Sk. Asif Hussain & Anr. vs Ajamkhan & Ors.

In the present petition, the challenge is to the order dated 15.02.2016 passed in the execution proceeding, whereby the objection filed by the petitioners vide Exhibit-18 was rejected and the application filed by the decree holder at Exhibit-138 in Regular Darkhast No. 2 of 2010 was allowed.

In the present petition, in order to understand the controversy involved in the matter, it would be relevant to record the basic facts of the matter.

It is the case of the respondents that they are the owners of land bearing Survey No. 338 situated at Aheri, Tahsil Aheri, District Gadchiroli. The total area of the land was 0.08 HR, that is, 800 square metres or 8611.2 square feet. Out of this property, the father of the respondents, late Mehboob Khan Pathan, had transferred 0.04 HR land in favour of Duran Khan, son of Amir Khan, and Abdul Khan, son of Amir Khan Pathan. After the said transaction, a portion of the land admeasuring 0.04 HR was renumbered as Survey No. 338/3. It is further seen that the father of the respondents, late Mehboob Khan, transferred 0.02 HR land out of the said survey number in favour of the father of the petitioners. The said land was renumbered as Survey No. 338/2. In view of the transfer of 0.06 HR land as stated above, the remaining 0.02 HR land out of Survey No. 338 was still in possession of the respondents.

Respondent Nos. 1 to 5 filed a suit for possession of the immovable property against the petitioners. The suit was registered as Regular Civil Suit No. 3 of 2005 and was subsequently renumbered as Regular Civil Suit No. 65 of 2009. The suit for possession was dismissed by the learned Civil Judge, Junior Division, Aheri, vide judgment dated 24.08.2009. Against the said judgment, the respondents filed a statutory appeal before the District Court, bearing Regular Civil Appeal No. 65 of 2009. The said appeal was allowed vide judgment and decree dated 12.04.2010. The petitioners challenged the said decree for eviction in Second Appeal No. 397 of 2010, but the Second Appeal was dismissed vide judgment dated 28.09.2010. So also, the Hon'ble Supreme Court dismissed the appeal filed by the petitioners. As a result, the judgment and decree passed by the learned Principal District Judge, Gadchiroli, dated 12.04.2010 attained finality in the matter.

Based on the decree for possession passed in favour of the respondents, execution proceeding bearing Regular Darkhast No. 2 of 2010 came to be filed by the respondents and, in the said execution proceeding, the area of the property was initially mentioned as 0.02 HR.

Learned counsel for the petitioners has stated that their father, during his lifetime, had purchased 0.02 HR land from the father of the respondents under an unregistered sale deed, which was titled as 'Sammatipatra'. The land which was purchased was admeasuring 0.25 HR, adjoining the portion of 0.02 HR, and was a part of old Survey No. 339. Learned counsel for the petitioners further states that the owner of the said land, namely, Sheikh Wazir Sheikh Mira, permitted the father of the petitioners to occupy the said land and an entry in that regard is available in the revenue record, more particularly, from the year 1973-74 to 1976-77, bearing Form No. P-11, that is, the five-year extract of survey pertaining to land bearing Survey No. 339. So also, the 7/12 extract of the said area of Survey No. 339 shows possession of the father of the petitioners over the said land. As such, it is the contention of the petitioners that they are in possession of 0.45 HR land. Out of 0.45 HR land, the house of the petitioners is standing on 0.25 HR land bearing Survey No. 339, whereas 0.02 HR land bearing Survey No. 338/2 is open land in possession of the petitioners.

It is further submitted by learned counsel for the petitioners that, in view of the decree of the appellate Court, the petitioners have no objection to handing over possession of 0.02 HR land to the respondents in terms of the judgment and decree dated 12.04.2010.

In the background of these facts, the petitioners had initially filed an objection before the Executing Court vide Exhibit-18, inter alia, contending that there was no proper identification of the land and the said fact was also not clear from the judgment of the appellate Court and, therefore, identification of the land was necessary. The said objection was rejected by the Executing Court vide order dated 20.01.2011. The said order was the subject matter of challenge before this Court in Writ Petition No. 712 of 2011. This Court, while considering the grievance raised in the petition, observed that the decree holders had filed the execution proceeding for possession of land bearing Survey No. 338/2, having an area of 0.02 HR, which is 2000 square feet. The said survey number had been renumbered as City Survey No. 993, having a total area of 445.46 square metres (4794.94 square feet). In view of this, the Trial Court could not have passed an order holding that the execution was in respect of Survey No. 338/2 or City Survey No. 993 admeasuring 4794.94 square feet. Hence, this Court set aside the order passed by the Executing Court and, keeping the question of identification and area of the suit property, which was the subject matter of the decree passed in appeal, open to be adjudicated by the Executing Court, remanded the matter to the Executing Court for deciding the objection at Exhibit-18 afresh in accordance with law.

In view of the order of this Court, the respondents had moved an application seeking appointment of a Court Commissioner for measurement of the suit property in order to execute the decree. The said application was allowed and the Deputy Superintendent of Land Records, Aheri, was appointed as a Court Commissioner. The said Officer submitted his report on 23.10.2015 vide Exhibit-123 along with a measurement map. The petitioners had raised an objection to the Commissioner's report. However, despite the objection, the respondents did not examine the Court Commissioner before the Executing Court.

On behalf of the petitioners, in light of the directions issued by this Court to identify the suit property which was the subject matter of the decree, an application was moved seeking permission to lead evidence in support of their objection. On behalf of the petitioners, petitioner No. 2, namely, Sheikh Ismail Taj, son of Altaf Hussain, entered the witness box and evidence was led principally for the purpose of identification of the property.

In the evidence of petitioner No. 2, it was brought on record that the old survey numbers were replaced by city survey numbers. It is the case of the petitioners that old Survey No. 338 does not includes Survey No. 991, which is in possession of the petitioners; however, it was clarified that City Survey No. 991 is a part of old Survey No. 339 and not old Survey No. 338. The renumbering sheet (renumbering parcha), which was prepared by the Revenue Department in the matter, was also placed on record to substantiate the said submission. Learned counsel for the petitioners further placed on record an inquiry register (chaukashi panji) pertaining to Survey No. 339, which indicates that the portion of the said survey number admeasuring 445.46 square metres was renumbered as City Survey No. 991. As such, on the basis of this documentary evidence, it is pointed out by the petitioners that the entire land in possession of the petitioners bears City Survey No. 991, which is a part of old Survey No. 339, whereas the execution proceeding which has been filed is in respect of Survey No. 338. In support of the submission, petitioners also examined employee of Deputy Superintendent of Land Record namely Satish Ambar Borse.

It is pertinent to note that, before the Executing Court, no one entered into the witness box on behalf of the respondents for the purpose of identification of the property. As such, the only on the basis of evidence which was made available before the Executing Court for identification of the property was that of petitioner No. 2 and one Satish Ambar Borse, who was working as Deputy Superintendent of Land Records, Aheri.

It would be further necessary to record that the said Satish Borse confirmed the fact that the old survey numbers were replaced by the city survey numbers by way of renumbering parcha. He confirmed the renumbering parcha which was placed on record by the petitioners to establish the fact that City Survey No. 991 is a part of old Survey No. 339 and not old Survey No. 338.

The witness, namely, Satish Ambar Borse, was cross-examined by the petitioners in the matter and, in the cross-examination, he stated that, during the measurement, initially the maps are prepared and thereafter new numbers are assigned to the properties. According to him, while preparing the renumbering extract and inquiry register, the map is an important document and the said map was not available with him; therefore, he could not point out whether the renumbering done by the authorities was exactly correct or not. The said witness further admitted that he did not have a map showing Survey No. 991 as a part of old Survey No. 338, nor did he have a map showing Survey No. 991 as a part of Survey No. 339.

After recording this evidence, the Executing Court proceeded to decide the objection filed by the petitioners vide Exhibit-18 and the application filed by the respondents for execution of the decree vide Exhibit-138 by passing a common order and thereby held that the objection raised by the petitioners vide Exhibit-18 was rejected and the application filed by the respondents for executing the decree was allowed and, accordingly, issued a possession warrant in the matter. The same is the subject matter of challenge before this Court in the present petition.

In the earlier round of litigation, while rejecting the objection at Exhibit-18, this Court remanded the matter by order dated 09.11.2011. This Court, while keeping the question of identification and area of the suit property open, directed the Executing Court to adjudicate the said issue in the execution proceedings. Learned counsel for the petitioners, to substantiate his submission, has placed on record the relevant entries of the revenue record and examined the Officer of the Land Records Department. The respondents, for the purpose of identification of the property, did not enter the witness box nor examine any witness in the matter.

In the present matter, the documents placed on record by the petitioners, particularly the renumbering parchas, are the relevant documents to decide the controversy in the matter. The renumbering parcha prepared by the office of the Deputy Superintendent of Land Records, Aheri, and supplied to the petitioners in respect of old Survey No. 338 specifically mentions that the same was divided into three numbers, namely, 990, 992 and 993. In respect of old Survey No. 339, it is shown that the same was divided into new numbers 846, 851, 853, 854 and 991. As such, on the basis of these documents, it is the submission of the present petitioners that Survey No. 991 is a part of old Survey No. 339. The same was not included in Survey No. 338.

Learned counsel for the respondents, for the purpose of identification of the property, has solely relied upon the cross-examination of the Officer of the Land Records Department, namely, Satish Borse. According to learned counsel for the respondents, the learned Executing Court had rightly drawn the conclusion from the admission made in his cross-examination that the documents produced by the petitioners, that is, the renumbering parchas, are not substantive pieces of evidence unless the map on the basis of which the measurement was carried out is produced on record.

In the light of this controversy, I have perused the evidence of Satish Borse and his cross-examination conducted by the respondents in the matter. The said witness, in his cross-examination, stated that the renumbering of the survey numbers is done on the basis of a map drawn by them. However, admittedly, the said map was not available before the witness, nor was the same directed to be produced by the Executing Court to confirm the said fact. Therefore, it is clear that the Executing Court, on the presumption that the correct map was not available, proceeded on the basis that there was a possibility that old Survey No. 339 might be a part of Survey No. 991 and, on that basis, drew the conclusion in the matter.

In this regard, it would be relevant to consider the settled principles of law which state that revenue records are public documents maintained by Government officials in the regular course of their duties and carry a presumption of correctness under Section 35 of the Indian Evidence Act. The said entries can be disproved; however, for that purpose, substantive evidence is required to be brought on record, and merely on the basis of assumption and presumption, the said documents cannot be discarded by the Court. The Hon'ble Supreme Court in the case of State of Haryana and another vs. Amin Lal reported in 2024 SCC Online SC 3368 has specifically considered the identical issue and observed in para 8 as under:

In the present matter, it is also pertinent to note that the suit which was filed by the respondents for possession was in respect of possession of 0.02 HR land only out of Survey No. 338. So also, the Appellate Court, by its judgment dated 12.04.2010, has specifically recorded in paragraph 1 that the suit relates to 0.02 HR land out of Survey No. 338/2 and referred to the same as the suit property while deciding the appeal. The operative portion of the judgment also states that the present petitioners are directed to deliver vacant possession of the suit property within a period of three months. As such, the entire controversy arose and was decided in respect of 0.02 HR land in the original proceeding.

It would be further relevant to note that the original execution proceeding filed by the respondents on 15.07.2010 was also for 0.02 HR land out of Survey No. 338/2. Therefore, it is clear that the respondents were also of the opinion that they had to recover 0.02 HR land from the petitioners.

In the present matter, it seems that, only because of the renumbering of the survey numbers and the property on which the house is constructed by the petitioners being recorded in City Survey No. 991, showing the total area of 445.46 square metres, the respondents have amended the execution proceeding and now, by way of amendment, they are claiming an area of 445.46 square metres from City Survey No. 991.

In the circumstances, in my considered opinion, the learned Executing Court, while deciding the application, failed to consider the real controversy involved in the matter while deciding the execution proceedings. The learned Executing Court, only on the basis of the cross-examination of the Officer of the Land Records Department, namely, Satish Borse, who stated that there was a possibility of inclusion of some property in Survey No. 991, drew the conclusion that Survey No. 991 was a part of old Survey No. 338, which is contrary to the revenue record, and consequently passed the impugned order.

In the present matter, the petitioners have already handed over the possession of 0.02 HR land, which they were required to hand over as per the decree of the Appellate Court. The respondents in view of above discussion are not entitled to claim the further 0.25 HR land from the present petitioners. Accordingly, the following order is passed:

The impugned order passed by the Civil Judge, Junior Division, Aheri in Regular Darkhast No. 2 of 2010 below Exhibit-18 and 138 is hereby quashed and set aside.

The objection filed by the petitioners vide Exhibit-18 in the execution proceedings is allowed.

The Petition stands disposed of. No order as to costs.