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PETITIONER: ABDUL WAHEED KHAN

       Vs.

RESPONDENT: BHAWANI AND ORS.

DATE OF JUDGMENT: 21/02/1966

BENCH: SUBBARAO, K. BENCH: SUBBARAO, K. RAMASWAMI, V.

CITATION:  1966 AIR 1718            1966 SCR  (3) 617

ACT: Bhopal  State Land Revenue Act (4 of 1932), ss. 71, 89,  93, 95  and 200(1)-Suit based on title-If barred by decision  of revenue officer.

HEADNOTE: The  suit  of  the  appellant as khatedar  of  the  land  in dispute, for ejectment of the respondents on the ground that they were shikmi tenants, was decreed by the Tahsildar under s. 71 of the Bhopal State Land Revenue Act, 1932.  Within 12 years  of  the date of their dispossession  the  respondents filed  the  suit against the appellant in the  civil  court, claiming to be the khatedars and for possession.  The  lower courts  and  the High Court held that the  decision  of  the revenue  court  did not bar the jurisdiction  of  the  civil court on the question of title to the suit land and  decreed the suit. In appeal to this Court, HELD  : Section 200(1) of the Act, read with ss. 71, 89,  93 and 95, does not exclude the jurisdiction of the civil court to entertain a suit based on title. [621 E-F] Section,  200(1)  bars the civil court from  entertaining  a suit  with respect to any matter which a revenue officer  is empowered  by  the Act to determine.  But  the  question  of title  is  a  matter foreign to the scope  of  s.  71.   The Tahsildar is no doubt empowered under s. 93 to decide on any dispute  about any entry to be made in the Record of  rights showing  the persons who are holders of land, but, under  s. 95,  the  effect  of  such an entry is only  to  make  it  a presumptive  piece  of evidence in a  collateral  proceeding such  as  a suit based on title.  Therefore, it  is  assumed that such a suit could be filed in spite of a decision under s. 93.  The suit was within time under Art. 142,  Limitation Act,  1908,  and since the High Court and the  lower  courts held  that the presumption raised by the entry was  rebutted by  the  oral and documentary evidence adduced by  the  res- pondents, the correctness of the concurrent findings of fact could not be canvassed in the appeal under Art. 136. [621 B, C; 622 B, C]

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JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1039 of 1963. Appeal  by special leave from the judgment and  order  dated June  24,  1959 of the Madhya Pradesh High  Court  in  Civil Second Appeal No. 8 of 1957. N.   N. Keswani and Urmilla Kapur, for the appellant. B.   Sen,  C.  L.  Sanghi and A.  G.  Ratnaparkhi,  for  the respondents. The Judgment of the Court as delivered by: Subba Rao, J. This appeal by special leave raises mainly the question whether a civil court had jurisdiction to entertain the 618 suit filed by the respondents for the recovery of possession of the plaint-schedule land and mesne profits’ The  relevant facts may be briefly stated: The  respondents, claiming to be the khatedars of an extent of 57.07 acres  of land  in  Mauza  Bhanpur,  Tahsil  Huzur,  Western  District Bhopal,  filed  a suit against the appellant on  the  ground that  the  latter was in illegal  possession  thereof.   The appellant  contested the suit mainly on the ground  that  he was  the  khatedar  of  the said land and  that  he  was  in possession  thereof in that capacity.  He also pleaded  that his  title to the property was declared by the Tahsildar  in an  application  for  ejectment filed  by  him  against  the respondents  under the Bhopal State Land Revenue  Act,  1932 (Act  No. IV of 1932), hereinafter called the Act, and  that the  said decision would be a bar to the maintainability  of the suit in a civil court. The  learned Subordinate Judge, Bhopal, held that  the  res- pondents  were the khatedars of the suit land and that  they had  been in possession thereof in that capacity.   He  held that the suit was maintainable in a civil court. On  appeal,  the Additional District Judge agreed  with  the findings arrived at by the trial court. On  second  appeal to the Madhya Pradesh  High  Court,  Shiv Dayal,   J.,   of  that  Court,  after   admitting   certain notifications as evidence, came to the same conclusion  both on   the   question  of  title  and  on  the   question   of jurisdiction.  In the result he dismissed the second appeal. Hence the present appeal by special leave. Mr.  Keswani,  learned  counsel for  the  appellant,  raised before  us  a  number  of  points;  but  his  arguments  may conveniently be crystallized into the following points:  (1) whether the decision of the revenue court on the question of title  to the suit land bars the jurisdiction of  the  civil court; (2) whether the concurrent finding given by the lower courts on the question of title was vitiated by an error  of law   by   the  courts  wrongly  throwing  the   burden   of establishing title on the appellant notwithstanding the fact that  in the Record of Rights the said land was  entered  in the  name  of the appellant; and (3) whether  the  suit  was barred  by  limitation.  The other questions mooted  by  him were pure questions of fact and, therefore, they need not be noticed. To appreciate the first question it is necessary to notice a few facts.  The appellant as khatedar of the land in dispute had filed a suit under s. 71 of the Act in the court of  the Tahsildar,  Tahsil  Huzur, Bhopal for the ejectment  of  the respondents on the ground that they were his shikmi tenants. The  said court held that the appellant was the khatedar  of the land in dispute and the respon- 619 dents  were his shikmi tenants.  The present  contention  is that  the  said  decree was given by a  court  of  exclusive

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jurisdiction  and,  therefore,  the  respondents  could  not reagitate the same subjectmatter in a civil court. Under s. 9 of the Code of Civil Procedure, a civil court can entertain  a suit of a civil nature except a suit  of  which its cognizance is either expressly or impliedly barred.   It is  settled principle that it is for the party who seeks  to oust  the  jurisdiction of a civil court  to  establish  his contention.  It is also equally well settled that a  statute ousting  the jurisdiction of a civil court must be  strictly construed.  The question is whether a suit based on title of a  khatedar  and for possession is either  expressly  or  by necessary  implication barred by the provisions of the  Act. The relevant provisions of the Act may now be read: Section 200 (i) Except as otherwise provided in this Act, or in any other enactment for the time being in force no  civil court  shall  entertain any suit instituted  or  application made  to obtain a decision or order on any matter which  the Government or any revenue officer is, by this Act, empowered to  determine, decide or dispose of, and in  particular  and without  prejudice to the generality of this  provision,  no civil  court  shall exercise jurisdiction over  any  of  the following matters Cls. (a) to (u) No  reliance is placed on the matters described in cls.  (a) to  (u)  of’ this section.  But it is said  that  under  the other  provisions of the Act a revenue officer is  empowered to determine, decide or dispose of a question of title of  a person  to  a land as khatedar and, therefore, a suit  in  a civil  court  is barred in terms of s.  200(1).   The  first section relied upon in that context is s. 71, which reads: "A  shikmi  may be ejected by order of the Tahsildar  if  he fails  to  vacate  land on the  termination  of  his  lawful possession  or does anything in contravention of his  agree- ment,  if any, provided that no ejectment shall take  effect before the commencement of the next agricultural year."’ "Shikmi" is defined under the Act to mean a person who holds land  from an occupant and is or but for a  contract,  would be.  liable to pay rent for such land to that occupant,  but does  not  include  a mortgagee or  a  person  holding  land directly from Government.  "Occupant" is defined to mean  "a person who holds land direct from Government or would do  so but  the  right  of  collecting  land  revenue  having  been assigned   or   relinquished."   Section   71,    therefore, presupposes  the  existence  of  a  legal  relationship   of landlord  and tenant and enables the occupant to  evict  his shikmi  if  he  does not comply with one  or  other  of  the conditions  mentioned  therein;  it does  not  comprehend  a decision on a question of 620 title.   The  question of title is a matter foreign  to  the scope  of  S.  71.  If so, a suit in a  civil  court  for  a declaration of title and possession by a khatadar against  a trespasser falls outside the -scope of S. 200(1) of the Act. The second limb of the contention turns upon a fasciculus of provisions  relating  to the preparation of  the  Record  of Rights.  The relevant provisions are as follows: Section  89.   The Record of rights in  each  village  shall comprise (1)........................................ (2)  a  register,  to be called the  "register  of  rights", showing  all persons who are holders of land and the  nature and  extent  of  their  interests  and  the  conditions  and liabilities, if any, attaching thereto. Section  92.   No entry in the register of rights  shall  be contrary to the decree or order of a civil court.

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Section 93. (1) If any dispute arises about any entry to  be made in any document of the record of rights, the  Tahsildar or other officer preparing the record shall inquire into  it summarily and shall pass such order as he thinks fit. (2)  Such  order, if passed with reference to any  entry  in the register of rights, shall not be subject to appeal,  but no  such order shall debar any person from establishing  any right  to  land in a civil court, and the  civil  court  may direct that the entry relating to the land shall be  altered in accordance with its decision. (3)  Any  such order, if passed with reference to  a  record other than the register of rights shall be subject to appeal but shall not be called in question in a civil court, except in  so far as any private right, is infringed and then  only by a suit instituted within one year from the date on  which the contents of the record were announced under section 88. Section  95.  Any entry in the register of rights  shall  be presumed  to be correct until the contrary is  proved,.  and all  other entries in the record of rights, subject  to  any change  which may be ordered in appeal, revision  or  review only  or by a civil court under sub-section (3)  of  section 93, shall be conclusive evidence of the facts to which  they relate. On the basis of the said provisions it is argued that  under the said provisions the right of a person to hold land shall be  entered in the register of rights under s. 89(2) of  the Act and a dispute in respect thereof shall be decided by the Tahsildar under s. 93(1) thereof and 621 that  thereafter  such an entry shall be rectified  only  by filing  a suit in a civil court in the manner prescribed  in s.  93(2)  of the Act and that,  therefore,  the  Tahsildar, subject to the statutory suit, kw the exclusive jurisdiction to  determine or decide the question in regard to  the  said matter  within  the  meaning of s. 200  of  the  Act.   This argument appears to be plausible, but a deeper scrutiny  re- veals  a  fallacy.  The scope of an entry in regard  to  the right  to  hold  a land under s. 89(2) of the  Act  and  the decision  under s. 93 thereof is disclosed by s.  95.   When such  an entry is made in the register of rights and is  not corrected in the manner prescribed in s. 93, under s. 95  it shall  be  presumed  to be correct  until  the  contrary  is proved.  The effect of such an entry, therefore, is only  to make  it  a presumptive piece of evidence  in  a  collateral proceeding:  that is to say, in a suit based on  title  when such an entry is relied upon by one or other of the parties, the  court shall presume it to be correct unless  the  other party  rebuts the presumption.  Not only s. 95 does  not  by necessary  implication bar a suit but also assumes  that  in such  a  suit  the correctness of such  an  entry  could  be questioned subject to the said presumption. Learned  counsel  for  the  appellant,  in  support  of  his contention,  relied upon Gokhul Sahu v. Jodu Nundun  Roy(1), and  Jatindra  Nath  Chowdhury v.  Azizur  Rahaman  ’Shanao. Those decisions turned upon provisions which are not in pari materia with those with which we are now concerned.  They do not,  therefore, throw any light on the construction of  the relevant provisions of the Act. It is, therefore, clear that s. 200(1) of the Act, read with the   said   group  of  sections,  does  not   exclude   the jurisdiction  of a civil court to entertain a suit based  on title. Learned counsel for the appellant then contended that though the  patta  was granted in favour of the  ancestors  of  the respondents  in the year 1929 it was revoked later on,  that

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under  the new settlement of 1935 the appellant’s  name  was recorded  in  the  register of rights,  that  in  subsequent khasras  up  to 1953 his name continued to be shown  as  the owner of the suit land and that, therefore, the courts below should have held that the presumption raised by the register of  rights in his favour was not rebutted and the  plaintiff had  failed  to  prove  his title.  But  a  perusal  of  the judgments  of  the courts below shows that all  the  courts, after   taking  into  consideration  the  entire  oral   and documentary  evidence,  came  to  the  conclusion  that  the respondents had established their title.  Indeed, though the High  Court  rightly pointed out that the  finding  of  fact given  by the lower appellate court was conclusive, in  view of  the  insistence of the Advocate in the  High  Court,  it considered  the  entire documentary and oral  evidence  over again and came (1) [1890] I.L.R. 17 Cal. 721. MIlSup.  Cl/66-8 (2) A.I.R. 1923 Cal. 433. 622 to the same conclusion.  It also admitted the  notifications in  respect of the settlement as fresh evidence  and,  after considering  them, held that they did not disclose that  the patta  issued  in favour of the respondents’  ancestors  was cancelled.  In our view, the High Court should have accepted the finding of the first appellate court and should not have reviewed the evidence over again.  The courts in effect held that  the  said  presumption was rebutted by  the  oral  and documentary  evidence  adduced by the respondents.   We  are not, therefore, justified in an appeal under Art. 136 of the Constitution   to  permit  the  appellant  to  canvass   the correctness of the said concurrent findings of fact. The  last argument raises a question of limitation.  If,  as we have held, the suit is outside the scope of the Act,  the question  of  limitation turns upon the  provisions  of  the Indian Limitation Act.  The suit was originally filed by the respondents  for  a declaration of their title to  the  suit property, but as they were dispossessed of the land on March 5,  1953, subsequent to the filing of the suit,  the  plaint was  amended  on  july 24, 1954,  praying  for  delivery  of possession.   To such a suit Art. 142 of the Limitation  Act applies.   The  suit is, therefore, clearly  not  barred  by limitation. In the result, the appeal fails and is dismissed with costs. Appeal dismissed. 623