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2013 DIGILAW 665 (MP)

Radheshyam Gurjar v. Sudhir Agrawal and others

2013-05-17

Anil Sharma

body2013
JUDGMENT 1. This second appeal has been filed by the appellants under section 100 of Code of Civil Procedure, 1908 against the judgment and decree dated 18.4.2012 passed by learned 4th Additional District Judge, Gwalior in Civil Appeal No. 37-A/2011 confirming the judgment and decree dated 30.3.2011 passed by learned 5th Additional Judge to the Court of First Civil Judge Class -II, Gwalior in Civil Suit No.14-A/2010 whereby the suit for declaration and permanent injunction filed by the appellant/plaintiff in respect of land bearing survey No. 397/1 area 0.146 hectare and survey No. 397/2 area 0.086 hectare situated at village Maharajpuragird Tahsil and District Gwalior has been dismissed. 2. The claim of appellant/plaintiff before the trial Court was based upon Khasra entries of above mentioned land from 1985-86 to 1988-89 (Ex-P/1) and Khasra entries from 1995-96 to 1998-99 (Ex-P/2) which are certified copies in which the name of plaintiff has been mentioned in column No. 12 as occupant and name of Matadin and others from whom the defendants claimed to have purchased the land, has been mentioned as owner in column No. 3 of Ex-P/1 and defendant Sudhir Agrawal and others have been mentioned in column No. 3 of Ex-P/2. The common factor in both the Khasra entires is that name of plaintiff -Radheshyam has been entered as possession holder in compliance of the order dated 7.11.1984 passed in case No. 32/82-83/ B-121 by the Additional Tahsildar, Tahsil Gwalior (M.P.). Certified copy of which Ex-P/3 has been filed on behalf of plaintiff. 3. Both the Courts below have dismissed the suit/appeal of the plaintiff by holding that the entries of certified copies of Khasra Ex-P/1 and Ex-P/2 have not been proved and they are suspicious and certified copies are not reliable. The respondents/defendants have also filed Khasra entries of the same year Ex-D/1 and Ex-D/2 which does not show name of Radheshyam in column No.12. 4. Considering the contradictory certified copies filed by both the parties and further considering the fact that which of the certified copy can be relied following substantial question of law has been framed by this Court vide order dated 8.1.2013: “Whether learned both the Courts below are justified in law in disbelieving the certified copies of the order passed by the Tahsildar in Case No. 32/82-83/B-121 and certified copies of the Khasra entires issued by the competent authority and considering their effect ?” 5. Learned counsel for the appellant after drawing attention towards the order of framing of substantial question of law has assumed that certified copies are relevant, therefore, it has been deemed proper to frame the substantial question of law. On the other hand, learned counsel for the respondents has stretched the fact that Khasra entries and claim of possession on the basis of Khasra entries is a question of fact and looking to the concurrent finding of both the Courts below under section 100 of CPC there is no substantial question of law. In this regard, learned counsel for the respondents has submitted that interpretation of revenue record is not question of law. The findings of fact by lower Court on interpretation of revenue record cannot be interfered by this Court and such interference is illegal. In support of his arguments he has placed reliance on the decision of apex Court in the matter of Corporation of The City of Bangalore v. M. Papaiah , AIR 1989 SC 1809 in which it has been held that the revenue record is not a document of title, interpretation of such document is not question of law. Findings of fact by the lower Court on the interpretation of revenue record being findings of fact cannot be interfered with by this Court under section 100 of CPC. 6. Learned counsel for respondents No.1 to 4 has further placed reliance on the decision of Apex Court in the matter of Sawarni (Smt.) v. Inder Kaur (Smt.) and others, (1996) 6 SCC 223 in which it has been held that unlawful mutation of the name in the revenue record does not create or extinguish title nor has presumptive value on title. It only entitles the person concerned to pay land revenue. 7. Learned counsel for respondents No.1 to 4 has further placed reliance on the decision of this Court in the matter of Vishnu Sharan and others v. Ajuddhibai and others, 2004 RN 185 = 2004(3) MPLJ 25 in which by considering the provisions of section 117 of M.P. Land Revenue Code, 1959 it has been held that the Khasra entries have only presumptive value of its correctness. Title cannot be determined on the basis of Khasra entries. Khasra entries may be the piece of corroborative evidence, merely on its basis the suit which is based on title cannot be decreed. Title cannot be determined on the basis of Khasra entries. Khasra entries may be the piece of corroborative evidence, merely on its basis the suit which is based on title cannot be decreed. Further reliance has been placed by learned counsel for the respondents on the decision of apex Court in the matter of Mst. Sugani v. Rameshwar Das and another, AIR 2006 SC 2172 in which it has been held that mere appreciation of the fact, the documentary evidence or the meaning of entries and the contents of the document cannot be held to be raising a substantial question of law. But where it is found that the first appellate Court has assumed jurisdiction which did not vest in it, the same can be adjudicated in the second appeal, treating it as a substantial question of law. Where the first appellate Court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an error either of law or of procedure requiring interference in second appeal. 8. In order to further strengthen his contention, learned counsel for the respondents further placed reliance on the decision of apex Court in the matter of Narasamma and Others v. State of Karnataka and others, AIR 2009 (Supp.) SC 1849 in which it has been held that where the appellants produced several documents and evidence, to show its possession on relevant date, but, the respondent failed to produce any document to establish his possession over land on that date. From bare perusal of order of Tribunal, right up to Division Bench it reflected that appellants were found to be in possession and cultivation of land in dispute. Only ground of denial of right of tenancy to them was their failure to show, in any manner, that they had acquired tenancy rights on appointed day. As pointed out they have produced sufficient material to prove that in the form of admission of landlord/respondent in Rent Recovery Proceedings. After going through all aspects and contention, impugned order, held liable to be set-aside, which has been done. 9. As pointed out they have produced sufficient material to prove that in the form of admission of landlord/respondent in Rent Recovery Proceedings. After going through all aspects and contention, impugned order, held liable to be set-aside, which has been done. 9. Learned counsel for the respondents has also cited the judgment of apex Court in the matter of Vishwanath Agrawal v. Sarla Vishwanath Agrawal, (2012) 7 SCC 288 in which while considering the scope of section 100 of CPC it has been held that High Court in a second appeal should not disturb the concurrent findings of fact unless it is shown that findings recorded by Courts below are perverse being based on no evidence or that on basis of evidence on record, no reasonable person could have come to that conclusion. Further it has been held that solely because another view is possible on basis of the evidence, High Court would not be entitled to exercise jurisdiction under section 100 of CPC. 10. Substantial question of law has been framed with regard to genuineness and how much reliance can be put upon the certified copy Ex-P/1 and P/2 in which the possession of appellant has been shown in column No.12 in accordance with the order of Additional Tahsildar passed in case No. 32/82-83/B-121. 11. Learned counsel for the appellant submits that the certified copy has been issued by the competent authority, therefore, the entries made therein should be presumed to be correct and appellant/plaintiff is entitled to get the benefit of presumption and further to get the benefit of declaration as Bhumiswami as he has been Sikmi Kastkar of Matadin. Khasra entries have their presumptive value under section 117 of MPLRC but such presumption is rebuttal presumption, therefore, where the entries of Khasra can be rebutted the certified copy which has been obtained by the appellant cannot be presumed to be correct because it is also rebuttal document. If there had been no evidence in rebuttal of Khasra entries, Ex-P/1 and Ex-P/2 may be presumed to have been correct or have been considered for deciding title of plaintiff. 12. Learned counsel for the appellant submits that the appellant/plaintiff has not only proved the certified copy of Khasra entries Ex-P/1 and Ex-P/2 but also filed the certified copy of order Ex-P/3 on the basis of which possession has been mentioned in Khasra Ex-P/1 and Ex-P/2. 12. Learned counsel for the appellant submits that the appellant/plaintiff has not only proved the certified copy of Khasra entries Ex-P/1 and Ex-P/2 but also filed the certified copy of order Ex-P/3 on the basis of which possession has been mentioned in Khasra Ex-P/1 and Ex-P/2. It is further submitted that the appellant has also filed the certified copy of statements recorded in revenue case in which the order Ex-P/3 has been passed. Those statements include the statement of Matadin who was the owner of disputed land and admitted that he has allowed the appellant to cultivate over the disputed land bearing survey No.397. The statement of another witnesses Tulsa certified of which is Ex-P/5 has already been produced. Not only this, copy of Panchnama of disputed land from the record of Additional Tahsildar has also been produced as Ex-P/6 and copy of the application for demarcation of boundary has also been filed as Ex-P/7. 13. Learned counsel for the appellant submits that considering the documents Ex-P/3 to Ex-P/7 the genuineness of certified copy of Khasra Ex-P/1 and P/2 cannot be questioned. 14. Combating the submissions made by appellant’s learned counsel, learned counsel for the respondents submits that copy of Khasra entries Ex-P/1 and Ex-P/2 have been issued on 5.1.2004 but the respondents have obtained the certified copy of Khasra from Tahsildar of same year Ex-D/1 and Ex-D/2 in which there is no entry of any column No.12 on the other hand crops of Matadin and his family members has been shown in the Khasra Ex-D/1, in Ex-D/2 crops of defendant -Sudhir Agrawal and others have been shown and their mutation has been entered in column No.14 in which name of changed owner has to be mentioned. These certified copies of Ex-D/1 has been obtained on 16.1.1997 and certified copies of Ex-D/2 has been obtained on 16.9.2004. The order of Tahsildar Ex-P/3 has been passed on 7.11.1984. The respondents have filed certified copy of order-sheet Ex-D/7 which is order-sheet of proceedings on the basis of application filed by the respondents for obtaining certified copy of case in which the judgment Ex-P/3 is said to have been passed. It has been mentioned in the order sheet that only the register of case entry has been found and it has been further mentioned that there is no mention of said case while depositing the record of relevant period in the record room. It has been mentioned in the order sheet that only the register of case entry has been found and it has been further mentioned that there is no mention of said case while depositing the record of relevant period in the record room. There is no record in the record room containing the record of Additional Tahsildar and record of the case in which the order Ex-P/3 has been passed by Additional Tahsildar. 15. Learned counsel for the respondents, therefore, submits that even if the entries have been made in the register of cases, record of the said case has not been found in the record room. List of cases deposited in the record room does not mention the case. 16. On the contrary, learned counsel for the appellant submits that the certified copies of the case have been obtained from copying section of Tahsil Court, therefore, they are genuine and cannot be disputed and they shall be presumed to be correct. If the order for recording possession has been passed by Additional Tahsildar (Ex-P/3) on 7.11.1984, therefore the certified copy of Ex-D/1 which has been issued on 16.1-1997 must have contained the entry of column No.12 which has been made in compliance of order of Additional Tahsildar. 17. Learned counsel for the respondents drew attention of this Court towards the fact that the area of disputed land is 1 bigha 7 biswa but in the year 2004 when the certified copies of Ex-P/1 and P/2 have been obtained, the area of the land has been reduced to 1 bigha 2 biswa and that is the reason that order Ex-P/3 mentions the area of land 1 bigha 2 biswa while at the time of relevant year 1985 to 86 the area of land was 1 bigha 7 biswa. Part of the land area 0.136 hectare has become survey No. 397/2 while remaining part become survey No. 397/1 as has been mentioned in the sale deed Ex-D/8 and Ex-D/9 which have been executed on 24.2.1990 and 4.11.1989 respectively that is why in the application and statements area of the land has been mentioned as 1 bigha 2 biswa. Part of the land area 0.136 hectare has become survey No. 397/2 while remaining part become survey No. 397/1 as has been mentioned in the sale deed Ex-D/8 and Ex-D/9 which have been executed on 24.2.1990 and 4.11.1989 respectively that is why in the application and statements area of the land has been mentioned as 1 bigha 2 biswa. The said statement has been recorded prior to execution of sale deed and statement relates toundivided survey No. 397 and mentions the area of land of divided survey No. 397/1 which was not existing at the time of passing of order dated 7.11.1984 therefore, learned counsel for the respondents has submitted that both the Courts below are justified in not only disbelieving the certified copies Ex-P/1 and Ex-P/2 but also other documents of relevant case Ex-P/3 to Ex-P/7. 18. Learned counsel for the appellant placed reliance on the decision of apex Court in the matter of Rame Gowda v. M. Varadappa Naidu and another, 2004 (II) MPWN 25 = (2004) 1 SCC 769 in which it has been held that occupant in “settled possession” cannot be dispossessed without recourse to law. It is further submitted by learned counsel for the appellant that looking to the statement of Matadin Ex-P/4, plaintiff/appellant is in possession of the suit land therefore, he is entitled to get permanent injunction or at least injunction restraining the defendants from dispossessing the appellant from the suit land without following the due process of law. In the present case even the statement of Matadin Ex-P/4 cannot be relied as mentioned above. Therefore, the judgment cited by learned counsel for the appellant is not applicable to the present case. 19. Learned counsel for the appellant further placed reliance on the decision of this Court in the matter of Ramnarain Thakur v. Purshottam and others , 1981 JLJ 504 in which it has been held that the order passed exercising the exclusive jurisdiction given to Tahsildar, order is immune from challenge in civil Court on merits under section 9 of CPC. In the present case, the order Ex-P/3 passed by Tahsildar is not under challenge but the genuineness of certified copy and existence of case in which the said order has been passed is under consideration therefore, the judgment has no application. 20. In the present case, the order Ex-P/3 passed by Tahsildar is not under challenge but the genuineness of certified copy and existence of case in which the said order has been passed is under consideration therefore, the judgment has no application. 20. Further attention has been drawn by learned counsel for the appellant towards the provisions of section 169 of M.P. Land Revenue Code and submits that the appellant being Sikmi Kastkar has acquired the Bhumiswami rights, therefore he is entitled at least for permanent injunction. Further attention has been drawn towards provisions regarding presumption as to genuineness of certified copy under sections 76, 77 and 79 of Evidence Act and submitted that the order of Tahsildar and Khasra entries Ex-P/1 and P/2 are deemed to be genuine certified copies of revenue record but as mentioned above presumption regarding genuineness is rebuttal presumption and even the presumption regarding Khasra entries is rebuttal presumption, the plaintiff has failed to establish the very existence of case No.32/82-83/B-121 certified copy of which has been produced as Ex-P/3, therefore, on the basis of Ex-P/3 the entries made in certified copy regarding possession cannot be presumed to be correct. 21. Learned counsel for the appellant further submits that certified copies of Ex-P/1 to Ex-P/7 have been issued by the copying section of Tahsil Court, therefore, it shall be presumed that the record was in existence at the time of issuance of certified copy but looking to the fact that there is no record of depositing the record of revenue case in the record room, therefore, both the Courts below are justified in passing the impugned judgment and decree and disbelieving the certified copies of Ex-P/1 and Ex-P/2 being obtained by fraud and the presumption regarding them has been strongly rebutted by the respondents. There is no merit in the appeal as the suit of plaintiff is based on forged documents. This being so, the substantial question of law is answered against the appellant and in favour of respondents No.1 to 4. 22. Resultantly, the appeal filed by the appellant is dismissed. The appellant shall bear his own cost and shall also bear the cost of respondents. Counsel fee be calculated according to rules if pre-certified.