Madhya Pradesh High Court
Smt. Chanda Bai And Anr. vs Anwarkhan And Ors. on 17 May, 1996
Equivalent citations: AIR1997MP238, AIR 1997 MADHYA PRADESH 238
JUDGMENT S.C. Pandey, J.
1. This is an appeal filed by defendants Nos. 2 and 3 under Section 100 of the Code of Civil Procedure (hereinafter the Code for short) against the judgment and decree dated 12-7-91, passed by the District Judge, Rewa in Civil Appeal No. 9-A/91, arising out of judgment and decree dated 6-4-89, passed by Second Civil Judge Class 1, Rewa in Civil Suit No. I06-A/88.
2. The respondent No. 1 filed Civil Suit No. 106-A/88 against the appellants and respondent No. 2. The respondent No. 3 was proform a party. The respondent No. 2 filed his written statement admitting the claim of the respondent No. 1. Thus the suit is contested by the appellants against the respondent No. 1 on merits.
3. The respondent No. 1 claimed in the plaint that he was the owner of Khasra No. 11/3, area 6.50 acres, situate in village Godha, Tehsit Sirmour, District Rewa. He pleaded that the aforesaid suit properly was the part of the property belonging to his ancestors and his real brothers who had obtained Patta in respect of that property. Both the brothers died leaving the respondent No. I as the sole heir of the property. It was claimed that he was in peaceful occupation of the suit-land till 1-3-83. The appellantNo. I disturbed his possession alleging that she had purchased the suit property from the respondent No. 2 by registered sale deed dated 22-3-82 for a consideration of Rs. 14,000/-. Therefore; a suit for declaration of title and permanent injunction was filed by the respondent No. I. In the alternative, it was pleaded that in case it was found that respondent No. 1 was not in possession then a decree for possession be granted. The appellant No. 2 was made a party to the suit because she had purchased the land for a sum of Rs. 19,000/- by a registered sale deed dated 24-11-86 from appellant No. 1 (Ex. D-18).
4. The appellant filed two separate written statements denying the claim of respondent No. 1. They inter alia alleged that the suit property was sold to Sarjooram by the brothers of respondent No. 1, Sirtaj Khan and Gulabkhan in Samvat 2000. Sarjooram was also placed in possession. Thereafter Sarjooram cultivated the suit land. After death of Sarjooram, his son Ramgopal came into possession. Thereafter Ramlal, the respondent No. 2, inherited the properly. At the time of death of Ramgopal, the respondent No. 2 was hardly five years old. The land was mutated in his name. Thereafter, on 22-3-82 the appellant No. 1 purchased the suit-land after paying consideration of Rs. 14,000/- to respondent No. 2. At the lime of execution of the sale deed, the respondent No. 2 gave the original unregistered sale deed executed by the aforesaid brothers of respondent No. I in favour of Sarjooram in Samvat 2000. The appellants claimed that appellant No. 1 was in possession of the suit land and placed appellant No. 2 in possession afterexecution of registered sale deed dated 24-11-86. Ramlal was ex parte in the suit, but he gave evidence against the appellant and in favour of the respondent No. 1 as DW 1.
5. The trial Court dismissed the suit holding inter alia that the appellants were owners of the suil land having purchased from Ramlal after paying full consideration. It held that the suit property was purchased by Sarjooram from Sirtaj Khan and Gulab Khan by way of unregistered sale deed in Samvat 2000. Thereafter, the property was inherited by Ramgopal, father of the respondent No. 2. After him, Ramlal inherited property and it was he who sold the property lo the appellant No. 1 by a valid registered sale deed daled 22-3-82 for a consideration of Rs. 14,000/-. Subsequently, appellant No, 2 purchased the suit land from appellant No. 1. It negatived the contention of the respondent No. 1 that at the time of death of his brothers, the suit properly belonged to them. In the opinion of the trial Judge, the suit property was already sold to Sarjooram.
6. The lower Appeal Court has reversed the findings of trial Court holding inter alia that Ex-D 20 of Samvat 2000 (1943 A.D.) alleged to have been executed by Gulab Khan and Sirtaj Khan in favour of Sarjooram was not proved to he that executed by Gulab Khan, but it was apparently executed by Sirtaj Khan. It was also held that the suit land was not transferred in favour of Sarjooram in the year 1943. Sarjoorain was not made a Pattadar tenant after 1943 and, therefore, story of transfer was not accepted. Moreover, the lower Appeal Court has held that Ramgopal was not son of Sarjooram. He was son of Mahadeo, who was brother of Sarjooram. The learned District Judge held that mere production of a document more than thirty years old, did not prove its contents. The execution of that document should be proved; aliunde, so that presumption could be drawn under Section 90 of Evidence Act. The iearned District Judge rejected the revenue entries Ex. D-5 from 1956-57 to 1961-62 and Ex. D-2 from 1960-61 to 1965 on the ground although Ramlal was shown in possession in the remark column, but Ramgopal had never became Pattadar of suit land. The lower Appeal Court rejected the entries made in Exs. D-5 and D-22 in favour of Ramlal on the grounds that they have not been made in accordance with law. The reference to revenue cases in the entries was not accepted to be correct way of deciding the case. Therefore, the lower appellate Court reversed the finding of the trial Court after ejecting revenue entries in favour of Ramlal. The lower Appellate Court relied upon the evidence of Ramlal, who entered the witness box, in favour of respondent No. 1 and gave evidence against the appellants. His evidence was that he never sold the suit land to appellant No. 1, He had purchased only 0.64 acre of land from Anwar Khan comprising Khasra No. 11/1 in the year 1966. The District Court also rejected the Rin Pustika which recorded the name Ramlal, and the Khatauni Jamabandi. It also relied on the oral evidence in favour of respondent No. 1 to hold that Anwar Khan was in possession through the person cultivating the land in question at his instance. The learned District Judge also held against the appellants relying on the testimony of Ramlal that he did net get full consideration. He stated that Nusir Ali signed all Amanatnama Ex. D-2, dated 22-3-82' and kept Rs. 9,400/- out of the sale price of Rs. 14,000/- of the suit land. The lower Appellate Court drew an adverse inference against the appellants for not rebutting the evidence of Ramlal. The view of lower appellate Court was that Chanda Bai being the wife of late Nasir Ali, should have explained the conduct of her husband. The substance of evidence of Ramlal appears to be that he had sold only 0.64 acres of land comprising Khasra No. 11/1, but Nasir Ali, the husband of the appellant No. 1, prevailed upon his to execute the sale deed in respect of suit land also which did not belong to him. The learned District Judge, therefore, drew adverse inference against the appellants on the ground that they had not examined Nasir Ali in rebuttal. The learned District Judge turned down the plea of adverse possession. This, the appeal of the respondent No. 1 was allowed.
7. The appeal was admitted on the following substantial questions of law by order dated 28-11-91:
"1. Whether, the finding about the title ot Ramlal over the suit land is, in view of the facts and circumstances of the case, legal and valid? And
2. Whether, the appellant No. 1 had acquired any right and title over the suit land through the said Ramlal?
8. The learned counsel for the appellants, in support of this appeal, has not disputed that as per Ex. P-2, Gulab Khan and Sirtaj Khan were the Pattadars of Khasra No. 11 area 8.32 acres of land in. Sam vat 1994. This land was known as Amarhatti. The learned counsel for the appellants drew attention of this Court to an unregistered decument Ex. D-22 which showed that on Miti Ashad Sudi 8 Samvat 2000 a document purporting to be a sale deed was executed in favour of Sarjooram by Sirtaj Khan. According to learned counsel for the appellants this document was given to appellant No. (SIC) by Ramlal when he executed the sale deed dated 22-3-82 Ex. D-4. in respect of suit-land. It was urged that the document being more than 30 years old must be presumed to be correct. Then learned counsel for the appellant pointed out that at the foot of the document the boundary of land sold was delineated. It showed thus land on North was bound by a Nalla Saihada. In the West, it was bound by a Bandh Pujerin Walla. On the Eastern boundary, there was another Bandh. The Southern boundary is not very clear. The Khasra No. is also mentioned in the document being Khasra No. 11 area 8.32 acres of laud. The amount of sale price was Rs. 50/-. The learned counsel for the appellants submitted that Sirtaj Khan sold the suit land area 6.50 acres as detailed by the boundary given as Ex. D-20, in the year 1943.
This property was in possession of Sarjooram. Thereafter, it was inherited by Ramgopal, the father of Ramlal, and afler Ramgopal's death, it was mutated in the name of Ramlal. The learned counsel for the. appellant drew my attention to Khatauni Jamabandi Ex. D-I1 and submitted that, document of 1958-59,-would be deemed to be settlement record under Section 123 of M.P. Land Revenue Code. For that reason, a presumption should be drawn that a part of Khasra No. 11 recorded in the name of Ramlal, son of Ramgopal, was settled by the Slate with him. The area of Khasra No. 11 is shown 6.50 acres was recorded in the name of Ramlal asa Bhumiswami. Therefore this was the suit land which Ramlal inherited from his ancestor Sarjoorain. The learned counsel submitted that this piece of land was subsequently numbered as Khasra No. 11/3 and the appellant No. 1 purchased it from Ramlal. The learned counsel for the appellants submitted Ex. D-2, the Khasra entry from 1956-57 to 1961-62 which shows name of Ramgopal was mutated for6.50 acres as per order of Revenue Authorities. This document being certified copy of Khasra Panchsala had a presumptive value. The picture became clear when Ramlal purchased further 0.64 acres of land by registered sale deed dated 28-6-88 Ex. P-1 and another piece of land was 1.18 acres of land was sold by Sirtaj Khan to Abdul Gaffor etc. from original Khasra No. 11, area 8.32 acres of land. The remaining land was renumbered as Khasra No. 11/1 and 10.64 acres which was subsequently sold to Ramlal by Ex. P-1, dated 23-9-66. Another piece of land Khasra No. 11/2 was recorded in the name of Gaffoor Khan Sarfuddin and Mazhar Khan. It was admittedly sold to them as per paragraph 1 of the plaint and the rest of land was 6.30 acres of land marked as Khasra No. 11/3. According to them this picture was made clear by Ex. D-6, Ex. D-7 and Ex. D-8. The learned counsel relied on Ambika Prasad Thakur v. Ram Eqbal Rai, AIR 1966 SC 605, and asserted that Court has power to draw forward and backward presumption. The learned counsel assailed the conclusion of learned District Judge as unwarranted. The learned counsel for the appellants asserted that a substantial question of law arose in this case because the lower Appellate Court has ignored the presumptive value of Khasra entries and the Khatauni Jamabandi Ex. D-11 which had the force of settlement entry as per Section 123 of M. P. Land Revenue Code. Reliance was placed on Shikhar Chand Jain v. Digamber Jain Praband Karini Sabha, AIR 1974 SC 1178 and Sakharam Shriniwas v. Shushilabai Namdeo, AIR 1953 Nag 339.
9. The learned counsel for the respondents No. I submitted that judgment and decree of the lower Appellate Court are not liable to be set aside because the Court below has considered all material evidence on record. The learned counsel for the respondent No. 1 submitted that unregistered sale deed in favour of Sarjoorain was not proved and. therefore, no presumption could be drawn under Section 90 of Hvidence Act. The learned counsel for respondent No. 1 urged that the appellants were unable to prove that Ramgopal was son of Sarjoo Brahmin. Ramlal, his son, says that Ramgopal was son of Mahadeo, the brother of Sarjoorain. It was further argued that there was no Patta granted in favour of Sarjooram during his life time. The unregistered sale deed was of no consequence as there is no evidence on record to prove delivery of the possession to Sarjooram. The presumptive value of Khasra entries has been rebutted by oral evidence in favour of the respondent No. I and, therefore, this Court should not disturb the finding of fact. The learned counsel referred to Jai Narayan Durga Prasad v. Satyanarayan alias Dhonbabu, 1991 MPLJ 768 and Shiv Narayan Sharma v. Tehsildar, Gwalior, 1961 MPLJ 963.
10. Therefore, this Court must examine the case in the light of submissions made by the counsel for the parlies. The first question relates to the title of Ramlal. Ramgopal would claim title from his father Ramgopal and Ramgopal from Sarjooram, The appellants asserted that Ramgopal was son of Sarjooram. However, the witnesses of respondent No. 1 asserted that Ramgopal was son of Mahadeo, who was brother of Sarjooram. Since the lower appellate Court has found against the appellants that Ramgopal was son of Mahadeo, and not that of Sarjooram, it is not possible to disturb the finding of fact and it is held that Ramgopal was son of Mahadeo. The appellants claimed in essence that Ramlal's ancestor purchased the suit land and through him Ramgopal and Ramlal got the property. It is, therefore, of no consequence that Sarjooram was the father of Ramgopal or his uncle. The respondent No. 1 did not plead that when Sarjooram died he had left any other heir. In absence of any other heir of Sarjooram, Ramgopal would certainly be his heir. Thus nothing turns on the objection of respondent No. 1 that Ramgopal was not son of Sarjooram. Assuming that Ramgopal was son of Mahadeo, he could inherit the property as the sole heir of Sarjooram.
11. Now the most difficult question is whether he inherited the property in dispute. To answer this question the Court must enter into the crux of the controversy. What is the effect of the unregistered sale-deed, executed by Sirtaj Khan in favour of Sarjooram Brahmin? It was an unregistered sale-deed for a consideration of Rs. 50/-, executed in the year 1943. Was the possession delivered at the time of sale? Did Sarjooram continue in possession throughout his life and, thereafter, Ramgopal his nephew. Was the name of Ramlal mutated without demur on the part of respondent No. 1? Was Ramlal placed in possession after death of Ramgopal even though he was a minor. A number of question would arise in the course of decision that have to be answered by this Court, but answer must be given under the limitation provided by Section 100 of the Code.
12. Therefore, we must look to Ex. D-20 which is the sale-deed apparently executed by Sirtaj Khan in favour of Sarjooram for a consideration of Rs. 50/-. It mentions the boundary of the land as already detailed while considering the argument advanced by the counsel for the appellants. It also mentions the area of the land transferred out of Khasra No. 11 of village. This Court finds that respondent No. I Anwar Khan (PW-1), in paragraph-B of the deposition, admitted that the suit land is bounded by a Nala in the North and on the eastern side there is Pujarin Walla Bandh and in the South and West of the land there is agricultural land. This description of Khasra No. 11/3 tallies with the land mentioned in Ex. D-20. The document Ex. D-20 appears to be sale-deed in respect of the land described by a rough sketch map of land showing its boundaries. The area mentioned in the sale-deed is 6.50 acres of land and its consideration is Rs. 50/-. The sale-deed is executed by Sirtaj Khan in favour of Sarjooram. It was produced in evidence by the appellant No. 1, who stated that this document was given to her by Ramlal, the respondent No. 2, when he executed the sale-deed dated 22-3-82 (Ex. D-4) in her favour. The execution of this sale-deed is not denied by Ramlal though he denied his title to Khasra No. 11/3 in his evidence. The document Ex. D-20 was executed in Samvat 2000 corresponding to 1943 A.D. This document is unregistered, but consideration is Rs. 50/- only. The document recites that Sarjooram was placed in possession. As to application of Section 90 of Evidence Act, there was some confusion in the Court below. It is welt established that a party may require the Court to draw a presumption under Section 90 of Evidence Act by simply producing a document which is thirty years at the time of tendering evidence. If the Court comes to the conclusion that document is produced from proper custody, the Court in its discretion may presume that the document produced before it was written in the handwriting of the person who wrote it. Further the contents, signature execution and even attestation may be presumed to be of the persons mentioned in that document. The discretionary power for drawing presumption is hedged by certain pre-conditions, that is to say (1) that the document must be proved to be thirty years old on the date of tendering evidence; (2) that the document must be produced from proper custody. Even then, the Court has discretion not to raise presumption. In case, the Court does not want to rely on the presumption, it is necessary that party relying on that presumption should be given an opportunity to prove a document by direct evidence. Otherwise grave injustice may result against a part which solely relies on the provisions of Section 90 of Evidence Act. A party would normally expect that a presumption would be drawn in its favour when the conditions under Section 90 ibid are fulfilled. If the Court rules otherwise then it is duty bound to give an opportunity to a party to prove the execution document by direct evidence, if any. However, a part which leads direct evidence regarding the execution of document, is not permitted to rely on presumption under Section 90 ibid. So a learned Judge of this Court has held that a party relying oh direct execution cannot fall back on presumption under Section 90 of Evidence Act. In Jai Narayan's case (1991 MP LJ 768) f supra), S.K. Dubey, J. held as follows :
"True, Section 90 of the Evidence Act raises a presumption in respect of documents which are 30 years' old, about their execution and signatures and every other part of such documents, which purports to be in the handwriting of any particular person, if the documents are produced before the Court from a proper custody. But it is trite that the question as to whether the presumption under Section 90 arises or not, in the circumstances of the case must be decided on the evidence adduced. The parties are, therefore, left with the option of leading such evidence as they like for the proof or disproof of the presumption. (See Mohammed Hussain v. Gopibai, 1975 JLJ Note 38. Besides, the presumption is permissive: a party leading evidence to prove a document, cannot rely on such presumption. (See Shriram v.Sabir Hussain, 1983 MPWN 43. As the plaintiff himself has led evidence to prove the document and signatures on it of defendant No. I and his father, he cannot be heard to say that as the document is 30 years' old and there is presumption about its execution and signatures and every other part thereof, the defendants cannot be allowed to lead evidence in rebuttal."
It is apparent from the aforesaid observation that when a party leads evidence regarding the execution of a document, the question of application of Section 90 of the Evidence Act does not arise. So the lower Appellate Court has wrongly relied upon Section 90 of the Evidence Act for not raising a presumption. Here there was no question of raising any presumption because the appellant examined the scribe Matidhir Prasad (DW-3) to prove the execution of document. The Court below was misled by the argument advanced by the counsel regarding Section 90 of the Evidence Act. It should have addressed itself to the question whether Ex. D-20 was executed in the year 1943 (Samvat 2000) by the real owner of the property. Matidhir Prasad (DW-3) has proved the execution of document by Sirtaj Khan. The alleged vendor, the vendee and the attesting witnesses were not alive and, therefore, the only person who could give the evidence was DW-3 Matidhir Prasad, the scribe. This Court, therefore, determines the question on the basis of evidence of Matidhir Prasad (DW-3) as per Section 103(b) of the Code. After going through the evidence of DW-3 Matidhir Prasad along with Ex. D-20, this Court comes to conclusion that execution of sale-deed by Sirtaj Khan in favour of Sarjoo Brahmin for consideration of Rs. 50/- is proved. This document recites that there was delivery of possession on the date of sale-deed. The witness had denied that this document was concocted. Since this document itself is sufficiently old, apart from presumption under Section 90 of the Evidence Act. the possibility of it having been forged at the instance of appellants, is ruled out. 13. The next question that is to be decided is whether this document can be of any use to the appellant because it was unregistered. It appears that no serious argument was advanced before the Court below on this point. Under Section 54 of the Transfer of Property Act a property of value of less than Rs. 100/- could be transferred either by a registered sale-deed or by delivery of possession of property. Since this document was not registered, it cannot be treated as asale-deed. This Court has examined the evidence of DW-3 Matidhar Prasad and found that he has not expressly said anything about delivery of possession to Sarjooram at or about the time of execution of sale-deed. His evidence is regarding only the execution of document. Since he was merely a scribe of the document, the delivery of possession of suit land may not have taken before him. Therefore, his evidence cannot be in any manner conclusive. There is one sentence in his evidence which supports the case of the appellant. This is to the effect that Sarjooram's land, i.e. the suit land in occupation of Ramlal. However, this Court cannot rest its conclusion on such evidence even though this witness strikes a truthful witness to this Court so far as relationship of Ramlal is concerned. He has clearly deposed that Ramgopal was not son of Mahadeo, brother of Sarjooram, and that Ramlal was his son. The witness was not partisan. Thus there is no direct evidence on record as to delivery of possession.
14. For the aforesaid reasons, in absence of direct evidence as to delivery of possession, this Court must examine the indirect evidence on record to find out whether Sarjooram was placed in possession pursuant to oral sale of property in question for a consideration of Rs. 50/-. Here we enter inioa slipper terrain. The appellants claimed that Sarjooram was placed in possession of suit land and after his death Ramgopal and after him Ramlal. We have lo examine the documents and oral evidence on record from the point of view of sale of Samvat 2000 (1943 A.D.). There is no Khasra entries filed for proving possession of Sarjoo Brahmin or Ramgoal after him. Thus there is gap in the evidence. The learned counsel for the appellant has drawn the attention of this Court to Ex. D-11 Khatauni Jamabandi of 1958-59'. According to notification issued n/s. 123 of M.P. Land Revenue Code, this document could be treated as a settlement entry for Vindhya Pradesh region. The Court below should have taken this entry to be correct and then approached the evidence on record, The Court below has not noticed this aspect of the matter. Now presumption regarding this entry would be that in the year 1958-59, the land mutated in the Ex. D-11 would be deemed to have settled with the Bhumiswami mentioned therein. Thus this document is a, settlement entry and any finding recorded by the Court below would be vitiated, if no presumption is drawn. The concluskm of this Court is supported by the Supreme Court decision reported in Shikharchand Jain's case (AIR 1974 SC 1178) (supra). The entry in Ex. D-11 shows that 11ft. 6.50 acres of land was recorded in the name of Ramlal. The learned counsel for the appellants asserted the word fe- stands for feu-
It means out of. The attention of this Court was drawn to Mathura Prasad Singh v. Mahendra Singh, AIR 1953 Palna 358 for the proposition that word feu-
ordinarily stands for "out of. Since it is the case of the parties that Khasra No. 11 comprised 8.32 acres, the Word fe-
is significant. It means that as per entry of Khatauni Jamabandi Ex. D-11 of 1958-59, the State regarded certain area of 6.50 acres of land out of Khasra No. 11 were settled with Ramlal. The entry of Khasra No. 22/Ex. D-5 was also referred to by the learned counsel for the appellant. These are Khasra entries for the year 1956-57 to 1960-61. In these document in column No. 5, the name of title holder after death of Gulab Khan and Sirtaj Khan is shown as Anwar Khan, the respondent No. 1. The name of Ramlal is also mentioned in respect of Khasra No. 11 by way of note mentioned in these documents. It mentioned that in the year 1959-60 by order in Case No. 266/59-60, 6.50 acres of land is mutated in the name of Ramlal out of Khasra No. 11. We find that name of Ramlal is to be entered instead of Pattadar Anwar Khan, who was the only surviving brother of Gulab-Khan and Sirtaj Khan. None of the parlies has produced the original order passed by Supervisor Quanoongo. I find from Vindhya Pradesh Land Revenue Code that Quanoongo and Supervisor Quanoonge were recognised Re venue Authorities and Supervisor Qusnoongo was vested with authority to pass an order of mutation. What is the nature of such an entry? The entries were made under Section 110 of the M.P. Land Revenue Code in Ex. D-5/ Ex. D-22 (signature illegible). They were made with a view to record the acquisition of rights as per order of Revenue Authorities. These entries were made on the basis of order passed in Revenue Case No. 266/59-60. These entries were made by Palwari in course of his official duty. No exception could be taken to these entries in view of Section 35 of the Evidence Act. The presumption could be rebutted by filing the order passed in Rcvenue.case showing that entry was wrong or by showing no such order was passed. Therefore, this Court shall proceed on the basis that prima facie these Khasra entries represent the correct position. The column No. 11 of Khasra Ex. D/22/D-5 shows that 6.50 acres Ramlal was shown in possession, on 1.18 acres An war Khan and 0.64 acres was being cultivated by Ishwardeen Kachhi. If we total the area in occupation of these presons. then it equals the total area of Khasra No. 11 comes to 8.32 acres. Another note on the aforesaid document shows that 11 ft. besides other pieces of land were recorded as per order passed by Supervisor Qnanoongo in Case No. 266/59-60. This is the total area recorded in the name of Anwar Khan. The use of fe-
against KhasraNo. 11 is significant. It shows only a part of Khasra No. 11 was mutated in the name of Anwar Khan as per order in case No. 268/59-60. The view of this Court is supported by the decision reported in Churamani v. Ramadhar, 1991 MPLJ 311 In that case discussing the entries in the field book or Khasra entries, it has been observed in para 13 at page 317 as follows:
"In those cases in which any person has lawfully acquired any right or interest in respect of any land, he is required 10 report his acquisition of such right to the Palwari or the Tahsildar under Section 109. The necessary entry is thereafter made by the Tahsildar in the said regard after following the procedure prescribed under Section 110.
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14. As has been pointed out in Milhila Prasad's case (supra), apart from the matters mentioned above, the provisions of Chapter IX of the Code or even other provisions of the Code, including the Rules framed in respect of them, do not require a Patwari to make any other kind of entry in a Khasra or field book in respect of the matter relating to occupation of lands".
15. This evidence regarding possession of Ramlal son of Ramgopal whose uncle was Sarjooram shown that apparently these entries were made on the basis of oral sale which may not have been disputed at that time.
16. We do not have any document earlier than these, but it appears that mutation was done for the first time in the year 1959 as per note made by the Patwari. Khasra Panchsala of 1963-64 to 1966-67 Ex. D-23. Khasra for the year 1968-69 Ex. D-24, Khasra Panchsala for the year 1971-72 to 1975-76 Ex. D-6, Khasra Panchsala for the year 1976-77 to 1980-81 Ex..P-1. shows that Ramlal was in possession of Khasra No. 11/3 as a Bhumiswami. In Ex. P-1 Ramlal is also shown as Bhumiswami of Khasra No. 11/1, but purchase by Ramlal of this land is not in dispute. The area of this land is 0.64 acres. The Khasra Panchsala of 1981-82 to 1985-86 also show the ownership and possession of Ramlal in respect of land for the year 1985-86 and thereafter that as Chanda Bai, the appellant No. 1, is shown as the Bhumiswami. The corrected entry is made due to order of mutation in her name after she purchased the suit property. It is natural to ask what is the effect of these entries in favour of Ramlal. One thing is certain that these entires show inner consistency and they have presumptive value. This Court must, therefore, examine the oral evidence on record keeping in mind the presumptive value of these entries. It appears to this Court that upto 1959-60 there was no subdivision of Khasra No. 11. Therefore, the Patwari recorded that out of 8.32 acres of Khasra No. 11, Ramlal was recorded owner and was in possession of Khasra No. 6.50. It appears that Sarjoo Brahmin was placed in possession of the land purchased by him. He continued to be in possession till his death, and thereafter, his nephew Ramgopal was placed in possession. Even he was allowed to continue in possession. After his death, it was Ramlal who was placed in possession. It appears that neither Sarjooram nor Ramgopal obtained a patta in respect of these lands during their life time for the simple reason there was no objection to their possession and cultivation during their life lime. If it were not so. the name of Ramlal (minor) could not find an entry in the Revenue Records for such a long time. This appears to he a prima facie case.
17. The oral evidence adduced by the parties has now to he examined in accordance with the decision rendered in Shikharchand Jain's case (AIR 1974 SC 1178) (supra). This Court finds that it is not disputed by PW-1 Anwar Khan that' Gulab Khan died in the year 1940 in his evidence.. This is an admission that he was not alive when oral sale took place. However, so far as the death of Sirtaz Khan is concerned, it is clear that witness has put the clock back to 1942 to show that he was not alive when the sale look place in favour of Sarjooram. We have already seen that DW-5 Malidhir Prasad, the scribe of Ex.D-20, had deposed that Sirtaj Khan had executed the document. This Court has also accepted his version. For the aforesaid reason, the evidence of PW-1 Anwar Khan is not accepted and it is held that Sinaj Khan was alive in Samvat 2000, when the sale of suit land in favour of Sarjooram took place.
18. The respondent No. 1 has examined PW-I Anwar Khan, PW-2 Gujarmiya. PW-3 Mohanlal, PW-4 Lolli Khan and PW-5 Kallu Singh, as against this the appellants have examined DW-1 Rambahor Singh. DW-2 Chhotelal Singh, DW:4 Dadda Prasad and DW-5 Chanda Bai on the question of possession. In his evidence, Anwar Khan discloses that he was in possession of the suit land and he was paying land revenue of this land. However, the documents Ex. P-3 to Ex. P-10 do not specifically show that land revenue was paid by him in respect of suit land. He was unable to explain why he did not take any step to get the entries corrected in respect of Khasra No. 11/3 in Revenue records which was in favour of Ramlal. He admitted that he had a major son and so his lameness could be no excuse. The Court below should not have discarded the certified copy of Ex. P-11 for the flimsy reason mentioned in paragraph 10 of its judgment. The entry in the Ex. P-11 was not challenged on the ground of fraud. The name of Ramlal was entered in the year 1959 and not before.
19. It is nobody's case that this entry was prior to passing of the ordery of Supervisor Quanoongo.
It appears to this Court that so far as possession was concerned, the evidence of the witnesses of the respondents arc not reliable and that of appellants arc reliable. Relying on Ambika Prasad Thakur's case (AIR 1966 SC 605) (supra), this, Court holds that Sarjoo Brahmin was placed in possession pursuant to sale of land for Rs. 50/-.
20. Here this Court may also notice the evidence of Ramlal who had transferred the land to appellant No. 1 by registered sale-deed dated 22-3-82. It may be noted that the Court below lost sight of the fact that Ramlal was colluding with the respondent No. 1. His written statement shows that he had gone to the extent of asserting that the sale-deed executed by him for a consideration of Rs. 14,000/- was only in respect of 0.64 acres of land. He asserted that he executed the sale-deed in respect of the suit land fraudulently at the instance of the husband of Chandabai. The appellant No: I is a person, who filed written statement and remained ex-parte and then entered the witness box only to support the case of the respondent. He cannot be said lo be reliable. Thus after considering the presumptive value of Khasra entries, Khatauni and notes made on the Khasra entries, this Court rejects the evidence of respondents that Sarjooram was not placed in possession of the land in dispute during the course of oral sale of the property. He was placed in possession of the suit property. After his death, Ramgopal. was placed in possession. Thereafter, Ramlal was recorded owner of land in dispute and he was in possession.
21. The lower appellate Court, was greatly impressed by evidence of Ramlal. He executed a registered sale-deed dated 22-3-82 in favour of Chandabai for a consideration of Rs. 14,000/-. He admitted the execution. He admitted the receipt of consideration before the sub-Registrar hiS case was that he executed a sale-deed in respect of suit land fraudulently and knowingly that the suit land belonged to Anwar Khan. He says that he was pursuaded by the appellant and her husband to do so. He says that he was paid only Rs. 4,600/-in respect of Khasra No. 11/1 0.64 acres which admittedly he had purchased from Anwar Khan by registered sale-deed dated 23-9-66 (Ex. D-1). This was the only piece of land he had transferred by Ex. D-4. It may be noticed that admittedly this witness was playing fraud on Anwar Khan. Such a witness could change his mind and turn hostile to the appellant at any moment. The Court below has stated that Ramlal should have supported the appellants and if he did not do so, they had no case. Thus by mere flourish of pen, the Court below ruled out the possibility of collusion. On the other hand, the colluding hand of the respondent No. 2 Ramlal is apperant. It is obvious that he must have thought he would gain now by supporting the case of respondent No. I. Not only Ramlal, but his relatives have been examined as witnesses of respondent No. 1. The pattern appears to be clear. However, what could the appellant do except to cross-examine him, if Ramlal has not chosen to support her. The cross-examination of this witness is instructive about the perfid of human nature. He admitted that the Rin Pustika (Ex. D-3) showing his rights of Bhumiswami on I I/I and 11/3 were shown by him to the Sub-Registrar. Then he gave the Rin Pustika to Chandabai which is marked as Ex. D-3. He admitted that he did not tell the Sub-Registrar that he was not Bhumiswami of Khasra No. 11/ 3. He did not object to mutation in the name of Chandabai after executing sale-deed in respect of Khasra No. 11/3 even though he was paid only Rs. 4,600/-. His statement is to effect that even though the name of Chandabai was mutated after sale-deed was executed and she was not in possession. This witness says that on the date of sale-deed there was an Amanatnama executed (or Rs. 9,400/- which he gave to Nasir Ali at the instance of Chandabai. That means that he was paid full consideration, but then he changes his version that registered sale-deed and Amanatnama Ex. D-2 were written at the same time and, therefore, he admitted before the Sub-Registrar that he had received Rs. 14,000/-. Therefore, we must examine Ex. D-2. It is true that Ex. D-2 was written on the same day. This document shows that out of Rs. 14,000/-received by Ramlal, Nasir Ali had kept Rs. 9,400/- and stated that they shall be paid back whenever Ramlal demanded them. This document is signed by Nasir Ali as an executant and by witness Hanif Khan. This document does not say that appellant No. 1 or husband of appellant No. 1 did not pay full consideration. The lower Appellate Court has drawn an adverse inference against the appellants for not examining Nasir Ali as a witness. The plaint does not contain the averments made by Ramlal. Ramlal was made a defendant in this case. It is in his written statement these allegations were made. In this suit, there was no lis between the co-defendants. Ramlal's written statement could not be treated as a plaint. The trial Court did not make any issue on the point that Ramlal was a witness for defence. Moreover on 19-4-88, Ramlal became ex-parte. Then on 5-12-88, he came and appeared as a witness. He was examined as DW-1. The lower appellate Court failed to ask the right question in the controversy. The real controversy was between the appellants and respondent No. 1, that Ramlal transferred the property to appellant No. I which did not really belong to him. While admitting claim of respondent No. I what Ramlal said in his defence was not subject matter of controversy in the suit. Normally the Court is not required to solve inter se dispute between the two co-defendents. When Ramlal admitted the claim of the respondent No. 1, there was no controversy between them. Ordinarily the suit could be decreed against him under Order 12, Rule 1 read with Order 15, Rule 2 of C.P.C. Once this was done he would have been discharged from the case and could have appeared as a witness for the respondent No. 1. B,ut in this case recourse to Order 15, Rule 2 of C.P.C. would have been otiose as decree passed against Ramlal would have been ineffective. Ramlal was not a necessary or even proper party to the suit. The respondent No. I designedly made him a party with a view to reap some advantage by this procedure. Ramlal obliged the respondent No. 1 by colluding with him and supposedly raising an issue to the effect that a part of the amount forming consideration for sale of entire property was taken back by Nasir Ali, the husband of appellant No. t and he passed a receipt or Amanatnama for the same on the same day.
22. It is possible that Chandabai and Nasir Ali may have fraudulently deprived Ramlal of Rs. 9,400/-. But he could have filed the suit either for refund of the money on the basis of the Amanatnama or claimed no title passed to appellant No. 1 for failure of consideration. The most important factor which impresses this Court is that appellant No. 1 purchased the suit land after verifying the title of Ramlal from Rin Pustika which was even presented to Sub-Registrar who would not have allowed the execution of sale-deed but for that document. Even the Khasra entries showed the possession of Ramlal as a Bhumiswami of land. Thus for all practical purposes Ramlal was the owner of the land. A vendee is not supposed to trace the title of the Vendor over the years back to his ancestors. However, the production Ex. D-20 from custody of appellant No. 1 shows that her version that document was handed over to her by Ramlal at the time of execution of sale-deed is true. It shows that the appellant No. I took enough care to verify the title of Ramlal at the time of sale-deed. It is possible that Ramlal may have given Rs. 9,400/- to Nasir Ali and obtained the Amanatnama. There is nothing to show that these two transactions were so proximate in time to form part of a conspiracy to defraud respondent No. I except they were of the same date. The uncorroborated version of Ramlal, who appears to be a colluding defendant, and has gone in collusion so far to confess the fact that he himself conspired with the appellant No. 1 and her husband to defraud the respondent No. 1, cannot be easily accepted. Thus no adverse inference could be drawn against the appellant no. 1 for non-examination of her husband Nasir Ali to displace the presumptive value of Revenue entries already discussed in previous paragraphs.
23. It is not necessary to deal with speculative reasoning of the lower appellate Court in paragraph 12. Nothing turns on numbering of the suit plot as 11/3. The Khasra entries then show that until 1959-60 there was one Khasra No. 11. Thereafter it was sub-divided later as 11/1, 11/2 and 11/3, simultaneously Anwar Khan has not been able to prove his possession to rebut the entries made in revenue record. The oral evidence adduced by the panics is partisen as it appears from the record. However, the trial Judge had relied upon the witnesses of the appellant No. 1. He had the advantage of seeing the demeanour of the witnesses. Lopking to the presumptive value of revenue entries and the overall picture plus the fact that trial Court was not impressed by the testimony of the witnesses examined by the respondent No. I and that of Ramlal himself, this Court holds that lower Appellate Court should not have reversed the finding of trial Court. The lower Appellate Court did not start with the presumption of correctness of Khatauni Jamabandi which was statutorily recognised as a settlement entry under Section 123 of the M. P. Land Revenue Code and other Khasra entries in order to weigh the evidence. Thus it fell into serious error of procedure and placed onus of proof on the wrong party. This error, in the opinion of. this Court, amounts to a substantial error of law and for this reason this Court re-examined the evidence to come to different conclusion than that of lower Appellate Court.
24. In the result, the judgment and decree passed by the lower Appellate Court is set aside and that of trial Court is restored. As a consequence thereof, the suit filed by the respondent No. I is dismissed. The appeal is thus allowed. The appellants shall be entitled to costs of this appeal. Counsel's fee as per schedule.