Kishan Prasad v. Madhya Pradesii Government through Collector, Vidisha
1982-08-09
A.R.NAVKAR
body1982
DigiLaw.ai
JUDGMENT A.R. Navkar, J. This is an appeal against the judgment and decree passed by the Additional District Judge, Vidisha, in Civil Appeal No. 41 /72, by which he confirmed the decree dated 20-1-1972, in Civil Suit No. 6A /71 passed by the Civil Judge, Class II, Vidisha. The facts of the case are that the plaintiff-appellant filed a suit against the respondent for declaration of title on the allegations that the plaintiff-appellant is in possession of the suit lands situated in village Mahrookheri, Tahsil Vidisha, on the basis of a Patta dated 7-7-1950, given to him by the then Zamindar Pannalal, now dead. In 1956, the Tahsil served a notice on the appellant requiring the disputed property to be vacated as it was an unoccupied land and it was not used for many years. When the notice was served on the appellant he filed the suit for declaration and injunction before the trial Court. The trial Court after taking into consideration the evidence on record, dismissed the suit. It held that Ex. P/l (Patta) is not proved and that the papers filed by the plaintiff are not worth believing. Aggrieved by the order of the learned trial Court, an appeal was preferred before the Additional District Judge. The Additional District Judge confirmed the order passed by the trial Court. This is a second appeal. On behalf of the State, Shri M. C. Jain, Government Advocate, submitted that as both the Courts below have held concurrently against the plaintiff, in second appeal, I should not disturb the finding. Further, he has raised an objection that Pannalal is dead. The witnesses of the alleged Patta are no more and so also the person who has written the document. That being the position, both the Courts correctly held that the Patta on which the plaintiff bases his title is not proved according to law and as such, the judgment and decree passed by the Courts below require no interference. There is no dispute that if there is a concurrent finding affect, then in second appeal, it should not be disturbed lightly. But, if the trial Court as well as the appellate Court has not taken into consideration the correct position of law, then, in my opinion, such finding is not binding on this Court even if it be a concurrent finding of the Courts below.
But, if the trial Court as well as the appellate Court has not taken into consideration the correct position of law, then, in my opinion, such finding is not binding on this Court even if it be a concurrent finding of the Courts below. Before proceeding further, I will refer to certain evidence produced in the file. Ex. P/l is the disputed Patta on which the title of the plaintiff is based. The Patta is given by Pannalal to the present appellant. It mentions the survey numbers with respect of which the alleged Patta is given. The name of the scribe is Shambhu Prasad, while the witnesses are one Gopalram and the other is Narayan Prasad. In my opinion, the view of the trial Court is not according to law that the hand-writing of Pannalal cannot be proved except calling either Shambhu Prasad, Gopalram or Narayan Prasad and as all these persons are dead, it cannot be said that the Patta is proved. In such a situation, how a docuraent is to be proved was considered by this Court in Ramibai v. Life Insurance Corporation of India 1981 MPLJ 192 : 19X1 JLJ 828. It has been observed in the said judgment as under: The deeds in question do not fall into categories of those documents which by law are required to be attested and, therefore, for the proof of these deeds section 68 of the Evidence Act would not apply. It is section 67 which would apply. Section 67 does not lay down any particular mode of proof for proving that a particular writing or signature is in the hand of a particular person.
It is section 67 which would apply. Section 67 does not lay down any particular mode of proof for proving that a particular writing or signature is in the hand of a particular person. Thus, the signatures may be proved in any one or more of the following raodes:- (i) By calling a person who signed or wrote a document; (ii) By calling a person in whose presence the documents are signed or written; (iii) By calling hand-writing expert; (iv) By calling a person acquainted with the handwriting of the person by whom the document is supposed to be signed or written; (v) By comparing in Court, the disputed signature or hand-writing with some admitted signatures or writing; (vi) By proof of an admission by the person who is alleged to have signed or written the document that he signed or wrote it; (vii) By the statement of a deceased professional scribe, made in the ordinary course of business, that the signature on the document is that of a particular person; A signature is also proved to have been made, if it is shown to have been made at the request of a person by some other person, e.g. by the scribe who signed on behalf of the executant; (viii) By other circumstantial evidence. The plaintiff has given his own statement as P.W.I. He has stated in his statement that Pannalal was the Zamindar of the village and in Samvat 2007, he has given the Patta of the disputed lands, which is Ex. P/l. Ex. Pflbears his signature. Shambhu Prasad is now no more who is the scribe of the Patta. Further, he has stated that the witnesses of the said Patta are also now no more. The disputed land is in his possession. He has produced to support his claim Ex. P/2, Ex. P/3, Ex. P/4, Ex. P/5, Ex. P/6, Ex. P/7 and Ex. P/8. These are the Khasra entries regarding the suit land. Further, he has produced an order of the Tahsil Court, which is Ex. P/9. In my opinion, Ex. P/9 supports the claim of the plaintiff completely. I will refer to it subsequently. The other witness is Sukhlal (P. W. 3). He has stated that one Pannalal was the Zamindar of the village and he had seen Pannalal writing and he has identified on Ex. P/l the signature of Pannalaf.
P/9. In my opinion, Ex. P/9 supports the claim of the plaintiff completely. I will refer to it subsequently. The other witness is Sukhlal (P. W. 3). He has stated that one Pannalal was the Zamindar of the village and he had seen Pannalal writing and he has identified on Ex. P/l the signature of Pannalaf. Similarly one Tulsiram (P. W. 2) says that on Ex. P/l, the signatures of his father Narayan Prasad are there and he knows the signatures of his father. If these facts are taken into consideration and applying the ruling mentioned above, in my opinion, the alleged Patta has been proved by the plaintiff and the finding of the Courts below that the Patta is not proved and it is a forged document, deserves to be set aside. The other objection raised by the learned Government Advocate is that it is not proved that Pannalal was a Zamindar of the said village and he had a right to give the Patta. The objection has no substance when I consider the document Ex. P/9. Ex. P/9 is a certified copy of the order dated 5-2-1970, passed by the Tahsildar, Vidisha in case No. 81 /68-69/B 121. I may repeat the order after translating it into English so that it will be dear as to why I am not accepting the objection of the learned Government Advocate. It mentions that the statements of the Record Keeper, Collectorate, Vidisha and Pratap Singh, Bal Kishan, Kanhaiya son of Gupta, and Soma son of Jalam, residents of Chak Mehroo-kheri were recorded on behalf of" the appellant. According to the statements of these witnesses, the possession of the disputed land is with the appellant for the last 15 years and in Samvat 2007, Pannalal, Zamindar gave a Patta to Kishan Prasad. A notice was given to Kishan Prasad regarding unauthorised occupation of the land. The notice is dated 1-11-1968. But, in reply to the said notice, he submitted before the Tahsil Court that a Patta has been given to him of Survey Nos. 16/6, 44, 47, 48/1, 48/2, 51, 52, 307 and 314 and to prove this, he has also attached the copy of the Patta along with the reply. The said Patta was acted xtpon by the concerned Patwari and is proved by the statement of the Record Keeper dated 6-1-1970.
16/6, 44, 47, 48/1, 48/2, 51, 52, 307 and 314 and to prove this, he has also attached the copy of the Patta along with the reply. The said Patta was acted xtpon by the concerned Patwari and is proved by the statement of the Record Keeper dated 6-1-1970. The only number which was not given on lease is Survey No. 16/6, the area of which is 8 Bighas 14 Biswas. Ex. P/l, mentioned in the order is the present Patta in dispute. The Patta is relied upon by the learned Tahsildar in his order and he has held that the Patwari has left after Samvant 2009 the survey Nos. 39, 41, 42/1, 42/2,44, 45, 235/12 and 235/ 8 and they have been entered as property belonging to the Government. Such an entry is not correct and there is no evidence produced before the learned Tahsildar lo come to a conclusion that the disputed survey number is a Government property. Therefore, he has stated that excepting survey No. 16/6, rest of the numbers are included in the Ex. P/l, the disputed Patta and an entry to that effect be made in the Revenue papers. As to survey No. 16/6, it was held that the possession of Kishan Prasad is illegal and is that of a trespasser. Holding this, he ordered that the possession of the said number be taken from Kishan Prasad and under section 248 of the Madhya Pradesh Land Revenue Code, 1959, a fine of Rs.10 is imposed on him and it be recovered from him. I have mentioned these facts in detail to show that the claim of the plaintiff is genuine and it was accepted by the Tahsil Court. From this order, it is also dear that Pannalal was Zamindar and he gave the disputed property to Kishan Prasad under Ex. P/l. There is also other evidence to substantiate the facts which I have mentioned above. But, when there is an order by the Tahsil Court which lends support to the claim of the plaintiff, I need not discuss the other evidence produced in the file. As such, the Courts below fell in error in holding that Ex. P/l, is not proved and that the plaintiff is not the owner of the disputed property.
But, when there is an order by the Tahsil Court which lends support to the claim of the plaintiff, I need not discuss the other evidence produced in the file. As such, the Courts below fell in error in holding that Ex. P/l, is not proved and that the plaintiff is not the owner of the disputed property. As to interference by me in second appeal, I have already mentioned above and on that ground, I can interfere in the finding of the courts below. The learned counsel for the respondent submitted before me that the suit is barred by limitation and the finding given by the appellate Court to that effect is correct and on that point also, the suit must fail. But in my opinion, this submission also has no force. The plaintiff succeeded before the Tahsil Court by proving Ex. P/1 and the order is dated 5-2-1970. There-fore, when the plaintiff gave notice to the Collector to correct the entries and when he refused to do so, he has filed the present suit on 2-1-1971. As it is a suit against the Government, the plaintiff will be entitled under section 80, Civil Procedure Code to add two months to the limitation prescribed for filing the suit. If these facts are taken into consideration, then the suit filed is within limitation and the finding of the courts below that the suit was barred by limitation cannot be accepted. There is some mistake regarding the survey numbers about which the suit is filed by the plaintiff and it was traced before him that Pannalal was not the Zamindar but some Gajribai, is mentioned to be the Zamindar in the Khasra filed by the defendant. But, I may say that these khasra entries are not proved by producing any evidence by the respondent. Whatever dispute may be there regarding survey numbers, it is made dear by Ex. P/9 in which the Survey Nos. are specifically mentioned and in the said order, it is also mentioned that except survey No. 16/6, the plaintiff is holding the land under the said Patta. Therefore, the submission of the learned counsel also that one Gajribai was the Zamindar and there is some mis-description of survey numbers has no weight and 1 will have to reject the same. The result, therefore, is that the plaintiff is held to be bhumiswami of survey Nos.
Therefore, the submission of the learned counsel also that one Gajribai was the Zamindar and there is some mis-description of survey numbers has no weight and 1 will have to reject the same. The result, therefore, is that the plaintiff is held to be bhumiswami of survey Nos. 44, 47, 48/1, 48/2, 51, 52, 307 and 314. His claim regarding survey No. 16/6 measuring 8 Bighas 14 Biswas is rejected. The plaintiff also is entitled for the correction of the revenue record regarding these survey numbers. As such, the appeal deserves to be allowed as indicated above. The parties shall bear their own costs, throughout. Appeal allowed