FAROOQI BEGUM (D) BY LRS.versusTHE STATE OF UTTAR PRADESH

                        [2022] 13 S.C.R. 227                              227


                 FAROOQI BEGUM (D) BY LRS.                                A
                                  v.
                THE STATE OF UTTAR PRADESH
                   (Civil Appeal No. 1534 of 2009)
                           JULY 12, 2022.                                 B
       [S. ABDUL NAZEER AND VIKRAM NATH, JJ.]
       Government grants: Resumption of land – Suit for declaration
and possession – On facts, the State of UP-respondent, through
Collector, filed suit for declaration, possession and damages with
                                                                          C
respect to land that it was a government grove and presently
belonging to the U.P. State Garden Department – Said grove was
rent free grant of the defendant-appellant by the ruler of erstwhile
Rampur State and was later resumed by the successor in 1930 and
thereafter, came in the hands of the State of U.P. however, the
appellant managed to get her name continued in the revenue record         D
though her possession was removed – Plea of the appellant that
they were throughout in possession and, as such, had perfected her
right, title and interest on the coming of the 1952 Act; and that in a
previous proceeding State acquiesced to the defendant’s title – Trial
court decreed the suit in favour of the respondent – Also, in the first
                                                                          E
appeal and second appeal, the order of the trial court upheld – On
appeal, held: Neither any order resuming the earlier grant nor any
order of the revenue court to show that the said resumption of land
had been incorporated in the revenue records was filed – Only
evidence led by the respondent was filing of a true copy of Muafiat
Register and the statement of PW-2, clerk working in the revenue          F
department, which is not free from suspicion and cannot be relied
upon – There was no evidence to prove the resumption of the grant
– Furthermore, respondent led no evidence to establish possession
since 1930 after the resumption – Courts below have proceeded on
assumptions and presumptions to hold in favour of the State –
                                                                          G
Appellants had filed not only documentary evidence to prove their
continuous possession but also oral evidence, which was ignored –
Thus, the High Court erred in not taking into consideration the
relevant material and instead relied upon inadmissible evidences –
Even the burden of proof has been wrongly placed on the appellant
– Thus, the order passed by the High Court is set aside and the           H
                                   227
228            SUPREME COURT REPORTS                    [2022] 13 S.C.R.


A     matter is remitted to High Court – U.P. Zamindari Abolition & Land
      Reforms Act, 1952.
            Allowing the appeal, the Court
             HELD 1.1 The suit of the respondent instituted for the relief
      of declaration, possession and mesne profits was based on the
B     averments that the grant given by Nawab Hamid Ali Khan in 1924
      in favour of the appellant, had been resumed by his successor,
      Nawab Raza Ali Khan in the year 1930, thereafter, the respondent
      had entered into possession, the records were corrected,
      however, the appellant on account of some omission in the
C     maintenance of the records, re- entered into possession
      sometimes in 1959 and, therefore, they were compelled to file a
      suit. It is also stated that the respondent made an attempt to get
      the records corrected through the revenue court by way of an
      application for correction of revenue records, but the same was
      rejected by the Deputy Collector in 1953. [Para 13][234-H; 235-
D     A-B]
            1.2 The first thing required to be proved by the plaintiff/
      -respondent was that there was resumption of the grant given in
      favour of the appellant. For the said purpose, neither any such
      order resuming the earlier grant was filed, nor any order of the
E     revenue court was filed to show that the said resumption of grant
      had been incorporated in the revenue records. The defense taken
      was that all the records had been destroyed in a fire in 1947. The
      only evidence led by the plaintiff- respondent was filing of a true
      copy of Muafiat Register and the statement of PW-2, who was
F     said to be working as a Clerk in the Revenue Department. [Para
      14][235-C-D]
            1.3 According to counsel for the appellant, two basic
      objections were taken for not relying upon the Muafiat Register.
      Firstly, it had torn binding and had loose pages. Secondly, the
G     entire register was written in blue-black ink and it is only the
      entry relating to the land in question regarding resumption was
      written in black ink. These two aspects casted a doubt on the
      veracity of the entries in the register and in particular the entry
      relating to the resumption. The document was, thus, a document
      not free from suspicion and as such, no reliance could be placed
H     upon it. [Para 15][235-E-F]
   FAROOQI BEGUM (D) BY LRS. v. THE STATE OF UTTAR                     229
                     PRADESH

      1.4 Apart from the above, no other evidence was led by the       A
plaintiff/-respondent to prove the resumption. PW-2 in his
cross-examination, had no explanation for the loose pages, the
index i.e. the first page and the last page being missing with no
detail of the number of pages in the said register. Further, there
was no explanation for the difference in the ink and that too only
                                                                       B
on the page by which, the entry relating to resumption with respect
to the land in dispute was made. The courts below relied upon
the entries in the Muafiat Register only for the reason that it was
a document produced by the State and the State would have no
reason to make any kind of interpolation. There was no other
supporting document with regard to presumption of the land in          C
question. [Para 16][235-F-H]

      1.5 Referring to the above documents and statements,
counsel for the appellants submitted that grave injustice has been
done to the appellant by the courts below in holding that there
was a resumption, in the absence of any credible, reliable evidence    D
to that effect. Prima facie, there is substance in submission of the
appellants that apparently there was no evidence to prove the
resumption of the grant. [Para 17, 18][236-A-B]

      1.6 The finding recorded by a Class-I Officer of the State       E
could not be easily ignored. It is true that correction of record
proceedings is summary in nature, but when the inspection was
carried out, such finding recorded in the order regarding
possession ought not to have been ignored. [Para 21][236-F]

      1.7 Plaintiff/respondent’s led no evidence to establish that     F
it was throughout in possession since 1930 after the resumption.
The courts below have proceeded on assumptions and
presumptions to hold in favour of the State on the question of
possession and to decree the suit. [Para 22][236-G-H]

      1.8 The defendant/appellants had filed not only documentary      G
evidence to prove their continuous possession but also oral
evidence, which has been ignored. [Para 23][237-A]


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A           1.9 Appellants submitted that courts below have placed
      reliance upon a letter of the defendant-appellant dated 19.07.1954
      to draw presumption that the defendant-appellant was not in
      possession in 1954 and it is for this reason that she had applied
      for seeking to be put back into possession. The contents of the
      said letter have been perused. According to it, there is some
B
      land of Government and after merger the Government Garden
      Department, Rampur has taken possession over her grove and
      the request made was to direct the Government Garden
      Department, Rampur to remove their possession from her garden
      so that she may have full possession of her share. This clearly
C     means that there was issue of some part of the land granted to
      the defendant-appellants being in possession of the Garden
      Department, Rampur. [Para 24][237-B-D]
             1.10 This letter has been heavily relied upon by the courts
      below to record the finding of possession in favour of the plaintiff/
D     respondent. The signatures on the said letter were denied by
      the defendant-/appellant, but the same was sought to be proved
      through a nephew of step- sister instead of getting the same
      verified by a hand-writing expert. [Para 25][237-D-E]
            1.11 The High Court fell in error in not taking into
E     consideration the relevant material and instead relying upon
      inadmissible evidence or evidence which had no bearing to the
      findings. Even the burden had been wrongly placed on the
      defendant/appellant. Further, the High Court ought to have
      carefully scrutinized the evidence available on record and only
      thereafter arrived at a conclusion. The judgment of the High Court
F     impugned in the appeal is set aside. The matter is remitted back
      to the High Court. [Para 29, 31][238-D-F]
            CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1534
      of 2009.

G           From the Judgment and Order dated 21.07.2006 of the High Court
      of Judicature at Allahabad in Second Appeal No.813 of 1975.
           Ms. Nitya Ramakrishnan, Sr. Adv., Rahul Kripalani, Ms. Rashmi
      Nandakumar, Vinoothna Vinjam, Advs. for the Appellants.

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   FAROOQI BEGUM (D) BY LRS. v. THE STATE OF UTTAR                             231
                     PRADESH

      Tanmaya Agarwal, Wrick Chatterjee, Advs. for the Respondent.             A
      The Judgment of the Court was delivered by
      VIKRAM NATH, J.
       Appellant has assailed the correctness of Judgment and Order
dated 21.07.2006 passed by the Single Judge, Allahabad High Court in           B
Second Appeal No. 813 of 1975 between Farooqi Begum vs. State of
Uttar Pradesh, whereby the Second Appeal was dismissed giving rise to
the present appeal.
      FACTS
       2. The State of U.P. through Collector, Rampur, instituted a suit       C
for declaration, possession and damages before the Court of District
Judge, Rampur, registered as Original Suit No.1 of 1964, State of U.P.
vs. Smt. Farooqi Begum with respect to land in suit measuring 20 bighas
10 biswa (pukhta) situated in Village Thotar, Tehsil Sadar, District Rampur,
that it was a government grove (known as ‘Bagh Hazoor Pasand’)                 D
and presently belonging to the U.P. State Garden Department, Rampur.
       3. According to the plaint averments, the said grove was rent free
grant of the defendant long before the merger of Rampur State and like
other Muafis; it was granted by His Highness Nawab Hamid Ali Khan
to his different wives and was liable to resumption at the pleasure of the
                                                                               E
ruler of erstwhile Rampur State; after the death of Nawab Hamid Ali
Khan in 1930, his successor Nawab Raza Ali Khan resumed all the
Muafis of all the widows of his father including that of the defendant;
the possession of the same was taken over by the State Authorities soon
after the resumption; the same was given effect to in the revenue papers
and the grove concerned came to be recorded in the name of the State           F
(Shamil Khalasa); the defendant and her Karpoons through collusion
of the revenue officers managed to get her name continued in the
Patwari’s record even though her possession had been removed; the
grove in question along with similarly resumed grove came into the hands
of the State of U.P. at the time of merger; ever since the State has been
                                                                               G
selling its Bahar; the defendant on the basis of continuance of her name,
though illegally, continued to interfere in the possession of the State even
in 1959 claiming the grove in question in her ownership; the State of
U.P. took legal steps to get the revenue records corrected by expunging
the name of the defendant and for incorporating the name of the State
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232                SUPREME COURT REPORTS                      [2022] 13 S.C.R.


A     but the revenue court declined such request of the State as such the
      necessity to file the suit arose.
             4. Smt. Farooqi Begum, the sole defendant, filed the written
      statement denying the plaint allegations except that the proceedings before
      the revenue courts culminated in her favour; it was further alleged that
B     the defendant had been in continuous possession since 1924; the property
      in suit was the holding of the defendant on the commencement of U.P.
      Zamindari Abolition and Land Reforms Act, 1952 and as such on the
      commencement of the Act, the defendant became the ‘Bhumidhar’
      thereof; that in proceedings for ejectment against one Laddan Khan
      initiated by the defendant, the State being a party had acquiesced to the
C     defendant’s title as such the suit was barred by estoppel; further that the
      Bagh Hazoor Pasand was in possession of defendant and was her
      own property and adjoining grove measuring 13 bighas 2 biswas was the
      grove of the plaintiff State and was in its possession; both these groves
      are separated by a Nala (a drain); the plaintiff had filed a suit on a
D     wrong advice that the grove in question was resumed; other formal pleas
      of defence were also taken in the written statement.
             5. The Trial Court proceeded to frame issues on the basis of
      pleadings and allowed the parties to lead their evidence. The defendant
      filed an application under Order VI Rule 17 of the Code of Civil Procedure,
E     19081 for amendment in the written statement on 01.11.1965. The Trial
      Court vide judgment dated 13.11.1966 decreed the suit and at the same
      time rejected the amendment application on the ground that it had been
      filed at a very belated stage after the arguments had been heard. Against
      the said judgment dated 13.11.1966, the defendant preferred an appeal
      which was originally filed before the High Court and registered as First
F     Appeal No.61 of 1967 but later on transferred to the Court of District
      Judge, Rampur, after the U.P. Civil Laws Amendment Act, 1970.
             6. In the Court of District Judge, Rampur, it was registered as
      Civil Appeal No. 50 of 1970, Smt. Farooqi Begum vs. State of U.P. The
      District Judge, Rampur, vide judgment and order dated 08.09.1971 allowed
G     the amendment dated 01.11.1965, set aside the judgment of the Trial
      Court dated 13.11.1966 and remanded the matter to the Trial Court for a
      fresh decision after necessary reframing of issues and opportunity to
      the parties to adduce evidence.

      1
H         In short “CPC”
   FAROOQI BEGUM (D) BY LRS. v. THE STATE OF UTTAR                            233
             PRADESH [VIKRAM NATH, J.]

       7. After remand, the Trial Court in addition to the already framed     A
ten issues, further framed four more issues and allowed the parties to
lead evidence. The Trial court vide judgment and order dated 01.05.1973
again decreed the suit.
       8. The First Appeal filed by the defendant registered as Civil
Appeal No.73 was dismissed by IInd Additional District Judge, Rampur,         B
vide judgment dated 06.03.1975. Aggrieved by the same, the defendant
preferred the Second Appeal before the High Court registered as Second
Appeal No. 813 of 1975. The learned single Judge of the Allahabad
High Court vide judgment and order dated 21.07.2006 dismissed the
Second Appeal which has given rise to the filing of the present appeal.
                                                                              C
       9. We have heard Ms. Nitya Ramakrishnan, learned senior counsel
for the appellants and Mr. Tanmaya Agarwal, learned counsel for the
State. We have been taken through the material on record by the learned
counsel for the parties.
      Arguments of the appellant:                                             D
       10. The following submissions have been advanced on behalf of
the appellant stating that the courts below committed the following serious
errors of law.
      i.     The burden of proof was wrongly shifted on the defendant-
             appellant.                                                       E
      ii.    Inadmissible evidence was relied upon to record finding in
             favour of the plaintiff-respondent.
      iii.   Secondary evidence was relied upon without the Record-
             keeper being examined to prove the same.
                                                                              F
      iv.    Even the secondary evidence relied upon smelt of
             manipulation and interpolation, which was illegally ignored.
      v.     Documents were prepared in the name of the defendant-
             appellant, which were specifically denied, but the same was
             illegally relied upon.                                           G
      vi.    The core issue as to whether an unconditional gift by a
             husband in favour of his wife during the subsistence of the
             marriage was irrevocable, has not been looked into, thereby
             resulting into grave error of justice.
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234                 SUPREME COURT REPORTS                       [2022] 13 S.C.R.


A            vii.     The plaintiff-respondent had completely failed to prove their
                      case as there was no evidence to support their claim but
                      still the suit was decreed.
             viii.    Relevant and admissible evidence was illegally ignored.
             ix.      The pleadings of the plaintiff-respondent were vague and
B                     not specific, nor was duly established by evidence despite
                      the same, the suit was decreed.
             x.       The defendant-appellant was throughout in possession and,
                      as such, had perfected her right, title and interest on the
                      coming of the U.P. Zamindari Abolition & Land Reforms
C                     Act, 1951, which aspect has not been considered.
            11. On all the above submissions, learned counsel for the appellants
      has referred in detail to the evidence and the relevant material, which
      we will refer to at a later stage.

D           12. On the other hand, learned counsel for the plaintiff-respondent
      made the following submissions:
             i.       All the three courts below have recorded concurrent findings
                      of fact and, as such, do not call for any interference.
             ii.      Once the plaintiff and defendant both have equal opportunity
E                     to lead evidence, the argument regarding shifting of burden
                      of proof would lose its significance.
             iii.     The plaintiff-respondent had led cogent, reliable and
                      admissible evidence to establish his case.
             iv.      The courts below have taken into consideration all the
F                     material placed before it and after due appreciation of the
                      same, in accordance with law, the findings have been
                      recorded.
             v.       All the three courts have dealt with all the specific issues
                      framed and have recorded their findings after due
G                     consideration of the material placed by both the sides.
             ANALYSIS:
            13. The suit of the respondent instituted for the relief of declaration,
      possession and mesne profits was based on the averments that the grant
      given by Nawab Hamid Ali Khan in 1924 in favour of the appellant, had
H
   FAROOQI BEGUM (D) BY LRS. v. THE STATE OF UTTAR                               235
             PRADESH [VIKRAM NATH, J.]

been resumed by his successor, Nawab Raza Ali Khan in the year 1930,             A
thereafter, the respondent had entered into possession, the records were
corrected, however, the appellant on account of some omission in the
maintenance of the records, re-entered into possession sometimes in
1959 and, therefore, they were compelled to file a suit. It is also stated
that the respondent made an attempt to get the records corrected through
                                                                                 B
the revenue court by way of an application for correction of revenue
records, but the same was rejected by the Deputy Collector in 1953.
       14. On the above pleadings, the first thing required to be proved
by the plaintiff-respondent was that there was resumption of the grant
given in favour of the appellant. For the said purpose, neither any such
order resuming the earlier grant was filed, nor any order of the revenue         C
court was filed to show that the said resumption of grant had been
incorporated in the revenue records. The defense taken was that all the
records had been destroyed in a fire in 1947. The only evidence led by
the plaintiff-respondent was filing of a true copy of Muafiat Register
and the statement of PW-2 (Roop Kishore), who was said to be working             D
as a Clerk in the Revenue Department.
        15. We have examined the statement of PW-2. According to
learned counsel for the appellant, two basic objections were taken for
not relying upon the Muafiat Register. Firstly, it had torn binding and had
loose pages. Secondly, the entire register was written in blue-black ink         E
and it is only the entry relating to the land in question regarding resumption
was written in black ink. These two aspects casted a doubt on the veracity
of the entries in the register and in particular the entry relating to the
resumption. The document was, thus, a document not free from suspicion
and as such, no reliance could be placed upon it.
                                                                                 F
       16. Apart from the above, no other evidence was led by the plaintiff-
respondent to prove the resumption. PW-2 in his cross-examination, had
no explanation for the loose pages, the index i.e. the first page and the
last page being missing with no detail of the number of pages in the said
register. Further, there was no explanation for the difference in the ink
and that too only on the page by which, the entry relating to resumption         G
with respect to the land in dispute was made. The courts below relied
upon the entries in the Muafiat Register only for the reason that it was a
document produced by the State and the State would have no reason to
make any kind of interpolation. There was no other supporting document
with regard to presumption of the land in question.                              H
236            SUPREME COURT REPORTS                          [2022] 13 S.C.R.


A            17. Referring to the above documents and statements, counsel
      for the appellants submitted that grave injustice has been done to the
      appellant by the courts below in holding that there was a resumption, in
      the absence of any credible, reliable evidence to that effect.
             18. Prima facie, we find substance in submission of the learned
B     counsel for the appellants that apparently there was no evidence to prove
      the resumption of the grant.
             19. Insofar as the issue of possession is concerned, learned counsel
      for the appellant submitted that it was the specific case of the defendant-
      appellants that they had continued in possession right from 1924 i.e. the
C     time when the grant was given. It is also submitted that throughout in the
      revenue records, the possession of the defendant-appellant is recorded.
      It was also submitted that 20 bighas and odd piece of land given under
      the grant was separated by a Nala(drain) with a separate piece of land
      measuring 13 bighas and odd, which was in the possession of State
      Department of Government Garden and it was this smaller piece of
D     land, which was being let out by the State of U.P., Garden Department
      by selling usufruct thereof.
             20. It was next submitted that Deputy Collector in the proceedings
      for correction of records initiated by the plaintiff-respondent, had made
      a spot inspection not once but a couple of times. In its order dated
E     03.01.1961, while rejecting the application of the State for deleting the
      name of the defendant-appellant and recording the name of the plaintiff-
      respondent, had categorically recorded that the defendant-appellant was
      in occupation and in possession of the land in question.
             21. It may be noted that the finding recorded by a Class-I Officer
F     of the State could not be easily ignored. It is true that correction of
      record proceedings is summary in nature, but when the inspection was
      carried out, such finding recorded in the order regarding possession ought
      not to have been ignored.
             22. It is thus apparent that plaintiff-respondent led no evidence to
G     establish that it was throughout in possession since 1930 after the
      resumption. The courts below have proceeded on assumptions and
      presumptions to hold in favour of the State on the question of possession
      and to decree the suit.

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   FAROOQI BEGUM (D) BY LRS. v. THE STATE OF UTTAR                              237
             PRADESH [VIKRAM NATH, J.]

      23. On the other hand, we find that that the defendant-appellants         A
had filed not only documentary evidence to prove their continuous
possession but also oral evidence, which has been ignored.
       24. It was further submitted on behalf of the appellants that courts
below have placed reliance upon a letter of the defendant-appellant dated
19.07.1954 to draw presumption that the defendant-appellant was not in          B
possession in 1954 and it is for this reason that she had applied for seeking
to be put back into possession. The contents of the said letter have been
perused. According to it, there is some land of Government and after
merger the Government Garden Department, Rampur has taken
possession over her grove and the request made was to direct the
Government Garden Department, Rampur to remove their possession                 C
from her garden so that she may have full possession of her share. This
clearly means that there was issue of some part of the land granted to
the defendant-appellants being in possession of the Garden Department,
Rampur.
      25. This letter has been heavily relied upon by the courts below to       D
record the finding of possession in favour of the plaintiff-respondent.
The signatures on the said letter were denied by the defendant-appellant,
but the same was sought to be proved through a nephew of step-sister
instead of getting the same verified by a hand-writing expert.
       26. P.W.-3, Shakir Ali Khan, who claims to be a Clerk posted as          E
Clerk in the Garden Department Office, in his examination-in-chief has
stated that he recognizes the signature of the defendant-appellant as his
wife is the step-daughter of the sister of the defendant-appellant.
However, in his cross-examination, he states that:
      i.     he does not know the name of the sister of Farooqui Begum,         F
             the defendant-appellant, whose step-daughter was his wife;
             he even does not know the name of her father; he had
             never exchanged any letter with the defendant-appellant;
             he had not seen defendant-appellant reading and writing;
             he does not have any direct relationship with the defendant.       G
             The credibility of the statement of PW-3 to prove the
             signature of the defendant also appears to be far-fetched
             and doubtful. We may also note here that even if the said
             letter contain the signature of the defendant, it’s content
             cannot be read to mean that the defendant was expecting
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238              SUPREME COURT REPORTS                        [2022] 13 S.C.R.


A                    complete loss of possession over her entire piece of land
                     but it was only with respect to part of the land where the
                     Government Garden Department had apparently
                     encroached upon while demarcating.
             27. Learned counsel for the plaintiff-respondent has sought to
B     justify the findings recorded by the courts below referring to the various
      parts of the judgments and also taking us through the evidence on record.
             28. Learned Counsel for the defendant-appellant has vehemently
      argued that the gift by a muslim husband to his wife during marriage will
      be irrevocable. She has placed reliance upon a few judgements in support
C     of the said submission. We are not inclined to enter into that question as
      prima facie, we are of the view that the matter requires reconsideration
      by the High Court and such an issue could be raised at that stage.
            29. We have given our anxious consideration to the arguments
      advanced and are of the view that the High Court fell in error in not
D     taking into consideration the relevant material and instead relying upon
      inadmissible evidence or evidence which had no bearing to the findings.
      Even the burden had been wrongly placed on the defendant-appellant.
      Further, the High Court ought to have carefully scrutinized the evidence
      available on record and only thereafter arrived at a conclusion.

E           30. In view of the above, the appeal deserves to be allowed. It is,
      accordingly, allowed.
             31. The judgment of the High Court impugned in the appeal is set
      aside. The matter is remitted back to the High Court.
           32. The Second Appeal be restored to its original number and
F     may be heard and disposed of afresh in the light of the observations
      made above.
             33. Learned counsel for the parties would be at liberty to raise all
      the points before the High Court. They undertake to extend all co-operation
      in the hearing of the appeal before the High Court. We also request the
G     High Court to decide the appeal as expeditiously as possible.

      Nidhi Jain                                                   Appeal allowed.
      (Assisted by : Shashwat Jain, LCRA)


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