REPORTABLE IN THE SUPREME COURT OF INDIA

 CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.516 OF 2009

DHARAM SINGH (D) THR. LRS. & ORS.   ...APPELLANTS  

Vs.

PREM SINGH (D) THR. LRS. ...RESPONDENTS  

J U D G M E N T

ASHOK BHUSHAN, J.

This  appeal  has  been  filed  challenging  the

judgment  dated  28.07.2006  of  High  Court  of

Uttarakhand  by  the  appellants,  who  were  the

plaintiffs in suit No. 9 of 1992.  The High Court by

its judgment has allowed the first appeal filed by

the defendants-respondents setting aside the judgment

and decree dated 13.08.1996 of the District Judge in

Suit No. 9 of 1992.      

2. The  brief  facts  of  the  case  necessary  to  be

noticed for deciding this appeal are:

2.1 One Badri Aswal was the owner of agricultural

land  in  Khata/Khatauni  No.  46  of  Village

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Gyansu,  District Uttar Kashi (earlier part

of Tehri Garhwal) measuring a total of 62

Nali and 1 muthi.  The said Badri had no

issue.  He married one Tulsa Devi.  It is

claimed that Tulsa Devi adopted one Bhopalu

as her son after death of her husband but

Bhopalu’s name could never be mutated in the

Revenue  records.    Tulsa  Devi  died  much

before  independence.   One  Amar  Singh,

predecessor-in-interest of appellants claimed

to be looking after the affairs of Bhopalu

and  paying  land  revenue  on  his  behalf.

Bhopalu  also  died  before  independence  and

after death of Bhopalu, Amar Singh continued

to  be  in  possession  of  land  belonging  to

Tulsa Devi. Tulsa Devi’s name continued in

revenue records.  Amar Singh claimed to be in

possession of the land.  According to law as

was in force in Tehri Garhwal at that time

that  when  a  tenant/owner  dies  without  an

heir, the land is escheated to State.  For

the reason, Tulsa Devi died without an heir,

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the  entire  land  was  treated  to  be  State

property.   

2.2 The Collector, Tehri Garhwal passed an order

on 17.04.1956 and ordered that property of

Tulsa  Devi  be  got  released  from  the

possession  of  Amar  Singh.   However,  Amar

Singh was allowed to remain in possession of

the  land  where  his  house,  Gaushala  and

Sagwara was situated with the condition that

total  areas  shall  not  exceed  4  Nali.   A

document  was  written  on  14.05.1956  (paper

No.23Gha/2)  which  recorded  that  Amar  Singh

has handed over possession of the entire land

of Tulsa Devi except 4 Nali 1 muthi.  The

plots  covering  that  area  of  4  Nali  and  1

muthi  was  also  mentioned  in  the  said

document.  The Government required land for

construction of buildings for District Uttar

Kashi, with regard to which land in Village

Gyansu  was  acquired.   Instead  of  paying

compensation to tenure holders whose land was

acquired, the Government ordered to give land

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in exchange of the land, which earlier was

recorded in the name of Tulsa Devi, which

stood  escheated  to  the  State.  An  exchange

document was recorded in this context where

various  plots  were  given  in  exchange  to

different  tenant  holders  whose  land  was

acquired.   The  record  operations  in  the

village in question continued from 1952 to

1963 (as has been noted by the High Court).   

2.3 The  name  of  Amar  Singh  was  shown  in

possession with regard to few plots, which

were the plots recorded in the name of Tulsa

Devi.   The  A.R.O.  passed  an  order  dated

06.05.1961 directing that name of Amar Singh,

who was recorded in possession be deleted.

The said order was based on a report that

name  of  Amar  Singh  has  been  recorded

surreptitiously by the record officials.   

2.4 In  area  where  the  land  in  question  was

situated,  the  Kumaon  and  Uttarakhand

Zamindari  Abolition  and  Land  Reforms  Act,

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1960 (hereinafter referred to as “1960 Act”)

was  enforced.   In  accordance  with  the

provisions  of  the  1960  Act,  Section  10

provides that every person who on the date

immediately preceding the appointed date was

recorded  as  occupants  of  land  held  by  a

hissedar or a khaikar was held to be asamis.

The Patwari of the village referring to a

Government  order  dated  19.12.1973  made  an

entry in Khata/Khatauni firstly in the Fasli

year  1979-1985  making  entries  as  per  the

above Government order.  The status of asamis

w.e.f.  01.01.1974  and  right  of  sirdar  of

Khasra  No.  641,  719  and  697  was  entered

against  the  name  of  Amar  Singh  by  the

Patwari.  Amar Singh died in or about the

Year 1985.  The appellants, who are sons of

Lt. Amar Singh filed Civil Suit No. 9 of 1992

against  the  defendants-respondents  praying

for permanent injunction.  Following reliefs

were claimed in para No. 11 of the plaint:-

a) to  pass  a  permanent injunction  restraining  the defendant  his  family

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members,  agents  and labourers  from  forceful, fraudulent  interference  in the  land  in  Khata  Khatoni No.195/35-K  field  No.719 admeasuring 2 Nali, 11 Muthi land  of  village  Gyansu, Patti Barahat, Uttarkashi;

b) the  cost  of  the  case  be awarded  in  favour  of  the plaintiffs  and  against  the defendant,  as  this  Hon’ble Court deems fit and proper in  the  facts  and circumstances of the case.  

2.5 The case of the plaintiff was that father of

plaintiff  got  sirdari rights  w.e.f.

01.01.1974.   Father  of  the  plaintiffs

remained  in  possession  till  his  death  and

thereafter the appellants are in possession

of plot No. 719 area – 2 Nali and 1 muthi on

which they have shown mustard crops.  It was

pleaded  that  on  27.11.1991,  the  defendants

damaged the mustard crops.  Consequently, the

suit was filed.   

2.6 The  defendants  in  their  written  statements

denied the plaint allegations.  Defendants’

case was that plot No. 719 and other plots

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were recorded in the name of Tulsa Devi, who

died before the present settlement leaving no

heir, therefore, the properties of Tulsa Devi

escheated to State and vested in the State of

Uttar Pradesh.  In the year 1956-57, State

needed the properties in Mauza Barahat for

construction  of  PWD  houses,  the  Government

acquired  property  but  instead  of  paying

compensation, the owners were given plots of

Tulsa Devi in exchange.  The grandfather of

defendant Mor Singh was Maurusidar, who was

owner of plot No. 611 area of 3 Nali 2 muthi,

which  was  acquired  by  the  State  and  in

exchange of said plots Mor Singh was given

plot Nos. 366,335, 336 and 364 corresponding

to new Plot Nos. 641, 719 and 657.  After the

death of Mor Singh, partition took place and

the plots came in the kura of Narain Singh,

father of the defendants.  

2.7 Narain  Singh  partitioned  the  property  and

since 24.03.1969, it is the defendants, who

are the owners of the plot.  Narain Singh

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died in 1974.  It was pleaded that District

Magistrate,  Tehri  Garhwal  ordered  that  the

property of Tulsa Devi be got released from

the possession of Amar Singh and allowed him

to own only 4 Nali 1 muthi land.  The land,

which  was  left  with  Amar  Singh  did  not

include Plot No. 719 and with connivance of

revenue officials, he got forged entries made

with regard to Plot No. 719 and 641.  It was

alleged that at the present settlement, the

Assistant Record officer ordered for striking

off the name of Amar Singh by order dated

06.05.1961  but  even  after  directing  for

deletion of his name from Plot No. 641, 749,

it continued in the Revenue records on the

basis of which Amar Singh claimed that he has

become sirdar.   

2.8 It was alleged that plaintiffs are not in

possession of the plot Nos. 641 and 719 and

it is the defendants, who are in possession

and the suit is liable to be dismissed.   

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2.9 Trial  court  framed  several  issues  and  by

order dated 13.08.1996 decreed the suit for

injunction of the plaintiffs.  Trial court

further noticed that an order was passed by

the  Assistant  Record  Officer  and  in  the

order, he directed for deletion of the name

of Amar Singh,  the order was only in papers

and there is no proof, which has been filed

on the record to prove that actual possession

of  the  plot  was  taken  from  Amar  Singh.

Consequently,  the  entries  of  possession

continued in favour of Amar Singh.   

2.10With regard to the case of the defendants

that possession was taken from Amar Singh of

the  plot  belonging  to  Tulsa  Devi  and  in

exchange the plot No. 719 was given to the

predecessors-in-interest  of  the  plaintiffs,

the  trial  court  held  that  even  though

document 23C indicate that plots were taken

from Amar Singh and given in supurdagi of

Malguzar but there is no proof that actual

possession was taken from Amar Singh.  The

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entries in the name of Amar Singh cannot be

held to be forged (farzi).   

2.11The defendants aggrieved by the judgment of

trial court dated 13.08.1996 filed an appeal

in the High Court.  The High Court vide its

judgment  dated  28.07.2006  has  allowed  the

first appeal and set aside the judgment of

the trial court dated 13.08.1996.  High Court

held  that  in  the  record  operation,  there

being  order  passed  by  Assistant  Record

Officer  in  the  year  1961  directing  the

deletion of entry in the name of Amar Singh,

no right can be claimed by Amar Singh on the

basis of such possession entry.  High Court

further  held  that  the  entry  made  by  the

Patwari(Lekhpal)  in  1379-1385  Fasli,  that

Amar Singh has become asamis and sirdar was

without authority.  Patwari(Lekhpal) was not

competent to declare asami/sirdari rights and

it was only Assistant Collector, who could

have passed any such order.  No order having

been passed by the competent authority giving

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asamis/sirdari rights to Amar Singh, on the

strength  of  unauthorised  entry  made  by

Patwari, Amar Singh cannot claim any right.   

2.12High Court further noticed that Amar Singh

himself  in  his  statement,  as  has  been

extracted, in the document dated 14.05.1956,

admitted to release the land of Tulsa Devi

from his possession except area of 4 Nali,

which was given to him under the order of

Collector,  Tehri  Garhwal,  where  his  house,

Gaushala  and  Sagwara  were  situated.   Amar

Singh thereafter cannot claim possession or

right with regard to any land except those 4

Nalis land, which was given to him in the

year 1956.   

2.13High Court held that although correctness of

entries  in  the  revenue  records  cannot  be

challenged but entries are open to attack on

the ground that it was made fraudulently or

surreptitiously.   High  Court  held  that

defendants’ case is fortified by the document

21-Ga,  which  indicate  that  the  land  in

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question had been given in exchange to the

predecessor of defendants.  On the aforesaid

findings,  the  appeal  was  allowed  setting

aside the judgment of the trial court.  The

appellants aggrieved by the judgment of the

High Court has come up in this appeal.

3. Shri A.S. Rawat, learned senior counsel appearing

for the appellants contends that High Court erred in

setting aside the decree of trial court.  He submits

that Amar Singh’s name being recorded in the revenue

records  as  in  possession  of  plot  in  question,  he

become asamis by virtue of provisions of 1960 Act and

the entry made by Patwari in  Khasra “1979-1385” was

on the strength of statutory provision and Government

order issued therein. He submits that Amar Singh was

never dispossessed from plot in question.  He submits

that the plot No. 719 being a very small piece of

land  measuring  2  Nali  1  muthi  land,  which  was  in

possession  of  Amar  Singh,  the  trial  court  has

correctly decreed the suit holding the Amar Singh to

have become asamis/sirdars and bhumidars.  He submits

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that entry made in favour of Amar Singh as asamis

cannot be held to be forged.   

4. Learned counsel for the respondents refuting the

submissions of the learned counsel for the appellants

contends  that  the  plot  in  question  was  given  in

exchange  to  the  predecessor-in-interest  of  the

respondents  in  lieu  of  acquisition  of  land  of

predecessor-in-interest.  It is submitted that in the

exchange, plot No.719 – 2 Nali 1 muthi was given to

the defendants, which is reflected in records, Amar

Singh  had  no  right  to  claim  the  land,  which  was

recorded  in  the  name  of  Tulsa  Devi.   Tulsa  Devi

having died issueless, the entire land was escheated

to State.  He submits that entry of possession in the

name  of  Amar  Singh  was  directed  to  be  deleted  by

competent  officer  in  the  record  operation.  On  the

mere fact that name continued on record no rights can

be  claimed  by  Amar  Singh  thereafter.   There  are

material on record where Amar Singh himself admitted

that he has handed over the possession of all plots

including 719 except 4 Nali 1 muthi land, which was

permitted to be retained by him.  The appellants name

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not being recorded as occupants, he cannot claim any

rights under Section 10 of the 1960 Act.  learned

counsel for the respondent submits that High Court

has rightly allowed the appeal.     

5. We have considered the submissions made by the

learned  counsel  for  the  parties  and  perused  the

records.

6. Amar Singh, the father of the appellant, claimed

Asami/Sirdari right on Plot No.719 in the suit on the

ground that he was recorded in possession. We have

already  noticed  above  that  Plot  No.719  along  with

other plots was recorded in the name of Smt. Tulsa

Devi, last tenure holder. Smt. Tulsa Devi having died

without leaving any legal heirs her land escheated to

State. The Collector has also passed an order for

taking possession of land of Smt. Tulsa Devi from the

possession of Amar Singh except leaving 4 Nali one

Muthi  land  in  the  possession  of  Amar  Singh.  A

document  dated  14.05.1956  was  recorded  in  this

respect which was signed by Amar Singh. Plot No.719

was not included in 4 Nali which was left with Amar

Singh.

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7. The right of Amar Singh was sought to be claimed

in accordance with Section 10 sub-clause (e) of the

Act, 1960. Section 10 of the Act is as follows:

“Section 10.Sirtans  to  be Asamis.—Every person  who,  on  the  date  immediately preceding the appointed date, was-

(a) a sirtan holding from aissedar; or (b) a sirtan holding from a khaikar; or (c) a mortgagee in actual possession of

land mentioned in Section 8; or (d) a lessee of the rights of a hissedar

in non-khaikari land and a lessee or sub-lessee mentioned in Section 34 of the Tehri-Garhwal Bhumi-Sambandhi Adhikar Niyams, 1941 of the rights of  a  khaikar  or  those  of  a maurusidar  in  non-khaikari  land having  any  land  in  his  personal cultivation as such; or

(e) recorded as occupant of land held by a hissedar or a khaikar as such in the  last  revision  of  records  made under Chapter IV of the U.P. Land Revenue Act, 1901;

shall  be  called  asami  of  the  land  and shall, subject to the provisions of this Act,  be  entitled  to  take  or  retain possession thereof.”

8. Every  person,  who  on  the  date  immediately

preceding  the  appointed  date,  was  recorded  as

occupant of the land held by a hissedar or a khaikar

as such in the last revision of records made under

Chapter IV of the U.P. Land Revenue Act, 1901 shall

be  called  Asami  of  land  and  entitled  to  take  or

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retain possession thereof. For acquiring right under

Section 10 sub-clause (e) it has to be established

that  person  claiming  Asami  right  was  recorded  as

occupant  of  land.  The  High  Court  in  its  judgment

noticed  that  the  record  operation  in  village  in

question was undertaken between the period from 1952

to 1963. In the record operation it was noticed that

the name of Amar Singh was recorded in possession on

some  plots  including  Plot  No.719.  A  report  was

submitted  that  the  name  of  Amar  Singh  had  been

recorded  surreptitiously  by  the  Record  Operation

Officials.  The  report  further  mentioned  that

possession of land has already been taken over and

handed  over  to  the  Malguzar.  The  Assistant  Record

Officer  passed  an  order  dated  01.05.1963  English

translation of which order has been extracted by the

High Court which is to the following effect:

“The new No.719 showing Amar Singh. The Amin has shown forged entries as is evident from the report of S.N.T. dated 06.05.1961. For  the  time  being  delete  the  possession from  these  numbers  and  enter  into  the Maurusi  record  of  the  deceased.”  It  was further  directed  that  the  revenue  record may be corrected accordingly. In pursuance of the said order the settlement record was corrected and that document is paper No.23 Ga/2 on record.”

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9. When during record operation competent authority

has passed an order for deleting the name of Amar

Singh from possession whether Amar Singh can be still

treated as recorded occupant in the record so as to

acquire  benefit  of  Asami  is  the  question  to  be

answered.

10. The trial court in its order decreeing the suit

has  noticed  the  order  of  A.R.O.  directing  for

deletion  the  name  of  Amar  Singh  from  record.  The

trial  court,  however,  has  observed  that  the  order

passed by the A.R.O. having not given effect in the

record and name of Amar Singh having continued in the

record he is entitled to be treated as Sirdar. The

trial court in the above context has made following

observation in its judgment:

“Ex.1 is the copy of order of A.R.O. in present settlement by which he had passed order for striking the name of Amar Singh from some of the plots but again there is nothing on record to show that this order was complied with. The learned counsel for the defendant contended that paper No.18-C is  another  copy  of  paper  No.12-Ka(Ex.1) which shows that Amar Singh was present at the time of order. However, the presence of Amar Singh and his signature on the said order  does  not  prove  that  Amar  Singh delivered possessions of the said plots and

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further as earlier stated that Smt. Tulasa was not alive and possession could not be delivered  to  her,  therefore,  even  if  the entries  were  held  forged  in  1961  and  in spite  of  the  order  the  entries  were  not corrected by the revenue authorities, this could not be held as forgery and fraud on the  part  of  plaintiff  or  his  father  and further even there was no evidence that in compliance of the order Amar Singh was ever dispossessed  and  in  spite  of  the  said orders, Amar Singh was in actual possession and, therefore, he was recorded as Sirdar on the basis of actual possession.”

11. The  statute  confers  Asami  right  to  a  person

recorded as occupant in the last revision of records

which were undertaken between 1952 to 1962. In the

said revision order was passed deleting the name of

Amar  Singh  from  the  record  which  is  a  fact  not

disputed  by  any  of  the  parties.  The  trial  court

decreed the suit observing that even if the order was

passed there was nothing on record to show that said

order of A.R.O. was complied. The trial court further

held that it is not proved that Amar Singh was even

dispossessed  in  spite  of  the  order  passed  by  the

A.R.O. The statute conferred the benefit on a person

recorded  as  occupant.  When  in  a  record  operation

order is passed for deleting the name of Amar Singh

from possession over the land in question, Amar Singh

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cannot be held to be recorded occupant within the

meaning of Section 10(e).  

12. The High Court has dealt with the above aspect of

the  matter  and  has  held  that  continuous  of  entry

after the order of deletion of the name of Amar Singh

cannot confer any right. The judgment of this Court

in  Vishwa  Vijay  Bharati  vs.  Fakhrul  Hassan  and

others, (1976) 3 SCC 642,  has rightly been referred

to  and  relied  by  the  High  court.  This  Court  in

paragraph 14 of the judgment was laid down following:

“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 into 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 in 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.”

13. The order of A.R.O. directing the deletion of the

name of Amar Singh was passed on the report of Record

Operation Officials in which report it was mentioned

that the name of Amar Singh has been surreptitiously

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recorded. The report was accepted and the direction

was issued to delete the name. We, thus, are of the

clear opinion that Asami right could not have been

obtained by Amar Singh.

14. Learned counsel for the appellant has placed much

emphasis on the entry made by Patwari in 1379-1385,

Annexure-P/8. The entry made by Patwari with respect

to Amar Singh is as follows:

“The  Government  order  No.291/1-4(3)/73 Revenue  dated  19.12.73  a  status  Aasami w.e.f. 1 January, 1974 and right of Sirdar of Khasara No.641, 719, 720 total 6 Nali 10 Muthi at the rate of Rs.3.15 per annuam.  

Sd/- Illegible Patwari.”

15. As  per  the  provisions  of  the  Act,  1960  those

persons who had acquired Asami right under the Act

were treated to be Sirdar w.e.f. 1st January, 1974.

The entry made by Patwari as noted above is to the

above effect. Amar Singh being not recorded occupant,

when could not acquire Asami right no question arises

of he getting Sirdari right. More so entry made by

Patwari  as  clear  from  the  entry  itself,  as  noted

above, was not consequent to any order passed by any

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competent  officer.  Patwari  (Lekhpal)  was  not

authorised to enter the name of any person or confer

any  right.  The  High  Court  has  held  that  Lekhpal

(Patwari) was not entitled to make entry in Khata

Khatauni of 1379-1385. We fully endorse the aforesaid

view of the High court; no right was acquired on the

strength of the aforesaid entry.  

16. One more aspect of the matter further needs to be

noted. As noted above, land of various persons was

acquired for construction of Government buildings in

which one of the persons whose land was acquired was

Mor Singh, the predecessor-in-interest of respondent.

The Government utilised the land of Tulsa Devi which

was escheated to State by giving the said land in

exchange to those persons whose land was acquired.

The order pertaining to exchange is dated 05.09.1960

which was brought on the record as Annexure-P4. In

the said order it was noticed that Amar Singh was in

possession of Plot No.719. Plot No.719 was given in

exchange to person whose land was acquired by the

State.  

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17. The High Court has also relied on the document

paper No.23 Ga/2 which was written on 14.05.1956 in

which it is indicated that Amar Singh has handed over

the possession of the entire land of Smt. Tulsa Devi

except 4 Nali. In paragraph 17 of the judgment of the

High Court the statement of Amar Singh has been noted

to the following effect:

“17.  “I  Amar  Singh,  adopted  son  of Bhopalu,  Village  Gyansu,  Patti  Brahat, state  that  the  escheat  land  of  Maurasi Tulsa, which is in my possession, will be released from my possession and I will not interfere in that land from today onwards and I will be in possession of the land which is ordered to be given to me for the purpose of Goshala, Courtyard, Sagwara and for Water Ponds. The number of those Plots are Plot No.339 Sagwara, 240 Goishala, 244 House,  245,  246  Sagwara,  247,  248,  249 Sagwara and 619 Ka which is 1 Nali 15 Muthi and total area of 4 Nali which  has been given to me.”

18. Amar Singh himself clearly stated that the land

of Tulsa Devi which is escheated to the State will be

released  from  his  possession  and  he  shall  not

interfere and he shall be in possession of only 4

Nali which has been given to him. Plot No.719 was not

given to him and was not included in the said 4 Nali

land which was left with him. This makes it clear

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that  he  could  not  claim  any  right  on  Plot  No.719

belonging to Tulsa Devi which was escheated to the

State and was given in exchange to predecessor-in-

interest of the defendant on 05.09.1960. The claim of

the plaintiff that by virtue of entry made by Patwari

as noted above, he became Sirdar cannot be accepted.

The High Court after considering entire evidence on

record has rightly set aside the order passed by the

Trial Court.  

19. We do not find any error in the judgment of the

High Court. There being no merit in the appeal, the

appeal is dismissed.

......................J.                              ( ASHOK BHUSHAN )

......................J.                              ( K.M. JOSEPH )

New Delhi,  February 05, 2019.          

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