Shri Partap Singh (Since Dead) Thr … vs Shiv Ram (Since Dead) Thr Lrs. on 20 February, 2020


Supreme Court of India

Shri Partap Singh (Since Dead) Thr … vs Shiv Ram (Since Dead) Thr Lrs. on 20 February, 2020

Author: Hemant Gupta

Bench: Hon’Ble Dr. Chandrachud, Hemant Gupta

                                                                                    REPORTABLE

                                      IN THE SUPREME COURT OF INDIA

                                       CIVIL APPELLATE JURISDICTION


                                     CIVIL APPEAL NO. 1511 OF 2020
                              (ARISING OUT OF SLP (CIVIL) NO. 725 OF 2017)


          SHRI PARTAP SINGH (DEAD) THROUGH LRS.
          & ORS.                                                              .....APPELLANT(S)

                                                    VERSUS

          SHIV RAM (DEAD) THROUGH LRS.                                    .....RESPONDENT(S)




                                              JUDGMENT

HEMANT GUPTA, J.

1. The present appeal is directed against an order passed by the High

Court of Himachal Pradesh on 19th September 2016 whereby the

defendant’s second appeal was allowed and the suit for a

permanent injunction, mandatory injunction and rendition of

accounts was dismissed.

2. The suit was filed by plaintiff No. 1 claiming himself to be the owner

of land measuring 53 Bighas 11 Biswas and plaintiff No. 2 claiming

herself to be the owner of land measuring 12 Bighas 16 Biswas. The
Signature Not Verified

Digitally signed by
CHETAN KUMAR plaintiff No. 1 claimed to be ex-ruler of an erstwhile princely state of
Date: 2020.02.20
17:15:12 IST
Reason:

Dhami and that had been getting his property managed through

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various persons. The assertion of the plaintiffs is that the defendant

was appointed as a Manager to look after and manage the property

and was liable to render accounts to the plaintiffs after each crop

harvest i.e. twice a year. The defendant had been rendering the

accounts and used to be paid 10% management charges of the

income of properties. The defendant was also required to maintain a

register for keeping the account of income and expenditure as well

as an inventory of the property of the plaintiffs.

3. The plaintiffs allege that there was misfeasance by the defendant,

therefore, they terminated the agency and asked him to hand over

the charge of the properties. In view of the said assertion, the suit

for a permanent injunction, mandatory injunction and for possession

of 8 plots of land measuring 13 Bighas 14 Biswas was filed.

4. In the written statement, the defendant asserted that he is a tenant

and that suit is exclusively triable by the Revenue Court. He further

stated that he is paying one half Galla batai in respect of land

measuring 13 Bighas 2 Biswas for the last 12 years. The relevant

assertion made by the defendant reads thus:

“2. That in view of the submissions made in the
subsequent paras of this written statement, it is
manifestly clear that this is a dispute between a land
owner and a tenant and as such, this Court has got no
jurisdiction to try and determine the suit. The suit is
exclusively triable by Revenue Court and, therefore, it
deserves to be stayed.

2

                          xx                xx           xx

              On Merits

The facts which have not been specifically admitted
shall be deemed to have been denied by necessary
implication in the written statement hereinbelow.

1. Para 1 is admitted to the extent that the Plaintiff is
the owner of the land described in this para of the
Plaint. However, it may be submitted that the
Defendant is a tenant on payment of ½ Galla-batai in
respect of land measuring 13 Bighas 2 Biswas Kitas 7
Khewat Khatauni No.1/1 Khasra Nos. 50(6 Biswas),
Khasra No. 51 (3 Biswas) Khasra No. 302/52/1 (2
Bighas), Khasra No. 302/52/3 (17 Biswas), Khasra No.
303/52/1 (6 Bighas 17 Biswa), Khasra No. 52(2 Bighas
10 Biswas) and Khasra No. 68 (9 Biswas) situate in
Village Kannauri, Pargana Dhamer, Tehsil and District
Shimla for the last more than 12 years. The Defendant
has nothing to do with the other land described in this
para of the Plaint. The entries made in the Jamabandi
1981-82 referred to in this para in respect of the land
described in this para of the written statement are not
correct and are contrary to the facts on the spot.”

5. The learned trial court framed as many as 12 issues but for the

purpose of deciding the present appeal, Issue No. 3 is relevant

which reads thus:

“Whether there is a relationship of landlord and tenant
between the parties as alleged. If so, regarding what
property?”

6. The plaintiff appeared as PW-1 and examined some other witnesses.

The plaintiffs in evidence produced the revenue record i.e.

Jamabandi (Ex.P/1 to Ex.P/4) and Khasra Girdawari (Ex.P/5 to P/12)

wherein the property in dispute has been shown to be in the

ownership and possession of the plaintiffs.

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7. The learned trial court considering the oral evidence led by the

defendant returned a finding that the presumption of truth to the

revenue record, specially Jamabandi, stands rebutted as the witness

of the defendant has deposed that the defendant is in possession on

payment of one half Galla batai. The defendant has examined Iqwal

Ali (DW-2) and also examined Tulsi Ram(DW-5), in support of the

defendant’s plea that he is a tenant on payment of one half Galla

batai. Iqwal Ali (DW-2) claims himself to be in possession prior to

induction of the defendant as tenant whereas Tulsi Ram and Gosaun

are said to be the persons who were collecting rent for the plaintiffs.

Such witnesses have deposed that they were paying rent on behalf

of the defendant. On the basis of the evidence recorded, the learned

trial court returned a finding that though plaintiffs have proved

themselves to be the owners of the suit land but the land measuring

13 Bighas 2 Biswas was found to be in possession of the defendant

as a tenant, thus granted decree for prohibitory injunction except in

respect of land found in possession of defendant as tenant.

8. The first appeal against the said judgment was allowed by the

learned District Judge on 26th May 1997. However, in the second

appeal preferred by the defendant, the High Court remitted the

matter to the First Appellate Court to examine the following two

questions:

“1. Whether the defendant is in possession of the land
measuring 13 Bighas 2 Biswas (detailed above) as a
tenant or a trespasser?

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2. Whether the plaintiffs are entitled to a decree for
possession of the said land?”

9. The learned Additional District Judge after the remand allowed the

appeal, inter alia, for the reason that the pleading did not show

when the tenancy was created and, if so, whom and what were the

terms and conditions of the tenancy.

10. It may be noticed that the plaintiffs have claimed the defendant to

be the Manager of their Estate but there is concurrent finding that

plaintiffs have failed to prove that the defendant was their Manager.

The defendant has admitted the ownership of the plaintiffs over the

suit land but asserted himself to be the tenant. The onus of proof of

Issue No. 3 was on the defendant. The ownership of the plaintiffs

over the suit land not being in dispute, the onus of proof of

relationship of landlord and tenant was rightly placed on the

defendant. Therefore, the question required to be examined is as to

whether the entries in revenue record such as Jamabandi (Ex.P/1 to

P/4) and Khasra Girdawari (Ex.P/5 to P/12) carrying presumption of

truth stand rebutted by the oral testimony. Some of the provisions of

the Himachal Land Revenue Act, 19541 read as under:-

“32. Record-of-rights and documents included
therein.

(1) Save as otherwise provided by this Chapter,
there shall be a record-of-rights for each estate.
(2) The record-of-rights for an estate shall include
the following documents, namely:-

1 For short “1954 Act”

5

(a) Statements showing, so far as may be practicable:

(i) the persons who are land-owners, tenants or
assignees of land revenue [in the estate of who] receive
any of the rents, profits in the estate, or who are entitled
to the produce of the estate, or to occupy land therein;

(ii) the nature and extent of the interests of those
persons, and the conditions and liabilities attaching
thereto; and

(iii) the rent, land revenue, rates, cesses or other
payments due from and to each of those persons and to
the Government;

(b) a statement of customs respecting rights and
liabilities in the estate.

(c) a map of the estate; and

(d) such other documents as the Financial Commissioner
may, with the previous sanction of the State Government
prescribe.

xx xx xx

Section 34. [Periodical] Record. – (1) The Collector shall
cause to be prepared by the patwari of each estate yearly,
or at such other intervals as the Financial Commissioner
may prescribe, an edition of the record of rights amended
in accordance with the provisions of this Chapter.

(2). This edition of the records of rights shall [omitted the
Act no. 21 of 1976] comprise the statements mentioned in
sub-section (2) clause (a) of Section 32 and as such other
documents, if any, as the Financial Commissioner may,
with the previous sanction of the State Government
prescribe.

(3) For the purpose of the preparation of the annual
record, the Collector shall cause to be kept up by the
patwari of each estate a register of mutations and such
other register as the Financial Commissioner may
prescribe.

xx xx xx

Section 45. Presumption in favour of entries in
records-of-rights and [periodical] records. – An
entry made in a record-of-rights in accordance with the
law for the time being in force, or [periodical] record in

6
accordance with the provisions of this Chapter and the
rules thereunder, shall be presumed to be true until the
contrary is proved or a new entry is lawfully substituted
therefor:

Provided that notwithstanding anything contained
in this section any entry made, in the areas comprised in
Himachal Pradesh immediately before 1st November,
1966 [during the period between the first day of April,
1948 and the first day of April, 1956] in record-of-rights
or in [a periodical] record where by the land is shown as
under self cultivation shall not be presumed to be true.

Section 46. – Suit for declaratory decree by persons
aggrieved by an entry in a record. -if any person
considers himself aggrieved as to any right of which he is
in possession by an entry in a record-of-rights or in a
[periodical] record, he may institute a suit for a
declaration of his right under Chapter VI of the Specified
Relief Act, 1963.”

11. The High Court allowed the defendant’s appeal and held that there

is nothing on record to establish that the defendant was appointed

as a Manager and that he was not a tenant. The High Court held as

under:

“19. ……The plaintiffs have not brought on record any
documentary evidence which demonstrates that the
defendant was managing the property of the plaintiffs as
Manager and not as a tenant. The plaintiffs have placed
on record copies of jamabandi, Ex.P-1 to P-4 and copies
of khasra girdawari, Ex.P-5 to P-12, which depict that the
suit land is in ownership and possession of the plaintiffs.
No doubt presumption of truth is attached to the copy of
jamabandi, but this presumption is always rebuttable.

xx xx xx

28. From the above, it stands fully established on record
that the plaintiffs used to receive galla batai from the
defendant for the land measuring 13.2 bighas and the
presumption of truth attached to the revenue entries
showing the plaintiff as owner -in-possession of the said

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land stands rebutted. Even otherwise, also as far as the
possession of the defendant qua the suit land is
concerned, it is admitted by the plaintiff, but the case of
plaintiff is that the defendant was his servant. At the same
time, as has been observed hereinabove, the plaintiff has
failed to bring any document on record with respect to the
appointment of the defendant as a servant, salary paid to
him and conclusion is that the defendant was a tenant of
the plaintiff on the land to the extent of 13.2 bighas.”

12. The presumption of truth attached to the Jamabandi was said to be

rebutted on the basis of a statement of original defendant Shiv Ram

(DW 1) who claims to be in possession of the suit land from last 15-

16 years. He deposed that prior to him, Iqwal Ali (DW-2) was in

possession of the suit land. Iqwal Ali (DW-2) deposed that he used to

cultivate the land prior to the defendant. Tulsi Ram (DW-5) and

Gosaun were stated to be the servants of plaintiff No. 1 and, in that

capacity, they used to collect the rent from the defendant for

payment to the plaintiff.

13. The defendant also examined Lalita Chauhan (DW-8), Revenue

Officer, who has produced the record of the revenue proceedings

relating to correction of the revenue entries. The High Court relied

upon the statements recorded in such revenue proceedings to hold

that in an inquiry conducted by Kanungo, pursuant to the

application moved by the defendant, there was a recommendation

for correction of the revenue record.

14. The record produced by Lalita Chauhan (DW-8) for correction of

Khasra Girdawari entries is not relevant and admissible before the

8
Civil Court. The proceedings before the Revenue Officer for

correction of revenue record are summary in nature. The statements

recorded by the Revenue Officer during the proceedings for

correction of revenue record are not per se admissible in evidence.

Maybe the evidence of the witnesses could be used to confront the

witness being a previous statement if such a statement is made on

oath. Therefore, the reference of corrections of Khasra Girdawari

proceedings is wholly unwarranted when such entries are not proved

to be incorrect.

15. As per Section 32(2)(a) of the 1954 Act, record-of-rights, i.e.

Jamabandi, shall include the name of persons who are landowners,

tenants or assignees of land revenue and also the rent, land

revenue, rates, cesses or other payments due from and to each of

those persons and to the Government. On the other hand, the

periodical record, i.e. Khasra Girdawari, as mentioned in Section 34

of the 1954 Act, is to be prepared every year as the proof of the

statements, as mentioned in sub-section (2) clause (a) of Section 32,

which includes the name of the landowners, tenants and the rent

and land revenue payable. In terms of Section 45 of the 1954 Act,

the record-of-rights as prepared in terms of Sections 32 and 34 of

the 1954 Act carries a presumption of truth. Still further, any person

who is aggrieved by any entry in the record-of-rights or in a

periodical record has a right to invoke the jurisdiction of the Civil

9
Court for correction of the entries in terms of Section 46 of the 1954

Act.

16. The detailed procedure for recording of periodical record-of-rights as

well as the record-of-rights in terms of Sections 32 & 34 of the 1954

Act has been prescribed. The record-of-rights contains entries of the

revenue record for the four years. Such record-of-rights carries the

presumption of correctness in terms of Section 45 of the 1954 Act

and also Section 35 of the Indian Evidence Act, 18722. Section 109

of the Evidence Act further contemplates that whether there exists

a relationship of landowner and tenant and the burden of proving

such a relationship is on the person who affirms it. The relevant

provisions of the Evidence Act read as under:

“35. Relevancy of entry in public record or an
electronic record made in performance of duty.—An
entry in any public or other official book, register or
record or an electronic record, stating a fact in issue or
relevant fact, and made by a public servant in the
discharge of his official duty, or by any other person in
performance of a duty specially enjoined by the law of
the country in which such book, register, or record or an
electronic record is kept, is itself a relevant fact.

xx xx xx

109. Burden of Proof as to relationship in the
cases of partners, landlord and tenant, principal
and agent.- When the question is whether persons are
partners, landlord and tenant, or principal and agent, and
it has been shown that they have been acting as such,
the burden of proving that they do not stand, or have
ceased to stand, to each other in those relationships
respectively, is on the person who affirms it.”

2 For short “the Evidence Act”

10

17. In the State of Himachal Pradesh, Jamabandi, under Section 32 of

the 1954 Act as well as Khasra Girdawari, under Section 34 of 1954

Act, both are record-of-rights in terms of Section 32 of the 1954 Act,

and have statutory presumption of truth. How that presumption can

be inferred has come up for consideration before this Court in

Harish Chander and Others v. Ghisa Ram and Another3. This

Court held that the entries in the Jamabandi carry presumption of

truth but such presumption is rebuttable. Once that presumption is

raised, still another comes to the aid of respondent No. 1 by reason

of the rule contained in Section 109 of the Evidence Act, namely,

that when two persons have been shown to stand to each other in

the relationship of landlord and tenant, the burden of proving that

such relationship has ceased, is on the party who so asserts. It was

held as under:

“2. ……Apart from the oral evidence there is no material
on the record which may indicate the falsity of any of the
entries in the revenue records and we are of the opinion
that the lower courts were fully justified in relying on
them.

xxx xxx xxx

6. No suspicion can attach to the entries in the
Jamabandi for the year 1959-60, nor have the contents of
that document been assailed before us. A presumption of
truth attaches to those entries in view of the provisions
of Section 44 of the Punjab Land Revenue Act. That
presumption is no doubt rebuttable but no attempt has
been made to displace it. Further, once that presumption
is raised, still another comes to the aid of Respondent 1
by reason of the rule contained in Section 109 of the
Indian Evidence Act, namely, that when two persons

3 (1981) 1 SCC 431

11
have been shown to stand to each other in the
relationship of landlord and tenant, the burden of proving
that such relationship has ceased, is on the party who so
asserts. It may therefore be legitimately presumed that
the plaintiff continued to possess the land as a tenant till
the institution of the suit.”

18. The present is a case where no relationship of landlord and tenant is

mentioned in the revenue record though required in terms of Section

32(2)(a) of 1954 Act. In the absence of entry in the revenue record,

which is also expected to contain the entry of rent and possession,

the tenancy cannot be treated to be in existence only on the basis of

oral evidence of the witnesses examined by the defendant. The

burden of proving the relationship was on the defendant. Such

burden cannot be said to be rebutted only by oral evidence. The

witnesses may lie but the documents do not, is a golden rule. The

presumption of truth attached to the revenue record can be

rebutted only on the basis of evidence of impeccable integrity and

reliability. The oral evidence can always be adduced contrary to the

revenue record but such oral testimony will not be sufficient to hold

that the statutory presumption stands rebutted.

19. This Court in Vishwa Vijai Bharti v. Fakhrul Hasan & Ors.4 held

that the entries in the revenue record ought to be generally

accepted at their face value and courts should not embark upon an

appellate inquiry into their correctness. But the presumption of

4 (1976) 3 SCC 642

12
correctness can apply only to genuine, not forged or fraudulent

entries. This Court held as under:

“14. It is true that the entries in the revenue record
ought, generally, to be accepted at their face value and
courts should not embark upon an appellate inquiry in to
their correctness. But the presumption of correctness can
apply only to genuine, not forged or fraudulent, entries.
The distinction may be fine but it is real. The distinction
is that one cannot challenge the correctness of what the
entry is the revenue record states but the entry is open
to the attack that it was Made fraudulently or
surreptitiously. Fraud and forgery rob a document of all
its legal effect and cannot found a claim to possessory
title.”

20. This Court in a judgment reported as Guru Amarjit Singh v.

Rattan Chand and Others5 was examining a dispute of

relationship of landlord and tenant. A copy of more than thirty years

old lease deed was produced to prove the relationship between

landowner and tenant. However, the revenue record did not show

any payment of rent but only existence of terms of lease to pay rent.

This Court held that non-production of the receipts of payment of

rent clearly indicates that there was no relationship between

landlord and tenants.

21. In a judgment reported as Sodhi Transport Co. and Others v.

State of U.P. and Others6, this Court was considering Section 28-B

of the Uttar Pradesh Sales Tax Act, 1948 which raises a presumption

of sale of goods in a manner prescribed therein. This Court

5 AIR 1994 SC 227
6 (1986) 2 SCC 486

13
considered Section 4 of the Evidence Act and also the previous

judgments and held as under:

“14. A presumption is not in itself evidence but only
makes a prima facie case for party in whose favour it
exists. It is a rule concerning evidence. It indicates the
person on whom the burden of proof lies. When
presumption is conclusive, it obviates the production of
any other evidence to dislodge the conclusion to be
drawn on proof of certain facts. But when it is
rebuttable it only points out the party on whom lies the
duty of going forward with evidence on the fact
presumed, and when that party has produced evidence
fairly and reasonably tending to show that the real fact
is not as presumed the purpose of presumption is over.
Then the evidence will determine the true nature of the
fact to be established. The rules of presumption are
deduced from enlightened human knowledge and
experience and are drawn from the connection, relation
and coincidence of facts, and circumstances.”

22. In another judgment reported as Kumar Exports v. Sharma

Carpets7, this Court examined the presumption of fact in

proceedings under Section 138 of the Negotiable Instrument Act,

1881. It was held that bare denial of the passing of the

consideration and existence of debt, apparently would not serve the

purpose of the accused. Something which is probable has to be

brought on record for getting the burden of proof shifted to the

complainant. It was held as under:

“21. The accused has also an option to prove the non-

existence of consideration and debt or liability either by
letting in evidence or in some clear and exceptional
cases, from the case set out by the complainant, that is,
the averments in the complaint, the case set out in the
statutory notice and evidence adduced by the
complainant during the trial. Once such rebuttal
evidence is adduced and accepted by the court, having

7 (2009) 2 SCC 513

14
regard to all the circumstances of the case and the
preponderance of probabilities, the evidential burden
shifts back to the complainant and, thereafter, the
presumptions under Section 118 and 139 of the Act will
not again come to the complainant’s rescue.”

23. The presumption of truth attached to the revenue record can be

rebutted if such entry was made fraudulently or surreptitiously

(Vishwa Vijai Bharti’s case) or where such entry has not been

made by following the prescribed procedure (Bhimappa

Channappa Kapali (Dead) by LRS. v. Bhimappa Satyappa

Kamagouda (Dead) by LRS. and Others 8). Even in Guru

Amarjit Singh, where thirty years old lease deed was produced,

this Court had not accepted the proof of the relationship between

landowner and tenant in absence of receipt of payment of rent.

24. Therefore, we find that the presumption of truth attached to the

record-of-rights can be rebutted only if there is a fraud in the entry

or the entry was surreptitiously made or that prescribed procedure

was not followed. It will not be proper to rely on the oral evidence to

rebut the statutory presumption as the credibility of oral evidence

vis-a-vis documentary evidence is at a much weaker level.

25. In view thereof, we find that the High Court has erred in law in

allowing the defendant’s appeal relying upon oral evidence to rebut

the statutory presumption of truth attached to the revenue record.

The onus of proof was placed on the defendant by the learned trial

court. The burden is on the person who asserts such a relationship

as per Section 109 of the Evidence Act. The defendant has failed to

8 (2012) 13 SCC 759

15
rebut the presumption of truth on the basis of reliable, trustworthy

and cogent documentary evidence to prove the relationship of a

tenant.

26. Consequently, the order of the High Court is set aside and the

judgment and decree passed by the First Appellate Court is affirmed.

The appeal is allowed.

…………………………………….J.

(L. NAGESWARA RAO)

…………………………………….J
(HEMANT GUPTA)
NEW DELHI;

FEBRUARY 20, 2020.

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