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PETITIONER: HIRA LAL AND ANOTHER

       Vs.

RESPONDENT: GAJJAN AND OTHERS

DATE OF JUDGMENT30/01/1990

BENCH: FATHIMA BEEVI, M. (J) BENCH: FATHIMA BEEVI, M. (J) SAIKIA, K.N. (J)

CITATION:  1990 AIR  723            1990 SCR  (1) 164  1990 SCC  (3) 285        JT 1990 (1)    95  1990 SCALE  (1)82

ACT:     U.P.  Zamindari  Abolition and Land Reforms  Act,  1950: Section 20(b)(i)--Adhivasi rights--Khasra entry---Acceptance of--No enquiries into possession--Assumption as to  correct- ness--Rebuttal--Burden of proof.     Code of Civil Procedure 1908: Section 100--Circumstances under which High Court could reappreciate evidence and  come to its own independent conclusion.

HEADNOTE:     The  plaintiff-respondent claimed that before  the  U.P. Zamindari  Abolition  and Land Reforms Act, 1950  came  into force, his father was a sub-tenant under defendants 3 to  25 and  after  his father’s death, the other 3  sons  separated from the plaintiff and consequently he has become the  sole- tenant.  According to him, his father was recorded  occupant of  Khasra  1356 Fasli (1.7.1948 to 30.6.1949)  and  was  in cultivatory  possession  in Khasra 1359 Fasli  (1.7.1951  to 30.6.1952)  as  a result of which he had  acquired  adhivasi rights and sirdari rights, and the rights of defendants 3 to 25  extinguished  under section 240-A of the  said  Act.  He alleged that in 1968, defendants I and 2 obtained fictitious sale  deed  from defendants Nos. 3 to 25 in respect  of  the said  land and started interfering with his possession.  He, therefore,  filed a suit for permanent injunction. The  suit was  contested  by some of the defendants who  pleaded  that neither  the plaintiff nor his father was in  possession  of the said land at any point of time and there was no question of sub-tenancy or acquiring of adhivasi/sirdari rights.  The trial court dismissed the suit. The appeal preferred by  the plaintiff-respondent  was dismissed by the  first  appellant court.     The  trial court as also the first appellate court  held that  the respondent was not entitled to become an  adhivasi under  section 20(b)(i) of the Act since his father died  in 1951  before  the date of vesting i.e.  1.7.1952.  Both  the courts  also  held that his father was  not  in  cultivatory possession of Khasra 1359 Fasli and, therefore, he could not get adhivasi rights under section 3 of the U.P. Land Reforms (Supple- 165

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mentary)  Act,  1952.  It was also held that  there  was  no contract or sub-tenancy in the name of his father.     The plaintiff-respondent preferred an appeal before  the High  Court  which allowed the appeal and granted  a  decree reversing the decision of the courts below.     Aggrieved, the appellants have flied the present  appeal contending  inter  alia  that since  there  were  concurrent findings of facts by the trial court and the first appellate court,  and  in the absence of any substantial  question  of law,  the High Court had no jurisdiction under  section  100 C.P.C. to disturb the concurrent findings of facts. Dismissing the appeal, this Court,     HELD:  1. Section 100(1)(c) of the Code of Civil  Proce- dure  refers to a substantial error or defect in the  proce- dure.  The  error or defect In the procedure  to  which  the clause refers is not an error or defect in the  appreciation of  evidence adduced by the parties on the merits.  Even  if the appreciation of evidence made is patently erroneous  and the finding of fact recorded inconsequence is grossly  erro- neous, that cannot be said to introduce a substantial  error or defect in the procedure. If in dealing with a question of fact the lower appellate court has placed the onus on  wrong party and its finding of fact is the result substantially of this  wrong  approach that may be regarded as  a  defect  in procedure.  When  the first appellate  court  discarded  the evidence  as  inadmissible and the High Court  is  satisfied that the evidence was admissible that may introduce an error or  defect in procedure. So also in a case where  the  court below  ignored the weight of evidence and allowed the  judg- ment  to  be influenced by inconsequent  matters,  the  High Court would be justified in reappreciating the evidence  and coming to its own independent decision. [168H; 169A-C] Madan Lal v. Gopi, AIR 1980 SC 1754 relied on.     V.  Ramachandra  Ayyar & Anr. v. Ramalingam  Chettiar  & Anr., AIR 1963 SC-302 referred to.     2. Section 20(b)(1) of the Act eliminates enquiries into possession  in  accepting the record in the Khasra.  In  the instant case the Khasra entry for 1356 Fasli showed that the appellant’s  father  was the subtenant. It is  not  for  the appellant to prove that this entry Is incorrect. It was  for the defendants to show that the entry had been introduced 166 surreptitiously out of ill-will of hostility. In the absence of  such proof, the genuineness has to be presumed  and  the entry  accepted as evidence of the sub-tenancy in favour  of the  appellant’s father. The Khasra entry of 1371 Fasli  and 1372  show the appellant’s name as person in possession.  It is  clear indication that possession of the sub-tenant  con- tinued  with  the appellant. The rent receipts of  the  year 1929  and subsequent years are not required to be proved  by the  appellant  as pointed out by the learned  Judge.  These furnish  evidence  of possession as  sub-tenant.  The  lower appellate  court was not justified in ignoring  these  docu- ments. The High Court was, therefore, well within its  power in appreciating the evidence and arriving at its own conclu- sion.  [170B, E-G]     Amba Prasad v. Abdul Noor Khan & Ors., [1964] 7 SCR  800 and Nath Singh & Ors. v. The Board of Revenue & Ors., [1968] 3 SCR 498 relied on.     3. Though the revenue courts had exclusive jurisdiction, the civil court had jurisdiction to try the suit for injunc- tion  when  the question of title arose  only  incidentally. [171B]        4. The High Court was right in holding that the appeal did  not  abate  on account of  non-filing  of  substitution

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application after the death of certain defendants. [170H] The  State of Punjab v. Nathu Ram, [1962] 2 SCR  636  relied on.

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 3154  of 1982.     From  the  Judgment  and Order dated  28.9.1981  of  the Allahabad High Court in S.A. No. 1874 of 1970.     Satish Chandra, S.N. Singh, T.N. Singh, H.L.  Srivastava and Sudama Ojha for the Appellants. U.R. Lalit and R.D. Upadhyaya for the Respondents. The Judgment of the Court was delivered by     FATHIMA  BEEVI, J. This appeal is directed  against  the judgment  dated 28-9-1981 of the High Court of Allahabad  in Second Appeal No. 1874 of 1970.  167     The  plaintiff-respondent filed the suit alleging  inter alia that before enforcement of the U.P. Zamindari Abolition and  Land  Reforms  Act, 1950, hereinafter  referred  to  as "Zamindari Abolition Act", defendants Nos. 3 to 25 were  the tenants-in-chief  of the plots in suit and his father  Munni Lal was their sub-tenant; that Munni Lal died in 1951  leav- ing  behind  four sons including  the  plaintiff-respondent; that remaining three brothers of the plaintiff had separated and  consequently  the plaintiff  became  sole-tenant;  that Munni Lal was recorded occupant in Khasra 1356 Fasli and  in cultivatory  possession in Khasra 1359 Fasli and  consequen- tially he acquired adhivasi rights and then sirdari  rights, the rights of defendants 3 to 25 extinguished under  section 240-A of the Zamindari Abolition Act; that in 1968, however, defendants  Nos. 1 and 2 obtained fictitious sale deed  from defendants  Nos.  3 to 25 in respect of the plots  in  suit. They had started interfering with the plaintiff’s possession and,  hence,  the plaintiff-respondent filed  the  suit  for permanent injunction.     Defendants Nos. 1 to 3, 5 to 7, 13 and 14 contested  the suit.  They denied the plaintiff’s claim and  disputed  that the  plaintiff’s  father, Munni Lal, was the  sub-tenant  or that  he acquired adhivasi rights or sirdari rights. It  was further  pleaded that the plaintiff or his father was  never in  possession of the plots in suit. The suit for  permanent injunction was dismissed.     Against the judgment of the trial court, the  plaintiff- respondent  preferred Appeal No. 321 of 1969 which was  dis- missed  by the first appellate court. The Second Appeal  No. 1874  of  1970,  filed before the High  Court  of  Allahabad against  the  judgment  of the first  appellate  court,  was allowed on 28-9-1981.     The respondent based his title on three grounds, namely, (i)  that  his  father Munni Lal was  recorded  occupant  in Khasra 1356 Fasli (be ginning from 1.7.1948 and ending  with 30.6.1949) and became adhivas under section 20(b)(i) of  the Zamindari  Abolition Act; (2) that his father Munni Lal  was in  cultivatory  possession of the disputed land  it  Khasra 1359   Fasli  (beginning  from  1.7.1951  and  ending   with 30.6.1952 and consequently he became adhivasi under  section 3  of the U.P. Land Reforms (Supplementary) Act,  (U.P.  Act No.  31 of 1952);and (3) that his father Munni Lal was  sub- tenant over the disputed land and, there fore, he became  an adhivasi and consequently the sirdar under the provisions of the zamindari Abolition Act. The  trial  court  and the first  appellate  court  recorded

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finding of 168 facts  to the effect that the plaintiff’s father  Munni  Lal was  not in cultivatory possession of 1359 Fasli and  there- fore he could not get adhivasi right under section 3 of  the U.P. Land Reforms (Supplementary) Act, 1952. Both the courts further  observed  that  the plaintiff’s father  was  not  a recorded occupant within the meaning of section 20(b)(i)  of the  Zamindari  Abolition Act, as the entry of his  name  in column 6 of the Khasra 1356 Fasli was suspicious, not  being supported by Khatauni entry. It was further held that as his father died in 1951 before the date of vesting i.e. 1.7.1952 (when  the zamindari was abolished in U.P. under the  provi- sions  of  Zamindari Abolition Act), the  plaintiff  is  not entitled  to the benefit of becoming adhivasi under  section 20(b)(i) of the Zamindari Abolition Act.     The trial court and the first appellate court also found that  no contract or sub-tenancy between Munni Lal  and  the proforma defendants was proved. The High Court held the view that  the approach made by the courts below was  wrong.  The question that arose for decision in the suit was whether the appellant’s  father  was a sub-tenant?  The  learned  Single Judge  noticed that if Munni Lal was a sub-tenant, his  heir being  the adhivasi and the appellant must, therefore,  suc- ceed.  The evidence relating to the sub-tenancy  and  conse- quent possession was therefore, considered in detail and the learned  Judge concluded that Munni Lal was  in  cultivatory possession  of the land in 1356 Fasli as a  sub-tenant.  His rights as sub-tenant devolved on the appellant who continued in  possession  as such and became adhivasi  and  rights  of defendants  3  to 14 were extinguished under  the  Zamindari Abolition Act and defendants could not interfere with appel- lants  possession. In this view the appellant was granted  a decree reversing the decision of the lower courts.     The main contention advanced on behalf of the appellants before  us is that the decision having been rendered by  the trial  court and the first appellate court on the  basis  of the  finding  of fact regarding the right  claimed  and  the possession alleged, in the absence of any substantial  ques- tion  of  law, there was no jurisdiction of the  High  Court under section 100 C.P.C. to disturb the finding of a concur- rent  nature and upset the decision. The High  Court,  while exercising its power under section 100 C.P.C., has no juris- diction  to interfere with the finding of fact  recorded  by the first appellate court. Reliance was placed on V.  Rarna- chandra Ayyar & Anr. v. Ramalingam Chettiar & Anr., AIR 1963 SC-302.  Section 100(1)(c) refers to a substantial error  or defect  in the procedure. The error or defect in the  proce- dure to which the clause refers is not an error or defect in the appreciation of 169 evidence  adduced by the parties on the merits. Even if  the appreciation of evidence made is patently erroneous and  the finding  of fact recorded in consequence is grossly  errone- ous, that cannot be said to introduce a substantial error or defect  in the procedure. If in dealing with a  question  of fact the lower appellate court has placed the onus on  wrong party and its finding of fact is the result substantially of this  wrong  approach that may be regarded as  a  defect  in procedure.  When  the first appellate  court  discarded  the evidence  as  inadmissible and the High Court  is  satisfied that the evidence was admissible that may introduce an error or  defect in procedure. So also in a case where  the  court below  ignored the weight of evidence and allowed the  judg- ment  to be influenced by inconsequential matters, the  High

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Court would be justified in reappreciating the evidence  and coming to its own independent decision as held in Madan  Lal v. Gopi, AIR 1980 SC 1754.     The  substantial issue in the present suit  was  whether the  respondent was in possession of the disputed land.  The respondent claimed possession under his father as sub-tenant and thereafter as sirdar. In support of his claim respondent relied  on  the entries in the revenue records and  the  re- ceipts  for payment of rent. The effect of  these  documents had  been wholly ignored by the lower courts on the  assump- tion  that these were fabricated. The U.P. Zamindari  Aboli- tion  Act came into force on July 1, 1952. Section  20(b)(i) of the Act provided that every person, recorded as  occupant of  a land in the Khasra or Khatauni of 1356 Fasli  prepared under sections 28 and 33 of the U.P. Land Revenue Act 190 1, be  called  the  adhivasi of the land. This  Court  in  Amba Prasad v. Abdul Noor Khan & Ors., [1964] 7 SCR 800  examined the scheme of the section and held that the title to posses- sion as adhivasi depends on the entry in the Khasra of  1356 Fasli.  The section eliminates enquiries into possession  in accepting the record in the Khasra. The Court observed at page 808: "The word ’occupant’ is not defined in the Act. Since khasra records  possession and enjoyment the word  ’occupant’  must mean  a  person  holding the land in  possession  or  actual enjoyment.  The khasra, however, ma mention the  proprietor, the  tenant, the sub-tenant and other person in actual  pos- session, as the case may be. by occupant is meant the person in actual possession it clear that between a proprietor  and a tenant the tenant and between a tenant and the  sub-tenant the latter and 170 between  him and a person recorded in the remarks column  as "Dawedar qabiz" the dawedar qabiz are the occupants.’ ’     In  Nath  Singh & Ors. v. The Board of Revenue  &  Ors., [1968]  3 SCR 498 in answering the contention that the  cor- rectness of the entry in the record of Khasra of 1356  Fasli could  be gone into and where the respondents  are  recorded only  as sub-tenant and not as occupant, they could not  get the benefit of section 20(b)(i) of the Act, this Court  held as under: "The  record  of  rights for the year 1356F.  had  not  been corrected  afterwards.  We have to go by the  entry  in  the record of rights and no enquiry need be made as to when  the respondents became sub-tenants after the decision in  favour of the landlord, Ram Dhani Singh. The last decision of  this Court  also  shows that as between the tenant and  the  sub- tenant  the entry in the record of rights in favour  of  the sub-tenant  makes him the occupant entitled to the  adhivasi rights under section 20 of the Act."     In this case the Khasra entry for 1356 Fasli Ex-4 showed that  the respondent’s father Munni Lal was  sub-tenant.  As rightly  stated by the High Court, it is not for the  plain- tiff  to  prove that this entry is correct. It was  for  the defendants  to show that the entry had been introduced  sur- reptitiously out of ill-will or hostility. In the absence of such proof, the genuineness has to be presumed and the entry accepted  as  evidence of the sub-tenancy in favour  of  the respondent’s father. The Khasra entry of 1371 Fasli and 1372 show  the respondent’s name as person in possession.  It  is clear indication that possession of the subtenant  continued with the respondent. The rent receipts of the year 1929  and subsequent  years are not required to be proved by  the  re- spondent as pointed out by the learned Judge. These  furnish evidence  of  possession as sub-tenant. We  agree  that  the

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lower  appellate court was not justified in  ignoring  these documents.  The High Court was, therefore, well  within  its powers in appreciating the evidence and arriving at its  own conclusion.     The contention that the second appeal abated on  account of non-filing of substitution application after the death of defendants Nos. 6, 10 and 11 had been reiterated before  us. These  defendants  were only proforma parties and  the  High Court was right in holding hat appeal did not abate. We  may refer to The State of Punjab v. 171 Nathu Ram, [1962] 2 SCR 636 where it is held "that ordinari- ly the considerations which weigh with the Court in deciding upon this question are whether the appeal between the appel- lants  and  the respondents other than the deceased  can  be said  to be properly constituted or can be said to have  all the  necessary parties for the decision of  the  controversy before  the Court." The Civil Court had jurisdiction to  try the  suit  for injunction when the question of  title  arose only  incidentally.  The objection to  jurisdiction  of  the Civil Court to try the suit on the ground that revenue court had exclusive jurisdiction is not sustainable the suit being one  for  permanent  injunction and the  question  of  title arises only incidentally.     We  find  no merit in the appeal  which  is  accordingly dismissed. No order as to costs. G.N.                                            Appeal  dis- missed. 172