REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.2176 OF 2007 JAGDISH PRASAD PATEL (DEAD)  THR. LRS.& ANOTHER        …Appellants

VERSUS

SHIVNATH & OTHERS                      …Respondents

J U D G M E N T  

R. BANUMATHI, J.

This  appeal  arises  out  of  the  judgment  dated  05.02.2007

passed  by  the  High  Court  of  Madhya  Pradesh  at  Jabalpur

dismissing  the  Second  Appeal  No.174  of  1989  filed  by  the

appellants,  thereby  affirming  the  decision  of  the  first  Appellate

Court in Civil Appeal No.29-A/85 holding that in the absence of any

order  of  abandonment  or  revocation  of  the  patta given  to  the

forefathers of the respondents-plaintiffs, grant of patta in favour of

the  appellants/defendants  was  illegal  and  that  the  appellants-

defendants cannot claim any right over the suit properties.   

2. Case  of  Respondents-plaintiffs  is  as  under:-

Respondents-Shiv Nath and deceased Vishwanath/predecessor in

interest of respondents No.2 to 10 filed a suit for declaration of title

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over the suit lands in khasra numbers 41-1.39, 131-2.70, 162-0.17,

163-3.92 and 164-2.15 Kita 5 total area 10.33 situated in Village

Bairath General No.782, Tehsil Gopad Banas and possession of all

the khasra numbers except khasra No.164 against the father of the

appellants-Hanuman Din. Ram Sahai and Rameshwar - fathers of

the plaintiffs were the joint lessees of the lands in khasra Nos. 41,

131,  132,  136/13,  135,  134/4,  137/27,  140/11,  142/2,  143,  146,

147, 162, 163/25, 164/4 and 257 total measuring 21.45 acres and

their names were included as ‘lessees’ of the above lands during

the settlement and they kept on cultivating the lands till forty years

back when a partition took place between the two and both of them

became owners of half part each.  Hanuman Din never remained in

possession  of  any  part  of  the  lands  nor  he  had  any  right  or

entitlement  over  the  suit  lands;  but  the  grandfather  of  the

appellants-Gaya  Din  got  a  lease  in  disputed  lands  of  the

respondents  which  according  to  the  respondents  is  a  forged

document. Based on the aforesaid lease, Gaya Din got his name

entered as  khatedar in  respect  of  the  khataunis of  the disputed

lands.  

3. Respondent-deceased Vishwanath-predecessor-in-interest of

respondents No.2 to 10 filed an application before the Collector in

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August,  1969  stating  that  the  lease  of  the  disputed  lands  was

wrongly  issued  by  illaqedar in  the  name  of  Gaya  Din  and  the

proceedings for cancellation of the records in the name of Gaya

Din be initiated. The matter was sent to the Revenue Inspector for

enquiry  who  submitted  his  report  in  favour  of  respondents  in

respect of the ownership of the lands in dispute and the Collector

registered the report after approving it. In proceedings before the

Sub-Divisional  Magistrate  in  Miscellaneous  Case  No.351/142/69

under  Section  145  Cr.P.C.  initiated  by  Hanuman  Din,  the

Sub-Divisional  Magistrate  found  Hanuman  Din  in  possession  of

lands in  khasra Nos.162 and 163 and respondents were found in

possession  of  land  in  khasra No.164.  Respondents-plaintiffs

alleged that pursuant to the order of the Sub-Divisional Magistrate,

Hanuman Din forcibly took possession of land in khasra No.41 and

therefore, the respondents filed suit for declaration and permanent

injunction.  

4. Hanuman  Din  resisted  the  suit  contending  that  the

respondents have never remained in ownership or possession of

the disputed lands and the lands belonged to one Ram Raj Singh

but  he  was  not  cultivating  the  lands  and  gave  it  to  the

predecessors  of  the  respondents  for  cultivation  on  the  basis  of

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Batai-crop sharing and only because of this,  patta was granted at

the  time  of  settlement  in  their  names.  The  appellants  further

averred that the father of the respondents abandoned the lands

and  since  revenue  tax  was  not  being  paid,  the  khata of  the

disputed lands was cancelled. Case of the appellants-defendants

is that in the auction held by Pawaidar for lease of suit lands and

other lands, bid of Gaya Din was accepted and in this regard, a

lease was issued in his name in  Samvat 1986 (1929 A.D.). The

appellants  had  been  in  continuous  possession  of  the  suit

properties and the same is  reflected in the  khataunis  and other

revenue records.  

5. The trial court vide judgment dated 02.07.1985 dismissed the

respondents’ suit by holding that Gaya Din has been holding patta-

lease  (Ex.D-20)  in  respect  of  the  suit  lands  and  has  been  in

continuous  possession  of  the  disputed  lands  since  1950  and

thereafter,  Hanuman  Din  was  in  possession  of  the  same.  After

referring to the orders of the Commissioner (Ex.D-1), the trial court

held  that  the  Commissioner  recorded  a  finding  of  fact  that  the

respondents got the entries made in the revenue records in their

names in connivance with the Patwari. The trial court held that the

lease-patta (Ex.D-20) was issued by the then iIlaqedar to Gaya Din

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and that the said document being more than thirty years old is a

genuine  one.  After  referring  to  various  khasras and  the  entries

thereon  in  the  name  of  appellant’s  father,  it  was  held  that  the

appellants’ father Hanuman Din has been in possession of the suit

lands since 1950 or prior to that. The trial court further held that the

suit was instituted on 17.10.1975 which is beyond twelve years and

that the suit is barred by time.

6. In appeal,  the first Appellate Court  vide its judgment dated

03.04.1989 held that at the time of settlement, patta was granted in

the  name  of  father  of  the  respondents  and  this  has  not  been

disputed by the appellants and the appellants could not establish

abandonment of the lands by the father of the respondents and

therefore, the respondents ought to be treated as owners of the

suit properties. The first Appellate Court further held that the lease

Ex.D-20 produced by the appellants cannot be held to be a valid

one and in absence of order of revocation of the patta granted to

the respondents, it  cannot be held that Ex.D-20 confers right of

ownership  on  the  appellants  over  the  disputed  lands.  The  first

Appellate Court held that merely because of production of  patta-

lease – Ex.D-20  by Hanuman Din, it cannot be said to have been

proved and therefore, it cannot be held that Hanuman  Din  has a

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legal right of ownership on the disputed lands. The first Appellate

Court  noted  that  on  the  basis  of  Ex.D-1  –  order  of  the

Commissioner, possession of the suit properties by the appellants

cannot  be  held  to  be  proved,  since  the  respondents  or  their

ancestors  were  not  parties  to  the  said  proceedings.  On  these

findings, the first Appellate Court set aside the judgment of the trial

court and held that the respondents are the owners of the disputed

lands and held that the respondents are entitled to get possession

of the lands in khasra Nos. 41, 131, 162 and 163 from the father of

the appellants.

7. In the second appeal, the High Court affirmed the findings of

the first Appellate Court and held that the suit lands were recorded

in the name of fathers of the respondents and that there was no

document  on  record  to  show  that  they  have  abandoned  the

possession  of  the  lands  or  surrendered  the  same  in  favour  of

iIlaqedar.  It  was  held  that  though  patta-lease –  Ex.D-20  was

granted in favour of grandfather of the appellants, the appellants

have  not  adduced  any  evidence  to  prove  abandonment  of  the

lands in favour of iIlaqedar and no right accrued to the appellants

on  the  basis  of  the  patta (Ex.D-20).  Being  aggrieved,  the

appellants have preferred this appeal.   

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8. We  have  heard  Mr.  Subodh  Markandeya,  learned  senior

counsel  for  the  appellants-defendants  and Mr.  A.K.  Shrivastava,

learned  senior  counsel  for  the  respondents-plaintiffs.   We have

considered the submissions and carefully perused the impugned

judgment and the judgment of the courts below and other materials

on record.   

9. The point falling for consideration is whether the High Court

was right in upholding the judgment of the first Appellate Court by

observing  that  in  the  absence of  any  order  of  abandonment  or

revocation of the patta given to the respondents-plaintiffs, grant of

patta (Ex.D-20) in 1929 in favour of the appellants-defendants was

illegal and that the appellants-defendants cannot claim right based

upon Ex.D-20 and other documents.

10. The impugned judgment of the High Court is the concurrent

finding of the High Court and the first  Appellate Court.   We are

conscious that in an appeal under Article 136 of the Constitution of

India,  the  concurrent  findings  cannot  be  interfered  with  unless

warranted by compelling reasons.  When the finding of  the first

Appellate court and the High Court are shown to be perverse, this

Court would certainly interfere with the findings of fact recorded by

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the High Court.   [Vide  Mahesh Dattatray Thirthkar v. State of

Maharashtra (2009) 11 SCC 141]

11. The  respondents-plaintiffs–Shiv  Nath  and  deceased

Vishwanath filed suit for declaration of title over the suit lands in

khasra numbers  41-1.39,  131-2.70,  162-0.17,  163-3.92  and

164-2.15  total  area  10.33  situated  in  Village  Bairath  General

No.782, Tehsil Gopad Banas on the plea that a lease/patta was

issued  in  favour  of  their  fathers  and  that  their  names  were

included as ‘lessees’ of the suit lands during settlement and that

they have been cultivating the lands till  forty  years back when

partition  took  place  between the  two  and  both  Shiv  Nath  and

deceased Vishwanath became owners of half portion each.  

12. The appellants-defendants resisted the suit contending that

Ram Raj Singh was the original owner of the lands but he was

not cultivating the lands and settlement  patta was given in the

name  of  the  fathers  of  respondents  namely  Ram  Sahai  and

Rameshwar  on  the  basis  of  Batai-crop  sharing  at  the  time  of

settlement  and the predecessors of  respondents-plaintiffs  have

not  cultivated  the  lands.  The  appellants-defendants  further

averred that the forefathers of respondents-plaintiffs abandoned

the suit lands and since revenue tax was not paid, the lease of

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the suit lands in favour of respondents-plaintiffs was cancelled.

The  then  illaqedar accepted  the  bid  of  the  defendant’s  father

Gaya Din in the auction held in the year 1929-Samvat 1986. The

appellants-defendants have claimed ownership and possession

over the lands in dispute on the basis of the patta Ex.D-20 (Ex. P-

21)  that was issued in their favour in  Samvat  1986 (1929 A.D.)

and  averred  that  since  then  they  are  in  possession  of  the

disputed lands.  

13. The suit  of  the  respondents-plaintiffs  is  for  declaration  of

their title to the suit lands and consequential delivery of the suit

lands.  Having filed the suit for declaration of title, the plaintiffs

could succeed in their suit only by adducing sufficient evidence to

establish their title.  But the plaintiffs have not produced the patta

granted  to  their  fathers.   PW-1-Vishwanath,  in  his  deposition,

stated that the original  patta was very old, torn and the same is

not  with  them.  The  respondents-plaintiffs  have  produced  the

report of the Revenue Inspector dated 05.10.1969 (Ex. P-3) as

per which on the application of Vishwanath, an enquiry was made

and it was found that the name of  pattedar is Gaya Din.  Gaya

Din and Shiv Nath are shown as lease holders.  In Ex.P-3, it is

further stated that in Khatauni No.58/59, it was found that names

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of  Ram Sahai  and  Rameshwar  Kurmi  are  found  recorded  as

owners of  land numbers 51/1.38,  162/0.17,  163/3.72,  164/2.65

and 131/2.70. It  was further stated that the  patta illaqa of the

above numbers are found registered in the name of Gaya Din.

Ex.P-3-report notes the entries in Ex.D-20-patta to the effect that

permission  to  make entry  in  respect  of  the  patta granted  vide

order No.146/1960 dated 21.11.1960 issued by the Tahsildar in

the official record has been given after due inspection and entry

in khasra is found made by the concerned Patwari on 10.01.1961.

14. In  his  evidence,  PW-1  has  stated  that  patta-lease  was

issued  in  the  name  of  his  father.   In  his  written  statement,

defendant  Hanuman  Din  also  admitted  that  the  plaintiffs-

respondents’ fathers were lessees and patta-lease was originally

granted in their favour during the settlement period for cultivation

on the basis of Batai-crop sharing.  The trial court as well as the

first appellate court held that the lease was granted in favour of

father of respondents-plaintiffs at time of the settlement and they

were held to be original lessees.  The trial court while deciding

issue No.2(A), observed that the grant of lease in the name of

father of respondents-plaintiffs in the settlement is not rebutted by

the appellants-defendants. Drawing our attention to the findings

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of the trial court that patta was granted in favour of the father of

the  respondents-plaintiffs,  the  learned  senior  counsel  for  the

respondents-plaintiffs  submitted that  this  amounts to admission

and in terms of Section 58 of the Evidence Act, admitted facts

need not be proved.  Placing reliance upon Nagindas Ramdas v.

Dalpatram Iccharam alias Brijram and others (1974) 1 SCC

242  and  Executive  Officer,  Arulmigu  Chokkanatha  Swamy

Koil  Trust,  Virudhunagar  v.  Chandran  and others (2017)  3

SCC 702, it was submitted that in view of clear admission of grant

of lease in the name of father of respondents-plaintiffs, the said

admitted fact need not be proved.

15. Section 58 of the Evidence Act, no doubt, postulates that

the things admitted need not  be proved.  However,  proviso to

Section 58 of the Evidence Act gives full discretion to the court to

require the facts admitted to be proved otherwise than by such

admission.  When the respondents-plaintiffs have filed the suit for

declaration of their title, the respondents-plaintiffs cannot isolate

few sentences in  the written statement  and take advantage of

only those part of the written statement which are favourable to

them. The written statement  filed by the appellants-defendants

has to be read in toto.  It is pertinent to note that in para No.(2) of

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the written statement, the appellants-defendants averred that the

lands were in the ownership of Ram Raj Singh at the time of the

settlement, but because he was not in a position to cultivate the

same  himself,  the  lands  were  given  to  the  father  of  the

respondents-plaintiffs  for  cultivation  on  the  basis  of  Batai-crop

sharing.  It is further averred that the then Halkedar cancelled the

lease in respect of disputed lands and the same were auctioned

in which the bid of the defendants’ father Gaya Din was accepted

and the disputed lands were transferred in his name in the sale in

Samvat 1986 i.e. 1929 A.D.  The lease of the lands was issued in

the name of Gaya Din.  The admission of the defendants as to

the lease of the plaintiffs’ father was the lease earlier granted in

favour of the forefathers of the respondents.  In the light of the

pleadings and the oral and documentary evidence adduced by

the  defendants,  notwithstanding  the  admission  in  the  written

statement,  the  burden  lies  upon  the  respondents-plaintiffs  to

prove that the patta-lease continues to be in their favour and that

they  are  the  holders  of  patta and  that  they  are  in  continued

possession of the suit properties.   

16. In his cross-examination, PW-1 stated that his father left for

Jabalpur about forty years prior to the institution of the suit.  In the

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cross-examination,  PW-1  however  denied  the  suggestion  that

when his father left  for Jabalpur,  he handed over the disputed

lands to  Pawaidar and all the records at the relevant time were

kept by the  iIlaqedar.  From the statement of PW-1-Vishwanath

and PW-2-Ram Gopal, it is evident that the father of Vishwanath

had started living in Jabalpur forty years back prior to institution of

the suit and settled there.  In the light of the evidence adduced,

the trial court rightly accepted the case of the defendants that in

Samvat 1986 (1929 A.D.),  in the auction held by  Pawaidar for

lease of suit lands and other lands, bid of Gaya Din was accepted

and the suit properties along with other lands were given on lease

to Gaya Din.  We find substance in the submission of the learned

senior counsel for the appellants that if the lands were not left so

abandoned by the father  of  respondents-plaintiffs,  it  would  not

have been possible for the Pawaidar  to auction the lease of the

suit lands and grant lease of the lands in favour of Gaya Din.  

17. Case  of  the  appellants-defendants  that  in  Samvat 1986

(1929 A.D.),  in  the  auction held  by  Pawaidar for  lease of  suit

lands and other lands, the suit properties along with other lands

were given on lease to Gaya Din,  is  strengthened by revenue

records and ample evidence.  The  Pawaidar sanctioned entries

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regarding  grant  of  patta to  Gaya  Din  to  be  made  in  the

Government records.  The appellants-defendants produced their

patta-Ex.  D-20  which  has  also  been  produced  by  the

respondents-plaintiffs (Ex. P-21).  Ex. D-20 is the patta kashtkari

as per the order of the Hon’ble Shri Rai Saheb Churhat, Halka

Patwari  No.1,  Region  Churhat,  State  Rewa,  Location  Mauja

Kother,  in  Samvat  1986  in  the  name  of  Gaya  Din  as

farmer/cultivator  for  the  suit  properties  granted  for  agricultural

purpose.  From Ex. D-20, it is seen that as per Tahsildar order

No.146/1960 dated 21.11.1960,  Pawaidar has been allowed to

enter in  government serial.   As per the order  of  the Tahsildar,

entry has been made accordingly in  Pawai Khasra as is  clear

from  the  endorsement  made  by  Patwari  dated  10.01.1961  in

Ex.D-20.   

18. Ex. D-20-patta in favour of Gaya Din was validly granted by

the iIIaqedar to Gaya Din in the year 1929. The said documents

issued by the Tahsildar were produced from the custody of the

appellants.  The  contents  thereon  show  that  as  per  the

Government records, the lands had been given to Gaya Din. The

documents being more than thirty years old, the trial court rightly

presumed the Ex.D-20-patta  of genuine.  It  was then up to the

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respondents  to  rebut  the  presumption.   This  has  not  been

controverted by the respondents-plaintiffs.  

19. Ex.  D-20  being  thirty  year  old  document  gives  rise  to

presumption  as  to  its  genuineness.  Contention  of  the

respondents-plaintiffs is that Section 90 of the Evidence Act has

no application to Ex. D-20 and the presumption cannot be raised

as to the genuineness of the contents of the document.  Section

90 of the Evidence Act enables the court to draw presumption

about the genuineness of the document which is thirty years old.

Section  90  lays  down  that  the  court  “may  presume”  that  the

document is genuine.  Since the patta granted in favour of Gaya

Din is of Samvat 1986 (1929 A.D.) which is more than thirty years

old, Section 90 raises presumption as to the authenticity of the

document.  Mere allegations of fraud would not be sufficient to

rebut the presumption raised under Section 90 of the Evidence

Act.

20. The  respondents-plaintiffs  have  produced  the  copies  of

khasras of several years. However, only the copies of khasra for

the years 1955-56 (Ex. P-9) and 1956-57 (Ex. P-10) are in the

name of respondents-plaintiffs;  and in the previous  khasras for

the years 1950-51 to 1954-55  (Ex. P-8) and subsequent khasras

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for 1960-61 (Ex. P-12), 1963-64 to 1965-66 (Ex. P-13), 1968-69

(Ex. P-14) and 1970-71 to 1975 (Ex. D-2), the entries are in the

name of the father of the appellants-defendants.  The lease was

granted in favour of Gaya Din and that he and Hanuman Din had

been  continuously  in  possession  of  the  properties  is  thus

established by the revenue records.

21. From perusal of the Khatauni for the year 1952-53 (Ex.P-2)

produced  by  the  plaintiffs,  it  is  seen  that  the  appellants-

defendants  are  in  possession  of  the  suit  lands  from the  year

1950-51 to        1954-55 (Ex. P-8) and thereafter, the subsequent

khasras 1960-61  onwards.   The  names  of  the  appellants-

defendants being mentioned in the khasra 1950-51 to 1954-55 is

very  crucial.   The  reason  being  Vindhya  Pradesh  Abolition  of

Jagirs and Land Reforms Act, 1952 (Vindhya Pradesh Act) came

into  force  on  30.07.1953.   Ex.  D-20  (Ex.  P-21)  -  lease  was

granted  in  favour  of  the  predecessors  of  the  appellants-

defendants namely Gaya Din by  Pawaidar under Section 44 of

the Rewa State Malgujari and Kashtkari Act, 1935 (Rewa Land

Revenue and Tenancy Act, 1935). After referring to Ex. D-20, the

trial court rightly held that the Pawaidar was empowered to issue

the lease and that lease          (Ex. D-20) was issued under

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Section 141 of the Act. It was therefore rightly held by the trial

court that the lease (Ex. D-20) is valid and that the appellants-

defendants have proved that the lease of the lands was legally

given by illaqedar in favour of their father.

22. The revenue records produced by the appellants for several

years  amply  strengthen  the  case  of  the  appellants  that  patta

(Ex. D-20) was granted to them and that they are in possession of

the suit properties for several years.  The oral and documentary

evidence  clearly  establish  that  the  father  of  the  respondents-

plaintiffs has abandoned the suit properties, pursuant to which,

auction  was  held  by  the  Pawaidar  and  lease  was  issued  by

illaqedar in favour of Gaya Din and that he was in continuous

possession of the suit properties.

23. In  the  plaint,  the  respondents/plaintiffs  have  alleged  that

Ex. D-20-patta is a forged one.  In para No.(4) of the plaint, it is

alleged  that  without  knowledge  of  the  respondents/plaintiffs’

father,  defendants’  father  Gaya  Din  got  the  lease  from  Ilaqa

Churhat by  illegal  means  and  Gaya  Din  never  remained  in

possession of the properties.  The respondents-plaintiffs have not

produced any document to prove that Ex. D-20 is a forged one.

The plaintiffs at one place averred that without the knowledge of

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the plaintiffs and their father, Gaya Din succeeded in getting the

lease by illegal means of the disputed lands from iIlaqa therein;

whereas in para No.(5), the respondents-plaintiffs alleged that the

document is  a forged one.  In fact,  as pointed out  earlier,  the

respondents themselves have filed the patta granted in favour of

the appellants-defendants. It is pertinent to note that Vishwanath

had  given  an  application  for  inspection  of  the  area  (patta) in

respect of land numbers 41, 131, 162, 163 and 164 situated in

Village  Bairath.   The  Collector  called  for  the  report  from  the

Revenue  Inspector  and  as  per  the  Report  of  the  Revenue

Inspector  (Ex.  P-3),  though  the  names  of  Ram  Sahai  and

Rameshwar  are  found  recorded  as  owners  of  the  said  lands,

patta illaqa of the above land numbers was found registered in

the name of  Gaya Din.   The report  of  the Revenue Inspector

refers  to  the  entry  in  respect  of  patta granted  vide order

No.146/1960 dated 21.11.1960 issued by the Tahsildar.  It also

refers  to  entry  in  khasra made  by  the  concerned  Patwari  on

10.01.1961 which is in possession of Hanuman Din-predecessor

of  the  appellants.  Ex.  P-3-Report  of  Revenue Inspector  states

that the patta-Ex. D-20 was granted in favour of Gaya Din.

18

24. The  entries  which  are  consistently  in  favour  of  the

appellants ought not to have been ignored in preference to the

entries in favour of the respondents only for two years i.e. 1955-

56 and    1956-57.  Moreover, in the light of the findings by the

revenue authorities on several occasions, the said entries in the

name of the respondents cannot be said to be genuine.  The first

Appellate Court  and the High Court  were not  right  in  brushing

aside  Ex.  P-21  (Ex.D-20)  patta granted  in  the  name  of  the

appellants and other crucial documents like report of the Revenue

Inspector (Ex. P-3) which notes that patta illaqa is in the name of

Gaya Din and the several entries in the revenue records are in

the  name  of  the  appellants.   In  the  absence  of  the  contra

evidence  adduced  by  the  respondents-plaintiffs,  the  trial  court

rightly  held  that  the  appellants  have  been  in  continuous

possession of the suit properties and that the respondents have

failed to prove their right over the suit properties prior to filing of

the suit.

25. Ex. D-1– Order of the Commissioner dated 17.07.1973:-

In the proceeding initiated by the appellants’ father – Hanuman

Din, an application was filed before the District Collector alleging

interpolation by patwari in the  gashti – khasras at the behest of

19

the  plaintiffs-respondents–Vishwanath,  Shiv  Nath  and  Jairaj

Kumari in respect of khasra Nos. 131,151,161,162,163 and 411.

The order  of  the Commissioner  refers  to  the order  passed by

Tahsildar  dated  28.07.1971  upholding  the  entries  in  favour  of

appellants’  father  Hanuman  Din  and  rejecting  the  plaintiffs-

respondents’  claim.  After  personally  perusing  the  relevant

khasras, the Tahsildar held that entries for the years 1963-64 to

1968-69  made  in  favour  of  plaintiffs-respondents  were

subsequently made and Tahsildar directed correction of  khasra

entries in favour of  appellant’s  father.  In revision, the Collector

upheld the said order of the Tahsildar dated 28.07.1971.  

26. In  revision  against  the  order  of  the  Collector,  the

Commissioner  vide  order dated 17.07.1973 upheld the order of

Tahsildar  observing  that  from  perusal  of  SDO’s  report  dated

21.10.1969  and  the  order  of  Tahsildar  dated  28.07.1971,  the

mischief of patwari was proved beyond shadow of doubt.  These

orders were not challenged by the plaintiffs-respondents and are

binding  on  them.  The  relevant  portion  of  the  order  of  the

Commissioner reads as under:-

“In the Court of Shri Jagat Swarup, Commissioner Rewa Divn. Rewa, M.P.

Case No.52/A.61/71-73: Dated 17.07.1973

20

……….

2. A perusal of the records of the lower courts reveals that

N.A.  Hanuman  filed  an  application  dated  19.09.1969  before

Collector  Sidhi  alleging interpolation by Patwari  in the Gashti-

Khasaras in respect of Khasra Nos.131, 151, 161, 162, 163 and

41 of Village Bairath, Tehsil Gopadbanas.  The application was

sent to SDO for enquiry.  SDO reported vide his report dated

21.10.1969 that the allegations are true and the patwari was

guilty of grave misconduct.  The charge of interpolation is

amply proved.  Collector also found the report to be true,

but ordered that Tehsildar should hear the opposite party

before ordering correction (Order Sheet dated 23.10.1969).

Tehsildar held the enquiry and on the basis of documents

and oral evidence ordered correction of khasra entries for

the year 1963-64 to 1968-69 vide his order dated 28.07.1971.

The perusal of SDO’s report dated 21.10.1969 and the order

of  Tehsildar  dated 28.07.1971 reveals  that  the mischief  of

patwari was proved beyond a shadow of doubt.  The order

passed by the Tehsildar has to be treated as administrative in

nature and cannot be set aside u/s 50 of the M.P. Land Revenue

Code, 1959.

3. So far as the present proceedings u/s 50 of the M.P. Land

Revenue  Code,  1959  are  concerned,  they  do  not  lie.

Administratively, I uphold the order dated 28.07.1971 passed by

the Tehsildar, because it is based on unassailable logic.  After all,

patwari cannot be the final arbiter of the destinies of cultivators.”

From the above order of the Commissioner and the report of the

other revenue authorities, it is clear that the plaintiffs-respondents

have made interpolation in the revenue entries in connivance with

Patwari and got the revenue entries recorded in their names.  The

21

High Court and the first Appellate Court erred in not considering

Ex.D-1-order of the Commissioner in its proper perspective.

27. Application filed for receiving additional evidence:- The

question  may  arise  that  though  the  number  of  orders  were

passed in various proceedings before the Revenue Authorities,

why the respondents-plaintiffs have not challenged the same then

and  there.  The  real  fact  is  that  the  respondents-plaintiffs  did

challenge  various  orders  passed  by  the  revenue  authorities

before the concerned authorities and lost.  Unfortunately, those

documents have not been filed by the appellants-defendants in

the  courts  below.  Before  this  Court,  the  appellants-defendants

have filed an application to receive three additional documents

which  are  the  orders  passed  by  the  Naib  Tahsildar  dated

01.09.1962,  order  of  Tahsildar  dated  28.07.1971  and  order  of

Collector  dated  21.11.1972.   The  three  documents  which

according to the appellants are relevant are:-

S.No. Documents Remarks 1. 01.09.1962 – Order passed by the Naib

Tahsildar, Gopad Banas in the suit filed by  Shivnath,  son  of  Ram  Sahai  and Shivnath,  son  of  Rameshwar  under Section  250  of  M.P.  Land  Revenue Code, 1959.

Application  was dismissed holding that the patta  of  the  land  was issued by the Tahsildar in favour of Gayadin – father of  the  appellant- defendant.  

2. 28.07.1971 – Order of Tahsildar, Gopad Banas in Civil Suit No.26 A74/70-71 in the  suit  filed  by  Hanuman  –  son  of Gayadin

-

3. 21.11.1972  –  Order  of  the  Collector, District Siddi

-

22

The learned senior counsel  for  the respondents submitted that

there is a clear bar to adduce additional evidence in the appellate

court subject to circumstances stated under Order XLI Rule 27

CPC  and  no  such  circumstance  has  been  set-forth  in  the

application filed by the appellants. It was submitted that there was

no  pleading  to  that  effect  in  the  written  statement  and  if  the

application to receive additional evidence is allowed then it would

amount to  de novo  trial of the suit which was filed nearly after

forty-nine  years.  It  was  further  submitted  that  when  these

documents were neither filed in the trial court nor before the first

appellate  court  nor  before the High Court,  the Supreme Court

cannot entertain the documents filed as additional evidence. In

support of his contention, the learned senior counsel relied upon

Karewwa and others v. Hussensab Khansaheb Wajantri and

others  (2002) 10 SCC 315 and  Roop Chand v. Gopi Chand

Thelia (1989) 2 SCC 383 and other decisions.

28. Under  Order  XLI  Rule  27  CPC,  production  of  additional

evidence, whether oral or documentary, is permitted only under

three  circumstances  which  are:  (I)   Where  the  trial  Court  had

refused  to  admit  the  evidence  though  it  ought  to  have  been

admitted; (II) the evidence was not available to the party despite

23

exercise of due diligence; and (III) the appellate Court required

the additional evidence so as to enable it to pronounce judgment

or for any other substantial cause of like nature. An application for

production  of  additional  evidence  cannot  be  allowed  if  the

appellant was not diligent in producing the relevant documents in

the  lower  court.  However,  in  the  interest  of  justice  and  when

satisfactory  reasons  are  given,  court  can  receive  additional

documents.  

29. In Union of India v. Ibrahim Uddin & Another,  (2012) 8

SCC 148, this Court held as under:-

“36. The general principle is that the appellate court should not

travel outside the record of the lower court and cannot take any

evidence in appeal. However, as an exception, Order 41 Rule 27

CPC enables the appellate court to take additional evidence in

exceptional  circumstances.  The  appellate  court  may  permit

additional evidence only and only if the conditions laid down in

this Rule are found to exist. The parties are not entitled, as of

right,  to  the  admission  of  such  evidence.  Thus,  the  provision

does not apply, when on the basis of the evidence on record, the

appellate  court  can  pronounce  a  satisfactory  judgment.  The

matter is entirely within the discretion of the court and is to be

used sparingly.  Such  a  discretion  is  only  a  judicial  discretion

circumscribed by the limitation specified in the Rule itself. (Vide

K. Venkataramiah v.  A. Seetharama Reddy AIR 1963 SC 1526,

Municipal Corpn. of Greater Bombay v. Lala Pancham AIR 1965

SC 1008, Soonda Ram v. Rameshwarlal (1975) 3 SCC 698 and

Syed Abdul Khader v. Rami Reddy (1979) 2 SCC 601.)

24

37. The appellate court should not ordinarily allow new evidence

to be adduced in order to enable a party to raise a new point in

appeal. Similarly, where a party on whom the onus of proving a

certain point lies fails to discharge the onus, he is not entitled to

a fresh opportunity  to  produce evidence,  as the court  can,  in

such  a  case,  pronounce  judgment  against  him and  does  not

require  any  additional  evidence  to  enable  it  to  pronounce

judgment.  (Vide  Haji  Mohammed  Ishaq v.  Mohd.  Iqbal  and

Mohd. Ali and Co. (1978) 2 SCC 493)

…….

40. The inadvertence of the party or his inability to understand

the legal issues involved or the wrong advice of a pleader or the

negligence  of  a  pleader  or  that  the  party  did  not  realise  the

importance  of  a  document  does  not  constitute  a  “substantial

cause”  within  the  meaning  of  this  Rule.  The  mere  fact  that

certain evidence is important, is not in itself a sufficient ground

for admitting that evidence in appeal.”

“47. Where  the  additional  evidence  sought  to  be  adduced

removes the cloud of doubt over the case and the evidence has

a direct and important bearing on the main issue in the suit and

interest  of  justice  clearly  renders  it  imperative  that  it  may  be

allowed  to  be  permitted  on  record,  such  application  may  be

allowed.”

30. The order of the Commissioner dated 17.07.1973 refers to

the order of the Tahsildar dated 28.07.1971 and also the report of

the SDO dated 21.10.1969.   We are inclined to receive the order

of Tahsildar dated 28.07.1971 as additional evidence. From the

order  of  the  Tahsildar  dated  28.07.1971,  in  Civil  Suit

No.26A74/70-71 filed before Tahsildar, it  is seen that Hanuman

25

Din-applicant  thereon  filed  an  application  before  the  Collector,

Sidhi  stating  that  he  is  the  land  owner-cultivator  of  the  land

numbers 131, 151, 161, 162, 163, 41 of the village Bairath and

has been in possession of the lands and that the non-applicants

(Vishwanath,  Shiv  Nath  and  Jairaj  Kumari)  got  their  names

recorded  in  revenue  entries  in  connivance  with  Shri  Bansh

Bahadur Singh, Patwari and prayed for rectification of the entries.

A report was called from the SDO who held a detailed enquiry

and submitted a report. Based upon such enquiry and report of

the SDO dated 21.10.1969, the Tahsildar held that the entry in

regard  to  possession  of  the  non-applicants  (Vishwanath,  Shiv

Nath, Jairaj Kumari) in respect of land numbers 41, 131, 162, 163

was found to be made subsequently and held as under:-

“9. As far as the rectification in the Khasra entries for the years

1968-69 or prior to it is concerned, application is allowed as per

para 8 and therefore,  question regarding dispute  in  regard to

subsequent years of the above years does not arise at all. I have

personally perused the Khasra for the years 1963-64 to 1967-68

and I find that apart from the entries made in the column No.12

of the Khasra pertaining to the land No.41 at the time of inquiry,

“Vishwanath,  Shivnath  Kurmi,  R/o  Deh  41/1.39”  it  specifically

appears to be made subsequently.…... Thus, it is proved that the

entry in regard to the possession of non applicants Vishwanath,

Shivnath and Jairaj Kumri in respect of land No.41, 151, 162 and

163 is found proved to be made subsequently.”

26

“10.  Now, it is to be seen that who was in the possession of the

disputed land prior to the disputed years.  In this regard, none of

the parties has produced any evidence.  Hence in the interest of

justice, I have called for the Khasra for the years 1961-62, 1962-

63 and gone through it and then apart from the Land No.131,

non  applicants  are  not  found  to  be  in  the  possession  of  the

above land.  In such circumstances, it is clear that Patwari Halqa

with the intention to create dispute in respect of the disputed land

has committed forgery before his retirement.

Thus,  the  entries  for  the  year  1963-64  to  1968-69  in

relation to possession of the applicants on the land No.41, 151,

161,  162  and  163  be  recorded  rectified  in  place  of  the  non

applicants on the basis of entries for the year 1962-63 …..”

31. The  learned  senior  counsel  appearing  for  the  plaintiffs-

respondents  raised  strong  objections  contending  that  the  said

order of the Tahsildar dated 28.07.1971 in Civil Suit No.26A74/70-

71  cannot  be  received  as  additional  evidence  and  cannot  be

looked into as the said documents were not produced before the

trial  court  nor were there reference to those documents in the

written statement.   We find no merit  in the contention that  the

order of the Tahsildar dated 28.07.1971 cannot be looked into on

the ground that they were not adduced as evidence before the

trial court.   Order of the Commissioner, Rewa in Case No.52A

61/71-73 marked as  Ex.  D-1  dated  17.07.1973 makes a  clear

reference to the order of the Tahsildar dated 28.07.1971. Since in

27

Ex.D-1  (17.07.1973),  there  is  reference  to  the  order  of  the

Tahsildar dated 28.07.1971, the same is received as additional

evidence.  The  order  of  the  Tahsildar  dated  28.07.1971  has  a

direct bearing on the main issue in the suit and in the interest of

justice,  the  same  has  to  be  received  as  additional  evidence.

Since Ex. D-1 makes a reference to the order of the Tahsildar, in

our  view,  there is  no impediment  in  receiving the order  of  the

Tahsildar  dated  28.07.1971  as  additional  documents  and

considering the same.  Since the order of the Tahsildar has been

referred to in the order of the Commissioner dated 17.07.1973

(Ex.D-1), in our view, it will not have the effect of introducing new

case necessitating remittance of the matter.  So far as the other

two  additional  documents  namely,  order  of  the  Naib  Tahsildar

dated 01.09.1962 – order passed in the suit filed under Section

250 of the M.P. Land Revenue Code and the order of the District

Collector dated 21.11.1972, they are not received as additional

evidence.  

32. The order of the Commissioner dated 17.07.1973 makes a

reference to the order of the Tahsildar dated 28.07.1971 which in

turn refers to the suit filed by the predecessors of the plaintiffs-

respondents  under  Section  250  of  the  MP  Code  in  which

28

plaintiffs-respondents were unsuccessful in challenging the lease

in  favour  of  Gaya  Din/Hanuman  Din.  This  document  was  not

produced before  the  Courts  below and now only  produced as

additional evidence. As discussed earlier, we are not inclined to

receive this document as additional evidence. In our considered

view, the first Appellate Court and the High Court fell in error in

not taking into consideration the categorical findings recorded in

the  order  of  the  Commissioner  (Ex.  D-1)  that  the  plaintiffs-

respondents got the entries in the revenue records in connivance

with  the  Patwari  and  that  the  Patwari  was  guilty  of  grave

misconduct.

33. Limitation:- The  respondents’  suit  was  for  the  reliefs  of

declaration of title and consequential possession of the suit lands.

The suit was instituted on 17.10.1975.  The appellants contended

that the suit is hopelessly time barred as according to them, the

cause of action arose for the first time in the year 1929, when the

patta  was issued in favour of the appellants’ grandfather Gaya

Din and then in the year 1935, when the Act was promulgated by

the Maharaja of Rewa and then in the year 1952, when Jagirdari

was abolished and Hanuman Din became the tenant of the State

instead of Jagirdar and lastly on 02.11.1960, when the name of

29

Hanuman Din was entered by the Tahsildar as  bhumiswami.  By

dismissing  the  suit,  the  trial  court  held  that  the

respondents/plaintiffs must have filed the suit within twelve years

of possession of the defendants or dispossession of the plaintiffs.

In  the plaint,  the respondents have averred that  they came to

know about the lease of the lands in favour of Gaya Din only in

the month of August, 1969 whereas the first Appellate Court held

that the suit was within the period of limitation of twelve years by

treating the cause of action to have arisen on 06.11.1974 i.e. on

the date of order of the Sub-Divisional Magistrate in Section 145

proceedings. Since we considered the matter at length on merits,

we are not inclined to go into the question of limitation.  

34. Case of the respondents-plaintiffs is that as per Section 5 of

the Vindhya Pradesh Abolition of Jagirs and Land Reforms Act,

1952,  all  the  Jagir  Lands  were  resumed by  the  then  Vindhya

Pradesh Government on 23.06.1953.  On that date, illaqedar was

not authorised and was not having jurisdiction to issue patta.  The

merit  of  the  contention  is  to  be  considered in  the  light  of  the

provisions of Rewa Land Revenue and Tenancy Act, 1935 (Rewa

Act) and Vindhya Pradesh Act, 1952.

30

35. The learned senior counsel for the appellants stated that in

1929, there was no codified revenue law in the State of Rewa. In

1935, Maharaja of Rewa promulgated the Rewa Land Revenue

and Tenancy Act, 1935.  Section 2 of the Rewa Act repealed all

earlier government notices, rules, circulars, orders, notifications

etc. that  are inconsistent  to the said Act;  but  saved the action

taken thereunder. Thus, the action taken thereunder the said Act

like  grant  of  patta  etc.  was  saved.   Case  of  the  appellants-

defendants is that by virtue of Section 2 of the Rewa Act, grant of

patta to Gaya Din is saved. It is also their case that Section 3 of

the Rewa Act saved the existing proceedings and the fathers of

the  respondents  could  have  proceeded  against  the  appellants

under Sections 46 and 142 of the Rewa Act. However, they have

not initiated any proceedings under the said provisions of the Act.

In 1948, the State of Rewa acceded to India and became part of

the  State  of  Vindhya  Pradesh.  In  1952,  the  State  of  Vindhya

Pradesh  abolished  the  system  of  Jagirdari  by  the  Vindhya

Pradesh Abolition of Jagirs and Land Reforms Act, 1952. Under

Section  26  of  the  Vindhya  Pradesh  Act,  the  appellants’ father

Hanuman  Din  became  direct  tenant  of  the  State  in  place  of

31

Jagirdar and under Section 28 of the Act, he became a pattedar-

tenant.  

36. By the States Reorganization Act, 1956, the erstwhile State

of Vindhya Pradesh became a part of larger Madhya Pradesh.

Subsequent to which, the State of Madhya Pradesh enacted the

M.P.  Land  Revenue  Code,  1959  (M.P.  Code)  whereby  the

appellants’ predecessor Hanuman Din being a pattedar-tenant in

Vindhya  Pradesh  in  possession  of  the  lands,  became  their

Bhumiswami under Section 158(1)(d)(i) of the M.P. Code. After

following the due procedure laid down under Sections 109 and

110 of the M.P. Code, his name was entered in revenue records.

37. The trial court rightly held that the disputed lands belonged

to  the  iIlaqa and  the  Pawaidar was  empowered  under  the

provisions of Section 44 of the Rewa Act to issue the said lease

(Ex. D-20). Section 44 of the Rewa Land Revenue and Tenancy

Act, 1935 reads as under:-  

“44.  Conferment  of  Pattas –  (1)  In  a  kothar  village,  the

following revenue officers are authorised to confer a patta:-

……….

(2) In a pawai, the following persons may confer a patta:-

(a) at a revision of settlement – the Settlement Officer and

Assistant Settlement Officers,

(b) during the currency of Settlement –  

32

A pawaidar in pawai land not included in a sub-pawai;

A sub-pawaidar  in  respect  of  land  included  in  his  sub-

pawai;

A mortgagee in possession;

A mortgagor in possession;

The Court of Wards in land under its superintendence;

A widow having life interest in a pawai or sub-pawai;

……..”

38. The  learned  senior  counsel  for  the  respondents-plaintiffs

submitted that upon consideration of the evidence of Hanuman

Din (DW-1), the first appellate court recorded a finding of fact that

in  the  year  1954,  patta was  granted  in  favour  of  Gaya  Din

(defendants’ father)  and as per the testimony of Hanuman  Din

(DW-1), when patta was issued, Hanuman Din was 35 years old.

It was submitted that based on the evidence of Hanuman Din, the

first  appellate  court  recorded finding that  patta was granted in

favour of Gaya Din in the year 1954 by which time, the tradition of

Pawai has been removed and therefore,  patta  granted in favour

of Gaya Din is not a valid one.  The first appellate court arrived at

such a finding without proper facts and by drawing an inference

noting that when DW-1 was examined in 1984, he was aged 65

years from which the first Appellate Court inferred that DW-1 must

have been born in 1919.  Referring to the statement of DW-1 that

when patta was issued, he was aged 35 years, the first appellate

33

court inferred that  patta must have been issued in 1954 (DW-1

born in 1919 + 35=1954) and by that time, system of Pawai had

been removed.  In this regard, the learned senior counsel for the

respondents-plaintiffs  submitted  that  as  per  Section  5  of  the

Vindhya Pradesh Act,  all  the Jagir Lands were resumed in the

then Vindhya Pradesh Government on 23.06.1953, hence, on this

date,  Pawaidar/iIlaqedar/Jagirdar were not authorised and were

not having jurisdiction to issue patta and therefore, the finding of

the first appellate court that the patta issued in the name of Gaya

Din in the year 1954 is not a valid one and the said findings of

fact cannot be interfered with.

39. The finding of  the first  appellate court  that  the  patta was

granted to Gaya Din in 1954 and that illaqedar was not competent

to issue  patta is misconceived.  As discussed earlier,  patta  was

granted to Gaya Din not in 1954 but in Samvat 1986 (1929 A.D.)

when admittedly the  illaqedar had such power.  That apart, the

validity of  patta so granted cannot be determined based on the

inference  drawn  as  to  the  age  of  DW-1-Hanuman  Din.   The

learned senior counsel appearing for the appellants has drawn

our  attention  to  the  provisions  of  Vindhya  Pradesh  Act  and

submitted  that  as  per  Section  5  of  the  said  Act,  the  State

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Government by a notification appointed a date for the resumption

of  any  class  of  Jagir  Lands  and  the  consequences  of  such

resumption are  set  out  in  Section  6  of  the  said  Act.   We find

substance in the submission of the learned senior counsel for the

appellants  that  in  terms  of  Section  28  of  the  said  Act,  the

appellants who were till then the tenants of intermediary/Jagirdar

shall  be  deemed to  be  pattedar tenant  in  respect  of  the  said

lands.  Section 28 of the Vindhya Pradesh Abolition of Jagirs and

Land Reforms Act, 1952 reads as under:-

28.  Certain occupants of lands to be pattedar tenants. – (1)

Subject to the provisions of sub-section (2) every person who is

entered in the revenue record for a continuous period of three

years as an occupant of any Jagir-land at the date of resumption,

shall be deemed to be pattedar tenant in respect of such land

which shall be assessed at the village rate.

(2)  Nothing in sub-section (1) shall apply to any sir or khudkasht

land which is allotted to the Jagirdar under Section 22 or any

grove land possession of which the Jagirdar is entitled to retain

under clause (c) of Section 7.

In view of the provisions of the above Act, the first appellate court

erred in saying that the patta in favour of Gaya Din was granted in

the  year  1954  and  by  that  time,  Pawaidar/iIlaqedar was  not

having jurisdiction to issue patta.

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40. Re: Finding of the first appellate court:  Ownership of

the  respondents  not  terminated  in  a  legal  way:- The  first

appellate court held that the ownership of Rameshwar and Ram

Sahai was not terminated in a legal way and therefore, they are to

be treated as owners of the suit  properties. The first  Appellate

Court further held that since the ownership of Rameshwar and

Ram Sahai was not terminated in a legal way, the lease deed-

Ex.D-20 which has been produced on behalf of defendant No.1

cannot  be  treated  to  be  a  proved  document  and  on  those

findings, set aside the finding of the trial court that defendant No.1

is having a legal right of ownership of the disputed lands. The first

Appellate  Court,  in  our  view,  was  not  right  in  doubting  the

correctness of Ex. D-20 and not right in observing that defendant

No.1  is  not  having  a  legal  right  of  ownership  on  the  disputed

lands. The first appellate court and the High Court fell in error in

not taking into consideration Ex.D-1-order of the Commissioner

dated 17.07.1973 and the order of the Tahsildar dated 28.07.1971

and other documents showing grant of lease/patta in the name of

Gaya Din and the continued possession of Gaya Din and his son-

Hanuman  Din  and the appellants. The first Appellate Court and

the High Court erred in brushing aside the findings recorded by

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the Commissioner dated 17.07.1973 as to the misconduct of the

patwari in making entries in the revenue records.  

41. In  the  suit  for  declaration  for  title  and  possession,  the

plaintiffs-respondents could succeed only on the strength of their

own title and not on the weakness of the case of the defendants-

appellants.   The  burden  is  on  the  plaintiffs-respondents  to

establish their  title to the suit  properties to show that  they are

entitled  for  a  decree for  declaration.  The plaintiffs-respondents

have neither produced the title document i.e.  patta-lease which

the plaintiffs-respondents are relying upon nor proved their right

by adducing any other evidence.  As noted above, the revenue

entries relied on by them are also held to be not genuine.  In any

event, revenue entries for few Khataunis are not proof of title; but

are mere statements for revenue purpose.  They cannot confer

any right or title on the party relying on them for proving their title.

Observing  that  in  a  suit  for  declaration  of  title,  the  plaintiffs-

respondents are to succeed only on the strength of their own title

irrespective of  whether  the  defendants-appellants have proved

their  case or not,  in Union of India and others v. Vasavi Co-

operative Housing Society Limited and others (2014) 2 SCC

269, it was held as under:-

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“15. It is trite law that, in a suit for declaration of title, the burden

always lies on the plaintiff to make out and establish a clear case

for granting such a declaration and the weakness, if any, of the

case set up by the defendants would not be a ground to grant

relief to the plaintiff.”

42. Upon appreciation of evidence, the trial court has recorded

findings  on  various  issues  which  was  reversed  by  the  first

Appellate  Court.   Since  the  first  Appellate  Court  reversed  the

judgment of the trial court, in the second appeal, the High Court

ought  to  have  weighed  and  considered  the  evidence  and

materials. The order of the High Court dismissing the appellant’s

appeal  by  affirming  the  findings  of  the  first  Appellate  Court  is

mainly  on  the  ground  that  in  the  absence  of  any  order  of

abandonment  or  revocation  of  the  patta granted  to  the

respondents-plaintiffs,  grant  of  patta (Ex.D-20)  in  favour of  the

appellants-defendants was illegal.  The High Court, in our view,

did not appreciate the  patta (Ex.D-20) granted in favour of the

forefathers of the appellants by the competent authority in 1929

and the report of the Revenue Inspector dated 05.10.1969.  The

first Appellate Court and the High Court did not consider Ex.D-1-

Order of the Commissioner dated 17.07.1973 and the report of

the SDO dated 21.10.1969 and other revenue records showing

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that the forefather of the appellants-defendants namely Gaya Din

was  given  the  patta (Ex.D-20)  and  since  then,  Gaya  Din  and

Hanuman Din were in possession of the properties.  The High

Court has not properly appreciated the evidence and materials on

record and the impugned judgment is liable to be set aside.

43. In the result, the judgment of the High Court in the Second

Appeal No.174 of 1989 dated 05.02.2007 is set aside and this

appeal is allowed.  The Suit No.68-A/75 filed by the respondents-

plaintiffs  is  dismissed and the judgment  of  the trial  court  shall

stand restored.  No order as to cost.   

.....………………………….J.                                               [R. BANUMATHI]

…..………………………….J.                                                               [R. SUBHASH REDDY] New Delhi; April 09, 2019.

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