MAHANT RAM KHILAWAN DASversusSTATE OF M.P.

                           [2008] 4 S.C.R. 601

_,,
                    MAHANT RAM KHILAWAN DAS                           A
                                   v.
                             STATE OF M.P.
                    (Civil Appeal No. 5194 of 2001)
                           MARCH 10, 2008
                                                                      B
        [fARUN CHATTERJEE & HARJIT SINGH BEDI, JJ.]

            Code of Civil Procedure, 1908 - s. 100 - Second Appeal
      - High Court setting aside the order of first appellate court
      without formulating the substantial question of law properly -  c
      Justification of- Held: Not justified- Question so framed was
      not substantial question of law but was only a question of fact
      - It was based on alleged admissions ·of appellant ignoring
      other documents and evidence already on record on basis of
      which first appellate court decreed the appellant's suit- Hence,
                                                                       D
      matter remitted to High Court for framing proper substantial
      question of law.
            iViR owned a temple and agricultural lands as a
      if/ianager of the same. He bequeathed the lands to the
      appellant to succeed the same as Manger. In 1987-88, the E
      Collector started auctioning the lands. The appellant filed
      a suit for declaration of title with regard to the suit lands
      and also c. decree for permanent injunction restraining
      the respondent-State from interfering with the enjoyment
•     and possession of the same. Trial Court dismissed the F
T
      suit. However, the appellate court allowed the same. In
      second appeal the High Court framed the substantial
      question of law that whether in the light of the admission
      of the appellant-plaintiff that his name did not find place
      in the revenue records and that he was forcibly
                                                                    G
      dispossessed by the Collector in 1987, the courts below
      erred in granting a decree for declaration and injunction.
~     The High Court allowed the appeal. Hence the present
      appeal.
                                   601                                H
    602     SUPREME COURT REPORTS              (2008] 4 S.C.R.


A       Allowing the appeal and remitting the matter, the        "1-
    Court
       HELD: 1. In second appeal, the High Court should
  not substitute the findings of the courts below with its
  own findings unless there is total absence of the
8 consideration of material evidence. (Para 6) [606-0, E]

        Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar
    1999 (3) sec 722 - relied on.
        2.1 In the instant case, the High Court did not frame
C the substantial question of law properly in the second
  appeal so as to interfere with the judgment of the first
  appellate court. The question of law as framed by the High
  Court was totally based on the alleged admission of the
  appellant that his name did not find mention in the revenue
D records and that he was forcibly dispossessed by the
  Collector of the District. At the same time, even assuming
  that there was an admission on the part of the appellant,
  before reversing the judgment of the first appellate court,
  the High Court ought to have considered the other material
E evidence on record on which the first appellate court had
  based its findings. (Para 5) [605-F, G, H; 606-A]
        2.2 The entries in the record of rights only raise a
  presumption that the person whose name is entered in
  the record of rights is in possession of the suit lands but
F the same can be rebutted by adduction of evidence-
                                                                  ..
  documentary or oral on record. Therefore, even if there
  was alleged admission of the appellant that his name did
  not find place in the revenue records, it would not
  conclusively prove that the appellant had failed to prove
G his title to the suit lands when there was ample evidence
  on record to prove such title. So far as the question
  whether the appellant was forcibly dispossessed in 1987,
  the same was a question of fact, which could not at all be
  taken to be a substantial· question of law. Therefore, the
H substantial question of law so framed by the High Court
1 ,
         MAHANT RAM KHILAWAN DAS v. STATE OF M.P.            603


      was not a substantial question of law on the basis of which A
      the decision of the first appellate court could be reversed.
      (Para 5) [606-A, B, C, DJ
             2.3 From the findings of fact arrived at by the first
      appellate court, it is clear that the other material evidence
      on record would clearly show that the presumption of the 8
      entries in the record of rights relating to the suit lands
      was amply rebutted and the finding that the appellant had
      title to the suit lands was amply proved. The first appellate
      court had drawn an adverse inference against the
      respondent by coming to a finding that th~ respondent C
      had not adduced any evidence to the effect that for doing
      an amendment in the Khasra or other government
      records, the appellant or his Guru Baba Ram Dass were
      given any notice under section 115 of the M.P. Land
      Revenue Act and accordingly, it wa& held by the first D
      appellate court that the appellant was not bound by those
      entries. (Para 6) [607-A, B, C, DJ
            2.4 The substantial question of law was not properly
      framed and in that view of the matter the judgment of the
      High Court is set aside and the second appeal is remitted E
      to the High Court for framing a proper substantial question
      of law and thereafter decide the appeal on merits on the
      evidence already on record. (Para 6) [607-G, H; 608-AJ
          CIVILAPPELLATEJURISDICTION: CivilAppeal No. 5194         F
      of2001
           From the Judgment and Order dated 17 .10.2000 of the
      High Court of Madhya Pradesh at Jabalpur in S.A. No. 443/
      1994
                                                                   G
          K.G Bhagat, Vineet Bhagat, Monohar Singh Bakshi, Manju
      Ma!hotra Ehraz Zafar and Debasis Misra for the Appellant.
          S.S. Banthia (NP) for the Respondents.
          The Judgment of the Court was delivered by               H
                                                                           iI
    604       SUPREME COURT REPORTS                    [2008] 4 S.C.R.


A      TARUN CHATTERJEE, J. 1. This is an appeal by special
                                                                            ~-
  leave against the judgment and decree dated 17th of October,
  2000 of the High Court of Madhya Pradesh at Jabalpur in
  Second Appeal No. 443 of 1994 whereby the High Court had
  set aside the judgment and decree of the Additional District
B Judge, Panna who in his turn had allowed the appellant's appeal
  against the decree of the trial court dismissing the suit for
  declaration and permanent injunction filed by the appellant.
           2. The case of the appellant is that a temple in the name of
    "Shala Janki Raman Mandir' in village Gadhi Padrariya and the
c   agricultural lands (in short "the suit lands") as fully described in
    paragraph 1 of the plaint were owned by Mahant Ramdas, who
    was the guru of the appellant, as Manager of the same. The
    temple and the suit lands were bequeathed to the appellant by
    Mahant Ramdas to succeed to the same as Manager. In the
D   year 1987-88, the cl:>llector Panna started auctioning the suit
    lands and therefore, the appellant filed a suit for declaration of
    title with regard to the suit lands and also a decree for permanent
    injunction restraining the respondent from interfering with the
    enjoyment and possession of the same. The suit filed by the
E   appellant was contested by the respondent on the ground that
    the temple and the suit lands were the property of the state and
    that Mahant Ramdas was appointed as a priest and after his
    death, the appellant was appointed in his place as the priest. It
    was furth~ralleged that when the appellant sent a resignation
    letter to the Collector, the same was accepted and another
F
    person was appointed in place of the appellant as the priest.           ..
                                                                           ...,
    Neither Mahant Ramdas nor the appellant owned the temple or
    the suit lands, which were the property of the state and the Will
    in question was a fabricated document, which was prepared to
    grab the temple and the suit lands. The trial court dismissed the
G
    suit of the appellant. Feeling aggrieved, the appellant preferred
    an appeal before the Additional District Judge, Panna and the
    same was allowed. Against this decision of the first appellate
                                                                           ·~
     court, the respondent filed a second appeal, which, as noted
     herein earlier, was allowed. It is this judgment of the High Court
H
     l   I




                MAHANT RAM KHILAWAN DAS v. STATE OF M.P.                605
                        [TARUN CHATTERJEE, J.]
 -t-         which is impugned in this appeal.                                A
                  3. While allowing the second appeal, the High Court had
             framed the following substantial question of law: -
                  "Whether in the light of the admissions of the plaintiff that
                  his name does not find place in the revenue records and 8
                  that he was forcibly dispossessed by the Collector in 1987,
                  the courts below have committed an error in granting a
                  decree for declaration and injunction?
                    4. The learned counsel for the appellant contended, inter
             alia, that the High Court had committed an error in as much as c
             the question framed by it was not a substantial question of law
             but in fact only a question of fact and therefore, the substantial
             question of law as framed by the High Court could not be treated
             as a substantial question of law so as to interfere with the well
             reasoned judgment of the first appellate court. It was also D
             contended that the High Court had based its judgment on the
             alleged admission of the appellant ignoring the other documents
             and evidence already on record on the basis of which the first
             appellate court had decreed the suit of the appellant. This
             submission of the learned counsel for the appellant was seriously E
             contested by the learned counsel for the respondent who
             contended that the High Court was fully justified in reversing the
             judgment of the first appellate court and in restoring the judgment
             of the trial court.
..                 5. Havin~ heard the learned counsel for the parties and F
"'           after examining the judgment of the High Court as well as of the
             courts below and other materials on record, we are of the view
             that the High Court had not framed the substantial question of
             law properly in the second appeal so as to interfere with the
             judgment of the first appellate court. We are of the opinion that G
             the question of law as framed by the High Court was totally
             based on the alleged admission of the appellant that his name
~-
             did not find mention in the revenue records and that he was
             forcibly dispossessed by the Collector of the District. At the same
             time, even assuming that there was an admission on the part of H
   606        SUPREME COURT REPORTS                      [2008] 4 S.C.R.


A the appellant, before reversing the judgment of the first appellate
  court, the High Court ought to have considered the other material
  evidence on record on which the first appellate court had based
  its findings. It is well settled law that the entries in the record of
  rights raise a presumption of possession and when the parties
8 adduce evidence, it is open to the court to come to a conclusion
  that the entries in the record of rights in respect of the suit land
  were erroneous. Therefore, even if there was alleged admission
  of the appellant that his name did not find place in the revenue           .....
  records, it would not conclusively prove that the appellant had
c failed  to prove his title to the suit lands when there was ample
  evidence on record to prove such title. So far as the question
  whether the appellant was forcibly dispossessed in 1987, the
  same was a question of fact, which could not at all be taken to
  be a substantial question of law. Therefore, in our view, the
  substantial question of law so framed by the High Court was not
D
  a substantial question of law on the basis of which the decision
  of the first appellate court could be reversed.                              ...
         6. It is well settled that in second appeal, the High Court
  should not substitute the findings of the courts below with its
E own findings unless there is total absence of the consideration
  of material evidence. [See Kondiba Dagadu Kadam Vs.
  Savitribai Sopan Gujar [(1999) 3 SCC 722]. That apart, a
  perusal of the impugned judgment of the High Court would show
  that practically, the High Court had reversed the findings of the
F first appellate court only on the alleged admission of the appellant
  to the extent that his name did not find mention in the relevant
                                                                                 .
                                                                                ..,
  record of rights in respect of the suit lands. In our view, as noted
  herein earlier, even if such an admission was made by the
  appellant, then also no inference could be drawn that the
  appellant had no title to the suit lands when, admittedly, the
G
  appellant had substantiated his plaint case by production of
  enough material-documentary and oral on record before the
  courts. It is also well settled that the entries in the record of rights
  only raise a presumption that the person whose name is entered
  in the record of rights is in possession of the suit lands but the
H
           MAHANT RAM KHILAWAl\i DAS v. STATE OF M.P.                607
                   [TARUN CHAT.,..ERJEE, J)

-·      same can be rebutted by adduction of evidence-documentary A
        or oral on record. In the present case, as we have already roted
        that the High Court, relying only on the alleged admission of tre
        appellant, had reversed the findings of the first appellate court
        on the question of fact. However, from the findings of fact arrived
        at by the first appellate court, it is clear that the other material B
        evidence on record would clearly show that the presumption of
        the entries in the record of rights relating to the suit lands was
        amply rebutted and the finding that the appellant had title to the
        suit lands was amply proved. The first appellate court had drawn
        an adverse inference against the respondent by coming to a
        finding that the respondent had not adduced any evidence to
                                                                            c
        the effect that for doing an amendment in the Khasra or other
        government records, the appellant or his Guru Baba Ram Dass
        were given any notice under section 115 of the M.P. Land
        Revenue Act and accordingly, it was helq by the first appellate
                                                                             D
        court that the appellant before us was not bound those entries.
        So far as the question of possession of the suit lands is
        concerned, the first appellate court, which was the final court of
        fact, had made the following findings: -
             "In addition to PWs of appellants, Angad Prasad Panda E
             (RW-3) and K.L. Paikray (RW-4) have accepted on their
             cross-examination that appellant was priest of the temple
             and till this day, he had been cultivating the lands till the
             last 2 years back. Appellant has stated in para No. 3 of
             his statement that he has been cultivating 30 acres of F
 ..
 ~



             land and remaining is left for cows and calves. The
             respondent has not examined auction purchaser Asha
             Ram Pujari. In the absence of his deposition, the defence
             become baseless and contrary to it, the presumption is
             that appellant is still doing puja of the temple Shala
                                                                           G
             Janaki Raman and upon his lands, it is his possession. "
             Be that as it may, without coming to a positive conclusion
 -"'·   on the above aspect, we are of the view that the substantial
        question of law was not properly framed and in that view of the
        matter, thl;! appeal needs to be allowed and the judgment of the    H
                                                                     \       I




    608      SUPREME COURT REPORTS                 [2008] 4 S.C.R.
                                                                                 }---



A High Court set aside and the second appeal is remitted to the
  High Court for framing a proper substantial question of law and
  after framing such question, proceed to decide the appeal on
  merits on the evidence already on record. Whatever
  observations have been arrived at by us in this judgment shall
R be taken to be tentative and the High Court would be free to
  decide the second appeal after framing a proper substantial
  question of law.

        7. For the reasons aforesaid, the appeal is allowed to the
  extent indicated above. We request  ' the High Court to dispose
C of the second appeal within a period of 6 months from the date
  of supply of a copy of this order. There will be no order as to
  costs.
    N.J.                                         Appeal allowed.




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