REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1511 OF 2020 (ARISING OUT OF SLP (CIVIL) NO. 725 OF 2017)

SHRI PARTAP SINGH (DEAD) THROUGH LRS. & ORS.            .....APPELLANT(S)

                                      VERSUS

SHIV RAM (DEAD) THROUGH LRS.           .....RESPONDENT(S)

J U D G M E N T

HEMANT GUPTA, J.

1. The present appeal is directed against an order passed by the High

Court of Himachal Pradesh on 19th September 2016 whereby the

defendant's  second  appeal  was  allowed  and  the  suit  for  a

permanent  injunction,  mandatory  injunction  and  rendition  of

accounts was dismissed.

2. The suit was filed by plaintiff No. 1 claiming himself to be the owner

of land measuring 53 Bighas 11 Biswas and plaintiff No. 2 claiming

herself to be the owner of land measuring 12 Bighas 16 Biswas. The

plaintiff No. 1 claimed to be ex-ruler of an erstwhile princely state of

Dhami and that  had been getting his  property managed through

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various persons. The assertion of the plaintiffs is that the defendant

was appointed as a Manager to look after and manage the property

and was liable to render accounts to the plaintiffs after each crop

harvest  i.e.  twice  a  year.  The defendant  had been rendering the

accounts  and  used  to  be  paid  10% management  charges  of  the

income of properties. The defendant was also required to maintain a

register for keeping the account of income and expenditure as well

as an inventory of the property of the plaintiffs.

3. The plaintiffs allege that there was misfeasance by the defendant,

therefore, they terminated the agency and asked him to hand over

the charge of the properties. In view of the said assertion, the suit

for a permanent injunction, mandatory injunction and for possession

of 8 plots of land measuring 13 Bighas 14 Biswas was filed.

4. In the written statement, the defendant asserted that he is a tenant

and that suit is exclusively triable by the Revenue Court. He further

stated  that  he  is  paying  one  half  Galla  batai  in  respect  of  land

measuring 13 Bighas 2 Biswas for the last 12 years. The relevant

assertion made by the defendant reads thus:

"2.  That  in  view  of  the  submissions  made  in  the subsequent  paras  of  this  written  statement,  it  is manifestly clear that this is a dispute between a land owner and a tenant and as such, this Court has got no jurisdiction to try  and determine the suit.  The suit  is exclusively triable by Revenue Court and, therefore, it deserves to be stayed.

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xx         xx       xx

On Merits

The  facts  which  have  not  been  specifically  admitted shall  be  deemed  to  have  been  denied  by  necessary implication in the written statement hereinbelow.

1.  Para 1 is admitted to the extent that the Plaintiff is the  owner  of  the  land  described  in  this  para  of  the Plaint.  However,  it  may  be  submitted  that  the Defendant is a tenant on payment of ½ Galla-batai in respect of land measuring 13 Bighas 2 Biswas Kitas 7 Khewat  Khatauni  No.1/1  Khasra  Nos.  50(6  Biswas), Khasra  No.  51  (3  Biswas)  Khasra  No.  302/52/1  (2 Bighas),  Khasra No. 302/52/3 (17 Biswas),  Khasra No. 303/52/1 (6 Bighas 17 Biswa), Khasra No. 52(2 Bighas 10  Biswas)  and  Khasra  No.  68  (9  Biswas)  situate  in Village  Kannauri,  Pargana  Dhamer,  Tehsil  and  District Shimla for the last more than 12 years. The Defendant has nothing to do with the other land described in this para of the Plaint. The entries made in the Jamabandi 1981-82 referred to in this para in respect of the land described in this para of the written statement are not correct and are contrary to the facts on the spot."

5. The learned trial  court  framed as many as 12 issues but  for  the

purpose  of  deciding  the  present  appeal,  Issue  No.  3  is  relevant

which reads thus:

“Whether there is a relationship of landlord and tenant between  the  parties  as  alleged.  If  so,  regarding  what property?"

6. The plaintiff appeared as PW-1 and examined some other witnesses.

The  plaintiffs  in  evidence  produced  the  revenue  record  i.e.

Jamabandi (Ex.P/1 to Ex.P/4) and Khasra Girdawari (Ex.P/5 to P/12)

wherein  the  property  in  dispute  has  been  shown  to  be  in  the

ownership and possession of the plaintiffs.

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7. The  learned  trial  court  considering  the  oral  evidence  led  by  the

defendant returned a finding that the presumption of truth to the

revenue record, specially Jamabandi, stands rebutted as the witness

of the defendant has deposed that the defendant is in possession on

payment of one half Galla batai. The defendant has examined Iqwal

Ali  (DW-2) and also examined Tulsi  Ram(DW-5),  in support of  the

defendant's plea that he is a tenant on payment of one half Galla

batai. Iqwal Ali (DW-2) claims himself to be in possession prior to

induction of the defendant as tenant whereas Tulsi Ram and Gosaun

are said to be the persons who were collecting rent for the plaintiffs.

Such witnesses have deposed that they were paying rent on behalf

of the defendant. On the basis of the evidence recorded, the learned

trial  court  returned  a  finding  that  though  plaintiffs  have  proved

themselves to be the owners of the suit land but the land measuring

13 Bighas 2 Biswas was found to be in possession of the defendant

as a tenant, thus granted decree for prohibitory injunction except in

respect of land found in possession of defendant as tenant.

8. The  first  appeal  against  the  said  judgment  was  allowed  by  the

learned District Judge on 26th May 1997. However, in the second

appeal  preferred  by  the  defendant,  the  High  Court  remitted  the

matter  to  the First  Appellate Court  to examine the following two

questions:

"1. Whether the defendant is in possession of the land measuring 13 Bighas  2 Biswas  (detailed above)  as  a tenant or a trespasser?

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2.  Whether  the  plaintiffs are  entitled  to  a  decree for possession of the said land?"

9. The learned Additional District Judge after the remand allowed the

appeal,  inter  alia,  for  the reason that  the  pleading did  not  show

when the tenancy was created and, if so, whom and what were the

terms and conditions of the tenancy.

10. It may be noticed that the plaintiffs have claimed the defendant to

be the Manager of their Estate but there is concurrent finding that

plaintiffs have failed to prove that the defendant was their Manager.

The defendant has admitted the ownership of the plaintiffs over the

suit land but asserted himself to be the tenant. The onus of proof of

Issue No. 3 was on the defendant. The ownership of the plaintiffs

over  the  suit  land  not  being  in  dispute,  the  onus  of  proof  of

relationship  of  landlord  and  tenant  was  rightly  placed  on  the

defendant. Therefore, the question required to be examined is as to

whether the entries in revenue record such as Jamabandi (Ex.P/1 to

P/4)  and Khasra Girdawari (Ex.P/5 to P/12)  carrying presumption of

truth stand rebutted by the oral testimony. Some of the provisions of

the Himachal Land Revenue Act, 19541 read as under:-

“32.  Record-of-rights  and  documents  included therein.

(1) Save  as  otherwise  provided  by  this  Chapter, there shall be a record-of-rights for each estate. (2)  The record-of-rights for an estate shall include the following documents, namely:-

1  For short “1954 Act”

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(a) Statements showing, so far as may be practicable:

(i)  the  persons  who  are  land-owners,  tenants  or assignees of land revenue [in the estate of who] receive any of the rents, profits in the estate, or who are entitled to the produce of the estate, or to occupy land therein;

(ii)  the  nature  and  extent  of  the  interests  of  those persons,  and  the  conditions  and  liabilities  attaching thereto; and

(iii)  the  rent,  land  revenue,  rates,  cesses  or  other payments due from and to each of those persons and to the Government;

(b)  a  statement  of  customs  respecting  rights  and liabilities in the estate.

(c) a map of the estate; and

(d) such other documents as the Financial Commissioner may, with the previous sanction of the State Government prescribe.

xx     xx               xx

Section 34. [Periodical] Record. – (1) The Collector shall cause to be prepared by the patwari of each estate yearly, or at such other intervals as the Financial Commissioner may prescribe, an edition of the record of rights amended in accordance with the provisions of this Chapter.

(2). This edition of the records of rights shall [omitted the Act no. 21 of 1976] comprise the statements mentioned in sub-section (2) clause (a) of Section 32 and as such other documents,  if  any,  as  the  Financial  Commissioner  may, with  the  previous  sanction  of  the  State  Government prescribe.  

(3)  For  the  purpose  of  the  preparation  of  the  annual record,  the  Collector  shall  cause  to  be  kept  up  by  the patwari of  each estate a register of mutations and such other  register  as  the  Financial  Commissioner  may prescribe.

xx     xx               xx

Section  45. Presumption  in  favour  of  entries  in records-of-rights  and [periodical] records. -  An entry made in a record-of-rights in accordance with the law for the time being in force, or [periodical] record in

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accordance with the provisions of this Chapter and the rules thereunder, shall be presumed to be true until the contrary is proved or a new entry is lawfully substituted therefor:

        Provided that notwithstanding anything contained in this section any entry made, in the areas comprised in Himachal  Pradesh  immediately  before  1st November, 1966 [during the period between the first  day of  April, 1948 and the first day of April, 1956] in record-of-rights or in [a periodical] record where by the land is shown as under self cultivation shall not be presumed to be true.

Section 46. -  Suit  for  declaratory  decree  by  persons aggrieved  by  an  entry  in  a  record.  -if  any  person considers himself aggrieved as to any right of which he is in  possession by an entry  in  a  record-of-rights  or  in  a [periodical]  record,  he  may  institute  a  suit  for  a declaration of his right under Chapter VI of the Specified Relief Act, 1963.”

11. The High Court allowed the defendant's appeal and held that there

is nothing on record to establish that the defendant was appointed

as a Manager and that he was not a tenant. The High Court held as

under:

“19.  ……The plaintiffs have not brought on record any documentary  evidence  which  demonstrates  that  the defendant was managing the property of the plaintiffs as Manager and not as a tenant.  The plaintiffs have placed on record copies of jamabandi, Ex.P-1 to P-4 and copies of khasra girdawari, Ex.P-5 to P-12, which depict that the suit land is in ownership and possession of the plaintiffs. No doubt presumption of truth is attached to the copy of jamabandi, but this presumption is always rebuttable.

xx     xx               xx

28.  From the above, it stands fully established on record that  the  plaintiffs  used  to  receive  galla  batai  from the defendant  for  the  land  measuring  13.2  bighas  and  the presumption  of  truth  attached  to  the  revenue  entries showing the plaintiff as owner -in-possession of the said

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land stands rebutted. Even otherwise, also as far as the possession  of  the  defendant  qua  the  suit  land  is concerned, it is admitted by the plaintiff, but the case of plaintiff is that the defendant was his servant. At the same time, as has been observed hereinabove, the plaintiff has failed to bring any document on record with respect to the appointment of the defendant as a servant, salary paid to him and conclusion is that the defendant was a tenant of the plaintiff on the land to the extent of 13.2 bighas.”

12. The presumption of truth attached to the Jamabandi was said to be

rebutted on the basis of a statement of original defendant Shiv Ram

(DW 1) who claims to be in possession of the suit land from last 15-

16 years.  He deposed that  prior  to  him,  Iqwal  Ali  (DW-2)  was in

possession of the suit land. Iqwal Ali (DW-2) deposed that he used to

cultivate  the  land  prior  to  the  defendant.  Tulsi  Ram (DW-5)  and

Gosaun were stated to be the servants of plaintiff No. 1 and, in that

capacity,  they  used  to  collect  the  rent  from  the  defendant  for

payment to the plaintiff.  

13. The  defendant  also  examined  Lalita  Chauhan  (DW-8),  Revenue

Officer,  who has produced the record of  the revenue proceedings

relating to correction of the revenue entries. The High Court relied

upon the statements recorded in such revenue proceedings to hold

that  in  an  inquiry  conducted  by  Kanungo,  pursuant  to  the

application moved by the defendant, there was  a  recommendation

for correction of the revenue record.

14. The  record  produced  by  Lalita  Chauhan  (DW-8)  for  correction  of

Khasra Girdawari entries is not relevant and admissible before the

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Civil  Court.  The  proceedings  before  the  Revenue  Officer  for

correction of revenue record are summary in nature. The statements

recorded  by  the  Revenue  Officer  during  the  proceedings  for

correction of revenue record are not per se admissible in evidence.

Maybe the evidence of the witnesses could be used to confront the

witness being a previous statement if such a statement is made on

oath.  Therefore,  the  reference  of  corrections  of  Khasra  Girdawari

proceedings is wholly unwarranted when such entries are not proved

to be incorrect.  

15. 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  to  the  Government.  On  the  other  hand,  the

periodical record, i.e. Khasra Girdawari, 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  in  a

periodical record has a right to invoke the jurisdiction of the Civil

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Court for correction of the entries in terms of Section 46 of the 1954

Act.  

16. The detailed procedure for recording of periodical record-of-rights as

well as the record-of-rights in terms of Sections 32 & 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 Indian Evidence Act, 18722.  Section 109

of the Evidence Act further contemplates that whether there exists

a relationship of landowner and tenant and the burden of proving

such a relationship is on the person who affirms it.  The relevant

provisions of the Evidence Act read as under:  “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.

xx xx xx

109.  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.”

2  For short “the Evidence Act”

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17. In the State of Himachal Pradesh, Jamabandi, under Section 32 of

the 1954 Act as well as Khasra Girdawari, under Section 34 of 1954

Act, both are record-of-rights 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 and Others  v. Ghisa Ram and Another3. 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 No. 1 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:

“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.

  xxx     xxx    xxx

6. No  suspicion  can  attach  to  the  entries  in  the Jamabandi for the year 1959-60, nor have the 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 Indian  Evidence  Act,  namely,  that  when  two  persons

3  (1981) 1 SCC 431

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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 may therefore be legitimately presumed that the plaintiff continued to possess the land as a tenant till the institution of the suit."

18.  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 1954 Act. In the absence of 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

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.  

19. This Court in Vishwa Vijai Bharti v. Fakhrul Hasan & Ors.4 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

4  (1976) 3 SCC 642

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correctness  can  apply  only  to  genuine,  not  forged  or  fraudulent

entries. This Court held as under:

“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 in to their correctness. But the presumption of correctness can apply only to genuine, not forged or fraudulent, entries. The distinction may be fine but it is real. The distinction is that one cannot challenge the correctness of what the entry is the revenue record states but the entry is open to  the  attack  that  it  was  Made  fraudulently  or surreptitiously. Fraud and forgery rob a document of all its legal effect and cannot found a claim to possessory title.”

20. This  Court  in  a  judgment  reported  as  Guru  Amarjit  Singh  v.

Rattan  Chand  and  Others5 was  examining  a  dispute  of

relationship of landlord and tenant. A copy of more than thirty years

old  lease  deed  was  produced  to  prove  the  relationship  between

landowner and tenant.  However, the revenue record did not show

any payment of rent but only 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.  

21. In a judgment reported as  Sodhi Transport Co. and Others  v.

State of U.P. and Others6, 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

5  AIR 1994 SC 227 6  (1986) 2 SCC 486

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considered  Section  4  of  the  Evidence  Act  and  also  the  previous

judgments and held as under:  

“14.  A presumption is  not  in  itself  evidence but  only makes a prima facie case for party in whose favour it exists. It is a rule concerning evidence. It indicates the person  on  whom  the  burden  of  proof  lies.  When 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. 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, relation and coincidence of facts, and circumstances."

22. In  another  judgment  reported  as  Kumar  Exports  v. Sharma

Carpets7, this  Court  examined  the  presumption  of  fact  in

proceedings under Section 138 of  the Negotiable  Instrument 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:  “21. The accused has also an option to prove the non- existence of consideration and debt or liability either by letting  in  evidence  or  in  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

7  (2009) 2 SCC 513

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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 under Section 118 and 139 of the Act will not again come to the complainant's rescue.”

23. The presumption of  truth attached to the revenue record can be

rebutted  if  such  entry  was  made  fraudulently  or  surreptitiously

(Vishwa Vijai  Bharti's case)  or where such entry has not been

made  by  following  the  prescribed  procedure  (Bhimappa

Channappa  Kapali  (Dead)  by  LRS.  v. Bhimappa  Satyappa

Kamagouda  (Dead)  by  LRS.  and  Others8).  Even  in  Guru

Amarjit Singh,  where thirty years old lease deed was produced,

this Court had not accepted the proof of the relationship between

landowner and tenant in absence of receipt of payment of rent.  

24. Therefore,  we find that  the presumption of  truth attached to the

record-of-rights can be rebutted only if there is a fraud in the entry

or the entry was surreptitiously made or that 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-a-vis documentary evidence is at a much weaker level.  

25. In  view thereof,  we find that  the High Court  has  erred in  law in

allowing the defendant's appeal relying upon oral evidence to rebut

the statutory presumption of truth attached to the revenue record.

The onus of proof was placed on the defendant by the learned trial

court. The burden is on the person who asserts such a relationship

as per Section 109 of the Evidence Act. The defendant has failed to

8  (2012) 13 SCC 759

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rebut the presumption of truth on the basis of reliable, trustworthy

and cogent  documentary evidence to  prove the  relationship  of  a

tenant.

26. Consequently,  the  order  of  the  High  Court  is  set  aside  and  the

judgment and decree passed by the First Appellate Court is affirmed.

The appeal is allowed.

      ...........................................J. (L. NAGESWARA RAO)

...........................................J (HEMANT GUPTA)

NEW DELHI; FEBRUARY 20, 2020.

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