Khorbahara vs Tetkuram

The substantial question of law formulated and to be answered in the instant defendants' second appeal is as under:

“Whether on the facts and the circumstances of the case the appellate Court illegally reversed the judgment and decree of the trial Court by misreading the evidence and holding that the disputed land belongs to the plaintiffs (respondents herein)?”

During pendency of the instant appeal, Respondent 1/plaintif 1 Tetkuram died and, therefore, Respondents 1-A to 1-F, who are legal heirs of Tetkuram are brought on record. Further, defendant 1/Appellant 1 Khorbahara also died during pendency of this appeal and his legal heirs are already on record and, therefore, his name has been deleted from the array of cause title.

Facts of the case, in short, are that a suit for declaration, perpetual injunction and possession was fled by Respondents 1 to 3 claiming that the land bearing Khasra No. 888 area 0.10 hectares is ancestral property, which was earlier recorded in the name of their ancestor Ramdayal and after his death it is recorded in the name of Respondents No. 2 and 3 and original Respondent No. 1. However, the Appellants/defendants erected a house over the suit land despite objection. The plaintifs as also defendant Jagdish applied for demarcation. On their applications, the Tahsildar Berla submitted his report dated 21.1.2002. On this report, the plaintifs came to know that they are owners of the suit land on which the defendants have illegally made encroachment. With a view to end the dispute, it was agreed between the parties that 15 dismil out of the total 25 dismil land shall be purchased by the defendants for a sum of Rs.15,000 and agreement to this efect was entered into between the parties. However, the defendants neither got the sale deed executed nor did vacate the suit land. They also constructed a house over a part of the disputed land in the previous years. A legal notice for handing over possession of the suit land was sent and thereafter the suit was fled.

The defendants denied the allegations of the plaintifs made in the plaint and stated in their written statements that the father of the plaintifs namely Ramdayal died 16 years prior to fling of the suit. They have not encroached upon any land belonging to the plaintifs. It was further pleaded that one Kartikram sold his land situated at village Siwar to Khorbahara/deceased Appellant No.1 on 26.05.1952 and since then the defendants are in possession over the suit land and they have constructed there a house and they are residing in the said house. It was further pleaded that the plaintifs illegally demanded a sum of Rs.15,000 and got signature of the defendants on a plain paper. It was further pleaded that original plaintif Tetkuram was in possession over his land which is adjacent to the disputed land and the suit has been fled with an intention to harass the defendants. The Trial Court vide its judgment dated 30.8.2003 dismissed the suit of the plaintifs and recorded fnding that plaintifs have failed to prove that they are the owners and title holders of the suit land and further failed to prove that the defendants/Appellants have dispossessed them.

The Respondents/plaintifs fled an appeal against the judgment of the Trial court. The First Appellate Court vide the impugned judgment dated 27.1.2004 allowed the appeal and set aside the judgment and decree passed by the Trial court and granted a decree with costs in favour of the Respondents/plaintifs declaring that they are the owners of the suit land and they are entitled to recover possession of the suit land from the Appellants/defendants after demolition of the house and garden and further granted a decree of perpetual injunction against the interference. Hence, the instant second appeal by the defendants/Appellants.

During pendency of the instant appeal, the Respondents/plaintifs produced the Bandobast Survekshan (settlement renumbering) of the year 1981-82 i.e. Annexure A1, along with an application under Order 41 Rule 27 of the Code of Civil Procedure (in short 'the CPC'). The Respondent No.4/State also fled a re-numbering list. Vide judgment dated 27.09.2022 the said application fled under Order 41 Rule 27 of the CPC was allowed by this Court and pursuant to the provisions under Order 41 Rule 28 of the CPC, the certifed copy of the said documents along with the records of both the Courts below were sent to the First Appellate Court. Direction was also given to the First Appellate Court that the Court shall give the Appellants/defendants an opportunity to produce evidence in rebuttal if they so desire and then the First Appellate Court shall take evidence of the parties confning to legality and validity of such documents and documents, if any, are fled by the Appellants/defendants, in compliance of the judgment passed by this Court on 27.09.2022, First Appellate Court after taking additional evidence and providing proper opportunity to both the parties, send back the record along with additional evidence to this Court.

Shri Ravindra Kumar Agrawal, Learned Counsel appearing for the Appellants/defendants submitted that in the documents Ex.P-8 and Ex.P-9 i.e. Rajaswa Sarvekshan Misal of the year 1981-82 mentioned that Khasra No.182/1 was bifurcated and marked as Khasra No.888. Further referring to the document Ex.D-2 Khasra Panchsala of the year 1974-1975, it is submitted that in this document also Khasra No.182/1 is shown as Abadi land. Further referring to the document Ex.D-3 i.e. Adhikar Abhilekh Panji of year 1955-56, it is submitted that in this document also it is seen that the land bearing Khasra No.182/1 is reserved for Abadi land only. Thus, it is clear that the land in dispute is Abadi land. The Respondents/Plaintifs have claimed that the land in dispute is their ancestral property but in this regard they have not produced any evidence before both the Courts below. It shows that the land in question is not a Lagani land and is not their ancestral property. Mere mentioning their name in revenue records does not create any title over the suit land in their favour. Reliance has been placed by the learned Counsel in the case of Jitendra Singh Vs. State of Madhya Pradesh and Others (2021) SCC Online SC 802, and State of Madhya Pradesh Vs. Nomi Singh and Another reported in (2015) 14 SCC 450. With regard to the admissions made by Appellant No.4 – Bisram in the reply to the notice i.e. Ex.P-2, it is argued that this admission has only been made by Bisram and not by other Appellants/defendants. Therefore, this is not binding upon other Appellants/defendants. It is further argued that Bisram has only made his admission that they encroached the land bearing Khasra No.888. He has not made any admissions that the said land is the land of the Respondents/plaintifs or their ancestral land. Thus, no adverse efect is made in the interest of other Appellants/defendants with the admissions made by Appellant No.4 – Bisram. In this regard, Learned Counsel relied on the judgment passed by the Supreme Court in the case of Union of India Vs. Ibrahim Uddin and Another reported in (2012) 8 SCC 148.

Shri Rajkumar Pali, Learned Counsel appearing for Respondents No.1 to 3/plaintifs referring to the Prativedan dated 21.01.2003 i.e. Ex.P-3, the agreement executed between Respondent 1 – Tetkuram and Appellants/defendants and further referring to the admissions made by the Appellants/defendants in their written statements in paragraph 4, it is argued that the Appellants/defendants have admitted the fact that they encroached the land in dispute and constructed their house illegally. In the agreement i.e. Ex.P-2, they also agreed that they had purchased the land in dispute from the Respondents/plaintifs. Therefore, it is made clear that the land in dispute belongs to the Respondents/plaintifs wherein the Appellants/defendants have made illegal constructions. Thus, the First Appellate Court has rightly decreed the suit in favour of the Respondents/plaintifs.

Respondent No.4 i.e. State is the formal party, thus, no submission is made from the Learned State Counsel.

I have heard Learned Counsel appearing for the parties, perused the record of both the Courts below and also gone through the additional evidence which has been recorded by the First Appellate Court in compliance to order passed by this Court and other evidence available on record with utmost circumspection.

The suit was preferred by the Respondents No. 1 to 3/plaintiffs claiming that the land bearing Khasra No.888 area 0.10 hectares is their ancestral property, which was earlier recorded in the name of their ancestor Ramdayal and after his death it is recorded in the name of Respondent No.2 & 3 and original Respondent No.1 – Tetkuram. The documents Ex.P-8 and Ex.P-9 i.e. Rajaswa Sarvekshan Misal of 1981-82 and renumbering list of Rajaswa Sarvekshan Misal of the year 1981-82 respectively show that the land bearing Khasra No.888 was the part of Khasra No.182/1 which was bifurcated and marked as Khasra No.888. Khasra Panchsala of year 1974-75 i.e. Ex.D-2 clearly shows that Khasra No.182/1 is the Abadi land. From the same document, it is seen that in the year 1972-73, in column No.14 it is mentioned that in the said land father of Tetkuram i.e. Ramdayal had made illegal encroachment. Adhikar Abhilekh Panji of year 1955-56 also shows that Khasra No.182/1 was reserved as Abadi land. Balluram Yadav, additional witness No.1 of plaintifs in paragraph 2 of his cross-examination also admitted the fact that the land bearing Khasra No.182/1 is Abadi land. Thus, from the admissions made by Balluram in his cross-examination and from the documents as mentioned above, it is well established that Khasra No.888 is originally a part of Khasra No.182/1. From the beginning Khasra No.182/1 is Abadi land. Later, the said land was recorded in the name of Ramdayal in revenue records, thereafter, recorded in the name of other plaintifs.

It is settled law that merely mutation of property in revenue records neither creates nor extinguishes title to the property nor has it any presumptive value on title. Dealing with the issue in the case of Jitendra Singh (supra) it is held that by the Supreme Court that:

“7. Right from 1997, the law is very clear. In the case of Balwant Singh v. Daulat Singh (D) By Lrs., reported in (1997) 7 SCC 137, this Court had an occasion to consider the effect of mutation and it is observed and held that Court had an occasion to consider the effect of mutation and it is observed and held that mutation of property in revenue records neither creates nor extinguishes title to the property nor has it any presumptive value on title. Such entries are relevant only for the purpose of collecting land revenue. Similar view has been expressed in the series of decisions thereafter.”

In the case of Suraj Bhan v. Financial Commissioner, (2007) 6 SCC 186, it is observed and held by this Court that an entry in revenue records does not confer title on a person whose name appears in record-of-rights. Entries in the revenue records or jamabandi have only “fiscal purpose”, i.e., payment of land revenue, and no ownership is conferred on the basis of such entries. It is further observed that so far as the title of the property is concerned, it can only be decided by a competent civil court. Similar view has been expressed in the cases of Suman Verma v. Union of India, (2004) 12 SCC 689; T. Ravi v. B. Chinna Narasimha, (2017) 7 SCC 342; Bhimabai Mahadeo Kambekar v. Arthur Import & Export Co., (2019) 3 SCC 191; Prahlad Pradhan v. Sonu Kumhar, (2019) 10 SCC 259; and Ajit Kaur v. Darshan Singh, (2019) 13 SCC 70.”

With regard to the argument made by Shri Rajkumar Pali is concerned that the Appellants/defendants have made their admissions that they have made encroachment over the suit land, the admission has only been made by Appellant No.4/defendant i.e. Bisram and he has only admitted the fact that the defendants have illegally constructed their house in Khasra No.888. It has not been admitted by the defendants anywhere that the land bearing Khasra No.888 is the ancestor property of the Respondents/plaintifs or they have encroached any part of the land which is owned by the plaintifs. Therefore, the above admissions made by the Appellant/defendants do not create any adverse efect on their rights.

It is settled principle of law that in respect of the relief claimed by a plaintif, he has to stand on his own legs by proving his case. In the case in hand, the Respondents/plaintifs have claimed that the land in dispute is their ancestral property/land on which the Appellants/defendants have illegally made encroachment and constructed their house on it. But the Respondents/plaintifs have failed to prove the fact that the land in dispute i.e. Khasra No.888 is their ancestor property whereupon the Appellants/defendants have made encroachment and illegally constructed house on it. Rather from the evidence as discussed above, it is well established that the land in dispute i.e. Khasra No.888 is the part of Khasra No.182/1 and the said land was reserved as Abadi land from the beginning. Therefore, the fnding recorded by the First Appellate Court holding that the disputed land belongs to the Respondent/plaintifs is perverse and the impugned judgment passed is not in accordance with the evidence available on record. Thus, the substantial question of law formulated by this Court is answered in positive.

Resultantly, the appeal is allowed. Judgment and decree passed by the First Appellant Court dated 27.01.2004 is set-aside and the judgment and decree passed by the Trial Court dated 30.08.2003 is affirmed. A decree be drawn accordingly.