Holding

The Supreme Court held that the plaintiffs failed to establish title, the patta‑lease is genuine, and the trial court’s dismissal of the suit must be restored.

Summary

The respondents-plaintiffs filed a suit for declaration of title and possession of several khasra lands, alleging that their fathers were lessees under a patta-lease. The appellants-defendants contended that the land had been auctioned in 1929 to their grandfather Gaya Din, who obtained a valid patta-lease (Ex.D‑20) and that the plaintiffs' revenue entries were forged with the patwari’s collusion. The trial court dismissed the suit, holding the patta‑lease was genuine and the plaintiffs failed to prove title. The first appellate court and the High Court reversed that decision, relying on the plaintiffs' revenue entries and deeming the patta‑lease invalid. On appeal under Art.136, the Supreme Court held that the burden of proof lies on the plaintiffs, that revenue entries are not proof of title, that Section 58 of the Evidence Act does not preclude proof of admitted facts, and that Section 90 creates a presumption of genuineness for a document over thirty years old. The Court also allowed limited additional evidence (the Tahsildar order) but rejected other documents. Finding the lower courts' findings perverse, the Court set aside the High Court judgment, restored the trial court’s dismissal of the suit, and allowed the appeal.

Issues considered

Whether the plaintiffs bear the burden of proving title in a suit for declaration of title and possession.
Whether revenue entries and Khatauni records constitute proof of title.
Whether Section 58 of the Evidence Act bars proof of admitted facts and the discretion of the court under its proviso.
Whether Section 90 of the Evidence Act raises a presumption of genuineness for a thirty‑year‑old patta‑lease.
Whether additional evidence can be admitted under Order XLI Rule 27 of the CPC in appellate proceedings.
Whether the patta‑lease issued in 1929 is valid despite subsequent land‑reform statutes.
Whether the concurrent findings of the first appellate court and the High Court can be interfered with under Art.136.

Legislation cited

Code of Civil Procedure, 1908s. Order XLI Rule 27
Code of Criminal Procedure, 1973s. 145
Indian Evidence Act, 1872s. 58, s. 90
Madhya Pradesh Land Revenue Code, 1959s. 158, s. 250, s. 50
Rewa Land Revenue and Tenancy Act, 1935s. 141, s. 44
Vindhya Pradesh Abolition of Jagirs and Land Reforms Act, 1952s. 28, s. 5, s. 6

Subjects

title suitpossessionburden of proofrevenue recordspatta leaseSection 58 Evidence ActSection 90 Evidence Actadditional evidenceOrder XLI Rule 27 CPCArt.136 Supreme Courtperverse findingsland reform statutesVindhya Pradesh ActRewa Land Revenue ActMadhya Pradesh Land Revenue Codelimitationabandonment

Judgment

518 [2019]REPORTS
SUPREME COURT 6 S.C.R. 518 [2019] 6 S.C.R.

A JAGDISH PRASAD PATEL (DEAD) THR. LRS.& ANOTHER
v.
SHIVNATH & OTHERS
(Civil Appeal No. 2176 of 2007)
B APRIL 09, 2019
[R. BANUMATHI AND R. SUBHASH REDDY, JJ.]
Suit:
Suit for declaration of title and possession – Filed by
C respondents-plaintiffs – Suit contested on the ground that the suit
land was abandoned by respondent-plaintiff and lease was issued
to the predecessor-in-interest of the appellants-defendants – Trial
court dismissed the suit holding that patta-lease (Ex.D-20) in respect
of suit land was issued by the Illaquedar to the defendants and since
then they were in possession of the same and also held that plaintiffs
D
got the entries of their names in the revenue records in connivance
with the patwari – First appellate court doubting the correctness of
Ex.D-20 decreed the suit – In second appeal High Court affirmed
the findings of first appellate court – Appeal to Supreme Court –
Held: In a suit for title and possession, plaintiffs can succeed only
E on the strength of their own title and not on the weakness of the
case of the defendants – The burden was on the plaintiffs-
respondents to establish their title – They have failed to produce
title document or any other evidence to prove their title – The oral
and documentary evidence clearly establish that patta-lease (Ex.D-
20) was issued to predecessor-in-interest of the defendents and they
F
were in continuous possession of the suit land – Trial court had
rightly dismissed the suit.
Constitution of India:
Art.136 – Special Leave Petition – Scope of – Concurrent
G finding of fact – Interference with – Held: Concurrent finding of
fact cannot be interfered with, unless warranted by compelling
reasons – When the findings of courts below are perverse,
interference with the findings of fact are warranted.

H
518
JAGDISH PRASAD PATEL (DEAD) THR. LRS.& ANR. v. 519
SHIVNATH & ORS.

Evidence Act, 1872: A
s. 58 Proviso – Admitted facts – Whether need to be proved –
Held: s. 58 postulates that things admitted need not be proved –
However, proviso to s. 58 gives full discretion to the court to require
the admitted facts to be proved.
s. 90 – Presumption – As to genuineness of a document – B
Held: Court ‘may presume’ that the document is genuine – Mere
allegation of fraud would not be sufficient to rebut such presumption.
Code of Civil Procedure, 1908:
Or. XLI, r. 27 – Production of additional evidence – When C
permissible – Discussed.
Deeds and Documents:
Revenue entries – Evidentiary value – Held: Revenue entries
for few Khataunis are not proof of title, but are mere statements for
revenue purpose. D
Allowing the appeal, the Court
HELD: 1. 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
E
appellate court and the High Court are shown to be perverse,
this Court would certainly interfere with the findings of fact
recorded by the High Court. [Para 10][530-E]
Mahesh Dattatray Thirthkar v. State of Maharashtra
(2009) 11 SCC 141 : [2009] 3 SCR 1122 – relied on.
F
2. The suit of the respondents-plaintiffs was 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. [Para 13][531-D] G

3. In the written statement, defendant also admitted that
the plaintiffs-respondents’ fathers were lessees and patta-lease

H
520 SUPREME COURT REPORTS [2019] 6 S.C.R.

A was originally granted in their favour during the settlement period
for cultivation on the basis of Batai/crop-sharing. [Para 14]
[531-H; 532-A]
Nagindas Ramdas v. Dalpatram Iccharam alias Brijram
and Others (1974) 1 SCC 242 : [1974] 2 SCR 544;
B Executive Officer, Arulmigu Chokkanatha Swamy Koil
Trust, Virudhunagar v. Chandran and Others
(2017) 3 SCC 702 : [2017] 5 SCR 473 – referred to.
4. Section 58 of the Evidence Act, no doubt, postulates that
the things admitted need not be proved. However, proviso to
C 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
D to them. The written statement filed by the appellants-defendants
has to be read in toto. In the written statement, the appellants-
defedants averred that the lands were in the ownership of ‘R’ 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
E 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 was
accepted and the disputed lands were transferred in his name in
the sale in Samvat 1986 i.e. 1929 A.D. The admission of the
F defendants as to the lease of the plaintiffs’ father was the lease
earlier granted in favour of the forefathers of the plaintiffs-
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
G 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. [Para 15][532-E-H; 533-A-B]
5. From the statement of PW-1 and PW-2, it is evident that
H the father of PW-1 had started living in Jabalpur forty years back
JAGDISH PRASAD PATEL (DEAD) THR. LRS.& ANR. v. 521
SHIVNATH & ORS.

prior to institution of the suit and settled there. In the light of A
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
their grandfather was accepted and the suit properties along with
other lands were given on lease to him. If the lands were not left
B
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 grandfather of
defendants. [Para 16][533-C]
6. Case of the appellants-defendants that in Samvat 1986
(1929 A.D.), in the auction held by Pawaidar for lease of suit C
lands and other lands, the suit properties along with other lands
were given on lease to their grandfather is strengthened by
revenue records and ample evidence. Ex. D-20 [Patta in favour
of grandfather of defendants] being thirty year old document gives
rise to presumption as to its genuineness. Contention of the D
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 E
document is genuine. Since the patta [Ex.D-20] 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. [Para 17-19][533-F; 534-C-E] F
7. 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 for 1960-61 (Ex. P-
12), 1963-64 to 1965-66 (Ex. P-13), 1968-69 (Ex. P-14) and 1970- G
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
grand father of defendants and that he and father of defendants
had been continuously in possession of the properties is thus
established by the revenue records. [Para 20][535-F-G]
H
522 SUPREME COURT REPORTS [2019] 6 S.C.R.

A 8. 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,
B
pursuant to which, auction was held by the Pawaidar and lease
was issued by illaqedar in favour of grand father of appellant-
defendent and that he was in continuous possession of the suit
properties. The respondents-plaintiffs have not produced any
document to prove that Ex. D-20 is a forged one. In fact, the
C respondents themselves have filed the patta granted in favour of
the appellants-defendants. [Paras 22 and 23][535-D-E; F-G]
9. The entries which were 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-
D 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
E Inspector (Ex. P-3) which notes that patta illaqa is in the name of
grandfather of appellants 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
F 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. [Para 24][536-C-E]
10. From the order of the Commissioner dated 17.7.1973
and the report of the other revenue authorities, it is clear that
G the plaintiffs-respondents have made interpolation in the revenue
entries in connivance with Patwari and got the revenue entries
recorded in their names. The High Court and the first Appellate
Court erred in not considering Ex.D-1-order of the Commissioner
in its proper perspective. [Para 26][538-B]

H
JAGDISH PRASAD PATEL (DEAD) THR. LRS.& ANR. v. 523
SHIVNATH & ORS.

11. Under Order XLI Rule 27 CPC, production of additional A
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
exercise of due diligence; and (III) the appellate Court required
B
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 C
documents. [Para 28][539-C-E]
Union of India v. Ibrahim Uddin & Another, (2012) 8
SCC 148 : [2012] 8 SCR 35 – relied on.
Karewwa and others v. Hussensab Khansaheb Wajantri
and Others (2002) 10 SCC 315 ; Roop Chand v. Gopi D
Chand Thelia (1989) 2 SCC 383 : [1989] 2 SCR 184
– referred to.
12. In the present case, the Court is inclined to receive
the order of Tahsildar dated 28.07.1971 as additional evidence.
From the order of the Tahsildar dated 28.07.1971, it is seen that E
the applicant thereon (appellant) had filed an application before
the Collector, stating that he was the land owner-cultivator of the
land numbers 131, 151, 161, 162, 163, 41 and has been in
possession of the lands and that the non-applicants (respondents-
plaintiffs) got their names recorded in revenue entries in F
connivance with 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 in respect of land
numbers 41, 131, 162, 163 was found to be made subsequently. G
[Para 30][540-G-H; 541-A-B]
13. It is wrong to say that the order of the Tahsildar dated
28.07.1971 cannot be looked into on the ground that they were

H
524 SUPREME COURT REPORTS [2019] 6 S.C.R.

A not adduced as evidence before the trial court. Order of the
Commissioner, marked as Ex. D-1 makes a clear reference to
the order of the Tahsildar dated 28.07.1971. Since in 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
B
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, there is no impediment
in receiving the order of the Tahsildar dated 28.07.1971 as
additional documents and considering the same. [Para 31]
C [541-H; 542-A-D]
14. Since the order of the Tahsildar has been referred to in
the order of the Commissioner dated 17.07.1973 (Ex.D-1), it will
not have the effect of introducing new case necessitating
remittance of the matter. So far as the other two additional
D 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.
[Para 31][542-D-E]
E 15. 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. [Para 32][542-G-H]
F
16. The finding of the first appellate court that the patta
was granted to grandfather of appellant-defendants in 1954 and
that illaqedar was not competent to issue patta is misconceived.
The Patta was granted not in 1954 but in Samvat 1986 (1929 A.D.)
when admittedly the illaqedar had such power. That apart, the
G validity of patta so granted cannot be determined based on the
inference drawn as to the age of DW-1[father of defendant]. As
per Section 5 of the Vindhya Pradesh Act, the State Government
by a notification appointed a date for the resumption of any class
of Jagir Lands and the consequences of such resumption are set
H out in Section 6 of the said Act. In terms of Section 28 of the said
JAGDISH PRASAD PATEL (DEAD) THR. LRS.& ANR. v. 525
SHIVNATH & ORS.

Act, the appellants who were till then the tenants of intermediary/ A
Jagirdar shall be deemed to be pattedar tenant in respect of the
said lands. In view of the provisions of the above Act, the first
appellate court erred in saying that the patta was granted in the
year 1954 and by that time, Pawaidar/iIlaqedar was not having
jurisdiction to issue patta. [Para 39][545-F-H; 546-A-D]
B
17. The first Appellate Court 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 C
and other documents showing grant of lease/patta in the name of
grandfather of the appellants-defendants and their continued
possession. The first Appellate Court and the High Court erred
in brushing aside the findings recorded by the Commissioner
dated 17.07.1973 as to the misconduct of the patwari in making D
entries in the revenue records. [Para 40][546-F-H; 547-A]
18. 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 E
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. The revenue entries relied on
by them are also held to be not genuine. In any event, revenue F
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.
[Para 41][547-B-D]
Union of India and Others v. Vasavi Co-operative G
Housing Society Limited and others (2014) 2 SCC
269 : [2014] 1 SCR 180 – relied on.
19. Upon appreciation of evidence, the trial court has
recorded findings on various issues which was reversed by the
H
526 SUPREME COURT REPORTS [2019] 6 S.C.R.

A 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
B
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 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
C 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
that the forefather of the appellants-defendants namely Gaya Din
was given the patta (Ex.D-20) and since then, he and his
D
descendants 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.
[Para 42][547-F-H; 548-A-B]
Case Law Reference
E
[2009] 3 SCR 1122 relied on Para 10
[1974] 2 SCR 544 referred to Para 14
[2017] 5 SCR 473 referred to Para 14

F (2002) 10 SCC 315 referred to Para 27
[1989] 2 SCR 184 referred to Para 27
[2012] 8 SCR 35 referred to Para 29
[2014] 1 SCR 180 referred to Para 41
G CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2176
OF 2007.
From the Judgment and Order dated 05.02.2007 of the High Court
of Madhya Pradesh at Jabalpur in Second Appeal No. 174 of 1989

H
JAGDISH PRASAD PATEL (DEAD) THR. LRS.& ANR. v. 527
SHIVNATH & ORS.

Subodh Markandeya, Sr. Adv., Suresh C. Gupta, Birendra Kumar A
Mishra, Ms. Poonam Atey, Rahul Aggarwal, Amit Pratap Singh, Advs.
for the Appellants.
A. K. Shrivastava, Sr. Adv., Akshat Shrivastava, Mrs. Pooja
Shrivastava, Ms. Manjeet Kirpal, Advs. for the Respondents.
The Judgment of the Court was delivered by B

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 C
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.
D
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 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 E
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 F
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 G
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.

H
528 SUPREME COURT REPORTS [2019] 6 S.C.R.

A 3. Respondent-deceased Vishwanath-predecessor-in-interest of
respondents No.2 to 10 filed an application before the Collector in 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
B
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
C 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.
D 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 Batai-crop sharing and only because of this, patta was
granted at the time of settlement in their names. The appellants further
E 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
F 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
G (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

H
JAGDISH PRASAD PATEL (DEAD) THR. LRS.& ANR. v. 529
SHIVNATH & ORS. [R. BANUMATHI, J.]

the revenue records in their names in connivance with the Patwari. The A
trial court held that the lease-patta (Ex.D-20) was issued by the then
iIlaqedar to Gaya Din 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
B
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 C
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 D
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 legal
right of ownership on the disputed lands. The first Appellate Court noted E
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 F
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 G
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

H
530 SUPREME COURT REPORTS [2019] 6 S.C.R.

A 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.
8. We have heard Mr. Subodh Markandeya, learned senior counsel
B 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
C 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.
D
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
E the High Court are shown to be perverse, this Court would certainly
interfere with the findings of fact recorded by the High Court. [Vide
Mahesh Dattatray Thirthkar v. State of Maharashtra (2009) 11 SCC
141]
11. The respondents-plaintiffs–Shiv Nath and deceased
F 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
G 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.

H
JAGDISH PRASAD PATEL (DEAD) THR. LRS.& ANR. v. 531
SHIVNATH & ORS. [R. BANUMATHI, J.]

12. The appellants-defendants resisted the suit contending that A
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-
B
defendants further averred that the forefathers of respondents-plaintiffs
abandoned the suit lands and since revenue tax was not paid, the lease
of 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 C
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 D
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- E
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 of Ram Sahai and
Rameshwar Kurmi are found recorded as owners of land numbers 51/ F
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 G
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

H
532 SUPREME COURT REPORTS [2019] 6 S.C.R.

A 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
B
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 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
C 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
D
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
E 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
F appellants-defendants has to be read in toto. It is pertinent to note that
in para No.(2) of 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
G 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
H
JAGDISH PRASAD PATEL (DEAD) THR. LRS.& ANR. v. 533
SHIVNATH & ORS. [R. BANUMATHI, J.]

as to the lease of the plaintiffs’ father was the lease earlier granted in A
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
B
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
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. C
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 D
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 E
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 F
Pawaidar sanctioned entries 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 G
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

H
534 SUPREME COURT REPORTS [2019] 6 S.C.R.

A 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
B 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 respondents to rebut the presumption. This has not
been controverted by the respondents-plaintiffs.
C
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
D 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
E 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
F respondents-plaintiffs; and in the previous khasras for the years 1950-
51 to 1954-55 (Ex. P-8) and subsequent khasras 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
G 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)

H
JAGDISH PRASAD PATEL (DEAD) THR. LRS.& ANR. v. 535
SHIVNATH & ORS. [R. BANUMATHI, J.]

and thereafter, the subsequent khasras 1960-61 onwards. The names A
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
B
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 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 C
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 D
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.
E
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 F
Ex. D-20 is a forged one. The plaintiffs at one place averred that without
the knowledge of 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 G
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

H
536 SUPREME COURT REPORTS [2019] 6 S.C.R.

A 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
B
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.
24. The entries which are consistently in favour of the appellants
C 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
D 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
E 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
F application was filed before the District Collector alleging interpolation
by patwari in the gashti – khasras at the behest of 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
G 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

H
JAGDISH PRASAD PATEL (DEAD) THR. LRS.& ANR. v. 537
SHIVNATH & ORS. [R. BANUMATHI, J.]

appellant’s father. In revision, the Collector upheld the said order of the A
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 B
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. C
Case No.52/A.61/71-73: Dated 17.07.1973
……….
2. A perusal of the records of the lower courts reveals that N.A.
Hanuman filed an application dated 19.09.1969 before Collector D
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 E
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 F
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. G
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.

H
538 SUPREME COURT REPORTS [2019] 6 S.C.R.

A 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
B made interpolation in the revenue entries in connivance with Patwari
and got the revenue entries recorded in their names. The 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
C 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
D 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
E are relevant are:-

S.No. Documents Remarks
1. 01.09.1962 – Order passed by the Naib Application was dismissed
Tahsildar, Gopad Banas in the suit filed byholding that the patta of the
Shivnath, son of Ram Sahai and Shivnath, land was issued by the
F son of Rameshwar under Section 250 of Tahsildar in favour of
M.P. Land Revenue Code, 1959. 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, -
G District Siddi

The learned senior counsel for the respondents submitted that
there is a clear bar to adduce additional evidence in the appellate court
H
JAGDISH PRASAD PATEL (DEAD) THR. LRS.& ANR. v. 539
SHIVNATH & ORS. [R. BANUMATHI, J.]

subject to circumstances stated under Order XLI Rule 27 CPC and no A
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
B
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 C
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 D
was not available to the party despite 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 E
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 F
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 G
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
H
540 SUPREME COURT REPORTS [2019] 6 S.C.R.

A 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.)
B
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
C 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)
…….
D
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
E 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
F 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
G 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 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
H
JAGDISH PRASAD PATEL (DEAD) THR. LRS.& ANR. v. 541
SHIVNATH & ORS. [R. BANUMATHI, J.]

in possession of the lands and that the non-applicants (Vishwanath, Shiv A
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
B
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 C
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 D
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.”
“10. Now, it is to be seen that who was in the possession of the E
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 F
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 G
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

H
542 SUPREME COURT REPORTS [2019] 6 S.C.R.

A 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
B
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
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
C 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
D
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
E 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
F under Section 250 of the MP Code in which 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
G 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.

H
JAGDISH PRASAD PATEL (DEAD) THR. LRS.& ANR. v. 543
SHIVNATH & ORS. [R. BANUMATHI, J.]

33. Limitation:- The respondents’ suit was for the reliefs of A
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
B
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 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 C
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
D
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 E
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.
35. The learned senior counsel for the appellants stated that in F
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 G
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

H
544 SUPREME COURT REPORTS [2019] 6 S.C.R.

A 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.
B
Under Section 26 of the Vindhya Pradesh Act, the appellants’ father
Hanuman Din became direct tenant of the State in place of 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
C 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
D 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:-
E “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
F
Assistant Settlement Officers,
(b) during the currency of Settlement –
A pawaidar in pawai land not included in a sub-pawai;
A sub-pawaidar in respect of land included in his sub-pawai;
G 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;
H ……..”
JAGDISH PRASAD PATEL (DEAD) THR. LRS.& ANR. v. 545
SHIVNATH & ORS. [R. BANUMATHI, J.]

38. The learned senior counsel for the respondents-plaintiffs A
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
B
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 C
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 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,
D
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 E
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 F
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 G
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
H
546 SUPREME COURT REPORTS [2019] 6 S.C.R.

A 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)
B 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.
C (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
D 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.
40. Re: Finding of the first appellate court: Ownership of
the respondents not terminated in a legal way:- The first appellate
E 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
F 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
G 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

H
JAGDISH PRASAD PATEL (DEAD) THR. LRS.& ANR. v. 547
SHIVNATH & ORS. [R. BANUMATHI, J.]

High Court erred in brushing aside the findings recorded by the A
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 B
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 C
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- D
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:-
“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 E
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 F
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- G
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
H
548 SUPREME COURT REPORTS [2019] 6 S.C.R.

A 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
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
B
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
C dismissed and the judgment of the trial court shall stand restored. No
order as to cost.

Kalpana K. Tripathy Appeal allowed.

D

E

F

G

H