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TMI Blog2019 (4) TMI 2176X X X X Extracts X X X X X X X X Extracts X X X X ..... hiv Nath and deceased Vishwanath/predecessor in interest of Respondents No. 2 to 10 filed a suit for declaration of title over the suit lands in khasra numbers 41-1.39, 131-2.70, 162-0.17, 163-3.92 and 164-2.15 Kita 5 total area 10.33 situated in Village Bairath General No. 782, Tehsil Gopad Banas and possession of all the khasra numbers except khasra No. 164 against the father of the Appellants-Hanuman Din. Ram Sahai and Rameshwar - fathers of the Plaintiffs were the joint lessees of the lands in khasra Nos. 41, 131, 132, 136/13, 135, 134/4, 137/27, 140/11, 142/2, 143, 146, 147, 162, 163/25, 164/4 and 257 total measuring 21.45 acres and their names were included as 'lessees' of the above lands during the settlement and they kept on cultivating the lands till forty years back when a partition took place between the two and both of them became owners of half part each. Hanuman Din never remained in possession of any part of the lands nor he had any right or entitlement over the suit lands; but the grandfather of the Appellants-Gaya Din got a lease in disputed lands of the Respondents which according to the Respondents is a forged document. Based on the aforesaid lease, Gaya ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 and thereafter, Hanuman Din was in possession of the same. After referring to the orders of the Commissioner (Ex. D-1), the trial court held that the Commissioner recorded a finding of fact that the Respondents got the entries made in the revenue records in their names in connivance with the Patwari. The trial court held that the lease-patta (Ex. D-20) was issued by the then illaqedar to Gaya Din and that the said document being more than thirty years old is a genuine one. After referring to various khasras and the entries thereon in the name of Appellant's father, it was held that the Appellants' father Hanuman Din has been in possession of the suit lands since 1950 or prior to that. The trial court further held that the suit was instituted on 17.10.1975 which is beyond twelve years and that the suit is barred by time. 6. In appeal, the first Appellate Court vide its judgment dated 03.04.1989 held that at the time of settlement, patta was granted in the name of father of the Respondents and this has not been disputed by the Appellants and the Appellants could not establish abandonment of the lands by the father of the Respondents and therefore, the Respondents ought to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant of patta (Ex. D-20) in 1929 in favour of the Appellants-Defendants was illegal and that the Appellants-Defendants cannot claim right based upon Ex. D-20 and other documents. 10. The impugned judgment of the High Court is the concurrent finding of the High Court and the first Appellate Court. We are conscious that in an appeal Under Article 136 of the Constitution of India, the concurrent findings cannot be interfered with unless warranted by compelling reasons. When the finding of the first Appellate court and the High Court are shown to be perverse, this Court would certainly interfere with the findings of fact recorded by the High Court. [Vide Mahesh Dattatray Thirthkar v. State of Maharashtra (2009) 11 SCC 141] 11. The Respondents-Plaintiffs-Shiv Nath and deceased Vishwanath filed suit for declaration of title over the suit lands in khasra numbers 41-1.39, 131-2.70, 162-0.17, 163-3.92 and 164-2.15 total area 10.33 situated in Village Bairath General No. 782, Tehsil Gopad Banas on the plea that a lease/patta was issued in favour of their fathers and that their names were included as 'lessees' of the suit lands during settlement and that they have been cultivating th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 146/1960 dated 21.11.1960 issued by the Tahsildar in the official record has been given after due inspection and entry in khasra is found made by the concerned Patwari on 10.01.1961. 14. In his evidence, PW-1 has stated that patta-lease was issued in the name of his father. In his written statement, Defendant Hanuman Din also admitted that the Plaintiffs-Respondents' fathers were lessees and patta-lease was originally granted in their favour during the settlement period for cultivation on the basis of Batai-crop sharing. The trial court as well as the first appellate court held that the lease was granted in favour of father of Respondents-Plaintiffs at time of the settlement and they were held to be original lessees. The trial court while deciding issue No. 2(A), observed that the grant of lease in the name of father of Respondents-Plaintiffs in the settlement is not rebutted by the Appellants-Defendants. Drawing our attention to the findings of the trial court that patta was granted in favour of the father of the Respondents-Plaintiffs, the learned senior Counsel for the Respondents-Plaintiffs submitted that this amounts to admission and in terms of Section 58 of the Evidenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e cross-examination, PW-1 however denied the suggestion that when his father left for Jabalpur, he handed over the disputed lands to Pawaidar and all the records at the relevant time were kept by the illaqedar. From the statement of PW-1-Vishwanath and PW-2-Ram Gopal, it is evident that the father of Vishwanath had started living in Jabalpur forty years back prior to institution of the suit and settled there. In the light of the evidence adduced, the trial court rightly accepted the case of the Defendants that in Samvat 1986 (1929 A.D.), in the auction held by Pawaidar for lease of suit lands and other lands, bid of Gaya Din was accepted and the suit properties along with other lands were given on lease to Gaya Din. We find substance in the submission of the learned senior Counsel for the Appellants that if the lands were not left so abandoned by the father of Respondents-Plaintiffs, it would not have been possible for the Pawaidar to auction the lease of the suit lands and grant lease of the lands in favour of Gaya Din. 17. Case of the Appellants-Defendants that in Samvat 1986 (1929 A.D.), in the auction held by Pawaidar for lease of suit lands and other lands, the suit propertie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sra for the years 1955-56 (Ex. P-9) and 1956-57 (Ex. P-10) are in the name of Respondents-Plaintiffs; and in the previous khasras for the years 1950-51 to 1954-55 (Ex. P-8) and subsequent khasras for 1960-61 (Ex. P-12), 1963-64 to 1965-66 (Ex. P-13), 1968-69 (Ex. P-14) and 1970-71 to 1975 (Ex. D-2), the entries are in the name of the father of the Appellants-Defendants. The lease was granted in favour of Gaya Din and that he and Hanuman Din had been continuously in possession of the properties is thus established by the revenue records. 21. From perusal of the Khatauni for the year 1952-53 (Ex. P-2) produced by the Plaintiffs, it is seen that the Appellants-Defendants are in possession of the suit lands from the year 1950-51 to 1954-55 (Ex. P-8) and thereafter, the subsequent khasras 1960-61 onwards. The names of the Appellants-Defendants being mentioned in the khasra 1950-51 to 1954-55 is very crucial. The reason being Vindhya Pradesh Abolition of Jagirs and Land Reforms Act, 1952 (Vindhya Pradesh Act) came into force on 30.07.1953. Ex. D-20 (Ex. P-21) - lease was granted in favour of the predecessors of the Appellants-Defendants namely Gaya Din by Pawaidar Under Section 44 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pector refers to the entry in respect of patta granted vide order No. 146/1960 dated 21.11.1960 issued by the Tahsildar. It also refers to entry in khasra made by the concerned Patwari on 10.01.1961 which is in possession of Hanuman Din-predecessor of the Appellants. Ex. P-3-Report of Revenue Inspector states that the patta-Ex. D-20 was granted in favour of Gaya Din. 24. The entries which are consistently in favour of the Appellants ought not to have been ignored in preference to the entries in favour of the Respondents only for two years i.e. 1955-56 and 1956-57. Moreover, in the light of the findings by the revenue authorities on several occasions, the said entries in the name of the Respondents cannot be said to be genuine. The first Appellate Court and the High Court were not right in brushing aside Ex. P-21 (Ex. D-20) patta granted in the name of the Appellants and other crucial documents like report of the Revenue Inspector (Ex. P-3) which notes that patta illaqa is in the name of Gaya Din and the several entries in the revenue records are in the name of the Appellants. In the absence of the contra evidence adduced by the Respondents-Plaintiffs, the trial court rightly held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld the enquiry and on the basis of documents and oral evidence ordered correction of khasra entries for the year 1963-64 to 1968-69 vide his order dated 28.07.1971. The perusal of SDO's report dated 21.10.1969 and the order of Tehsildar dated 28.07.1971 reveals that the mischief of patwari was proved beyond a shadow of doubt. The order passed by the Tehsildar has to be treated as administrative in nature and cannot be set aside Under Section 50 of the M.P. Land Revenue Code, 1959. 3. So far as the present proceedings Under Section 50 of the M.P. Land Revenue Code, 1959 are concerned, they do not lie. Administratively, I uphold the order dated 28.07.1971 passed by the Tehsildar, because it is based on unassailable logic. After all, patwari cannot be the final arbiter of the destinies of cultivators. From the above order of the Commissioner and the report of the other revenue authorities, it is clear that the Plaintiffs-Respondents have made interpolation in the revenue entries in connivance with Patwari and got the revenue entries recorded in their names. The High Court and the first Appellate Court erred in not considering Ex. D-1-order of the Commissioner in its proper per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r decisions. 28. Under Order XLI Rule 27 Code of Civil Procedure, production of additional evidence, whether oral or documentary, is permitted only under three circumstances which are: (I) Where the trial Court had refused to admit the evidence though it ought to have been admitted; (II) the evidence was not available to the party despite exercise of due diligence; and (III) the appellate Court required the additional evidence so as to enable it to pronounce judgment or for any other substantial cause of like nature. An application for production of additional evidence cannot be allowed if the Appellant was not diligent in producing the relevant documents in the lower court. However, in the interest of justice and when satisfactory reasons are given, court can receive additional documents. 29. In Union of India v. Ibrahim Uddin and Anr., (2012) 8 SCC 148, this Court held as under: 36. The general principle is that the appellate court should not travel outside the record of the lower court and cannot take any evidence in appeal. However, as an exception, Order 41 Rule 27 Code of Civil Procedure enables the appellate court to take additional evidence in exceptional circumstances. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tahsildar, it is seen that Hanuman Din-applicant thereon filed an application before the Collector, Sidhi stating that he is the land owner-cultivator of the land numbers 131, 151, 161, 162, 163, 41 of the village Bairath and has been in possession of the lands and that the non-applicants (Vishwanath, Shiv Nath and Jairaj Kumari) got their names recorded in revenue entries in connivance with Shri Bansh Bahadur Singh, Patwari and prayed for rectification of the entries. A report was called from the SDO who held a detailed enquiry and submitted a report. Based upon such enquiry and report of the SDO dated 21.10.1969, the Tahsildar held that the entry in regard to possession of the non-applicants (Vishwanath, Shiv Nath, Jairaj Kumari) in respect of land numbers 41, 131, 162, 163 was found to be made subsequently and held as under: 9. As far as the rectification in the khasra entries for the years 1968-69 or prior to it is concerned, application is allowed as per para 8 and therefore, question regarding dispute in regard to subsequent years of the above years does not arise at all. I have personally perused the khasra for the years 1963-64 to 1967-68 and I find that apart from the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Tahsildar dated 28.07.1971 as additional documents and considering the same. Since the order of the Tahsildar has been referred to in the order of the Commissioner dated 17.07.1973 (Ex. D-1), in our view, it will not have the effect of introducing new case necessitating remittance of the matter. So far as the other two additional documents namely, order of the Naib Tahsildar dated 01.09.1962 - order passed in the suit filed Under Section 250 of the M.P. Land Revenue Code and the order of the District Collector dated 21.11.1972, they are not received as additional evidence. 32. The order of the Commissioner dated 17.07.1973 makes a reference to the order of the Tahsildar dated 28.07.1971 which in turn refers to the suit filed by the predecessors of the Plaintiffs-Respondents Under Section 250 of the MP Code in which Plaintiffs-Respondents were unsuccessful in challenging the lease in favour of Gaya Din/Hanuman Din. This document was not produced before the Courts below and now only produced as additional evidence. As discussed earlier, we are not inclined to receive this document as additional evidence. In our considered view, the first Appellate Court and the High Court fell in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epealed all earlier government notices, rules, circulars, orders, notifications etc. that are inconsistent to the said Act; but saved the action taken thereunder. Thus, the action taken thereunder the said Act like grant of patta etc. was saved. Case of the Appellants-Defendants is that by virtue of Section 2 of the Rewa Act, grant of patta to Gaya Din is saved. It is also their case that Section 3 of the Rewa Act saved the existing proceedings and the fathers of the Respondents could have proceeded against the Appellants Under Sections 46 and 142 of the Rewa Act. However, they have not initiated any proceedings under the said provisions of the Act. In 1948, the State of Rewa acceded to India and became part of the State of Vindhya Pradesh. In 1952, the State of Vindhya Pradesh abolished the system of Jagirdari by the Vindhya Pradesh Abolition of Jagirs and Land Reforms Act, 1952. Under Section 26 of the Vindhya Pradesh Act, the Appellants' father Hanuman Din became direct tenant of the State in place of Jagirdar and Under Section 28 of the Act, he became a pattedar-tenant. 36. By the States Reorganization Act, 1956, the erstwhile State of Vindhya Pradesh became a part of larg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been issued in 1954 (DW-1 born in 1919 + 35=1954) and by that time, system of Pawai had been removed. In this regard, the learned senior Counsel for the Respondents-Plaintiffs submitted that as per Section 5 of the Vindhya Pradesh Act, all the Jagir Lands were resumed in the then Vindhya Pradesh Government on 23.06.1953, hence, on this date, Pawaidar/illaqedar/Jagirdar were not authorised and were not having jurisdiction to issue patta and therefore, the finding of the first appellate court that the patta issued in the name of Gaya Din in the year 1954 is not a valid one and the said findings of fact cannot be interfered with. 39. The finding of the first appellate court that the patta was granted to Gaya Din in 1954 and that illaqedar was not competent to issue patta is misconceived. As discussed earlier, patta was granted to Gaya Din not in 1954 but in Samvat 1986 (1929 A.D.) when admittedly the illaqedar had such power. That apart, the validity of patta so granted cannot be determined based on the inference drawn as to the age of DW-1-Hanuman Din. The learned senior Counsel appearing for the Appellants has drawn our attention to the provisions of Vindhya Pradesh Act and su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on Ex. D-1-order of the Commissioner dated 17.07.1973 and the order of the Tahsildar dated 28.07.1971 and other documents showing grant of lease/patta in the name of Gaya Din and the continued possession of Gaya Din and his son-Hanuman Din and the Appellants. The first Appellate Court and the High Court erred in brushing aside the findings recorded by the Commissioner dated 17.07.1973 as to the misconduct of the patwari in making entries in the revenue records. 41. In the suit for declaration for title and possession, the Plaintiffs-Respondents could succeed only on the strength of their own title and not on the weakness of the case of the Defendants-Appellants. The burden is on the Plaintiffs-Respondents to establish their title to the suit properties to show that they are entitled for a decree for declaration. The Plaintiffs-Respondents have neither produced the title document i.e. patta-lease which the Plaintiffs-Respondents are relying upon nor proved their right by adducing any other evidence. As noted above, the revenue entries relied on by them are also held to be not genuine. In any event, revenue entries for few Khataunis are not proof of title; but are mere statements fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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