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PETITIONER: WALl MOHAMMAD (DECEASED) BY L.RS.

       Vs.

RESPONDENT: RAM SURAT & ORS.

DATE OF JUDGMENT21/09/1989

BENCH: KANIA, M.H. BENCH: KANIA, M.H. RANGNATHAN, S.

CITATION:  1989 AIR 2296            1989 SCR  Supl. (1) 211  1989 SCC  (4) 574        JT 1989 (3)   709  1989 SCALE  (2)651

ACT:     U.P.   Zamindari   Abolition  and   Land   Reforms   Act 1950--Section  232  and  Section  20  (b)(i)--Interpretation of--Who can be declared as Adhivasi thereunder.

HEADNOTE:     One  Wali Mohammad (since deceased) executed on May  22, 1928  an  usufructuary mortgage in favour of Ram  Kumar  and Shiv Kumar in respect of two plots. According to Wali Moham- mad he redeemed the said mortgage and took possession of the plots  in  the  beginning of Fasli year  1354  (period  from 1.7.1946 to 30.6.1947) and continued in possession thereof.     On  28th December 1953, Ram Kumar moved  an  application under  Section 232 of the U.P. Zamindari Abolition and  Land Reforms Act, 1950 for obtaining possession of the two  plots in  question from Wali Mohammad on the ground that his  name was  recorded in the Khasra and Khatauni of 1356  Fasli  and therefore he was the Adhivasi of the said plots. Wali Moham- mad  contested  the application  before  the  Sub-Divisional Officer.  The  Sub  Divisional Officer  dismissed  the  suit finding  that Wali Mohammad was in possession of the  plots. This  decision was affirmed by the Addl.  Commissioner,  who held that the entry in the Khasra relied on by Ram Kumar was a fictitious one. On second appeal the Board of Revenue  set aside  the orders of the Sub-Divisional Officer as  also  of the Addl. Commissioner. The Board held that the entry in the Khasra to the effect that Ram Kumar was the occupant of  the two plots in Fasli year 1356 was sufficient to confer Adhiv- asi rights. Thereupon Wali Mohammad filed a Writ Petition in the  High  Court challenging the decision of  the  Board  of Revenue.  The Single Judge who heard the Writ  Petition  al- lowed the Writ Petition holding that the Board had committed an error of jurisdiction and consequently quashed the orders of  the  Board. Ram Kumar preferred a Letter  Patent  appeal against  the order of the Single Judge. The  Division  Bench allowed  the  appeal and set aside the order passed  by  the Single  Judge.  The Division Bench took the  view  that  the entry in the revenue records was enough to confer rights  of Adhivasi under Section 20(b) of the Act. 212     Being  aggrieved by the said decision of the High  Court

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the  legal  representatives of Wali Mohammad who  has  since died has filed this appeal, after obtaining Special Leave. Dismissing the appeal, this Court,     HELD:  Section 20(b) of the Act deals with the  question as  to who is entitled to take or retain possession  of  the land  in question. The plain language of clause (1) of  Sub- Section  (b)  of Section 20 of the Act, suggests  that  this question  has to be determined on the basis of the entry  in the  Khasra or Khatauni of the Fasli year 1356. An  analysis of  the  said section shows that Under  sub-section  (b)  of section 20, the entry in the Khasra of Khatauni of the Fasli year 1356 shall determine the question as to the person  who is entitled to take or retain possession of the land. If the entry is fictitious or is found to have been made  surrepti- tiously  then it can have no legal effect as it can  be  re- garded  as no entry in law, but merely because the entry  is made incorrectly that would not lead to the conclusion  that it ceases to be an entry. It is possible that the said entry may be set aside in appropriate proceedings. [214G-H; 215A]     In the present case, although the Addl. Commissioner has held that the entry was fictitious, the conclusion seems  to have been arrived at merely on the basis that Wali  Mohammad was  in possession in Fasli year 1356, with the result  that the entry in the Khasra or Khatauni showing Ram Kumar as the occupant could not be correct. There is nothing to show that the  said entry was fictitious or was made  fraudulently  or was in-correctly introduced by reason of iII-will or hostil- ity towards Wali Mohammad. In these circumstances, the entry may not be correct but it could not be said to be fictitious or  regarded as non est. Merely because the entry  might  be incorrect, that would not make any difference to the  deter- mination  of  the question as to who is entitled to  be  de- clared  to be the Adhivasi of the land under the  provisions of Section 20(b) of the said Act. [216B-D]     Bachan  &  Anr. v. Kankar & Ors., [1973] 1 SCR  727  and Vishwa  Vijai Bharti v. Fakhrul Hasan & Ors., [1976]  Suppl. SCR 519, referred to

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 1443  of 1972.     From  the  Judgment and Order dated  30.11.1971  of  the Allahabad High Court in Special Appeal No. 491 of 1963. 213 Uma Dutt for the Appellants. Ms. Rachna Gupta for Bagga for the Respondents. The Judgment of the Court was delivered by     KANIA,  J.  The appellants before us are the  heirs  and legal representatives of one Wali Mohammad. Respondents Nos. 1  and 2 are the sons of one Ram Kumar. Respondent No. 3  is the Board of Revenue, Allahabad.     On  May 22, 1928 Wali Mohammad executed  a  usufructuary mortgage in favour of Ram Kumar and Shiv Kumar in respect of two plots. According to Wali Mohammad, he redeemed the  said mortgage and took possession of the said plots in the begin- ning of Fasli Year 1354 (period from 1.7. 1946 to 30.6.1947) and  continued to be in possession thereof. On December  28, 1953 Ram Kumar moved an application under section 232 of the U.P., Zamindari Abolition and Land Reforms Act, 1950  (here- inafter referred to as "the said Act"), for getting  posses- sion of the said two plots from Wali Mohammad On the  ground that  his  name was recorded in the Khasra and  Khatauni  of 1356  Fasli and, therefore, he was the Adhivasi of the  said

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plots.  This was contested by Wali Mohammad.  The  Sub-Divi- sional Officer found that Wali Mohammad was in possession of the said plots since the redemption of the said mortgage and dismissed the suit of Ram Kumar. That decision was confirmed by  the Additional Commissioner on appeal holding  that  the entry  in the Khasra relied on by Ram Kumar was  fictitious. On  second appeal, the Board of Revenue set aside the  deci- sion  of the Sub-Divisional Officer and the Additional  Com- missioner  and  held  that the entry in the  Khasra  to  the effect that Ram Kumar was the occupant of the said plots  in Khasra of Fasli Year 1356 was sufficient to confer  Adhivasi rights  on  him  and no further inquiry was  called  for  to ascertain whether the said entry was correct or wrong.  Wali Mohammad filed a writ petition in the Allahabad High  Court, challenging the aforesaid decision of the Board of  Revenue. The  learned Single Judge of the High Court,  after  hearing the  arguments in the said writ petition, allowed  the  same and quashed the order of the Board of Revenue on the  ground that  the Board of Revenue had committed an error of  juris- diction. Ram Kumar preferred a Letters Patent Appeal against the  said  decision of the learned Single  Judge.  The  said appeal  was  allowed by a Division Bench of  the  said  High Court. The Division Bench set aside the order of the learned Single Judge, holding that the entry in the revenue  records was enough to 214 confer  rights of Adhivasi under section 20(b) of  the  said Act. That decision is challenged before us in this appeal by Special  Leave granted on the application of Wali  Mohammad. Wali Mohammad died during the pendency of the present appeal and his heirs and legal representatives have been brought on record in his place.     The relevant provision which falls for consideration  is clause (i) of sub-section (b) Of section 20 of the said Act. The relevant part of section 20 runs as follows:               "20. Every person who--               (a) x  x  x  x   x               (b) was recorded as occupant,--               (i) of any land other than grove land or  land               to  which section 16 applies or land  referred               to  in the proviso to sub-section (3) of  sec-               tion  27 of the U.P. Tenancy (Amendment)  Act,               1947 in the Khasra or Khatauni of 1356 F. pre-               pared under sections 28 and 33 respectively of               the U.P. Land Revenue Act, 1901 (U.P. Act  III               of  1901), or who was on the date  immediately               preceding  the  date of  vesting  entitled  to               retain possession thereof under clause (c)  of               sub-section  (1) of section 27 of  the  United               Provinces Tenancy (Amendment) Act, 1947  (U.P.               Act X of 1947), or               (ii) x    x   x    x    x               shall, unless he has become a bhumidhar of the               land under sub-section (2) of section 18 or an               assami  under  clause (h) of  section  21,  be               called Adhivasi of the land and shall, subject               to the provisions of this Act, be entitled  to               take or retain possession thereof."     The  said section deals with the question as to  who  is entitled  to take or retain possession of the land in  ques- tion.  The  plain language of the aforesaid  clause  (i)  of sub-section (b) of section 20 of the said Act suggests  that this question has to be determined on the basis of the entry in the Khasra or Khatauni of 1356 Fasli Year prepared  under sections  28  and 33 respectively of the U.P.  Land  Revenue

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Act, 1901. An analysis of the said section shows that  under sub-section  (b)  of section 20 the entry in the  Khasra  or Khatauni of the Fasli Year 1356 shall determine the question as to the person who is entitled to take or 215 retain  possession of the land. It is, of course, true  that if  the  entry is fictitious or is found to have  been  made surreptitiously  then it can have no legal effect as it  can be  regarded as no entry in law but merely because an  entry is  made incorrectly that would not lead to  the  conclusion that it ceases to be an entry. It is possible that the  said entry  may be set aside in appropriate proceedings but  once the entry is in existence in the Khasra or Khatauni of Fasli Year  1356,  that  would govern the question as  to  who  is entitled  to take or retain possession of the land to  which the entry relates.     It  was submitted by learned counsel for the  appellants that if the entry was not correct, it could not be  regarded as  an entry made according to law at all and the  right  to take  or retain possession of the land could not  be  deter- mined on the basis of an incorrect entry. He placed reliance on  the  decision  of this Court in Bachan  and  another  v. Kankar  and others, [1973] 1 SCR 727. In that  judgment  the nature of the entries in Khasra or Khatauni is discussed and it  is also discussed as to how this entry should  be  made. This  Court held that entries which are not  genuine  cannot confer  Adhivasi rights. It has been observed that an  entry under  section 20(b) of the said Act, in order to  enable  a person to obtain Adhivasi rights, must be an entry under the provisions  of law and entries which are not genuine  cannot confer Adhivasi rights. In that judgment it has been  stated that  the High Court was wrong when it held that though  the entry was incorrect, it could not be said to be  fictitious. That  observation,  however,  has to be  understood  in  the context  of  what follows, namely, that an  entry  which  is incorrectly introduced into t, he records by reason of  iII- will or hostility is not only shorn of authenticity but also becomes  utterly  useless  without any  lawful  basis.  This judgment, in our view, does not lay down that all  incorrect entries are fictitious but only lays down that a wrong entry or incorrect entry which has been made by reason of iII-will or hostility cannot confer any right under section 20(b)  of the  said  Act. This decision is clarified by  a  subsequent judgment  of  this Court in Vishwa Vijai Bharti  v.  Fakhrul Hasan  and others, [1976] Suppl. SCR 519, where it has  been held as follows:               "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  correct-               ness.  But the presumption of correctness  can               apply  only to genuine, not forged or  fraudu-               lent, entries. The distinction may be fine but               it is real. The distinction is that one cannot               challenge the correctness of what the entry in               the               216               revenue record states but the entry is open to               the  attack  that it was made  fradulently  or               surreptitiously.  Fraud  and  forgery  rob   a               document  of all its legal effect  and  cannot               found a claim to possessory title."     Coming  to  the-present case,  although  the  Additional Commissioner  has held that the entry was  fictitious,  that conclusion seems to have arrived at merely on the basis that

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Wali  Mohammad was in possession in Fasli Year in  question, with  the  result that the entry in the Khasra  or  Khatauni showing  Ram  Kumar as the occupant could  not  be  correct. There is nothing to show that the said entry was  fictitious or  was  made fradulently or was incorrectly  introduced  by reason  of iII-will or hostility towards Wali  Mohammad.  In these  circumstances,  the entry may not be correct  but  it could  not be said to be fictitious or regarded as non  est. Merely because the entry might be incorrect, that would  not make any difference to the determination of the question  as to who is entitled to be declared to be the Adhivasi of  the land under the provisions of section 20(b) of the said  Act. We  agree  with  the conclusion and reasoning  of  the  High Court. In the result, the appeal fails and is dismissed with costs. Y.  Lal                                         Appeal  dis- missed. 217