do so but in vain. Hence, the suit was filed to seek the reliefs mentioned above.
::: Downloaded on - 29/09/2023 20:35:17 :::CIS 34. The suit was opposed by filing a written statement, taking preliminary objections regarding lack of maintainability, .
locus standi, cause of action & jurisdiction, and the plaintiffs being estopped from filing the present suit by their acts, conduct and deeds. The contents of the plaint were denied on merits. It was asserted that the plaintiffs are not in possession of the suit of land. They got an entry recorded in their favour in collusion with the revenue staff. Defendants are in possession since the time of rt their ancestors. The defendants were not raising any construction and a false story was propounded. The suit land was earlier owned by the State of H.P. The proceedings under Section 163 of H.P. Land Revenue Act were initiated against defendant no.1 by the State. Khasra No. 348/13 was allotted to the defendants under the Landless Scheme on 30.11.1978. The plaintiffs' father objected to the allotment and the allotment was cancelled. He claimed that Khasra No.13/1 (old Khasra No.348/13) was allotted to him. The plaintiffs cannot lay any claim to the suit land. An injunction order was issued by the High Court in favour of the defendants. The defendants applied for regularization and the matter is pending. The suit was filed ::: Downloaded on - 29/09/2023 20:35:17 :::CIS 4 without any basis; hence it was prayed that the same be dismissed.
.
5. A replication denying the contents of the written statement and affirming those of the plaint was filed.
6. The learned Trial Court framed the following issues of on 6.4.2004: -
1. Whether the plaintiffs are entitled to the relief of permanent prohibitory injunction as prayed? OPP.
2.
rt In the alternative, whether plaintiffs are entitled for vacant possession by dismantling the structures raised on the suit land? OPP.
3. Whether the suit of the plaintiffs is not maintainable? OPD.
4. Whether the plaintiffs have no locus standi to file the present suit? OPD.
5. Whether the plaintiffs have no cause of action to file the present suit? OPD.
6. Whether the plaintiffs are estopped to file the present suit by their act, conduct or deed? OPD.
7. Whether the Court does not have jurisdiction to decide the present suit? OPD.
8. Whether the revenue entries in the name of plaintiffs are false, wrong, baseless and manipulated by the plaintiffs in collusion with the revenue officials and are not binding upon the defendants and are null and void? OPD.
9. Whether the suit land in Khasra No.351/13/1 in original?
OPD.
::: Downloaded on - 29/09/2023 20:35:17 :::CIS 510. Whether the defendants are in possession of the suit land for last many years? OPD.
11. Relief.
.
7. The parties were called upon to produce the evidence.
Vinay Kumar plaintiff no.3 examined himself (PW-1), Rakesh Kumar (PW-2), Yash Pal (PW-3) and Sant Ram (PW-4). The of defendants examined Ram Lal (DW-1), Sohan Lal (DW-2) and himself (DW-3).
8. rt The Learned Trial Court held that the plaintiffs are recorded to be joint owners in possession of the suit land. The disputes are pending between the parties before various Courts.
The evidence of the plaintiffs was not sufficient to prove their possession. Entry in the copy of Jamabandi is no prima facie, evidence of title in the absence of possession. The suit filed by the plaintiffs for seeking an injunction was not maintainable.
Hence, the learned Trial Court answered issue no.3 and 5 in the affirmative, the rest of the issues in the negative and dismissed the suit of the plaintiffs.
9. Being aggrieved from the judgment and decree passed by the learned Trial Court, the plaintiffs filed an appeal, which was decided by learned District Judge, Bilaspur. Learned ::: Downloaded on - 29/09/2023 20:35:17 :::CIS 6 First Appellate Court held that the suit land was previously owned by the State of H.P. Khasra No.13/1 was allotted to .
defendant no.1 and mutation no.262, dated 27.4.1979 (Ex.D-41) was attested. This allotment was cancelled after the objections were filed by the plaintiffs' father. There was no evidence regarding the delivery of possession to the plaintiff's father.
of Defendant No.1 was ordered to be ejected from Khasra No.13/1, under Section 163 of the H.P. Land Revenue Act. The plaintiffs rt failed to prove their title. No Patta was proved. The entry in the revenue record was insufficient to prove the title. Vijay Kumar (PW-1) admitted that the land allotted to his father was different from the suit land. The possession of the defendant was proved by the ejectment order. The learned trial court had rightly held that the suit was not maintainable because the plaintiffs had failed to prove their possession. Hence, the appeal was dismissed.
10. Being aggrieved from the judgment and decree passed by the learned First Appellate Court, the present appeal has been filed, asserting that the learned Courts below erred in dismissing the suit. The learned Courts below based their judgments on assumptions. The jamabandi carries with it a ::: Downloaded on - 29/09/2023 20:35:17 :::CIS 7 presumption of correctness and this fact was ignored by learned Courts below. Therefore, it was prayed that the present appeal .
be allowed and the judgments and decrees passed by learned Courts below be set aside.
11. The appeal was admitted on the following substantial questions of law on 27.12.2007:-
of
1. Whether the findings of the Ld. First Appellate Court and the Ld. Trial Court are a result of complete rt misreading of pleadings, evidence and the law as applicable to the facts of the case and particularly documents Ext.PA, Ex.PB, Ex.PC, Ex.PW-2/B and Ex.PW-2/C as also Ex.D-18, Ex.D-19, Ex.D28, Ex.D- 40 and Ex.D-53 and if so to what effect?
2. Whether the First Appellate Court failed to formulate proper points for determination which has affected its judgment and resulted into a miscarriage of justice to the appellants?
3. Whether both the Courts below have grossly misinterpreted and misappropriated the evidence and the law as applicable to the facts of the case and what is the effect of ignoring the documentary evidence particularly Ex.D-28, Ex.D-40 and Ex.D-53 and if so to what effect?
4. Whether the findings of the Courts below with respect to issue Nos. 1 to 3 and 5 on the one hand and issue Nos. 6 to 10 on the other hand are contradictory and self-destructive and if so to what effect?::: Downloaded on - 29/09/2023 20:35:17 :::CIS 8
5. Whether the Courts below have erred in not granting the relief of possession to the appellants on the basis of title?
.
6. Whether the question of title of the suit had become res-judicata between the parties in view of the judgment dated 22.5.1984 (Ex.D-28) and order dated 15.1.1981 (Ex.D/40) and could the Courts below give a finding to the contrary and if so what is the effect on the judgments and decrees under appeal?
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12. I have heard Mr. Ajay Kumar, learned Senior Advocate, assisted by Mr. Rohit, Advocate, for the rt appellants/plaintiffs and Mr. K.D. Sood, Senior Advocate, assisted by Mr. Rahul, Advocate, for the respondents/defendants
13. Mr. Ajay Kumar, learned Senior Counsel for the appellants/plaintiffs submitted that the learned Courts below erred in dismissing the suit. An entry in the copy of jamabandi carries with it a presumption of correctness and the learned Courts below erred in rejecting the entries. There was no requirement to produce the patta to prove the title. It was duly proved on record that suit land was allotted to the plaintiffs' father and the possession was also delivered to him. Defendants were evicted from the suit land as per the proceedings under Section 163 of the H.P. Land Revenue Act. Learned Courts below did not examine the revenue record correctly; therefore, he ::: Downloaded on - 29/09/2023 20:35:17 :::CIS 9 prayed that the present appeal be allowed and the judgments and decrees passed by learned Courts below be set aside.
.
14. Mr. K.D. Sood, learned Senior Counsel for the respondents-defendants supported the judgments and decrees passed by learned Courts below and submitted that no interference is required with the same.
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15. I have given considerable thought to the rival rt submissions at the bar and have gone through the records carefully.
CMP No. 1078 of 200716. Before adverting to the merits of the appeal, it is necessary to dispose of an application filed by the applicants/appellants for producing the additional evidence. It has been asserted that the learned Trial Court held that revenue entry is no evidence of title in the absence of possession.
Learned First Appellate Court held that the plaintiffs did not prove the patta on record to show the allotment in their favour.
The applicants were dependent on their counsel and were unaware of the technicalities of the law. Entry could not be recorded in the revenue record regarding the grant of Patta. The ::: Downloaded on - 29/09/2023 20:35:17 :::CIS 10 original patta is on the file of Civil Suit No.50/1 of 1981, which was filed by defendant no.1. Defendant No.1 has also instituted .
Civil Suit No. 98/1 of 1985, in which it was held that he is in possession but not the owner. The copies of patta, jamabandis and decrees passed by the Courts are relevant, which could not be produced before the learned Courts below due to lack of of proper legal assistance, ignorance and despite the exercise of due diligence; hence, it was prayed that the application be rt allowed and the documents be taken on record.
17. The application is opposed by filing a reply, denying the contents of the application. It was asserted that the documents could have been produced before the learned Courts below and the defendants failed to assign any reasonable cause for non-production of the documents. The additional evidence is unnecessary. The application has been filed to fill up the lacuna and to delay the disposal of the appeal. Therefore, it was prayed that the present application be dismissed.
18. Rejoinder denying the contents of the reply and affirming those of the application was filed.
::: Downloaded on - 29/09/2023 20:35:17 :::CIS 1119. I have heard Mr. Ajay Kumar, learned Senior Counsel for the applicants/appellants and Mr. K.D. Sood learned Senior .
Counsel for the non-applicants/respondents.
20. Mr. Ajay Kumar, learned Senior Counsel for the applicants/appellants submitted that production of the documents is necessary for the just decision of the case. The of documents could not be produced before the learned Courts rt below due to a lack of legal assistance; hence, he prayed that this application be allowed and the documents be taken on record.
21. Mr. K.D. Sood, learned Senior Counsel for the non-
applicants/respondents submitted that the documents were in existence at the time of leading additional evidence before the learned Trial Court. No application for leading additional evidence was filed before the learned First Appellate Court. The application has been filed to fill up the lacuna, which is impermissible; therefore, he prayed that the application be dismissed.
22. I have given considerable thought to the rival submissions at the bar and have gone through the records carefully.
::: Downloaded on - 29/09/2023 20:35:17 :::CIS 1223. It was laid down by the Hon'ble Supreme Court in Sanjay Kumar Singh v. State of Jharkhand, (2022) 7 SCC 247:
.
(2022) 3 SCC (Civ) 699: 2022 SCC OnLine SC 292 that the Appellate Court should not generally travel beyond the record of the learned Trial Court but an exception has been created under Order 41 Rule 27 of CPC. It was observed at page 249:-
of "7. It is true that the general principle is that the appellate court should not travel outside the record of the rt lower court and cannot take any evidence in appeal.
However, as an exception, Order 41 Rule 27 CPC enables the appellate court to take additional evidence in exceptional circumstances. It may also be true that the appellate court may permit additional evidence if the conditions laid down in this Rule are found to exist and the parties are not entitled, as of right, to the admission of such evidence. However, at the same time, where the additional evidence sought to be adduced removes the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue in the suit and the interest of justice clearly renders it imperative that it may be allowed to be permitted on record, such application may be allowed. Even, one of the circumstances in which the production of additional evidence under Order 41 Rule 27 CPC by the appellate court is to be considered is, whether or not the appellate court requires the additional evidence so as to enable it to pronounce judgment or for any other substantial cause of like nature.
8. As observed and held by this Court in A. Andisamy Chettiar v. A. Subburaj Chettiar [A. Andisamy Chettiar v. A. Subburaj Chettiar, (2015) 17 SCC 713 : (2017) 5 SCC (Civ) 514], the admissibility of additional evidence does not ::: Downloaded on - 29/09/2023 20:35:17 :::CIS 13 depend upon the relevancy to the issue on hand, or the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it .
depends upon whether or not the appellate court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. It is further observed that the true test, therefore is, whether the appellate court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be of adduced."
24. It was held in Sopanrao v. Syed Mehmood, (2019) 7 SCC rt 76: (2019) 3 SCC (Civ) 467: 2019 SCC OnLine SC 821 that where the documents were not filed before the learned Courts below and no application was filed for leading additional evidence, the documents cannot be taken on record. It was observed at page 81:
"13. At this stage, it would be pertinent to point out that the appellant-defendants, during the course of this appeal, have filed a number of applications to place on record certain documents which were not on the record of the trial court. No explanation has been given in any of these applications as to why these documents were not filed in the trial court. These documents cannot be looked into and entertained at this stage. The defendants did not file these documents before the trial court. No application was filed under Order 41 Rule 27 of the Code of Civil Procedure, 1908 for leading additional evidence before the first appellate court or even before the High Court. Even the applications filed before us do not set out any reasons for not filing these documents earlier and do not meet the requirements of Order 41 Rule 27 of the Code of ::: Downloaded on - 29/09/2023 20:35:17 :::CIS 14 Civil Procedure. Hence, the applications are rejected and the documents cannot be taken into consideration."
25. It was held in Jagdish Prasad Patel v. Shivnath, (2019) .
6 SCC 82 : (2019) 3 SCC (Civ) 112: 2019 SCC OnLine SC 492 that the additional evidence can be led when the Trial Court had refused to admit the evidence, the evidence was not available despite the of exercise of due diligence and the evidence is required by the Court to effectively adjudicate the dispute pending before it. It rt was observed at page 96:-
"29. Under Order 41 Rule 27 CPC, the 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 the 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 the 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, the court can receive additional documents."
26. In the present case, the documents were in existence during the trial before the learned Trial Court and appeal before the learned First Appellate Court. The judgment was passed by ::: Downloaded on - 29/09/2023 20:35:17 :::CIS 15 the learned Senior Civil Judge on 22.5.1984. The patta was issued on 21.7.1973. The possession was delivered by the Deputy .
Commissioner on 15.1.1981 and the judgment was passed by learned Senior Sub Jude on 27.9.1986. The present suit was filed before the learned Trial Court on 8.10.2003. Therefore, the documents were in existence and were known to the plaintiffs of and applicants. They had even filed the pleadings in the previous litigation, which shows that they knew about the litigation.
rt Therefore, the conditions that the evidence could not be produced before learned Courts below despite the exercise of due diligence have not been satisfied.
27. Heavy reliance was placed before the judgment of the Hon'ble Supreme Court in North Eastern Railway Admn. v.
Bhagwan Das, (2008) 8 SCC 511: 2008 SCC OnLine SC 665 to submit that evidence is essential as it is required by the Court to enable to pronounce the judgment This is not acceptable. Pronouncing the judgment does not mean pronouncing it in a particular manner or favour of a particular party as was laid down by the Hon'ble Supreme Court in Union of India v. Ibrahim Uddin [Union of India v. Ibrahim Uddin, (2012) 8 SCC 148: (2012) 4 SCC (Civ) 362], wherein it was held: -
::: Downloaded on - 29/09/2023 20:35:17 :::CIS 16"36. The general principle is that the appellate court should not travel outside the record of the lower court and cannot take any evidence in appeal. However, as an .
exception, Order 41 Rule 27 CPC enables the appellate court to take additional evidence in exceptional circumstances. The appellate court may permit additional evidence only and only if the conditions laid down in this Rule are found to exist. The parties are not entitled, as of right, to the admission of such evidence. Thus, the provision does not apply, when on the basis of the of evidence on record, the appellate court can pronounce a satisfactory judgment. The matter is entirely within the discretion of the court and is to be used sparingly. Such a rt discretion is only a judicial discretion circumscribed by the limitation specified in the Rule itself. (Vide K. Venkataramiah v. A. Seetharama Reddy [K. Venkataramiah v. A. Seetharama Reddy, AIR 1963 SC 1526], Municipal Corpn., Greater Bombay v. Lala Pancham [Municipal Corpn., Greater Bombay v. Lala Pancham, AIR 1965 SC 1008] , Soonda Ram v. Rameshwar lal [Soonda Ram v. Rameshwarlal, (1975) 3 SCC 698] and Syed Abdul Khader v. Rami Reddy [Syed Abdul Khader v. Rami Reddy, (1979) 2 SCC 601] .)
37. The appellate court should not ordinarily allow new evidence to be adduced in order to enable a party to raise a new point in appeal. Similarly, where a party on whom the onus of proving a certain point lies fails to discharge the onus, he is not entitled to a fresh opportunity to produce evidence, as the court can, in such a case, pronounce judgment against him and does not require any additional evidence to enable it to pronounce judgment. (Vide Haji Mohammed Ishaq v. Mohd. Iqbal and Mohd. Ali & Co. [Haji Mohammed Ishaq v. Mohd. Iqbal and Mohd. Ali & Co., (1978) 2 SCC 493].
38. Under Order 41 Rule 27 CPC, the appellate court has the power to allow a document to be produced and a witness to be examined. But the requirement of the said ::: Downloaded on - 29/09/2023 20:35:17 :::CIS 17 court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. This provision does not entitle the .
appellate court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in a case. It does not entitle the appellate court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way. In other words, it is only for removing a lacuna in the evidence that the appellate court is empowered to admit additional of evidence. (Vide LalaPancham [AIR 1965 SC 1008] .)
39. It is not the business of the appellate court to supplement the evidence adduced by one party or the rt other in the lower court. Hence, in the absence of satisfactory reasons for the non-production of the evidence in the trial court, additional evidence should not be admitted in appeal as a party guilty of remissness in the lower court is not entitled to the indulgence of being allowed to give further evidence under this Rule. So a party who had ample opportunity to produce certain evidence in the lower court but failed to do so or elected not to do so, cannot have it admitted in appeal. (Vide State of U.P. v. Manbodhan Lal Srivastava [AIR 1957 SC 912] and S. Rajagopal v. C.M. Armugam [AIR 1969 SC 101].)
28. The application mentions that the applicants were unable to understand the legal issues and there was no proper legal advice; however, these are not sufficient to admit the additional evidence in view of the judgment of the Hon'ble Supreme Court in Ibrahim Uddin's case (supra), wherein it was held:-
::: Downloaded on - 29/09/2023 20:35:17 :::CIS 18"40. The inadvertence of the party or his inability to understand the legal issues involved in the wrong advice of a pleader or the negligence of a pleader or that the .
party did not realise the importance of a document does not constitute a "substantial cause" within the meaning of this Rule. The mere fact that certain evidence is important, is not in itself a sufficient ground for admitting that evidence in appeal.
41. The words "for any other substantial cause" must be of read with the word "requires" at the beginning of the sentence, so that it is only where, for any other substantial cause, the appellate court requires additional evidence, that this Rule will apply e.g. when evidence has rt been taken by the lower court so imperfectly that the appellate court cannot pass a satisfactory judgment.
42. Whenever the appellate court admits additional evidence it should record its reasons for doing so (sub- rule (2)). It is a salutary provision which operates as a check against a too easy reception of evidence at a late stage of litigation and the statement of reasons may inspire confidence and disarm objection. Another reason for this requirement is that, where a further appeal lies from the decision, the record of reasons will be useful and necessary for the court of further appeal to see, if the discretion under this Rule has been properly exercised by the court below. The omission to record the reasons must, therefore, be treated as a serious defect. But this provision is only directory and not mandatory if the reception of such evidence can be justified under the Rule."
29. The Hon'ble Supreme Court held in Ibrahim Uddin's case (supra)that the application for taking up the additional evidence has to be considered with circumspection and the Court ::: Downloaded on - 29/09/2023 20:35:17 :::CIS 19 should be satisfied that it is covered under the relevant provision. It was observed:-
.
"48. To sum up, on the issue, it may be held that an application for taking additional evidence on record at a belated stage cannot be filed as a matter of right. The court can consider such an application with circumspection, provided it is covered under either of the prerequisite conditions incorporated in the statutory of provisions itself. The discretion is to be exercised by the court judicially taking into consideration the relevance of the document in respect of the issues involved in the case and the circumstances under which such an evidence rt could not be led in the court below and as to whether the applicant had prosecuted his case before the court below diligently and as to whether such evidence is required to pronounce the judgment by the appellate court. In case the court comes to the conclusion that the application filed comes within the four corners of the statutory provisions itself, the evidence may be taken on record, however, the court must record reasons as on what basis such an application has been allowed. However, the application should not be moved at a belated stage."
30. Reliance was also placed upon the judgment of Jagdish Prasad Patel v. Shivnath, (2019) 6 SCC 82 : (2019) 3 SCC (Civ) 112, however, this judgment is also of no assistance to the applicant as it also recognizes that additional evidence should be led with circumspection.
31. Similar is the judgment in Prahlad Pradhan v. Sonu Kumhar, (2019) 10 SCC 259 : (2020) 1 SCC (Civ) 103, wherein it was observed:-
::: Downloaded on - 29/09/2023 20:35:17 :::CIS 20"4. The courts below have found on the basis of the evidence adduced by the parties, that the appellants had failed to prove that the suit property was the self-
.
acquired property of Mangal Kumhar. The burden to prove that the suit property was the self-acquired property of Mangal Kumhar was on the Appellant purchasers. Reliance is placed on this Court's judgment in Adiveppav. Bhimappa [Adiveppav. Bhimappa, (2017) 9 SCC 586 : (2017) 4 SCC (Civ) 678] wherein it was held that :
(SCC p. 589, para 19) of "19. It is a settled principle of Hindu Law that there lies a legal presumption that every Hindu family is joint in food, worship and estate and in the absence of rt any proof of division, such legal presumption continues to operate in the family. The burden, therefore, lies upon the member who after admitting the existence of jointness in the family properties asserts his claim that some properties out of the entire lot of ancestral properties are his self-acquired property. (See Mulla, Hindu Law, 22nd Edn. Article 23 "Presumption as to coparcenary and self-acquired property", pp. 346 and 347.)"
(emphasis supplied) The appellants have failed to discharge the burden to prove that the suit property was separate or self-acquired property of Mangal Kumhar.
5. The contention raised by the appellants is that since Mangal Kumhar was the recorded tenant in the suit property as per the Survey Settlement of 1964, the suit property was his self-acquired property. The said contention is legally misconceived since entries in the revenue records do not confer title to a property, nor do they have any presumptive value on the title. They only enable the person in whose favour mutation is recorded, to pay the land revenue in respect of the land in question. [BhimabaiMahadeoKambekarv.Arthur Import & Export Co., ::: Downloaded on - 29/09/2023 20:35:17 :::CIS 21 (2019) 3 SCC 191 : (2019) 2 SCC (Civ) 21; Narasammav.State of Karnataka, (2009) 5 SCC 591 : (2009) 2 SCC (Civ) 582;Balwant Singhv.Daulat Singh, (1997) 7 SCC 137;
.
Sawarniv.Inder Kaur, (1996) 6 SCC 223] As a consequence, merely because Mangal Kumhar's name was recorded in the Survey Settlement of 1964 as a recorded tenant in the suit property, it would not make him the sole and exclusive owner of the suit property."
32. In the present case, the applicants/plaintiffs have of failed to satisfy the conditions laid down under Order 41 Rule 27 of CPC and it is not permissible to lead the additional evidence.
rt Consequently, the present application fails and the same is dismissed.
CMP No. 7741 of 2021.
33. The present application has been filed for bringing on record the certified copy of the judgment and decree dated 1.10.2004, passed in Civil Suit No. 73/1998. It has been asserted that defendant no.1 filed a civil suit against the appellants claiming that he was the owner-in-possession of the suit land.
Certified copies of the plaint, written statement and replication were produced on record; however, the judgment and decree could not be placed on record, even though the copy was obtained on 23.10.2004. It is necessary to produce a copy of the judgment and decree to appreciate the pleadings. No prejudice ::: Downloaded on - 29/09/2023 20:35:17 :::CIS 22 would be caused to the other side and the documents would assist in appreciating the evidence properly. Therefore, it was .
prayed that the present application be allowed and the documents be taken on record.
34. The application is opposed by filing a reply asserting that the applicants were aware of the litigation and they were of negligent in not filing the certified copies of the judgment and rt decree before the learned Courts below. The suit was dismissed on the ground that the State was not a necessary party; hence the Court had no jurisdiction to record the findings on merit.
Thus, it was prayed that this application be dismissed.
35. It is an admitted case of the applicants that the pleadings have already been filed. The applicants were party to the litigation and they were aware of the same. Hence, the first condition that they could not produce the evidence despite the exercise of due diligence is not satisfied. The document is sought to be produced because it would help in properly appreciating the evidence. It is not explained as to what is the ambiguity in the documents already filed. Hence, in such a situation, the ::: Downloaded on - 29/09/2023 20:35:17 :::CIS 23 documents cannot be taken on record. Consequently, the present application fails and the same is dismissed.
.
Substantial Question of Law No.6:
36. This question is being considered first because if it is found that the present suit is barred by principles of res-
of judicata, there would be no need to record findings on merits.
Hence, it is necessary to decide this question before deciding other questions.
rt
37. The copy of the judgment (Ex.D-28) pertains to the suit filed by Bhagat Ram, the present defendant no.1 against the State of H.P. and predecessor-in-interest of the present plaintiff. The learned Court framed an issue regarding the ownership and possession of the present defendant no.1 (plaintiff in that case) and held that the Deputy Commissioner was competent to cancel the allotment and there was no infirmity in the order passed by the learned Deputy Commissioner under the scheme. The present defendant no. 1 (plaintiff in that case) was in illegal possession of the land. The question of ownership of the present plaintiffs and they being in possession was never agitated in the previous suit. The issue in ::: Downloaded on - 29/09/2023 20:35:17 :::CIS 24 the present suit is whether the plaintiffs are in possession and whether they are entitled to a permanent prohibitory injunction .
or vacant possession. Therefore, it cannot be said that the matter in issue in the present suit was directly and substantially in issue in the previous suit.
38. The present defendant no.1 had not taken any plea of regarding the suit being barred by the principle of res-judicata.
rt Defendant No.1 had also not properly proved the pleadings in the previous suit. The copies of the plaint, a written statement filed by defendant no.2, a written statement filed by defendant no.1 and a copy of replication were tendered in evidence by examining the Record Keeper Sohan Lal (DW-2); however, that is not a proper proof of the pleadings. It was laid down in Akshoy Kumar Bose v. Sukumar Dutta, 1949 SCC OnLine Cal 36 =AIR 1951 Calcutta 320, that the pleadings do not fall within the definition of a public document and cannot be proved without examining the party or lawyer. It was observed.
"9. Admittedly, a very important item of evidence on the side of the defendants would be the admission in Ex. 3. If Ex. 3 had been properly admitted in evidence, I would have no hesitation in proceeding on the evidence on the record to record my own finding. I cannot but agree, however, with the learned Advocate for the appellant ::: Downloaded on - 29/09/2023 20:35:17 :::CIS 25 that EX. 3 has not been properly admitted in evidence. There can be no doubt that the admission in the written statement would be relevant evidence, provided it was .
shown to be with respect to property which is now in suit. But even relevant evidence has to be brought on the record in the way allowed by law. The written statement is not a public document and so a certified copy of it is not admissible in evidence. The learned Judge remarks that there is authority for the proposition that the certified copy of a written statement can be admitted in evidence of without calling for the original. I am not aware of any such authority, nor are the learned Advocates on either side aware of any such authority. In my opinion, the learned Judge is entirely mistaken in this view of the law. rt
10. The original of this written statement being more than 30 years old could, of course, be admitted in evidence if shown to have been produced from proper custody. Production from the Court's office would obviously be production from proper custody. If that could not be produced in spite of proper efforts by the plaintiff, secondary evidence could be given under Section 65 (c) of, the Evidence Act. A certified copy produced without any further evidence would not be sufficient secondary evidence. Evidence could be given either by the lawyer who filed the written statement or by some other person who was present when the written statement was filed and read the written statement at about the time, that the copy filed in Court, whether certified or not, correctly represents the contents of the written statement that was actually filed. No such evidence has been given. Nor am I satisfied that a case was made out for producing secondary evidence within the meaning of Section 65 (c), Evidence Act, for while it is shown that the records of case No. 71 of 1909 were called, there is nothing to support the further statement of the learned Advocate that that case was the same as 646 of 1908 of the First Munsif's Court." (Emphasis supplied) ::: Downloaded on - 29/09/2023 20:35:17 :::CIS 26
39. Patna High Court also took a similar view in Gulab Chand Vs.Sheo Karan Lall Seth, AIR 1964 Patna 45 and held:
.
"12. For the respondent (defendant No. 6) it was contended that Ext. E-2, being a certified copy of a plaint, would prove, without any further evidence, the contents of the original plaint including the signatures of the plaintiffs on that point. In other words, the argument was that the plaint filed in a Court was a public of document, a certified copy of which could be granted under Section 76 of the Indian Evidence Act, and when so granted, it would prove the contents of the original by the mere filing of it under Section 77. What are public rt documents are stated in Section 74 of the Evidence Act: Documents forming the acts or records of the acts of the sovereign authority, of official bodies and tribunals, and public officers, legislative, judicial and executive, of any part of India or the Commonwealth or a foreign country have been described as public documents. I cannot see how a plaint filed by a private person in Court to institute a case against some others can come within the descriptions of the documents given in that sub-section.
Sub-section (2) of Section 74 can in no way include a plaint. The plaint is neither an act nor the record of an act of any public officer. There can be no strength in the contention that when the plaint is presented and the Court makes an order admitting or registering it, the plaint becomes an act or the record of an act of a public officer presiding over the Court. At the most, it will become a part of the record maintained by the Court in that case after the plaint is admitted and registered, but that itself will not make it a public document. If it were, then anything filed in a case in a court of law either petitions or pleadings, private communications or documents which a party would file in a case would become public documents for the simple reason that they are on the record of a case in Court. The judgment and decree passed in a case are undoubtedly the acts of the ::: Downloaded on - 29/09/2023 20:35:17 :::CIS 27 Court, and they will be public documents on that account. Similarly, a petition of compromise which is made a part of the decree forms a part of the public .
document, but before its incorporation in the decree, it remains a private document, though filed in Court, forming a part of the case record.
xxxxxxx
14. I have already referred to the case of AIR 1926 Pat 180, where a plaint was held not to be a public document and the certified copy thereof was rejected from evidence. In of the case of Akshoy Kumar Bose vs. Sukumar Dutta, AIR 1951 Cal 320, a written statement filed in a previous suit was set down as not a public document and its certified copy rt was not admissible in evidence without calling for the original. Mere production of a certified copy in such a case was found to be not sufficient secondary evidence of its contents without any further evidence. An admission in that written statement was sought to be relied upon by the defendants and for that purpose, they had marked its certified copy as Ext. 3 in the trial Court. In the High Court, it was dismissed from consideration as it was not proper secondary evidence under the provisions of Sec.
65 of the Evidence Act.
In the case of Usuf Hasan vs. Raunaq Ali, AIR 1943 Oudh 54, it was similarly held that the plaint is a private document and it must be proved by direct evidence. No formal evidence was given about that plaint. The lower Courts had drawn a presumption from the certified copy of the plaint about its genuineness but that was held to be an incorrect approach. A similar view that a plaint is not a public document and that it should be proved like any other private document was taken in the case of Manbodh vs. Hirasai, AIR 1926 Nag 339. I need not multiply citations except to make a reference to the case of Lakshan Chandra vs. TakimDhali, 39 Cal LJ 90: (AIR 1924 Cal 558), where the celebrated Judge, Sir Ashutosh Mukherjee observed that the distinction between the admissibility of a document as evidence of a transaction ::: Downloaded on - 29/09/2023 20:35:17 :::CIS 28 and the admissibility of a document In proof of a statement contained therein is of a refined but of a fundamental character though frequently overlooked.
.
For that, the learned Judge referred to several cases including Seethapathi V/s. Venkanna, AIR 1922 Mad 71 (FB). A plaint may be admissible in proof of the fact that a particular suit was brought by a particular person against someone on a particular allegation, but it cannot be admissible to prove the correctness of a statement contained therein unless it is proved by direct evidence of or by secondary evidence as provided in the Evidence Act.
In the instant case before us, the question was whether the statement that the two brothers Ramnarain Lal and Baiju Lal were separate as contained in the plaint (Ext. E- rt
2) was made by both or one of them in March 1918. That could not be proved by definite evidence that they made such a statement in that plaint. This could be done either by direct or by secondary evidence but certainly not by merely producing a certified copy of the plaint, or by the kind of evidence given by D.W. 2 on the side of defendant No. 6."
40. Bombay High Court also held similarly in Manohar (deceased) through LRs. VS VishweshwarTukaramGiripunje, AIR 2008, Bombay 155as under:
"It appears that the learned judge of the trial court, as well as the appellate court, have relied upon the certified copy of the plaint in Civil Suit No.312 of 1965 (Exh.52). Both the judges have held that the document i.e. plaint can be read as it is a public document. Both seem to be under misconception. The certified copy of the plaint is not a public document. Hence, it requires proof. For proving such a document, the original plaint should have been called in court. That is not done, hence the certified copy of the plaint could not be said to be proved at all.::: Downloaded on - 29/09/2023 20:35:17 :::CIS 29
The courts below, therefore, were not justified in putting reliance on this copy of the plaint."
41. Odisha High Court recognized the same position in .
Baijayanti Nanda VS Jagannath Mahaprabhu Marfat Adhikari Mahanta Bansidhar Das Goswami, AIR 2014 Odisha 128, and observed:
of "13. In the case of Akshoy Ku. Bose v. Sukumar Dutta, AIR 1951 Cal. 320, the written statement filed in a previous suit was set down as not a public document and its certified copy was not admissible in evidence without rt calling for the original. Mere production of a certified copy in such a case was found to be not sufficient secondary evidence, of its contents without any further evidence.
14. In the case of Usuf Hasan v. Raunaq Ali, AIR 1943 Oudh 54, it was similarly held that the plaint is a private document and it must be proved by direct evidence and no formal evidence was given about the plaint. The lower Courts had drawn a presumption from the certified copy of the plaint about its genuineness but that was held to be an incorrect approach.
15. A similar view that a plaint is not a public document and that it should be proved like any other private document was taken in the case of Manbodh v. Hirasai, AIR 1926 Nag 339. The learned Single Judge of Patna High Court referred Lakshan Chandra Mandal v. TakimDhali and others, 39 Cal. LJ 90 - AIR 1924 Cal. 558 where the learned Celebrated Judge Sir Ashutosh Mukherjee observed that the distinction between the admissibility of a document as evidence of a transaction and admissibility of a document in proof of a statement contained therein is of a refined but of a fundamental character though frequently overlooked and for that the learned Judge has referred to several cases including the ::: Downloaded on - 29/09/2023 20:35:17 :::CIS 30 case of Seethapathi v. Venkanna, AIR 1922 Mad 71 (FB) and held that a plaint may be admissible in proof of the fact that a particular suit was brought by a particular person .
against someone on a particular allegation; but it cannot be admissible to prove the correctness of a statement contained therein unless it is proved by direct evidence or by secondary evidence as provided in the Evidence Act.
16. In Smt. ShamalataWd/o. Manohar Raut and others v. VishweshwaraTukaramGiripunje and another, AIR 2008 Bombay 2008, it is held as follows:
of The certified copy of the plaint is not a public document. Hence, it requires proof. For proving such document, original plaint suit have been called rt for in the Court. That is not done, hence the certified copy of the plaint could not be said to be proved at all."
17. The reliance placed by the learned counsel for the plaintiff-petitioner on the judgment of this Court in RadhashyamMohanty and another (supra) this Court held that the only pleadings in the suit were that of the plaintiff and defendants and therefore, evidence is bound to be confined to the said pleadings. Therefore, evidence should be led to prove or disprove any of the facts comprised in the pleadings of the plaintiffs or defendants but the defendant cannot be permitted to lead evidence on a plea, which was not there before the Court"
18. In paragraph 12 of the judgment in Jagdish Chandra Chandulal Shah (supra), the Gujarat High Court has held as follows:
"So far as the document at SI. No.9 is concerned, it is the certified copy of the plaint filed against MahobatsingMansinghJadeja by the complainant and it is a public document as it forms part of the record, as held by the High Court in the case of ShazadaMohomedShahaboodeen v. Daniel Wedgeberry reported in (1873) 10 Beng LR (Appendix) ::: Downloaded on - 29/09/2023 20:35:17 :::CIS 31 31 and therefore, that is also admissible in evidence for the purpose of proving the contents thereof. However, when the question arises with regard to .
the signature thereon, it will be required to be proved in the same manner in which execution of the document is to be proved."
19. Referring to the aforesaid judgment learned counsel for the defendant-opposite party no.4 argued that a certified copy of a plaint filed in the Civil Court would be a public document and hence admissible in evidence for of the purpose of proving the contents thereof.
20. In view of the analysis of the judgments cited before the Court in the forgoing paragraphs, the ratio decided in rt Jagdish Chandra Chandulal Shah (supra), may constitute to be a per incuriam judgment as the earlier judgment available has not been taken into consideration whereas in Gulab Chand and others (supra) various judgments in the subject has been taken into consideration and after analyzing Section 74 of the Evidence Act, cogent reason has been assigned that plant may be admissible in proof of fact that a particular suit was brought by a particular person against someone on a particular allegation; but it cannot be admissible to prove the correctness of a statement contained therein unless it is proved by direct evidence or by secondary evidence as provided in the Evidence Act."
42. The Kerala High Court also took a similar view in SarithaS.Nair versus Union of IndiaILR 2023 (3) Kerala 1047, and observed that:
"8. The petitioner's right to obtain certified copies has to be adjudged in terms of the provisions of Sections 74 and 76 of the Indian Evidence Act. "Document" means any matter expressed or described upon any substance by means of letters, figures, or marks, or by more than one of those means, intended to be used, or which may be ::: Downloaded on - 29/09/2023 20:35:17 :::CIS 32 used, for the purpose of recording that matter (S.3 of the Evidence Act). Documents are divided into two categories: Private Documents and Public Documents.
.
Public documents are (1) documents forming the acts or records of the acts (i) of the sovereign authority, (ii) of official bodies and tribunals and (iii) of public officers, legislative, judicial and executive, of India or of a commonwealth or a foreign country and (2) public records kept in any State of private documents (S.74 of the Evidence Act). Documents that do not fall within the of above description are private documents (S.75 of the Evidence Act).
9. Documents which are records of acts of public officers, legislative, judicial, and executive are public documents rt going by Section 74(1)(iii). "Public Officer" has been defined under Section 2(17) of the Code of Civil Procedure which includes every judge and every officer of a court of justice. To be a public document, it should be a record of the act of the court. The record itself would not be a public document. There is a distinction between the record of the court and the record of the acts of the court. It is only the record of the acts of the court that is a public document. Thus, the deposition of witnesses recorded by a judge/an officer of the court, judgment, and decree are public documents as they are records of acts of court. But pleadings, affidavits, and petitions filed in court cannot be said to form such acts or records of acts, and are, therefore, not public documents."
43. Thus, it is apparent from the views of the different High Courts, that the pleadings do not fall within the definition of a public record and cannot be proved by mere production of the certified copy; hence, no reliance could have been placed upon the certified copy of the pleadings filed in the present case, which were not proved by examining the competent person.
::: Downloaded on - 29/09/2023 20:35:17 :::CIS 3344. It was laid down by the Hon'ble Supreme Court in Syed Mohd. SalieLabbai v. Mohd. Hanifa, (1976) 4 SCC 780, that, .
the respective pleadings of the parties in the previous suit have to be brought on record to determine the case of the parties.The recitals in the pleadings cannot be inferred from the judgment.
It was observed (at page 790):
of "8. In the instant case according to the plaintiffs-
respondents, the identity of the subject matter in the rt present suit is quite different from the one which was adjudicated upon in the suits which formed the basis of the previous litigation. In our opinion, the best method to decide the question of res judicata is first to determine the case of the parties as put forward in their respective pleadings of their previous suits and then to find out as to what had been decided by the judgments which operate as res judicata. Unfortunately however in this case the pleadings of the suits instituted by the parties have not at all been filed and we have to rely upon the facts as mentioned in the judgments themselves. It is well settled that pleadings cannot be proved merely by recitals of the allegations mentioned in the judgment."
45. This position was reiterated in V. Rajeshwari v. T.C. Saravanabava, (2004) 1 SCC 551: 2003 SCC OnLine SC 1405, wherein it was observed at page 556:
"12. The plea of res judicata is founded on proof of certain facts and then by applying the law to the facts so found. It is, therefore, necessary that the foundation for the plea must be laid in the pleadings and then an issue must be framed and tried. A plea not properly raised in the pleadings or issues at the stage of the trial, would not ::: Downloaded on - 29/09/2023 20:35:17 :::CIS 34 be permitted to be raised for the first time at the stage of appeal [see (Raja) Jagadish Chandra DeoDhabal Deb v. Gour Hari MahatoAIR 1936 PC 258: 1936 All LR 786, .
MedapatiSurayya v. TondapuBalaGangadhara Ramakrishna Reddi [AIR 1948 PC 3 : (1947) 2 MLJ 511] and Katragadda China Anjaneyulu v. Kattaragadda China Ramayya [AIR 1965 AP 177 : (1965) 1 An LT 149 (FB)] ]. The view taken by the Privy Council was cited with approval before this Court in State of Punjab v. Bua Das Kaushal (1970) 3 SCC 656. However, an exception was carved out of by this Court and the plea was permitted to be raised, though not taken in the pleadings nor covered by any issue because the necessary facts were present to the mind of the parties and were gone into by the trial court.
rt The opposite party had ample opportunity of leading the evidence in rebuttal of the plea. The Court concluded that the point of res judicata had throughout been in consideration and discussion and so the want of pleadings or plea of waiver of res judicata cannot be allowed to be urged.
13. Not only the plea has to be taken, but it has to be substantiated by producing copies of the pleadings, issues and judgment in the previous case. Maybe, in a given case only a copy of the judgment in the previous suit is filed in proof of plea of res judicata and the judgment contains exhaustive or in requisite details the statement of pleadings and the issues which may be taken as enough proof. But as pointed out in Syed Mohd. SalieLabbai v. Mohd. Hanifa (1976) 4 SCC 780 the basic method to decide the question of res judicata is first to determine the case of the parties as put forward in their respective pleadings of their previous suit and then to find out as to what had been decided by the judgment which operates as res judicata. It is risky to speculate about the pleadings merely by a summary of recitals of the allegations made in the pleadings mentioned in the judgment. The Constitution Bench in Gurbux Singh v. BhooralalAIR1964 SC 1810 : (1964) 7 SCR 831 placing on a ::: Downloaded on - 29/09/2023 20:35:17 :::CIS 35 par the plea of res judicata and the plea of estoppel under Order 2 Rule 2 of the Code of Civil Procedure, held that proof of the plaint in the previous suit which is set to .
create the bar, ought to be brought on record. The plea is basically founded on the identity of the cause of action in the two suits and, therefore, it is necessary for the defence which raises the bar to establish the cause of action in the previous suit. Such pleas cannot be left to be determined by mere speculation or inferring by a process of deduction what were the facts stated in the previous of pleadings. Their Lordships of the Privy Council in Kali Krishna Tagore v. Secy. of State for India in Council (1887-
88) 15 IA 186: ILR 16 Cal 173 pointed out that the plea of res judicata cannot be determined without ascertaining rt what were the matters in issue in the previous suit and what was heard and decided. Needless to say, these can be found out only by looking into the pleadings, the issues and the judgment in the previous suit."
46. Hence, in the absence of the pleadings in the previous suit, the plea that the question of title of the suit had become res-judicata between the parties in the previous suit and could not be examined by the Court is not acceptable. Hence, this substantial question of law is answered accordingly.
Substantial Question of Law No.1 to 5:
47. All these substantial questions of law are interconnected and are being taken up together for convenience.
48. Learned Trial Court and Learned First Appellate Court proceeded on the basis that entry in the copy of jamabandi ::: Downloaded on - 29/09/2023 20:35:17 :::CIS 36 does not confer any title and the plaintiffs were required to prove their title. Both the learned Courts below ignored Section .
45 of the H.P. Land Revenue Act, which attaches a presumption of correctness to the record of rights. It was laid down by the Hon'ble Supreme Court in Partap Singh v. Shiv Ram, (2020) 11 SCC 242: 2020 SCC OnLine SC 228 that an entry in the jamabandi of carries with it, a presumption of correctness u/s 45 of H.P. Land Revenue Act and the burden is upon the person, who alleges to rt the contrary. The burden can be discharged by leading evidence of incapable integrity. Oral evidence is not sufficient to hold that the presumption stands rebutted. It was observed:
"16. As per Section 32(2)(a) of the 1954 Act, record-of- rights i.e.jamabandi, shall include the name of persons who are landowners, tenants or assignees of land revenue and also the rent, land revenue, rates, cesses or other payments due from and to each of those persons and the Government. On the other hand, the periodical record i.e.khasragirdawari, as mentioned in Section 34 of the 1954 Act, is to be prepared every year as the proof of the statements, as mentioned in sub-section (2) clause (a) of Section 32, which includes the name of the landowners, tenants and the rent and land revenue payable. In terms of Section 45 of the 1954 Act, the record of rights as prepared in terms of Sections 32 and 34 of the 1954 Act carries a presumption of truth. Still further, any person who is aggrieved by any entry in the record of rights or a periodical record has a right to invoke the jurisdiction of the civil court for correction of the entries in terms of Section 46 of the 1954 Act.::: Downloaded on - 29/09/2023 20:35:17 :::CIS 37
17. The detailed procedure for recording periodical record-of-rights as well as the record-of-rights in terms of Sections 32 and 34 of the 1954 Act has been prescribed.
.
The record-of-rights contains entries of the revenue record for the four years. Such record-of-rights carries the presumption of correctness in terms of Section 45 of the 1954 Act and also Section 35 of the Evidence Act, 1872 (for short "the Evidence Act"). Section 109 of the Evidence Act further contemplates whether there exists a relationship of landowner and tenant and the burden of of proving such a relationship is on the person who affirms it.
18. The relevant provisions of the Evidence Act read as under:
rt "35. Relevancy of entry in public record or an electronic record made in performance of duty.--An entry in any public or other official book, register or record or an electronic record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register, or record or an electronic record is kept, is itself a relevant fact.
***
109. The burden of proof as to relationship in the cases of partners, landlord and tenant, principal and agent.--When the question is whether persons are partners, landlord and tenant, or principal and agent, and it has been shown that they have been acting as such, the burden of proving that they do not stand, or have ceased to stand, to each other in those relationships respectively, is on the person who affirms it."
19. In the State of Himachal Pradesh, jamabandi, under Section 32 of the 1954 Act as well as KhasraGirdawari, under Section 34 of the 1954 Act, both are record-of-
::: Downloaded on - 29/09/2023 20:35:17 :::CIS 38rights in terms of Section 32 of the 1954 Act and have statutory presumption of truth. How that presumption can be inferred has come up for consideration before this .
Court in Harish Chander v. Ghisa Ram, (1981) 1 SCC 431.
This Court held that the entries in the jamabandi carry presumption of truth but such presumption is rebuttable. Once that presumption is raised, still another comes to the aid of Respondent 1 [therein] [Ed.: The facts of Harish Chander, (1981) 1 SCC 431, are that the name of Respondent 1 therein was recorded as a tenant in the of jamabandi for the year 1959-60 (Ext. P-1) and consistently thereafter till the year 1968 (Khasra- girdawarisExts. P-2 to P-7). Thus it was held that the statutory presumption of truth of these entries was rt attracted to the benefit of Respondent 1 tenant, and so also the reversal of burden of proof under Section 109 of the Evidence Act, 1872, was held to be to his benefit. The facts of the present case are exactly the opposite-- see para 20 below--there is no entry at all in the record of rights of the tenancy claimed by the respondent-
defendant herein. Thus, the presumption of the truth of the record-of-rights has been held to enure to the benefit of the appellants whose names were found to be recorded in the record-of-rights.] by reason of the rule contained in Section 109 of the Evidence Act, namely, that when two persons have been shown to stand to each other in the relationship of landlord and tenant, the burden of proving that such relationship has ceased, is on the party who so asserts. It was held as under: (SCC pp. 431-433, paras 2 &
6) "2. ... Apart from the oral evidence there is no material on the record which may indicate the falsity of any of the entries in the revenue records and we are of the opinion that the lower courts were fully justified in relying on them.
***
6. No suspicion can attach to the entries in the jamabandi for the year 1959-60, nor have the ::: Downloaded on - 29/09/2023 20:35:17 :::CIS 39 contents of that document been assailed before us. A presumption of truth attaches to those entries in view of the provisions of Section 44 of the Punjab .
Land Revenue Act. That presumption is no doubt rebuttable but no attempt has been made to displace it. Further, once that presumption is raised, still another comes to the aid of Respondent 1 by reason of the rule contained in Section 109 of the Evidence Act, 1872, namely, that when two persons have been shown to stand to each other in of the relationship of landlord and tenant, the burden of proving that such relationship has ceased, is on the party who so asserts. It may therefore be legitimately presumed that the plaintiff continued rt to possess the land as a tenant till the institution of the suit."
20. The present is a case where no relationship of landlord and tenant is mentioned in the revenue record though required in terms of Section 32(2)(a) of the 1954 Act. In the absence of an entry in the revenue record, which is also expected to contain the entry of rent and possession, the tenancy cannot be treated to be in existence only on the basis of oral evidence of the witnesses examined by the defendant. The burden of proving the relationship was on the defendant. Such a burden cannot be said to be rebutted only by oral evidence. The witnesses may lie but the documents do not, is a golden rule. The presumption of truth attached to the revenue record can be rebutted only on the basis of evidence of impeccable integrity and reliability. The oral evidence can always be adduced contrary to the revenue record but such oral testimony will not be sufficient to hold that the statutory presumption stands rebutted.
21. This Court in Vishwa Vijay Bharati v. Fakhrul Hassan, (1976) 3 SCC 642 held that the entries in the revenue record ought to be generally accepted at their face value and courts should not embark upon an appellate inquiry into their correctness. But the presumption of correctness ::: Downloaded on - 29/09/2023 20:35:17 :::CIS 40 can apply only to genuine, not forged or fraudulent entries. This Court held as under: (Fakhrul Hassan case [Vishwa Vijay Bharati v. Fakhrul Hassan, (1976) 3 SCC .
642], SCC p. 645, para 14) "14. 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 into their correctness. But the presumption of correctness can apply only to genuine, not forged or fraudulent, entries. The distinction may be fine of 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 rt surreptitiously. Fraud and forgery rob a document of all its legal effect and cannot found a claim to the possessory title."
22. This Court in Guru Amarjit Singh v. Rattan Chand, (1993) 4 SCC 349: AIR 1994 SC 227 was examining a dispute of the relationship of landlord and tenant. A copy of a more than thirty-year-old lease deed was produced to prove the relationship between the landowner and tenant.
However, the revenue record did not show any payment of rent but only the existence of terms of lease to pay rent.
This Court held that non-production of the receipts of payment of rent clearly indicates that there was no relationship between landlord and tenants.
23. In Sodhi Transport Co. v. State of U.P., (1986) 2 SCC 486:
1986 SCC (Tax) 410], this Court was considering Section 28-B of the Uttar Pradesh Sales Tax Act, 1948 which raises a presumption of sale of goods in a manner prescribed therein. This Court considered Section 4 of the Evidence Act and also the previous judgments and held as under: (SCC p. 496, para 14) "14. A presumption is not in itself evidence but only makes a prima facie case for a party in whose favour it exists. It is a rule concerning evidence. It ::: Downloaded on - 29/09/2023 20:35:17 :::CIS 41 indicates the person on whom the burden of proof lies. When the presumption is conclusive, it obviates the production of any other evidence to .
dislodge the conclusion to be drawn on proof of certain facts. But when it is rebuttable it only points out the party on whom lies the duty of going forward with evidence on the fact presumed, and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed the purpose of presumption is over.
of Then the evidence will determine the true nature of the fact to be established. The rules of presumption are deduced from enlightened human knowledge and experience and are drawn from the connection, rt relation and coincidence of facts, and circumstances."
24. In another judgment in Kumar Exports v. Sharma Carpets, (2009) 2 SCC 513 : (2009) 1 SCC (Civ) 629 : (2009) 1 SCC (Cri) 823, this Court examined the presumption of fact in proceedings under Section 138 of the Negotiable Instruments Act, 1881. It was held that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused.
Something, which is probable has to be brought on record for getting the burden of proof shifted to the complainant. It was held as under: (SCC p. 521, para 21) "21. The accused has also an option to prove the non-existence of consideration and debt or liability either by letting in evidence or some clear and exceptional cases, from the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial. Once such rebuttal evidence is adduced and accepted by the court, having regard to all the circumstances of the case and the preponderance of probabilities, the evidential burden shifts back to the complainant and, thereafter, the presumptions ::: Downloaded on - 29/09/2023 20:35:17 :::CIS 42 under Sections 118 and 139 of the Act will not again come to the complainant's rescue."
25. The presumption of truth attached to the revenue .
record can be rebutted if such entry was made fraudulently or surreptitiously (Vishwa Vijay Bharati v. Fakhrul Hassan, (1976) 3 SCC 642) or where such entry has not been made by following the prescribed procedure (BhimappaChannappaKapali v. BhimappaSatyappaKamago uda, (2012) 13 SCC 759: (2014) 5 SCC (Civ) 419). Even in of Guru Amarjit Singh v. Rattan Chand, (1993) 4 SCC 349: AIR 1994 SC 227, where thirty years old lease deed was produced, this Court had not accepted the proof of the relationship between landowner and tenant in the rt absence of receipt of payment of rent.
26. Therefore, we find that the presumption of truth attached to the record of rights can be rebutted only if there is fraud in the entry or the entry was surreptitiously made or the prescribed procedure was not followed. It will not be proper to rely on the oral evidence to rebut the statutory presumption as the credibility of oral evidence vis-à-vis documentary evidence is at a much weaker level."
49. Therefore, learned Courts below erred in proceeding on the basis that no reliance could be placed upon the revenue record. Copy of jamabandi carried with it a presumption of correctness and the burden was upon the defendants to rebut this presumption.
50. Bhagat Ram (DW-3) stated in his cross-examination that proceedings for encroachment were initiated against his father in the year 1983. Khasra No. 348/13 (present Khasra ::: Downloaded on - 29/09/2023 20:35:17 :::CIS 43 No.13/1) measuring 4-15 bighas was allotted to him. Anant Ram,the father of the plaintiffs, objected and the allotment was .
cancelled. Khasra No.1460/1/1, measuring 3-16 bighas was allotted to the plaintiffs in the year 1973 which was earlier bearing Khasra No.351/13/6.
51. This shows that the defendant has not disputed the of allotment. He had stated in para-5 of the written statement that rt the suit land was previously entered in the name of the State of H.P. and its previous Khasra No. was 351/13/6. He also said that the suit land was earlier bearing Khasra No.351/13/6, however, it is apparent from the mutation Ex. PB that earlier Khasra No.1460/1/1 and new Khasra No.397/381/1 measuring 3-16 bighas were mutated in favour of the plaintiffs. Therefore, the plea taken by the defendant that the land allotted to the predecessor-in-interest of the plaintiffs was different from the suit land is not acceptable.
52. Defendant Bhagat Ram stated in his cross-
examination that the suit land is bearing Khasra No.397/389/1, measuring 4-3 bigha which is not correct as the suit has been filed regarding Khasra No.397/389/1, measuring 3-16 bighas. He ::: Downloaded on - 29/09/2023 20:35:17 :::CIS 44 had not disputed that land measuring 1460/1/1, measuring 3-16 bighas was allotted to the plaintiff, therefore, his statement .
clearly shows that he is referring to some other land measuring 4-3 bighas as the suit land, whereas the plaintiffs have filed the civil suit regarding the land measuring 3-16 bighas. Hence, in such a situation, the presumption of correctness attached to the of revenue record was not rebutted by the defendants and the learned Courts below erred in holding that the plaintiffs had rt failed to establish their title over the suit land.
53. The copy of the order dated 16.11.1983 (Ex.D-2) shows that Bhagat Ram had encroached upon Khasra No.351/13/6, measuring 4-03 bighas, which belonged to the State and an order of ejectment was passed against him. Copy of order (Ex.D-14) shows that Bhagat Ram had also encroached upon Khasra No.348/13, measuring 4-5 bighas, which was allotted to Anant Ram and mutation was also sanctioned in his favour.
54. The copy of the order passed by the learned Deputy Commissioner (Ex.D-19) reads that Tehsildar, Sadar allotted 4- 15 bighas land bearing Khasra No.13/1 to Bhagat Ram as a ::: Downloaded on - 29/09/2023 20:35:17 :::CIS 45 landless person, whereas a large part of the area allotted to Bhagat Ram had already been allotted to Anant Ram. Bhagat .
Ram was employed as a Chowkidar and his earning was not less than ₹3,000/-; hence allotment was cancelled. A mutation (Ex.D-50) was recorded after the learned Deputy Commissioner passed an order cancelling the allotment made in favour of of Bhagat Ram.
55. rt A copy of the judgment passed by the learned Senior Civil Judge (Ex. D-28) shows that the present defendant no.1 had filed the civil suit seeking the declaration that allotment was wrongly cancelled but this suit was dismissed.
56. Learned First Appellate Court held that the original patta was not produced on record and this was sufficient to doubt the version of the plaintiffs regarding the allotment. Para 8 of the copy of the judgment (Ex.D-28) mentions that the Original Patta (Ex. D1) was produced before the Court.
Therefore, the patta was already produced before the Court in the previous litigation between the parties and learned First Appellate Court should not have held that the title of the plaintiffs was not proved in the absence of the original patta.
::: Downloaded on - 29/09/2023 20:35:17 :::CIS 4657. The copy of the report (Ex.PW-3/A) dated 16.10.2003 mentions that a joint statement was made by Yashwant Pradhan .
and other persons that Khasra No.400/397/389 was demarcated on the land. Bhagat Ram had constructed a house on this land.
Yash Pal (PW-3) stated that the land was demarcated in his presence and it was found that a new construction was raised.
of Shuttering was removed. A joint statement was recorded.
58. rt A similar statement was made by Sant Ram (PW-4), who stated that the defendant had encroached upon the suit land by constructing a house. He denied in his cross-
examination that the house was constructed about 25-30 years ago.
59. Rakesh Kumar, Patwari (PW-2) stated that he prepared tatima (Ex.PW-2/A) and found that a house was recently constructed upon 01 biswa. He stated in his cross-
examination that the house was already constructed. He admitted that Khara No.400/397/389 was earlier bearing Khasra No.397/98/1 which was earlier bearing Khasra No.1460/1/1. He admitted that land measuring 4-15 bighas was allotted to defendant No.1 and the allotment was cancelled.
::: Downloaded on - 29/09/2023 20:35:17 :::CIS 4760. Cross-examination of this witness also shows that it was not disputed in the cross-examination that present Khasra .
No.400/395/389 was earlier bearing Khasra No.397/98/1 which was earlier bearing Khasra No.1460/1/1. Hence, his testimony proves the identity of the suit land. His testimony corroborates the statements of other witnesses that the house was recently of constructed over the suit land. He visited the spot on 16.10.2003, whereas the present suit was instituted on 8.10.2003; therefore, rt it is duly proved that the defendant had encroached upon the portion of the suit land after the institution of the suit land.
61. Heavy reliance was placed upon ejectment order dated 22.2.2002 (Ex.D-9), wherein Bhagat Ram was found in possession of Khasra No.348/13 measuring 4-15 bigha, and was ordered to be ejected from the same. It was submitted that this order shows the possession of the defendant and there is no proof of the ejectment. Hence, the possession of the defendant was duly proved. This is not acceptable. It is apparent from the copy of the order (Ex.D-9) and tatima (Ex.D-11) that some portion of the land of the Anant Ram and Bhagat Ram overlapped each other. Heavy reliance was placed upon the ejectment order (Ex.D-9), in which Bhagat Ram son of Mansa ::: Downloaded on - 29/09/2023 20:35:17 :::CIS 48 Ram was ordered to be ejected from Khasra No.348/13/1, measuring 4-15 bighas to submit that this order proves the .
possession of the defendant. This submission cannot be accepted. Report (Ex.D-13) prepared by the Patwari mentions that Khasra No.348/13/1, measuring 4-5 bigha was found in possession of Bhagat Ram son of Mansa Ram. The Patwari had of prepared tatima (Ex.D-15) in which Khasra No.348/13/1, measuring 4-5 bighas was shown to be Barani Gair Mumkin rt Abadi. A comparison of this tatima (Ex.D-15) and the tatima (Ex.D-20) regarding the allotment, shows that Khasra No.348/13/1 shown in the tatima (Ex.D-15) corresponds to the land allotted to Bhagat Ram. The remaining area shown to be allotted to Anant Ram in (Ex.D-20) is shown as 348/13/2. A perusal of these tatimas i.e., (Ex.D-15) and (D-20) shows that the land allotted to Anant Ram is different from the land found in possession of Bhagat Ram son of Mansa Ram. Even otherwise, it has been found out above that the land allotted to Anant Ram was earlier bearing Khasra No.1460/1/1 and subsequently Khasra No.397/389/1 and presently Khasra No.400/397/389 (Ex.PW-
2/C). Hence, these documents do not prove the possession of the defendant on the suit land but shows the possession of the ::: Downloaded on - 29/09/2023 20:35:17 :::CIS 49 defendant over a portion of the land which was allotted to him earlier and which allotment was cancelled. Therefore, no .
advantage can be derived from the ejectment order by the defendants.
62. Copy of Khasra Girdwari (Ex.PE) shows that Maize and Wheat crop were planted on the land measuring 3 bigha in of the year 2004. This record was prepared by a revenue official in rt discharge of his official duties and therefore, the same is to be taken to be correct. This corresponds to the earlier report of the encroachment wherein Bhagat Ram was found in possession of a smaller portion of the land wherein he had raised the construction. The report of the demarcation did not depict the possession of Bhagat Ram over whole suit land. Learned Courts below did not examine these documents and they simply relied upon the ejectment orders to hold that the defendants were in possession.
63. Learned First Appellate Court also held that the identity of the land allotted to the father of the plaintiff was not connected to the suit land which is not correct as stated above.
The defendant never disputed the allotment in favour of the ::: Downloaded on - 29/09/2023 20:35:17 :::CIS 50 father of the plaintiff but claimed that it was some other land where claim is not correct.
.
64. Defendant Bhagat Ram admitted that he had filed a civil suit claiming the adverse possession which was dismissed.
He also admitted that his house and bathroom were constructed on the suit land. This statement shows that his plea regarding of the adverse possession has already been negated by the rt competent Court and it is not permissible to reagitate the same.
He corroborated the report of Patwari and the statement of Yash Pal and Sant Ram that the defendant had constructed the house over the portion of the suit land as depicted in tatima (Ex. DW-
2/A). It has already been found out that this encroachment was made during the pendency of the suit; therefore, the defendant has no right to retain the possession.
65. It is apparent from the aforesaid discussion that learned Trial Courts below were swayed by the fact that the revenue entries did not confer the title upon the person and failed to examine the documents and the pleas taken by the defendant. Therefore, the finding recorded by learned Courts below is a result of a complete misreading of pleadings and ::: Downloaded on - 29/09/2023 20:35:17 :::CIS 51 evidence. These substantial questions of law are answered accordingly.
.
Final order:
66. In view of the above, the present appeal is allowed and the judgments and decrees passed by learned Courts below are ordered to be set aside. The suit of the plaintiff is decreed for of the recovery of possession by demolition of the house shown in the site plan (Ex.PW-2/A) as Khasra No.400/397/1, measuring rt 0-1 biswa and for permanent prohibitory injunction for restraining the defendants from interfering over Khasra No.400/397/2, shown in the tatima (Ex.PW-2/A). The tatima shall form part of the decree. The decree sheet be prepared accordingly.
67. Pending application(s), if any, also stand(s) disposed of.
(Rakesh Kainthla) Judge 29th September, 2023 (Chander) ::: Downloaded on - 29/09/2023 20:35:17 :::CIS