Badri Singh vs State of Madhya Pradesh

The appellant/original defendant no.1 has filed this second appeal under Section 100 of the Code of Civil Procedure against the decree passed on 18/8/2012 by Addl. District Judge Baidhan, District Singrauli in R.C.A. No.24-A/2012 reversing the decree passed on 8/5/2012 by Addl. Judge the to Court of Civil Judge Class-I, Singrauli in C.S. No.23-A/2010 and decreeing the suit filed by present respondent no.1/original plaintiff and declaring him Bhumiswami and possession holder of half share in agricultural lands bearing three old Survey Nos.567, 568 and 570, [after settlement changed new Survey No.362/2 area 0.19 hectare] of village Budhela Tehsil and District Singrauli and declaring the orders dated 10/3/1998 and 11/8/2008 passed by the NaibTehsildar Singrauli and Amiliya to be void and perpetual injunction against the appellant restraining him to interfere in possession of the plaintiff over his share in disputed lands.

Admittedly, appellant/ original defendant no.1 Sudarshan is real brother of the father of plaintiff late Shri Ramdulare and previously the agricultural lands bearing above mentioned old survey numbers, alongwith another land bearing old survey No.572 were jointly recorded in revenue papers in the names of these two brothers Ramdulare and Sudarshan. It would be significant to mention here that the trial Court had dismissed the appellant''s suit regarding declaration in relation to above mentioned three lands of three old survey numbers, but the trial Court had decreed and declared plaintiff''s A 1/2 share in reference to another land bearing old Survey No.572, whereas the plaintiff has not sought any relief regarding the land bearing old survey no.572 of the village Budhela.

This second appeal under Section 100 of the C.P.C. has been admitted by this Court on 12/2/14 after formulating following two substantial questions of law :- "(1) Whether the learned lower appellate Court is justified in reversing the judgment and decree passed by the learned trial Court by considering the khasra enteries which were not exhibited before the trial Court and for which, no application undr Order 41 Rule 27 of the CPC was pending before the lower appellate Court?

(2) Whether the learned lower appellate Court is justified in setting aside the order of partition dated 10/3/1998 passed without perusing the record of the revenue Court for ascertaining that the order has been passed without following due process of law mentioned in the M.P. Land Revenue Code with regard to proclamation of application for partition and effect of proclamation?"

Plaintiff Kashi Prasad filed the suit on pleadings that previously the agricultural lands of all the four above mentioned old survey numbers were owned by Rampratap Bramhan, which were purchased jointly by the father of plaintiff Ramdulare and his real brother defendant no.1 Sudarshan before the year 1980 and all the lands were jointly mutated by an order dated 26/8/1982 passed by the revenue inspector in the names of above mentioned two brothers and the A 1/2 share of these lands were separately possessed by the father of plaintiff during his lifetime and after the death of Ramdulare it remained in possession of the plaintiff. The land bearing old survey no.572 area 0.234 hectare was separately purchased by these brothers from Rampratap through a registered sale-deed. Thereafter, at the time of settlement, including the lands of all above mentioned four survey numbers, a new survey no.362 area 0.42 hectare was formed and at that time defendant no.1 Sudarshan or anyone did not object to it.

After long time, without intimating the plaintiff on 9/1/1998 defendant no.1 Sudarshan filed an application under Section 89, 115 and 116 of the M.P. Land Revenue Code in the Court of Naib Tehsildar, Singrauli impleading only State of M.P. as respondent on grounds that the lands of above-mentioned three old survey numbers were purchased only by him and the relating Revenue Court without giving any notice to the plaintiff passed an order on 10/3/1998, whereby the land of above mentioned old survey number No.372 was renumbered Survey No.362/1 jointly recorded in names of the plaintiff and defendant no.1, but the lands belonging to other three old survey numbers were renumbered as survey no.362/2 (disputed in this appeal) and recorded only under the name of defendant no.1 Sudarshan. The above mentioned order was obtained by defendant no.1 by illegal and fraudulent means without intimating plaintiff, which is against the law and void and ineffective. Thereafter under Section 250 of the M.P. Land Revenue Code defendant no.1 obtained an order dated 11/8/2008 regarding dispossession of the plaintiff from the land bearing new survey no. 362/2. Thus the suit was filed by the plaintiff for declaring the orders of relating Naib Tehsildar dated 16/4/2007 and 11/8/2008 to be void and ineffective on plaintiff and for declaration that the plaintiff is having title and possession over A 1/2 share in the disputed lands bearing three old survey numbers 567, 568 an 570 [after settlement new survey no.362/2 area 0.19 hectare] of village Budhela and for perpetual injunction against defendant no. 1 to protect the possession of plaintiff and if during the pendency of the suit, the plaintiff is dispossessed from possession of his A 1/2 share or if plaintiff''s possession is not found proved, then a decree for possession of it.

The defendant no.1 Sudarshan pleaded that the disputed lands bearing old survey numbers 567, 568 and 570 of the village concerned were purchased only by the defendant no.1 through registered sale-deeds and the disputed lands of these three old survey numbers remained in his sole possession. Plaintiff or his father was not having any share or possession over lands bearing above mentioned three old survey numbers. Only the land bearing old survey no.572 was jointly purchased by the plaintiff and defendant no.1 from Rampratap by a registered sale-deed and only A 1/2 share of the land bearing old survey no.572 is in possession and under title of the plaintiff. In the settlement proceedings happened in the year 1983, wrongly the disputed lands bearing above mentioned three old survey numbers were included with the land of old survey no. 572 and it was given a new survey number 362. The relating orders have been passed by the Revenue Courts in accordance with the law and in knowledge of the plaintiff. Plaintiff is not entitled to any relief. His suit be dismissed. Substantial question No.1.

It has been vehemently contended by the learned counsel for the appellant that it was the pleading of the plaintiff that the disputed land was joint and undivided property of his father and defendant no.1 Sudarshan, thus its burden of proof rests on the plaintiff and the plaintiff could not discharge this burden. Thus, the learned appellate erred in decreeing the plaintiff''s suit, whereas the trial Court was right in dismissing the plaintiff''s suit regarding suit-lands. It has also been argued by appellant''s counsel that the learned appellate Court had placed reliance on such certified copies of revenue records, which were not formally and legally exhibited and proved before the trial Court and no any application under Order 41 Rule 27 of the CPC was filed by the plaintiff before the appellate Court for consideration of additional documentary evidence, thus the learned appellate Court had erred in considering and relying on such certified copies of the revenue records.

On the other hand, the learned counsel for the plaintiff/respondent no.1 contended that relating certified copies of the revenue records were not obtained from Patwari, but were obtained from the office of Collector, District Sidhi and were filed before the trial Court alongwith list of documents dated 2/2/2009 and it is well settled that such certified copies of the public documents could be considered and relied on without being formally exhibited and these certified copies were not filed before the appellate Court, thus, the question of invoking the provision of Order 41 Rule 27 of the CPC by the Appellate Court is misconceived and confusing and it was the pleading of the defendant no.1 that he alone had purchased the lands bearing above mentioned three old survey numbers through registered sale-deeds, but the defendant no.1 remained unsuccessful in proving this pleading in absence of registered sale-deeds or its certified copies and there was material variation between the pleadings and evidence of defendant no.1 Sudarshan (D.W-1) on this point and thus, this appeal deserves to be dismissed.

In the case of Hiralal vs. Mangilal [ILR 2010 M.P. 1960], it has been held that any rule of burden of proof is irrelevant when the parties have led evidence and the evidence has been considered. Admittedly plaintiff is nephew of the appellant Sudarshan and there is approximately a difference of seventeen years between their ages. Being much younger then the appellant, respondent no.1 could not have personal knowledge about old transactions happened in his father''s lifetime. Appellant had clearly pleaded in his written statement (para no.2 and 3) that the disputed lands previously bearing old survey no.567, 568 and 570 were owned by Rampratap Bramhan and appellant alone had purchased it through registered sale-deeds, but appellant Sudarshan (D.W-1) though stated in his affidavit regarding examination-in-chief (Para No.2) filed under Order 18 Rule 4 of the CPC that disputed lands are not ancestral and joint family property and all the three disputed lands were purchased alone by him and thus, it is his self acquired property. But, contrary to it, in crossexamination (Para no.12) appellant deposed that the land bearing old survey no.567 was Govt. land and it was not purchased by him and the land belonging to old survey no.570 was also Govt. land and only the land bearing old Survey no.568 was purchased by him in the year 1977-78, but later on during the settlement Patwari had settled the lands bearing old survey nos. 568 and 570 in his name. In same para he denied the suggestion given by the opponent''s counsel that the lands having old survey no.570, 568 and 568 were previously owned by Rampratap Bramhan, whereas this fact was clearly admitted by him in first line of para no.3 of his written statement and on this point the deposition of appellant is falsified by the Ex.C-1, which indicates that previously all the three disputed lands were recorded in the name of Rampratap Bramhan. Thus, it is clear that there are material contradictions and variations between the pleadings and evidence of the appellant and the evidence given by appellant beyond the limits of his pleadings could not be relied on. Appellant had filed certified copy of a registered sale-deed (Ex.D-1) dated 23/1/1980, but it is relating to the land survey no.569, which is not disputed in this case. Thus, Ex.D-1 is not helpful for the appellant. Thus, it is clear that the appellant remained totally unsuccessful in proving that disputed lands previously bearing three different old survey numbers were purchased or acquired by appellant alone.

Appellant had pleaded in his written statement that during settlement occurred in the year 1983, disputed lands were clubbed with the fourth land bearing old survey no. 572, which was admittedly purchased jointly by him and his real brother Ramdulare (father of the plaintiff) through registered sale-deed (Ex.D-3) dated 14/11/1975. It is significant to mention here that the appellant did not produce or file any copy of revenue record for any year to demonstrate that the disputed land previously bearing three old survey nos.567, 568 and 570 were recorded in his name alone. Contrary to it, from certified copy of five years'' khasra (Ex.C-1) bearing office seals of Collector Sidhi relating to years 1979-80, 1980-81, 1981-82, 1982-83 and 1983-84 it is clear that all the disputed lands previously bearing old survey numbers 567, 568 and 570 were originally recorded in the name of Rampratap Bramhan and it is also clear from the entries made in this khasra that in compliance to an order dated 27/8/1982 passed in Revenue Case No.767/A/6/1981-82 these three lands were jointly mutated in the name of Sudharshan and his brother Ramdulare (father of the plaintiff). If these three disputed lands have been purchased only by the appellant, then by a common order dated 27/7/1982, all these lands would not have been mutated jointly in the names of appellant and his brother Ramdularey. This certified copy is tagged in the record of trial Court. It appears that it has been marked by the above mentioned appellate Judge as Ex.C-1 on the date 18/8/1912 and also bearing the signature of the ADJ, Sidhi. Under Section 117 of the M.P. Land Revenue Code, these khasra entries would be presumed to be correct in absence of evidence in rebuttal.

Above mentioned Ex.C-1 was a certified copy of khasra given by the office of the Collector Sidhi and being a certified copy of a public document, it is admissible even in absence of any marking and it was filed before the trial Court of Civil Judge alongwith list of documents dated 2/2/2009. In the case of Badri Prasad vs. State of M.P. [2010 (2) M.P.L.J. 337], this Court had observed as follows:- "11. So far as the second contention of learned counsel for the appellant is concerned, suffice is to say that the document Ex.P-1 is not a certified copy of Khasra. Had it been a certified copy of Khasra mere production would have been sufficient for its proof in terms of Section 77 of the Indian Evidence Act because Khasra (Revenue Record) is public document."

It is significant to mention here that if any document is filed before the trial Court, its copy is always given to the opposite party, so he could also file documents in rebuttal. It is clear that despite getting the copies of revenue records filed by the plaintiff, appellant did not file any copy of revenue record and any registered saledeeds relating to above mentioned three disputed old survey number. In such circumstance, adverse inference is drawn against the appellant. It is clear from the order passed by the Naib Tehsildar on 10/3/1998 (Ex.P-1=Ex.D-4) that no any sale-deed or its certified copy relating to disputed lands was filed even before the revenue Court and the Naib Tehsildar had passed this order only on the basis of Patwari''s report. It is also clear that plaintiff was not a party to the proceedings, though his father''s name was jointly recorded in revenue records. In the light of the case of Gaya Prasad vs. State of M.P. [ILR 2008 M.P. 3200] the order passed by Naib Tehsildar on 10/3/1998 deleting the name of plaintiff from the disputed lands without noticing him was clearly against the principles of Natural Justice. The learned appellate Court has legally and properly appreciated the oral and documentary evidence available on record.

Before trial Court despite appellant Sudarshan (D.W-1), Puru Soni (D.W.-2) and Sammodhi (D.W-3) were examined for the appellant and on the other hand plaintiff Kashi Prasad (P.W-1) and his witnesses Satyanarayan (P.W-2) and Ramhit (P.W-3) were examined, but the evidence of other witnesses was relating to separate living of appellant and his brother and on the point of possession. Admittedly, the appellant filed application under 250 of the M.P. Land Revenue Code for getting possession of the disputed lands from the plaintiff, thus, it was clear that the plaintiff was having possession over his share in disputed lands. Otherwise such petition would not have been filed before the Revenue Court. Thus, the discussion of evidence of other witnesses relating to possession appears to be meaningless.

It is clear from para 9 of the judgment of the appellate Court that it has recorded reasons for exhibiting the certified copies of public documents (Khasra) as Ex.C-1, C-2 and C-3 already tagged in the record of lower Court. As the certified copies were already filed before the trial Court, no any application under Order 41 Rule 27 of the CPC was necessary before the Appellate Court.

Thus the formulated first substantial question of law is answered in the affirmative as the learned lower appellate Court was totally justified in reversing the judgment and decree passed by learned trial Court and in considering the certified copies of revenue records, which were already filed before the trial Court and no application under Order 41 Rule 27 of the CPC was necessary, as no any additional documents were filed before the appellate Court by any of the parties. Substantial Question No.2.

It appears that the formulated second substantial question of law framed by this Court is erroneous and it also contains some irrelevant and misunderstood facts. The plaintiff had also sought the relief of declaration in relation to the orders passed by the Revenue Courts on 10/3/1998, 16/4/2007 and 11/8/2008.

It has been held by this Court in the case of Durga Singh vs. Smt. Jebobai (1982 Revenue Nirnaya 485) that a person having a decree passed in his favour relating to title by Civil Court can claim mutation in Revenue Record, as of right. Thus, the other relief claimed by the plaintiff in plaint declaring him title and possession holder of A 1/2 share in disputed land would have been sufficient.

The order passed on 10/3/1998 by Naib Tehsildar Singrouli had arisen from the application filed by the present appellant before it on 9/1/1998, whose certified copy is Ex.P-2 on record of the trial Court. It is clear from Ex.P-2 that the present appellant had filed the above application on 9/1/1998 under the provisions of Section 89, 115 and 116 of the M.P. Land Revenue Code, 1959. In the framed substantial question of law it has been wrongly mentioned that the order was relating to partition proceedings, because Section 89 of the above mentioned Land Revenue Code is relating to power of Sub Divisional Officer to correct errors. It is significant to mention here that the Naib Tehsildar could not have exercised power under Section 89, which were available only to Sub-Divisional Officer. Section 115 of the above mentioned Code is relating to correction of wrong entry in Khasra and in other land records by superior officers and Section 116 of the above mentioned Code is relating to disputes regarding entry in khasra or in any other records. Undisputedly, the Naib Tehsildar was having jurisdiction to consider any application under Section 115 and 116 of the Land Revenue Code, but it is clear from the order that even without noticing the plaintiff, who was a recorded co-owner he passed above mentioned order dated 10/3/1998.

The provision relating to partition of agricultural holding is embodied in the provision of Section 178 of the M.P. Land Revenue Code, titled as "Partition of Holding". Thus it is clear that substantial question of law no.2 has been wrongfully framed. Undisputedly, title in agricultural lands is decided only by Civil Courts and for deciding title and rights of the litigating parties, it is not necessary to call for the records of the concerned Revenue Courts. Naib Tehsildar''s order dated 10/3/1998 was filed before the trial Court by each of the parties and it has been discussed by each Court. It is clear form the above mentioned application (Ex.P-2) filed by the appellant before the Naib Tehsildar that cleverly appellant had not made the plaintiff a party in above mentioned application, though the plaintiff''s father was a recorded co-owner. As discussed above it was not an application for partition, thus, the points of proclamation of application for partition and effect of proclamation mentioned in the substantial question of law are totally irrelevant.

The findings relating to the framed second substantial question of law is that the lower appellate Court was totally justified in setting aside the order of the Naib Tehsildar dated 10/3/1998, which was actually relating to correction of Khasra entries and that order was not related to any partition proceedings and it was not necessary for the trial Court or for the appellate Court to peruse the records of Revenue Courts and no proclamation for any partition was issued by any revenue authority before passing of the order dated 10/3/1998 by the Naib Tehsildar Singrauli.

In the result, the second appeal filed by the appellant deserves to be and is hereby dismissed and the decree passed by the First Appellate Court is confirmed with no order as to costs. A decree be drawn up accordingly.