JUDGMENT A. K. Shrivastava, J. 1. The plaintiff feeling aggrieved by the judgment and decree dated 15-4-2000 passed by learned District Judge Guna dismissing the Appeal No. 18-A/96 of plaintiff and thereby affirming the judgment and decree passed by learned Third Civil Judge Class II, Guna in Civil Suit No. 142-A/92, dismissing her suit on 20-12-1995, has filed this second appeal. 2. The plaintiff filed a suit for declaration of Bhumiswami rights and for grant of injunction in respect of certain agricultural land which is the subject-matter of suit and the description whereof has been mentioned in the plaint. Later-on, the plaintiff by amending the relief clause also sought a decree of possession, in case, she is not found in possession of the suit property as well as for a decree of mesne profit at the rate of Rs. 2000/- per annum. 3. In brief the case of plaintiff is that one Bhanwar Lal Lodha was the Bhumiswami of the suit property and vide registered sale deed dated 16-3-1981 for a consideration of Rs. 5,000/-, he sold the suit property to the plaintiff and also delivered possession to her. It has also been pleaded by the plaintiff that after purchasing the suit property her name has also been mutated in the revenue record. By amendment, it has also been pleaded by the plaintiff that defendant No. 1-Lakhmichand and defendant No. 3-Kammoda on 11-5-1981 executed an affidavit before the Notary, Guna admitted the right of the plaintiff in the suit property. However, later-on the defendants started disowning the right of plaintiff and also created hindrance when the plaintiff started to cultivate the land. Hence, a suit for declaration of Bhumiswami rights and injunction has been filed with a further prayer that in case it is found that plaintiff is not in possession, the possession of suit property be also delivered to her. 4. Defendants No. 1 and 3 namely Lakhmichand and Kammoda filed a joint written statement, while defendants No. 2 and 4 namely Lala and Ram Prasad filed separate written statement. 4. Defendants No. 1 and 3 namely Lakhmichand and Kammoda filed a joint written statement, while defendants No. 2 and 4 namely Lala and Ram Prasad filed separate written statement. In their written statement defendants inter alia pleaded that on the date of execution of the sale deed, Bhanwarlal who is the vendor of the plaintiff, was not having any right to sale the suit property, and therefore, even if plaintiff proves that he bought the suit property from Bhanwarlal by executing a sale-deed, it would not confer any right in her. It has also been pleaded by the defendants that the possession of the suit property was never delivered to plaintiff by Bhanwarlal. According to the defendants neither plaintiff is having any right nor she is having possession on the suit property, hence it is prayed that suit be dismissed. 5. By amending the written statement, the factum of execution of the affidavit on 11-5-1981 by defendants-Lakhmichand and Kammoda in favour of plaintiff admitting her right has not been specifically denied, but vaguely and evasively it has been pleaded in para 2-A of the written statement that defendants No. 1 and 3 namely Lakhmichand and Kammoda did not remember that in what context they executed the said affidavit and what was the reason. Further in this para it has been pleaded by these defendants that defendants are illiterate and they have not executed any affidavit after understanding its contents. It has also been pleaded that by executing an affidavit in favour of a person the title would not be conferred in him. 6. In para 5 of the written statement it has been pleaded by defendants No. 1 and 3 that the possession on the suit property is of defendants with effect from 10-5-1970 as on this date Bhanwarlal executed a patta in favour of defendant No. 3-Kammoda and he (defendant No. 3-Kammoda) is the Shikmi Krishak (lessee/tenant) of Bhumiswami Bhanwarlal and since then continuously the defendants are cultivating the land and are also paying the land revenue. Further it has been pleaded in para 5 of the written statement that the defendants have acquired Bhumiswami rights under section 189 and 190 of M. P. Land Revenue Code, 1959 (hereinafter referred to as "the Code"). Further it has been pleaded in para 5 of the written statement that the defendants have acquired Bhumiswami rights under section 189 and 190 of M. P. Land Revenue Code, 1959 (hereinafter referred to as "the Code"). It has also been pleaded that the Bhanwarlal, in order to get defendant No. 1 and 3 anyhow dispossessed from the suit property obtained loan on the suit property so that for realizing the loan amount the suit property may be sold and defendants No. 1 and 3 may be dispossessed. The defendants No. 1 and 3 to maintain the continuity of their possession deposited a sum of Rs. 2001/- vide receipt No. 74 and Rs. 350.16 Paise vide Receipt No. 93 in Tahsil, Guna on 4-1-1975 and obtained the suit property in Supurdagi from Tahsil. On the basis of these pleadings, it has been prayed that suit be dismissed. 7. The learned trial Court on the basis of averments made in the plaint and denial in the written statements framed necessary issues and after recording the evidence of the parties although while deciding issue No. 1 held that the plaintiff bought the suit property for a consideration of Rs. 5,000/- from Bhanwarlal vide registered sale deed dated 16-3-1981, but dismissed her suit. The learned trial Court, while dismissing the suit of plaintiff also held that she is not in possession of the suit property. 8. Plaintiff, feeling aggrieved by the judgment and decree passed by the learned trial Court dismissing her suit, filed first appeal before the learned First Appellate Court assailing the judgment and decree of learned trial Court, which has also been dismissed by the impugned judgment and decree. 9. In this manner this second appeal has been field by plaintiff assailing the judgment and decree passed by the learned two Courts below. 10. This Court on 28-3-2008 admitted this second appeal on the following substantial question of law:- In absence of any corresponding (wrongly typed as "correspondence") entry in the revenue record in pursuance to the patta Ex.D.1, whether it can be said that any patta was executed and whether defendant Kammoda acquired any Bhumiswami right? 11. 10. This Court on 28-3-2008 admitted this second appeal on the following substantial question of law:- In absence of any corresponding (wrongly typed as "correspondence") entry in the revenue record in pursuance to the patta Ex.D.1, whether it can be said that any patta was executed and whether defendant Kammoda acquired any Bhumiswami right? 11. The contention of Shri T. C. Singhal, learned counsel for appellant is that alleged patta dated 10-5-1970 (Ex.D.1) said to have been executed by Bhanwarlal (vendor of the appellant) in favour of defendant-Kammoda s/o Pannalal is on a plain paper and is inadmissible in evidence, because the same is an unregistered document and even if it is held that the same was given to defendant-Kammoda long back in the year 1970, since there is no corresponding entry in the revenue record, it cannot be said that patta was ever executed by Bhanwarlal and by virtue of the alleged Patta (Ex.D.1) defendant-Kammoda did not acquire any Bhumiswami rights. 12. By inviting the attention of this Court to Khasra (Ex.D.6) of Samvat 2031 to 2035, it has been contended that in Samvat 2032 (corresponding year 1975) there is an entry that in pursuance to the order of Tahsil Court, Guna in Case No. 743A-16/63-64 dated 16-2-1975 the suit property was given to defendants No. 1 and 3 in supurdagi, and therefore, the plea which has been set up by defendants No. 1 and 3 in para 5 of their written statement that the suit property was given by Bhanwarlal on Shikmi basis on 10-5-1970 and accordingly they have acquired Bhumiswami rights, is ex facie factually incorrect. 13. It has also been put forth by the learned counsel that if ever the patta dated 10-5-1970 (Ex.D.1) would have been executed by Bhanwarlal to defendant No. 3-Kammoda and the possession of the suit property was also delivered, certainly there must be some corresponding entry in the revenue record and if the defendants were in possession of the suit property as Shikmi, the land could not have been given to them on supurdagi basis by Tahsildar, Guna. Hence, it has been prayed by learned counsel that the story put forth by defendants in their written statements that the land was given to them by Bhumiswami Bhanwarlal on patta is afterthought and concocted. Hence, it has been prayed by learned counsel that the story put forth by defendants in their written statements that the land was given to them by Bhumiswami Bhanwarlal on patta is afterthought and concocted. Hence, it has been prayed by the appellant that by allowing this appeal the suit of the plaintiff be decreed. 14. Per contra Shri Aniket Naik, learned counsel for respondents No. 1 to 7 by supporting the impugned judgment of learned two Courts below has contended that although the patta (Ex.D.1) is an unregistered document, but in order to ascertain the nature of possession of the defendants, this document can be taken into consideration and in support of his contention learned counsel has placed reliance on the Full Bench decision of this Court Amar Singh (Sardar) and another vs. Surinder Kaur, 1975 MPLJ (FB) 633 : 1975 JLJ 667 . 15. Further it has been contended by learned counsel that learned two Courts below have concurrently held that the defendants are in possession of the suit property. By inviting the attention of this Court to para 5 of the written statement, it has been pleaded that the defendants are possessing the suit property as Shikmi Krishak (tenant) of Bhanwarlal by virtue of patta dated 10-5-1970 and in order to maintain continuity of their possession, they obtained the possession of the suit property in supurdagi on 1-1-1975 from Tahsil Court, and they also deposited a sum of Rs. 2001/- vide receipt No. 74 and Rs. 350.16 Paise vide receipt No. 93 on 4-1-1975 in Tahsil, Guna. By placing reliance on the decision of this Court in Dayawantibai vs. Smt. Sarula Bai and others, 2006(4) MPLJ 346 it has been contended by the learned counsel that since the Bhanwarlal was not in possession of the suit property, therefore, even if the factum of delivery of possession to the plaintiff has been mentioned in the sale deed, it cannot be said that indeed possession was delivered to her. 16. 16. It has also been put forth by learned counsel that because the lease which was granted to defendant-Kammoda by virtue of patta (Ex.D.1) dated 10-5-1970 was in contravention to section 168 of the Code, therefore, the status of defendant-Kammoda, by virtue of law, would be of occupancy tenant in view of section 169 of the Code, and hence, by operation of law he would become Bhumiswami under sections 189 and 190 of the Code. It has also been put forth by him that after the execution of the sale deed by Bhanwarlal in favour of plaintiff/appellant the defendant-Kammoda would become the lessee of the plaintiff, and therefore, he could be ejected only by filing an application under section 168(4) of the Code before the Sub Divisional Officer and if the plaintiff has chosen a wrong forum by filing a civil suit, her suit is liable to be dismissed. On these premised submissions, it has been argued by learned counsel for respondents that this appeal be dismissed. 17. Having heard learned counsel for the parties, I am of the view that this appeal deserves to be allowed. Regarding substantial question of law framed:- 18. On going through the document Ex.D.1, which is said to be a patta, said to have been executed by Bhumiswami Bhanwarlal in favour of defendant No. 3-Kammoda, it is gathered that for indefinite period the suit land was given by Bhanwarlal to Kammoda on 10-5-1970, and therefore, this document was compulsorily registrable in view of section 17(1)(d) of the Indian Registration Act, 1908. Indeed, learned counsel for respondents is also not disputing this preposition, but according to him for collateral purpose and in order to ascertain the nature of possession of defendant-Kammoda, this document can be taken into consideration and for that purpose learned counsel has placed reliance on the Full Bench decision of this Court in Amar Singh (supra). Even for the sake of argument if it is held that an unregistered patta (lease deed) for indefinite period was executed by Bhanwarlal in favour of defendant No. 3-Kammoda long back on 12-5-1970 viz. before nearabout 11 years of the date of filing of the suit (the suit was filed on 4-7-1981) no efforts were made by defendant No. 3-Kammoda to get his possession recorded in the revenue record in pursuant to the alleged patta (Ex.D.1). before nearabout 11 years of the date of filing of the suit (the suit was filed on 4-7-1981) no efforts were made by defendant No. 3-Kammoda to get his possession recorded in the revenue record in pursuant to the alleged patta (Ex.D.1). If we go through section 115 of the Code we find that this section speaks about correction of wrong entry in Khasra and any other land records by superior officials which reads thus: 115. Correction of wrong entry in khasra and any other land records by superior officers. - If any Tahsildar finds that a wrong or incorrect entry has been made in the land records prepared under section 114 by an officer subordinate to him, he shall direct necessary changes to be made therein in red ink after making such enquiry from the person concerned as he may deem fit after due written notice. Similarly section 116 of the Code throws sufficient light in respect to disputes regarding entry in khasra or in any other land records. According to me, since Kammoda did not do anything in pursuance to the said patta to get his possession recorded in the revenue record in accordance with law, it is difficult to infer, that patta (Ex.D.1) was ever executed by Bhanwarlal in favour of defendant-Kammoda. In the khasra Ex.D.6 which is of Samvat 2031 to 2035, in Samvat 2032 (corresponding year 1975) in column No. 14 which pertains to amended entry it has been mentioned that in pursuance to the order of Tahsil Court in Case No. 743A-16/63-64 dated 16-2-1975 the suit land has been given in supurdagi to defendants No. 1 and 3 Lakhmichand and Kammoda. Similar status of defendants Lakhmichand and Kammoda as Supurdagidar has been mentioned in Khasra Samvat 2037 Ex.P.3. Thus, from the revenue record which has been placed on record only this much can be inferred that the possession of defendants No. 1 and 3 namely Lakhmichand and Kammoda on the suit property is that of supurdagidar only and nature of their possession is that of custodia legis. In the Khasra Ex.D.1 and Ex.P.3 throughout the name of Bhanwarlal as Bhumiswami has been mentioned. 19. There is one very important document on record (Ex.D.4) which is a supurdaginama. In the Khasra Ex.D.1 and Ex.P.3 throughout the name of Bhanwarlal as Bhumiswami has been mentioned. 19. There is one very important document on record (Ex.D.4) which is a supurdaginama. On going through this document this Court finds that Tahsil, Guna in Case No. 743A-16/63-64 on 16-2-1975 delivered the possession of the suit property to defendants No. 1 and 3 namely Lakhmichand and Kammoda as supurdagidar because Bhanwarlal did not deposit the penalty amount and it was further directed to the supurdagidars that they shall deposit the yearly land revenue with a further condition that the supurdagi shall be renewed every year. Hence, the possession which has been mentioned in the Khasras of Ex.D.6 and Ex.P.3, is in pursuance to the order of Tahsildar, Guna since the Bhumiswami Bhanwarlal did not pay some penalty which was imposed on him. Indeed, defendant-Kammoda (DW.1) in his cross-examination in para 7 has also admitted that because Bhanwarlal could not deposit the penalty amount, the land was given to them by Tahsil Court, Guna. It would be relevant to mention here that, Bhanwarlal, Kammoda and Lakhmichand are closely related to each other as defendant-Lakhmichand is the nephew of Bhanwarlal (see para 9 of the deposition of defendant-Kammoda). The father's name of Lakhmichand is Mohanlal, while Kammoda is son of Pannalal who is son of Mohanlal as mentioned in the document Ex.D.1 dated 10-5-1970. 20. On going through sale deed Ex.P.1 executed by Bhumiswami Bhanwarlal in favour of Sushila Bai on 16-3-1981, this Court finds that specifically it has been mentioned that the suit property is being sold because the vendor Bhanwarlal has to pay the debt of Co-operative Bank and of Tahsil, Guna. This fact is also co-related with Ex.D.4 which is supurdaginama of Tahsil Guna in which it has been specifically mentioned that amount of penalty is to be recovered from Bhanwarlal, and therefore, the suit property is given on supurdagi to defendants Kammoda and Lakhmichand. If the theory of giving the suit property on Shikmi (lease) basis would have been true, certainly some documents in that regard would have been filed by defendant-Kammoda. At this juncture, this Court thinks it appropriate to put emphasis on the admission of defendant No. 3-Kammoda. If the theory of giving the suit property on Shikmi (lease) basis would have been true, certainly some documents in that regard would have been filed by defendant-Kammoda. At this juncture, this Court thinks it appropriate to put emphasis on the admission of defendant No. 3-Kammoda. In para 8 of his statement, he has specifically admitted that he submitted requisite application for the conferral of occupancy and Bhumiswami rights in Tahsil and patta (Ex.D.1) was also submitted in Tahsil Court and order was also passed by Tahsil Court. Further he has admitted that order of Tahsil must be with defendant No. 1-Lakhmichand, it would be relevant to mention here that defendant No. 1-Lakhmichand has not been examined. Indeed, these documents would have thrown sufficient light into the controversy which is involved in the present case and in order to ascertain whether in fact patta (lease deed Ex.D.1) was ever executed by Bhanwarlal in favour of defendant-Kammoda. It would also be relevant to mention here that Bhanwarlal had already died before he could be examined. On going through patta (Ex.D.1) I am unable to find out that it was filed in Tahsil Court because no endorsement or any exhibit mark of that Court is found on it. On the rear side of this document also I do not find any endorsement and any case number of Tahsil Court. 21. The Supreme Court in Gopal Krishnaji Ketkar vs. Mohamed Haji Latif and others, 1969 MPLJ (SC) 271 : AIR 1968 SC1413 has categorically held that a party in possession of best evidence which would throw light on the issue in controversy withholding it, the Court should draw an adverse inference against him notwithstanding that onus of proof does not lie on him. A party cannot rely on abstract doctrine of onus of proof or on the fact that he was not called upon to produce it. In another decision Hircdal and others vs. Badkulal and others, AIR 1953 SC 225 the Supreme Court held that where a suit for recovery of amount due on basis of adjustment of accounts signed by defendant and the defendant denying correctness of amount found due, the defendant who is in possession of account books kept by him and from which the balance could be ascertained should produce them before Court. He cannot be heard to say, relying upon the abstract doctrine of onus of proof, that it was no part of his duty to produce them unless he was called upon to do so. The similar view has been taken by Privy Council in T. S. Murugesam Pillai vs. M. D. Gnana Sambandha Pandara Sannadhi and others, AIR 1917 PC 6. Their Lordships of the Privy Council also drew adverse inference against the defendants for not filing those documents which would throw sufficient light on the controversy of the matter. By testing the ratio decidendi of Gopal Krishnaji Ketkar (supra), Hiralal (supra) and T. S. Murugesam Pillai (supra) on the touchstone and anvil of the present factual scenario, since defendant No. 3-Kammoda, has categorically admitted in his evidence that in pursuance to the lease deed/patta (Ex.D.1) proceedings were filed by him to become occupancy tenant and Bhumiswami and order of Tahsil is also in possession of one of the defendant-Lakhmichand, according to me, since that order has not been filed adverse inference should be drawn against the defendants. Hence, if ever patta (Ex.D.1) would have been executed giving the suit property on lease to defendant-Kammoda on 10-5-1970 certainly the documents of the proceedings of Tahsil as well as its order, which is based on Ex.D-1 would have been filed and therefore, it is difficult to hold that patta (Ex.D.1) was executed by Bhumiswami Bhanwarlal in favour of defendant No. 3-Kammoda. 22. Much emphasis has been put forth by the learned Trial Court on the document Ex.D.7 which is a registered A. D. notice dated 18-6-1981 sent by Bhanwarlal to Lakhmichand and Kammod Singh, in which it has been mentioned by Bhanwarlal that he gave the suit property on Shikmi basis twenty five years ago. According to me, it appears that in order to file a suit this document has been manufactured. Needless to say that Bhanwarlal, Lakhmichand and Kammoda are thickly related through blood. This notice is dated 18-6-1981 and soon thereafter on 9-7-1981 a Civil Suit No. 76-A/81 was filed by Kammoda and Lakhmichand, who are defendants in the present suit against Bhanwarlal, Sushila Bai (present plaintiff) and her husband Daulat Ram for declaration and injunction. Needless to say that Bhanwarlal, Lakhmichand and Kammoda are thickly related through blood. This notice is dated 18-6-1981 and soon thereafter on 9-7-1981 a Civil Suit No. 76-A/81 was filed by Kammoda and Lakhmichand, who are defendants in the present suit against Bhanwarlal, Sushila Bai (present plaintiff) and her husband Daulat Ram for declaration and injunction. In the notice (Ex.D.7) addressed to Lakhmichand and Kammoda, it has been stated by Bhanwarlal that they are having possession on the suit property which they should deliver to plaintiff, while in the sale deed (Ex.P.1) dated 16-3-1981 the factum of delivery of possession has been mentioned, and therefore, this notice appears to be an outcome of conspiracy of Bhanwarlal, Kammod Singh and Lakhmichand, who are thickly and closely related to each other. The Civil Suit No. 76-A/81 filed in the Court of First Civil Judge Class II, Guna on 9-7-1981 by Kammoda and Lakhmichand was stayed vide order dated 14-5-1982 of that Court under section 10 of Civil Procedure Code because the present suit was already filed earlier to the filing of Civil Suit No. 76-A/81. Apart from this, by document (Ex.D.7) it cannot be gathered that Bhanwarlal gave land on lease to defendant-Kammoda. In notice Ex.D.7 Bhanwarlal is not saying that he has executed any patta (Ex.D.1) dated 10-5-1970 in favour of Kammoda, and therefore, it can be inferred that in order to create evidence, later-on this document has been prepared. Otherwise in the notice Ex.D.7 the factum of the execution of patta would have been very much mentioned. Indeed, in the plaint of Civil Suit No. 76-A/1981 the cause of action to file that suit is based on the notice dated 18-6-1981. The record of Civil Suit No. 76-A/1981 is also tagged with the record of trial Court. In that suit Bhanwarlal was arrayed as defendant No. 1, but he did not appear and was proceeded in ex parte. 23. The learned trial Court while deciding issue No. 1 has categorically held that suit property was sold by Bhanwarlal in favour of plaintiff vide registered sale deed Ex.P.1 dated 16-3-1981 and defendants did not file any cross objections in the appeal filed by appellant before the learned First Appellate Court and therefore, this point has been put to rest that suit property was sold by Bhanwarlal to the plaintiff. 24. 24. In view of the detailed reasonings given hereinabove, the decision of this Court in Dayawantibai (supra) placed reliance by learned counsel for respondents No. 1 to 7 is not applicable. Admittedly, the name of plaintiff was mutated in the revenue record as Bhumiswami. Indeed defendant-Kammoda and Lakhmichand also facilitated to get her name mutated. 25. I do not find any merit in the contention of learned counsel for respondents that the plaintiff has chosen a wrong forum by filing this suit for declaration of Bhumiswami rights and possession and as a matter of fact an application should have been filed under section 168(4) of the Code before the Revenue Court, because according to me, the factum of execution of patta Ex.D.1 has not at all been found to be proved therefore, it was not necessary for the plaintiff to file ejectment proceedings before the Revenue Court. 26. The substantial question of law, is thus, answered that in absence of any corresponding entry in the revenue record in pursuance to the patta (Ex.D.1), it cannot be said that it was executed by Bhanwarlal and defendant-Kammoda by virtue of it acquired any Bhumiswami rights. 27. Resultantly, this appeal stands allowed with costs. The impugned judgment and decree passed by learned two Courts below is hereby set aside and the suit of the plaintiff is hereby decreed. The plaintiff is hereby declared to the Bhumiswami of the suit property and defendants are hereby directed to deliver peaceful possession to her. Counsel fee Rs. 2,000/-, (Rupees Two Thousand) if pre-certified.