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PETITIONER: VISHWA VIJAI BHARTI

       Vs.

RESPONDENT: FAKHRUL HASAN & ORS.

DATE OF JUDGMENT04/05/1976

BENCH: CHANDRACHUD, Y.V. BENCH: CHANDRACHUD, Y.V. SHINGAL, P.N.

CITATION:  1976 AIR 1485            1976 SCR  519  1976 SCC  (3) 642  CITATOR INFO :  F          1989 SC2296  (5)

ACT:      Civil Procedure Code-Secs. 100-103-Powers of High Court to set  aside finding  of facts  in a  second appeal-If High Court must discuss evidence while going questions of facts.

HEADNOTE:      Entries  in  record  of  rights-Presumptive  value  of- Presumption if  applies to  forged  or  fraudulent  entries- Effect of fraud or forgery on a document.      Mahant Bharati  of temple  of  Shankarji  Maharaj  gave lands belonging  to the  temple on  Theka to one Sukai for a period of  10  years.  The  Mahant  obtained  a  decree  for eviction against  Sukai but it could not be executed because of the  objections raised  by the  respondents on the ground that they  have been cultivating the lands for several years and they  were entitled to continue in possession as Sirdars in spite of the decree against Sukai. The lessor, therefore, instituted two  separate suits  under  order  21  Rule  103, C.P.C. Respondents  contended  inter  alia,  that  they  had become hereditary  tenants and  they must  be deemed to have become Adhivasis  of the land. The trial court dismissed the suit. The  district court  reversed the finding of the trial court in  appeal and  held  that  the  appellant  being  the Bhumidar of  the lands  was entitled  to recover  possession thereof from  the respondents.  The district Judge held that the entries  in the  record of rights showing the occupation of the respondents were fraudulent. The High Court in second appeal upset the decree of the district court.      Allowing the appeal, ^      HELD: (1)  The only  question before the High Court was whether the  entries on  which the  respondents relied  were genuine or  fraudulent. This  is as question of fact and the High Court  had no  jurisdiction to set aside the finding on that question  in second  appeal. The High Court erroneously assumed that the district Court had not given any finding on the question of fraud. The district Court had given at least half a  dozen reasons  for holding  that  the  entries  were fictitious and  were made  surreptitiously and fraudulently. [521H; 522A-H]

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    (2) If  the High  Court thought that the district court had not  recorded a  clear finding  on that issue and if the High Court  were to  determine under  section 103 C.P.C. the issue under  whether the  entries were  fraudulent or not it was necessary  for it to discuss the evidence. But, the High Court instead  placed blind and easy reliance on the entries which are utterly uninspiring. [523A-B]      (3) Entries in the revenue record ought generally to be accepted at  their lace  value and  courts should not embark upon an  appellate enquiry  into the  correctness.  But  the presumption of  correctness can  apply only  to genuine, not formed or  fraudulent entries.  The distinction  may be fine but it  is real. Fraud and forgery rob a document of all its legal effect  and cannot  found a claim lo possessory title. [523B-C]

JUDGMENT:      ClVlL APPELLATE  JURISDICTION: Civil  Appeal Nos.  1122 and 1123 of 1970      Appeals by  special leave  from the  Judgment and order dated the  13th February 1970 of the Allahabad High Court in S.A. Nos. 267 and 268 of 1962. 520      S. C. Manchanda, S. K. Bagga, (Mrs.) Sureshta Bagga and (Mrs) Yash Bagga; for the Appellant.      R. N. Sharma and C. P. Lal; for Respondent.      The Judgement of the Court was delivered by      CHANDRACHUD, J.-These  appeals by  special leave  arise out of  the judgment rendered by the High Court of Allahabad on February 13, 1970 in Second Appeals 267 and 268 of 1962.      Mahant Vishwa  Nath  Bharthi,  the  sarbrahkar  of  the temple of Shankarji Maharaj, Khowja, gave lands belonging to the temple,  ad measuring  about 44  acres, on  Theka to one Sukai. The  Thekanama was  executed on  June 5,  1942 to  be effective from  July 1,  1942. The  lease was to enure for a period of  10 years  and was due to expire on June 30, 1952. The Thekanama  contained an  express term  that the Thekadar will not  sub-let the  leasehold property  and that  on  the expiry of  the period  of  lease  he  shall  hand  over  the possession of the property to the lessor.      In spite  of this term against sub-letting, on July 27, 1942 the  Lessee executed  a power  of attorney in favour of his nephews  Haqiqullah and  Ghani,  apparently  authorising them to cultivate the lands on his be half. On the expiry of the period  of  lease  the  Mahant  instituted  a  suit  for ejectment of  the lessee which was decreed on November 25, 1 952.      The Mahant  then filed an application for executing the decree  but   an  objection   was  raised   thereto  by  the respondents,   Sanaullah   and   Fakhrul   Hasan   who   are respectively the  brother and  cousin  of  Haqiqullah.  They filed two  separate applications  objecting to the execution of the  decree on  the ground that they had been cultivating the lands  for several  years and that they were entitled to continue in  possession as  Sirdars. On  June  2,  1954  the objection raised  by the  respondents  was  allowed  by  the executing court which passed an order that the possession of the lands  which on  March 13, 1953 was given to the decree- holder in  execution of the decree should be re-delivered to the respondents.  Accordingly, the respondents were put back in possession in July, 1954.      The lessor  then instituted  two separate  suits  under order XXI,  Rule 103  of the  Civil Procedure Code, the suit

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filed against Fakhrul Hasan being No. 17 of 1954 and the one against Sanaullah  being No.  of 1954. His case was that the lands were  given on  lease to  Sukai on  condition that  he shall not  sublet them,  that a  decree for  possession  was accordingly passed  against Sukai on the expiry of the lease and  that  the  respondents  had  got  their  names  entered fraudulently in the revenue record as the cultivators of the lands.      Respondents  took  up  various  inconsistent  pleas  in answer to  the suits.  They  contended  that  they  were  in possession of  the lands  with the  consent of  the original lessor. that they had become hereditary 521 tenants  and  that  they  must  be  deemed  to  have  become Adhivasis of the lands.      The learned  Munsiff who  tried the  suits  framed  six issues, issue  No. 2  being  whether  the  respondents  were Sirdars of  the lands  as alleged in paragraphs 17 and 18 of their written  statements. This  issue was  referred to  the revenue court  for decision.  The lessor  having died during the pendency  of those  suits, the appellant was substituted in his  placed as  the Mahant of the Math. The revenue court found in  favour  of  the  respondents  and  accepting  that finding the  trial court dismissed the suits. In appeal, the District Court took the view that there was no justification for referring  the particular issue to the revenue court and that the  trial court  ought to  have decided all the issues for itself. The District Court accordingly remanded the suit with a  direction that  the Munsiff  should decide  the suit afresh uninfluenced  by the  finding given  by  the  revenue court. The  trial court then assessed the evidence, held the respondents and  dismissed both  the suits  by its  judgment dated November 17, 1961      The District  Court reversed  the findings of the trial court in  appeal and  held that  the  appellant,  being  the Bhumidar of  the lands,  was entitled  to recover possession thereof from  the respondents.  The appeals were accordingly allowed by  the District  Court by  its judgment dated April 18, 1962.      The respondents  filed Second  Appeals Nos. 267 and 268 of 1962  against the  decrees passed  by the District Court. The High  Court having  allowed those  appeals the Mahant of the Math has filed these appeals by special leave.      The decision  of these  appeals involves  a very narrow question as  regards the  power of  the High Court in second appeal. Section  10 of  the Code of Civil Procedure provides to the extent that the appeal can lie to the High Court from a decree passed ill appeal by any court subordinate to it if the decision  is contrary to law or to some usage having the force of law. The only question for decision before the High Court was  whether the  respondents  were  entitled  to  the protection  of  section  20(b)(ii)  of  the  U.P.  Zamindari Abolition and  Land Reforms  Act, 1  of 1951.  That  section provides, in  so far  as material, that every person who was recorded as  an occupant  of  any  land  in  the  Khasra  or Khatauni of  1356 Fasli but who was not in possession in the year 1359  Fasli shall  be called  an ’Adhivasi’ of the land and shall  be entitled  to retain  possession  thereof.  The names of  the respondents  were entered  as occupants in the revenue record  of 1356  Fasli  but  after  considering  the entire evidence,  the District  Court rejected those entries on the  ground that  they were  fraudulent. Thus,  the  only question before  the High  Court was  whether the entries on which the  respondents relied  were genuine  or  fraudulent. That is  a question  of fact  and  the  High  Court  had  no

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jurisdiction to  set aside  in  second  appeal  the  finding recorded on that question by the district Court. 522      The High  Court assumed  erroneously that  the District Court had not given any finding on the question of fraud and on that  assumption, it accepted mechanically the entries in the revenue  record showing  that the  respondents  were  in possession of  the lands  as occupants. The learned District Judge, by  his judgment  dated April  18, 1962  had gone  in great details  into  the  question  whether  the  particular entries showing  that the  respondents were occupants of the land were  genuine or fraudulent. Those entries are Exs. A-5 to A-12.  As pointed  out by the learned Judge, the original lessee Sukai  had migrated  to Bombay after handing over the charge of  the lands to his nephews who got the names of the respondents entered in the revenue record "surreptitiously". The learned  Judge points  out that Fakhrul Hasan, who alone was examined on behalf of the respondents, was just a lad of 10 at  the time  when he  is alleged  to have  entered  into adverse possession  of the lands. Neither Sukai, who was the original lessee, nor Haqiqullah and Ghani who were said to : be cultivating  the lands under a power of attorney executed by Sukai,  were  examined  by  the  respondents.  The  other respondent Sanaullah  was not  living in  the village at all and is  said to  have been  doing  business  in  second-hand spares in  Bombay. Haqiqullah  was summoned by the appellant for producing  the power of attorney dated July 27, 1942 and taking advantage  of that opportunity the respondents cross- examined him.  Haqiqullah, being  a close  relation  of  the respondents was  only too  willing to  oblige them by giving pre-conceived answers  in the  so-called  cross-examination. But the  learned trial  Judge overlooked that Haqiqullah was only summoned to produce a document and by reason of section 139 of the Evidence Act he could not become a witness in the case and could not therefore have been cross-examined on the merits of  the case.  But, even her considering the evidence of Haqiqullah  the learned District Judge recorded a finding that "The entries were all fictitious". He then proceeded to examine the documentary evidence in the case and held:           "After a  careful consideration  of the  pros  and      cons of  the whole  case  I  am  of  opinion  that  the      Thekedar Sukai  had I  cultivated the sir and Khudkashi      of the  temple land  which was  given to  him on  Theka      through his  brother and  his cousin, namely Haqiqullah      and Ghani  and these  two per  sons in  order to create      permanent   rights   in   the   Theka   property,   had      fraudulently got  the names  of their boys entered , in      the revenue records right from the inception. I am also      of the  opinion that  these by  of the house-hold never      cultivated the  land and  they acquired no right, title      or interest in the Theka land".      We find  it quite  difficult to understand how the High Court could  hold that  the District  Court had not recorded any "clear  finding" that  the entries in the revenue record for the  year 1356  Fasli were  fraudulent.  Evidently,  the attention of the High Court was not drawn to at least half a dozen reasons  given by  the District Court for holding that the   entries    were    "fictitious"    and    were    made "surreptitiously" and "fraudulently". 523      We could have even appreciated if, under section 103 of the  Code  of  Civil  Procedure,  the  High  Court  were  to determine the  issue whether the entries were fraudulent, if it though,  wrongly though,  that the District Court had not recorded a  clear finding  on that issue. But the High Court

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did not  discuss the  evidence at  all and  chose instead to place a  blind and  easy reliance  on the  entries which are utterly uninspiring. B      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.      In Amba  Prasad v.  Abdul Noor Khan and ors.(1), it was held by  this Court  that section  20 of  the U.P.  Act 1 of 1.951 does  not require  proof of actual possession and that its  purpose   is  to   eliminate  inquiries  into  disputed possession by  acceptance of  the entries  in the  Khasra or Khatauni of  1356 Fasli.  While commenting on this decision, this Court  observed in  Sonawati and  ors. v.  Sri Ram  and Anr.(2) that  "the Civil  Court in  adjudging a  claim of  a person to  the rights  of an  adhivasi is not called upon to make  an  enquiry  whether  the  claimant  was  actually  in possession of  the land  or held  the right  as an occupant: cases of  fraud apart,  the entry  in the  record  alone  is relevant". We  have supplied  the emphasis  in order to show that the  normal presumption  of  correctness  attaching  to entries in  the revenue  record,  which  by  law  constitute evidence of a legal title, is displaced by proof of fraud.      For these reasons we allow these appeals, set aside the judgment li.  Of the  High Court  and restore  that  of  the District Court. The suits filed by the appellant shall stand decreed. Respondents shall pay to the appellant the costs of these appeals in one set.                    P.H.PAppeals allowed.  (1) [1964] 7 S.C.R. 800.  (2) [1968] 1 S.C.R. 617, 620. 524