Holding

The Supreme Court held that no valid lease deed exists, the land is not Nazul land, the plaintiff’s title from the auction is valid, and the State is not the owner, thereby setting aside the lower courts' orders.

Summary

The plaintiff, Narain Prasad Aggarwal, claimed ownership of a parcel of land that had been auctioned in 1859 and subsequently passed down through his ancestors. The State of Madhya Pradesh asserted that the land was Nazul land held by the government on lease to the plaintiff's predecessor, Putri Sethani, and that the State remained the owner. The trial court, relying solely on entries in the revenue record of rights, held the State to be the owner, a finding the Supreme Court found self‑contradictory. The Supreme Court held that the record of rights is not a document of title, the presumption under Evidence Act s.35 is rebuttable, and no lease deed satisfying Transfer of Property Act ss.105,107 was produced. Consequently, the plaintiff’s title derived from the auction was upheld and the State’s claim of ownership was rejected. The appeal was allowed and the suit decreed in favour of the plaintiff.

Issues considered

Whether the suit is barred by limitation.
Whether the plaintiff is in possession of the suit property.
Whether the property was lawfully acquired by auction in 1859 and title passed to the plaintiff’s ancestors.
Whether a valid lease deed in favour of Putri Sethani exists under ss.105 and 107 of the Transfer of Property Act.
Whether the land is Nazul land and thus owned by the State.
Whether the State of Madhya Pradesh is the owner of the land.
Whether the record of rights constitutes a document of title under Evidence Act s.35.
Whether the presumption of correctness of entries in the record of rights is rebuttable.

Legislation cited

Indian Evidence Act, 1872s. 35
Limitation Act, 1963
Madhya Pradesh Land Revenue Code, 1959s. 100
Transfer of Property Act, 1882s. 105, s. 107

Subjects

title of immovable propertyNazul landlease deedrecord of rightsTransfer of Property ActEvidence Actauction purchaseownership disputelimitation

Judgment

A NARAIN PRASAD AGGARWAL (D) BY LRS.
v.
STATEOFM.P

MAY 18,2007

B [S.B. SINHA AND MARKANDEY KA TJU, JJ.]

Transfer of Property Act, 1882:

ss.105 and 107-Suit property purchased in auction by ancestors of
C appellant-Record of rights show that property belongs to Government and
was given on lease to ancestors of appellant-Trial Court held that
Government is the owner of suit property by relying on entries made in
record of rights-Held, not correct as execution of title deed has not been
proved-Entries made in revenue record of rights cannot defeat the ltru-ful
D title acquired by auction purchaser.
Title of same nature cannot e.xist in two different persons where their
claims are opposite.

Evidence Act, 1872:
E s.35-Record of right is not a document of title-Entries made therein
in terms of s.35 although are admissible as relevant evidence and may also
carry presumption of correctness but such presumption is rebuttable.

Words and Phrases: Nazul Land-Connotation of
F The suit property was put in auction in or about 1859 by the ancestors
of 'R'and 'G'. They became the owner of the said land, and remained in
possession till their death. On or about 24.3.1986, the said land was purchased
by 'F' from 'R' and 'G'. He died about the year 1920. His \life 'P', being his
sole heir became the o\\'ner of the said land. She expired on 8.5.1961. She did
G not have any issue and the plaintiff-appellant-and defendant No. 2 inherited
the said property as her heirs being sons of the brother of 'F'.

The property was somehow recorded as belonging to Government in
record of rights and widow of 'F' began paying lease money to Government

H 414
NARAIN PRASAD AGGARWAL (D) BY LRS. v. STATEOF M.P 415
The appellant filed suit for declaration of title on the ground that the A
said land was never given on lease by Government to 'P' or anyone of her
ancestors. The Trial Judge by a queer process of reasonings, and only having
regard to the entries made in the revenue records, came to a contradictory
and inconsistent findings that the State has also shown that it is the owner of
the suit plot, although it was clearly opined that the plaintiff and the defendant
no. 2 had proved their title and possession. The High Court affirmed the order B
of triai Judge. Hence the present appeal.

Allowing the appeal, the Court

HELD: 1. The findings of the Trial Judge are self-contradictory. The
land in question was put to auction as far back as in the year 1859. The plaintiff c
. and the defendant No. 2 and their predecessors in interest had all along been
in possession thereof. While it may be true that the land in question in the
revenue records of rights had been shown as Nazul land and 'P' filed an
application for grant of a lease or paid rent to the State, it is evident from the
order passed by the Commissioner of Settlements dated 30.10.22 that no such D
deed of lease was available on record. The property in question must be held
...)
by her and her predecessor in interest as a perpetual lessee. The Trial Judge,
while arriving aHhe finding that 'P' obtained a lease for a period of 30 years,
did not refer to any documentary or oral evidence produced by the State. If a
deed of lease was executed by the Collector in favour of 'P', the same should
have been produced. In fact, the Settlement Commissioner arrived at a positive E
finding that the Collector had not executed any deed oflease. The correctness
of the said order passed by the Settlement Commissioner has never been put
in issue, thus, became final and binding on the revenue authorities, the
question could not have been permitted to be reopened only because another
officer of the Revenue Department took a contrary view. F
[Para 16) (424-H; 425-A-D]

2. The Trial Judge, could not have ignored the title derived by the
predecessor in interest of the plaintiffs and the defendant No. 2 which was
acquired as far back as in the year 1859 being the subject matter of an auction.
No document has been brought on record to show as to what was the nature G
of the interest which the original owner had in the land.
[Para 17] [425-E] "
..- " 3. It is one thing to say that the proprietary interest of all the proprietors
and under tenure holders having vested in the State, the plaintiff and the
defendant No. 2 were bound to pay rent to the State, but it is another thing to H
416 SUPREME COURT REPORTS [2007) 7 S.C.R.

A say that the State was the owner of the land which was having the
characteristics of the nature of Nazul land and the plaintiff and the defendant
No. 2 or 'P' was a lessee under it for a fixed period. (Para 18) (425-F-G]

4. The term 'Nazul land' has a definite connotation. It inter a/ia means
"Land or buildings in or near towns or villages which have escheated to the
B Government; property escheated or lapsed to the State: commonly applied to
any land or house property belonging to Government either as an escheat or
as having belonged to a former Government." (Para 19) [425-G-H; 426-A]

5. The Trial Judge had categorically come to the finding that the State
C had admitted the documents relied upon by the plaintiff and had not also
controverted the evidence adduced by him and, hence, it could not have
dismissed the suit relying only upon the entries made in the record of rights.
[Para 21) [427-B-C]

6. Record of right is not a document of title. Entries made therein in
D terms of s.35 of the Evidence Act although are admissible as a relevant piece
of evidence and although the same may also carry a presumption of correctness,
but it is beyond any doubt or dispute that such a presumption is rebuttable.
Exhibit P-4 and Exhibit P-6, whereupon reliance has been placed by the tri~l
judge to hold that the State had title over the property in question, were
documents of year 1920-21, but failed to notice that the documents must have
E been taken into consideration and/ or would be presumed to have been taken
into consideration by the Settlement Commissioner when the aforementioned
order dated 30.10.1922 was passed wherein it had categorically been held
that no deed of lease having been executed in respect of the land in question,
the title of the said 'P' should be deemed to be a permanent lessee.
F [Para 22) (427-C-E]
~
7. Although title in respect of an immovable property may have different ,
concepts, it is fundamental that title of the same nature cannot be found to .be
existing in two different persons where their claims thereover are opposite.
It was possible for the court to hold in a situation of this nature that the
G plaintiffs and the defendant No. 2 being a permanent lessee under the State
were bound to pay rent to the State by way of land revenue or otherwise but
the same would not mean that despite the plaintiff being the holder of title,
the State had in it a right of reversion or for that matter the character of the
I
land was Nazul land. It is, therefore, difficult to agree with the findings of the \ ,A.,'

H
NARAIN PRASAD AGGARWAL{D) BY LRS. v. STATE OF M.P [S.B. SINHA, J.] 417

Trial Judge as affirmed by the High Court. A
[Paras 23 and 24} (427-E-H}

8. The exisl 1ce of a lease deed must be proved. The same must also
answer the legal rtquirements contained in ss.105 and 107 of the Transfer
of Property Act. The relationship of lessor and lessee and the terms and
conditions of a lease would depend upon the contract between the parties. It is B
not and cannot be the case of the State that an oral lease was granted in favour
of'P'. In a case involving the State and particularly when the nature of the
land is said to be Nazul land, it was imperative on the part of the State to
execute a deed of lease. As execution of such a document has not been proved,
the Trial Judge committed a manifest error in solely relying upon the entries C
made in the revenue record of rights despite noting the order of the
Commissioner of Settlement dated 30.10.1922. Entries made in the revenue
record of rights cannot defeat the lawful title acquired by an auction
purchaser, particularly, in view of the fact that 'P' had questioned the order
passed by the Collector of the District before the Commissioner of Settlement
which ended in her favour. It is well-settled that payment or non-payment of D
rent does not create or extinguish title. [Para 25) [427-G-H; 428-A-C]

9. The plaint might not have been very happily drafted. But it is well
known that, ordinarily, moffusil pleadings are not to be strictly construed.
Pleadings must be.construed in its entirety. Therefore, the findings of the
Trial Judge as also the High Court, that the State was the owner of land, is E
not correct. The State has not furthermore been able to establish the character
of the land as Nazul land and in any event has not been able to show that it
had a right of reversion. [Paras 26 and 27} [428-D-G; 429-A}

Des Raj v. Bhagat Ram, (2007) 3 SCALE 371, relied on.
F
... CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4601 of2005.

From the Final Judgment and Order dated 11.5.2004 of the High Court
M.P. at Jabalpur, in F.A. No. 8of1998

A.K. Sanghi for the appellant. G

B.S. Banthia and Vikrant Singh Bais for the respondent.
.... I
The Judgment of the Court was delivered by

S.B. SINHA, J. l. This appeal is directed against the judgment and H
418 SUPREME COURT REPORTS (2007) 7 S.C.R.

A order dated 11.5.2004 passed by a Division Bench of the Madhya Pradesh
High Court in First Appeal No. 8 of 1988 dismissing the appeal preferred from
a judgment and decree dated 23.11.1987 passed by the Additional District
Judge, Hoshangabad in C.S. No. 12-A of 1986 dismissing the suit filed by the
appellant herein.

B 2. The basic fact of the matter which is not in dispute is that the suit
property was put in auction in or about 1859 by the ancestors of Rai Baldev
Bux and Gaurabai i.e. one Ramjanaki Prasad. They, thus, became the owners
of the said land, and all remained in possession thereof till their death. On
or about 24.3.1986, the said land was purchased by Late Fateh Chand from
C Rai Baldev Bux and Gaurabai. He died in or about the year 1920. His wife, Smt.
Putari Sethani, being his sole heir became the owner of the said land. She
expired on 8.5.1961. It is not in dispute that she did not have any issue and
the plaintiff Narain Prasad Aggarwal and defendant No. 2 Guruprasad Agarwal
inherited the said property as her heirs being sons of Hira Lal, the brother
of late Fateh Chand. •,
D
3. It appears from the records that a proceeding was initiated by the said
Putari Sethani in connection with proceeding for assessment of enhancement
of lease rent by the then Collector of Hoshangabad. An order was passed
against her. The matter was taken to the Court of Commissioner of Settlements
in an appeal against the order of the Collector. The said authority by an order
E dated 30.10.1922 passed in C.P. No. 2454/1 held:

"Mt. Putari Sethani appeals against the orders of the Assistant
Settlement Officer, Nazual, Hoshangabad in respect of the following
plots in that town.

F Nos. 207/18, 87/21. 70/21, 108/21. All assessed as "riths" by the
Assistant Settlement Officer. This assessment had already been
cancelled in general revision order dated the 14th October, 1921
recorded on the spot.

1117 Assessed as a Sitaphal Bari, the fruits of this bari are sold,
G as admitted. It was muaf when held by a Mohammadan who looked
after the tomb in it. As 30 years ago it came in to applicant's possession
by mortgage, and she is a Hindu she obviously has no right to hold
muaf. The assessment order of the Assistant Settlement Officer is
upheld.

H
NARAIN PRASAD AGGARWAL (D) BY LRS. ...STATEOF M.P [S.B. SINHA, J.] 419

No. 3/44 area 12.11 old rent Rs. 52-6-5 A
New rent Rs. 60-8-0
1/60 -do- 6,26 Old rent Rs. 24-0-0
New rent Rs. 31-4-0
These ar. bungalow sites. In his letter No. 551-A, dated the 15th
April 1920, th,;: Commissioner, Narbudda Division distinctly ordered B
that these plots for which no leases existed by considered as held on
pennanent lease in accordance with the Deputy Commissioner's
.I proposals contained in his letter No. 290, dated the 24th March, 1920.
The Assistant Settlement Officer Nazul has no right to enhance the
rent, for in the leases executed in compliance with the Commissioner's
orders, a term of 30 years, with effect from the 1st April 1899 was C
entered. As laid down by the Hoshangabad Nazul Resolution, the
term of these leases should have been extended, so as to expire with
the term of the new Settlement and the rent left unaltered.

The Assessment order of the Assistant Settlement Officer is
therefore reversed and the old rents of these plots will be recorded D
in the Khasra.

Deputy Commissioner will kindly have this done.
Sd/- G.G.C. Trench
Commissioner of Settlements E
Central Provinces
19.10.1922"

The said order was marked as Exhibit P-3 in the suit.

4. An application was filed by the plaintiff-appellant and the defendant F
No. 2 for mutation of their names in the revenue records, which was allowed
by an order dated 12.12.1964 but the same was set aside by an order of the
appellate ~uthority passed on 26.6.1965. By an order dated 15.3.1968, the
Additional Commissioner, Bhopal opined that the land in question could not
have been treated to be freehold as allegedly rent was assessed under the
1881 Land Revenue Act and 1917 Land Revenue Code and the same had not G
been challenged, stating :

"Moreover under the 1881 Land Revenue Act and 1917 Land Revenue
.... /
Act all land was liable to pay land revenue and only as a matter of
'
grace lands which were built over prior to 1891 were exempted from
H

:
420 SUPREME COURT REPORTS [2007) 7 S.C.R.

A assessment but the Government always reserved the right to levy
assessment on these sites at the time of settlement. The present suit
land was presumably not built over land at the time of settlement in
1921 and was therefore assessed. At any rate, the assessment then
levied and not challenged that time cannot be questioned now. Under
Sec. 100 of the M.P.L.R. Code 1959 (hereinafter termed Code) such an
B assessment is liable to be revised after the expiry of the tenns of
settlement and was, therefore, rightly revised by the learned Collector
rejecting the claim of the appellants that the property is not liable to
assessment. The method of the computation adopted by the learned·
Collector for fixing the revised assessment and premium has not been
c challenged at all and is generally in order. This in my opinion is
payable by holder of the suit land irrespective of the fact the holder
accepts or refuses to accept the same. If holder does not want to hold
the suit land at this revised assessment and premium, it is clear that
the learned Collector has no choice but to declare it as open Nazul
land. The order of the learned Collector declaring accordingly does
D not in my opinion call for any interference and appeal against the
impugned order has to. be dismissed."

5. It is, however, stated at the bar that the provisions of the Land
Revenue Code have no application in respect of harvested land.

E 6. In regard to the order of mutation passed in favour of the appellant,
it was, however, observed that mutation in respect of Nazul land being not
·governed by the provisions of M.P.L.R. Code, the second appeal was not
maintainable.

7. Appellant Narain Prasad Aggarwal, thereafter, filed a suit in the
F Court of District Judge, Hoshangabad praying inter alia for the following
reliefs:

"a. It may be declared that the plaintiff and defendant No. 2 Guruprasad,
are the legal heirs of deceased Smt. Putri Sethani and, therefore, are
the owners and in possession of Nazul Plot No. 3, area 12-11 acre
G
(57538 sq. ft.) Sheet No. 44, Mohalla Civil Station, city Hoshangabad,
Tehsil & District Hoshangabad, as has been shown in the Schedule
'A' sketch map;

b. It may also be declared that the said place of land was never given
on lease by the Govememnt to the deceased Putri Sethani or anyone
H
NARAINPRASADAGGARWAL(D)BYLRS.11. STATEOFM.P[S.B. SINHA,J.] 421
of her ancestors. A
l3(a)That a decree for pennanent injunction may be passed restraining
the defendant No. 1 from taking possession of any portion of the
piece of plot in dispute and the defendant No. 1 may be directed that
he may get the name of the plaintiff and defendant No. 2 entered in
respect of the plot in dispute and he may re-assess the land revenue B
in tenns of the advertisement No. 4-C-63 dated 16.2.1963 ."

8. In its written statement, the respondent inter alia contended:

co The rate of land revenue in respect of such lands which had not
been fixed bound to be increased and lease could be directed to c
be renewed in law. Such a decision was to be taken irrespective
of the fact as to whether the land in question had been lying
vacant or houses have been constructed thereupon.

-'· (iJ) As the plaintiffs have violated the tenns and conditions of the
lease, a decision had been taken to determine the lease in D
accordance with law wherefor recommendations were sent to the
)
Government.
(fu) In any event, the plaintiffs have accepted the liability to pay rent .,
and the order passed by the competent authority having not
been challenged, the suit was not mainta:Oable.
E
9. The First Additional District Judge, Hoshangabad in whose Court
the suit was transferred inter alia framed the following issues having regard
to the rival contentions raised py the parties in their respective pleadings :

"l (a) Whether this suit is within time?
F
(b) Whether it is barred by time?

2 Whether the plaintiff is not in possession of the suit property?
Its effect?

3. (a) Whether the suit property was purchased by Ramjanki Prasad
in a public auction about 27 years prior to 1886 and thereafter he G
obtained possession of the same.

__,..,• /
(b) Whether on 24.3.1986 Gourabai, widow ofRamjanki Prasad and
Rai Baldev Bux son of Bakshi sold the same to deceased Seth
Fatehchand son of Seth Dharamchand by registered sale deed
and obtained possession thereunder? H
422 SUPREME COURT REPORTS [2007] 7 S.C.R.

A (c) Whether in 1920 after the death of Seth Fatehchand his widow
Putri Sethani came in possession of the same as his legal heir?
(d) Whether on 30.10.22 Settlement Commissioner, Central Provinces
and Berar at Nagpur held that about Putri Sethani was the
permanent lessee of the suit plot?
B (e) Whether on 8.5.61 the plaintiff and his brother defendant 2 on
death of Putri Sethani came in posse11sion of this property as her
heirs?

(f) Whether this property belongs to defendant No. l?
C (g) Whether plaintiff and defendant No. 2 are owners of the same?
4. Relief, costs and compensatory costs?"

10. All the issues were answered in favour of the plaintiff save and
except issue No. 3(f) and 3(g). While, thus, declaring title of the plaintiff, only
in view of the entries made in the revenue records, the suit was held to be
D not maintainable.

11. It is interesting to note the findings of the Trial Judge on the issues
framed by it, which are as under :

(a) The suit is not barred by limitation.
E
(b) In respect of issue No. 2, it was noticed that no evidence had
been produced by the State to controvert the evidence adduced
on behalf of the plaintiff. The plaintiff and defendant No. 2 had
been in possession of the suit land.
(c) In regard to issue No. 3(a), it was found that no dispute had been
F raised by defendant No. l respect thereof. It was further noticed
that the suit plot was purchased on 24.3.1986 by Late Fatehchand
from Rai Baldev Bux and the said fact has been admitted by the
defendant No. 1. Inheritance of the said property from Late
Fatehchand by Putri Sethani has also been admitted by the
G defendant No. 1 in its written statement.
(d) While adverting to issue No. 3(d), the Court accepted that the
State has not produced any evidence to controvert the order
passed by the Settlement Commissioner dated 30.10.22 (wrongly , A..
stated as 3.10.22) wherein it was held that the property in question
had not been given on lease in favour of the predecessors in
H
NARAIN PRASAD AGGARWAL (D) BY LRS. v. STATE OF M.P [S.B. SINHA, J.] 423
interest of the appellant and, thus, the said issue was also A
answered in favour of the plaintiff.
(e} Yet again while adverting to issue No. 3(a}, the learned Trial
Judge noticed that no evidence had been produc~d by the
defendant No. 1 to controvert the fact that after the death of Smt.
Putari Sethani, the plaintiff and the defendant No. 2 had been in B
possession of the whole property. It was further held that the
dispute in the whole case is mainly centered on the decision of
/
these two issues.
(f} The plaintiff has shown that his ancestors are the owners and in
possession of the plot. For this reason, he and the defendant No. c
2 are now owners of the said plot.
(g) The defendant No. 1 i.e. the State of Madhya Pradesh has shown
that in the Nazul settlement for the year 1920-21, the suit plot was
given to the ancestor of the plaintiff no.2 'Putari Sethani' on
lease for a period of 30 years. The land was a Nazul residential D
land and, therefore, the ownership rights of this land were with
_,
the State Government.
(h) Smt. Putri Sethani was only a lessee ancl rent used to be recovered
from her.
(i) As Putari Sethani had no title over the plot in dispute, the E
plaintiff and defendant No. 2 also do not have any title over this
plot.

12. The learned Trial Judge by a queer process of reasonings, and only
having regard to the entries made in the revenue records, came to contradictory
and inconsistent findings that the State has also shown that it is the owner F
of the suit plot, although it was clearly opined that the plaintiff and the
defendant no. 2 had proved their title and possession. Exhibit P-4 and Exhibit
P-6 certified copy of the Khasras were relied U{lOn by the learned Trial Judge
to hold :

"in column No. 8 thereof, the same thing is written. Both these G
documents have been produced on behalf of the plaintiff who has
relied on the same. From the 1920-21 settlement report produced by
defendant No. l and the documents of the Revenue appeal, ~t is
proved that the ownership rights over the urban residential Nazul
lands are with the State and such land is given by the State on lease H
424 SUPREME COURT REPORTS [2007] 7 S.C.R.

A to individual persons and in this case also the same thing is proved
, .,.__
that the suit plot was given to Smt. Putri Sethani on lease upto the
period 31.3.1951. Exhibit P-4 and Exhibit P-6 submitted by the plaintiff
are certified copies of the Khasra numbers. He has also relied on them.
These come in the category of public documents, which are admissible
in evidence in terms of the provisions of Section 3 5 of the Evidence
B Act, unless the same are proved otherwise. On both these documents,
it is written that the suit plot was given to Smt. Putri Sethani on lease
_,
upto the period 31.3.1951. It supports the side of defendant No. l"
~
13. On the aforementioned findings, the suit was dismissed. The trial

c Court also rejected the c,ontention of the appellant stating "the lands in
question are not Nazul lands stating that in the wake of all these documents,
the Cvntention that the suit land was not Nazul land and was in ownership
right of the appellant and his brother or their predecessor-in-title cannot be
~
accepted. The lease ofNazul land can be terminated ifthe conditions oflease r-
are violated by the holder. Therefore, the contention of learned counsel for
D the appellant that the Government has no right to terminate the lease cannot
be accepted. If there is illegality in the termination of the lease, the holder is
free to make recourse to the legal remedy, but it cannot be said that the
Government or other competent authorities have no jurisdiction to terminate
the lease".

E 14. Mr. A.K. Sanghi, learned counsel appearing on behalf of the appellant
in support of this appeal inter alia submitted that the learned Trial Judge as
also the High Court committed a manifest error in arriving at self-contradictory
and inconsistent findings insofar as while, on the one hand, it was held that
the plaintiffs have title over the lands in suit, on the other, opined that the
F defendants have also proved their title.
)-
15. Mr. B.S. Banthia, learned counsel appearing on behalf of the
respondent-State, on the other hand, contended that Smt. Putari Sethani
having been paying rent for the Nazul land and thus accepting the State as
her lessor, the appellant now cannot be permitted to tum round and contend
G that the land in question is not Nazul land. It was submitted that an application
had been filed as far back as on 2.7.1920 for grant of a Putta and, in that view
of the matter too, the State's title must be held to have been admitted and
acknowledged.
"'""
16. We feel it difficult to appreciate the findings of the Trial Judge,
H which are, in our opinion, self-contradictory. We have noticed hereinbefore
NARAINPRASADAGGARWAL(D)BYLRS. v. STATEOFM.P[S.B. SINHA,J.) 425

that the land in question was put to auction as far back as in the year 1859. A
The plaintiff and the defendant No. 2 and their predecessors in interest had
all along been in possession thereof. While it may be true that the land in
question in the revenue records of rights had been shown as Nazul land and
the said late Smt. Putari Sethani filed an application for grant of a lease or paid
rent to the State, it is evident from the order passed by the Commissioner of B
Settlements dated 30.10.22 that no such deed of lease was available on record.
The property in question must be held to have been held by her and her
predecessor in interest as a perpetual lessee. The learned Trial Judge, while
arriving at the finding that Late Smt. Putari Sethani obtained a lease for a
period of 30 years, did not refer to any documentary or oral evidence produced
by the State. If a deed of lease was executed by the Collector in favour of C
Smt. Putari Sethani, the same should have been produced. In fact, as noticed
hereinbefore, the Settlement Commissioner arrived at a positive finding that
the Collector had not executed any deed of lease. The correctness and/or
validity of the said order passed by the Settlement Commissioner has never
been put in issue. As the said order attained finality, the said order of the
Commissioner of Settlement, thus, became final and binding on the revenue D
authorities, the question could not have been permitted to be reopened only
because another officer of the Revenue Department took a contrary view.

17. The learned Trial Judge, in our opinion, could not have ignored the
title derived by the predecessor in interest of the plaintiffs and the defendant E
No. 2 which was acquired as far back as in the year 1859 being the subject
matter of an auction. No document has been brought on record to show as
to what was the nature of the interest which the original owner had in the
land.

18. It is one thing to say that the proprietary interest of all the proprietors F
~ and under tenure holders having vested in the State, the plaintiff and the
defendant No. 2 were bound to pay rent to the State of Madhya Pradesh, but
it is another thing to say that the State was the owner of the land which was
having the characteristics of the nature ofNazul land and the plaintiff and the
defendant No. 2 or the said late Smt. Putri Sethani was a lessee under it for
a fixed period. G

19. The term 'Nazul land' has a definite connotation. It inter alia means
"Land or buildings in or near towns or villages which have escheated to the
Government; property escheated or lapsed to the State: commonly applied to
any land or house property belonging to Government either as an escheat or H
426 SUPREME COURT REPORTS (2007) 7 S.C.R.

A as having belonged to a foxmer Government."
, 20. Even in the Revenue Book Documents, Part four Serial No. 1, Nazul
land situated within the prescribed limits of the Municipal Corporation and
the Nagai Palika is stated as under:

B "1. "Nazul" and "Government land"

I. That land which is the property of the Government and which
(a) is not forming part of the records in the account of any
village;

c (b) is not recorded as Banjar, jharidar jungle, hilly and chattans,
rivers, village trees or Government trees;
(c) is not recorded for Village roads, gothan, charai land, or in the
shape of grazing in abadi Chargahs;
(d) is not ear-marked and reserved for development of the village
D or any other community development projects; or
(e) is not service land.
There are two categories i.e. "Nazul" and "Government land". In
"Nazul" lands, such Government lands are included which are used
for construction projects or for general public facilities like Bazars or
E entertainment parks, or the lands which may possibly be required to
be used in future for such projects.
The categorization ~f the land which is in custody of any
Department of the State Government or Central Government or which
is recorded in the records of Government Lands, will be done. In brief,
F
'f
it can be said that "Nazul" is that land which if kept as open site
carries more importance and not agriculture related. The lands which I
- are generally categorized as "Nazul" lands, are as under:
- Plots of lands near the buildings, whether they are Government
or non-government. t
G - Cantonment lands;
- Parks
- Plots of lands used for Bazards, Haat or fairs;
- Lands of Shamshan Chat (Crematorium);
H - Lands where possibility of construction is there, and other such
NARAIN PRASAD AGGARWAL (D) BY LRS. v. STATE OF M.P [S.B. SINHA, J.] 427
lands where there is a possibility that these can be used for A
public purposes in the near future. Under the 'Nazul' land, those
Government plot of lands will also be included which are meant
for Sarais, Kanji Hauzes, Bazars, etc. and which are in possession
of the local residents or which are standing in their names."

21. The learned Trial Judge had categorically come to the finding that B
the State had admitted the documents relied upon by the plaintiff and had not
aJso controverted the evidence adduced by him and, hence, in our opinion,
it could not have dismissed the suit relying only upon the entries made in
the record of rights .
.~

22. Record of right is not a document of title. Entries made therein in c
terms of Section 35 of the Indian Evidence Act although are admissible as a
relevant piece of evidence and although the same may also carry a presumption
of correctness, but it is beyond any doubt or dispute that such a presumption
is rebuttable. Exhibit P-4 and Exhibit P-6, whereupon reliance has been placed
by the learned trial judge to hold that the State had title over the property D
in question, were documents of year 1920-21, but failed to notice that the
documents must have been taken into consideration and/ or would be presumed
to have been taken into consideration by the Settlement Commissioner when
the aforementioned order dated 30.l 0.1922 (Exhibit P-3) was passed wherein
it had categorically been held that no deed of lease having been executed in
respect of the land in question, the title of the said Putri Sethani should be E
deemed to be a permanent lessee.

23. Although title in respect of an immovable property may have different
concepts, it is fundamental that title of the same nature cannot be found to
be existing in two different persons where their claims thereover are opposite.
-I
It was possible for the court to hold in a situation of this nature that the F
plaintiffs and the defendant No. 2 being a permanent lessee under the State
were bound to pay rent to the State by way of land revenue or otherwise but
the same would not mean that despite the plaintiff being the holder of title,
the State had in it a right of reversion or for that matter the character of the
~ land was Nazul land. G
24. It is, therefore, difficult to agree with the findings of the learned Trial
~.,,
Judge as affirmed by the High Court.

2.5. The existence of a lease deed must be proved. The same must also
answer the legal requirements contained in Section 105 and 107 of the Transfer H
428 SUPREME COURT REPORTS [2007) 7 S.C.R.

A of Property Act. The relationship of lessor and lessee and the terms and
conditions of a lease would depend upon the contract between the parties.
It is not and cannot be the case of the State that an oral lease was granted
in favour of Putri Sethani. In a case involving the State and particularly when
the nature of the land is said to be Nazul land, it was imperative on the part
of the State to execute a deed of lease. As execution of such a document has
B not beeri proved, the learned Trial Judge, in our opinion, committed a manifest
error in solely rel:ying ·:.ipon the entries made in the revenue record of rights
despite noting the order of the Commissioner of Settlement dated 30.10.1922.
Entries made in the revenue record of rights, it would bear repetition to state,
~·
cannot defeat the lawful title acquired by an auction purchaser, particularly,
C in view of the fact that Putri Sethani had questioned the order passed by the
Collector of the District before the Commissioner. of Settlement which ended
in her favour. It is well-settled that payment or non-payment of rent does not
create or extinguish title.

26. The plaint might not have been very happily drafted. But it is well
D known that, ordinarily, moffusil pleadings are not to be strictly construed as
has been held in Des Raj v. Bhagat Ram, (2007) 3 SCALE 371 in the following '
terms:

"It may be true that in his plaint, the plaintiff did not specifically
plead ouster but muffosil pleadings, as is well known, must be
E construed liberally. Pleadings must be construed a5 a whole. Only
because the parties did not use the terminology which they should
have, ipso facto, would not mean that the ingredi~nts for satisfying
the requirements of· statute are absent. There cannot be any doubt
whatsoever that having regard to the changes brought about by
F Articles 64 and 65 of the Limitation Act, 1963 vis-a-vis Articles 142
and 144 of the Limitation Act, 1908, the onus to prove adverse
possession would be on the person who raises such a plea. It is also
furthermore not in dispute that the possession of a co-sharer is
presumed to be possession of the other co-sharers unless contrary is
proved."
G
27. Pleadings, as is well known, must be construed in its entirety. We,
therefore, are of the opinion that the findings of the learned Trial Judge as
also the High Court, that the State was the owner of land, is not correct. The
State has not furthermore been able to establish the character of the land as
H Nazul land and in any event has not bee~ able to show that it had a right
NARAINPRASADAGGARWAL(D)BYLRS.v.STATEOFM.P[S.s. SINHA,J.) 429

of reversion. A
28. We, however, do not intend to express any opinion as to whether
the State of Madhya Pradesh is otherwise entitled to receive any rent from
the appellants or not. Such a question if raised may be determined in an
appropriate proceedings.
B
29. For the reasons stated hereinabove, we set aside the impugned
order of the High Court as well as of the learned Trial Judge and the suit of
the plaintiff shall be decreed. The appeal is allowed with costs. Counsel's fee
assessed at Rs. 25,000/-.

D.G. Appeal allowed. C

..(

.!'