WALI MOHAMMAD (DECEASED) BY L.RS.versusRAM SURAT & ORS.

'

~
               WAL! MOHAMMAD (DECEASED) BY L.RS.
                              v.
                       RAM SURAT & ORS.

                             SEPTEMBER 21, 1989
                                                                                  B,
               [M.H. KANIA ANDS. RANGANATHAN, JJ.]

          U. P. Zamindari Abolition and Land· Reforms Act 195~Section
     232 and Section 20 (b)(i)-lnterpretation of-Who can be declared as
     Adhivasi thereunder.

           One Wali Mohammad (since deceased) executed on May 22, 1928            c
     an usufructuary mortgage in favour of Ram Kumar aud Shiv Kumar in
     respect of two plots. According to Wali Mohammad he redeemed the
     said mortgage and took possession of the plots in the beginning of Fasli
     year 1354 (peri9<1from1.7.1946 to 30.6.1947) and continued in posses.
     sion thereof.
                                                                                  D
          On 28th December 1953, Ram Kumar moved an application
     under Section 232 of the U.P. Zamindari Abolition and Land Reforms
     Act, 1950 for obtaining possession of the two piOts in question from
     \\'' ali Mohammad on the ground that his name was recorded. in the
     Khasra and Khatauni of 1356 Fasli and therefore he was the Adhivasi of
     the said plots. Wali Mohammad Contested the application before the           E
     Sub-Divisional Officer. The Sub Divisional Officer dismissed the suit
     finding that Wali Mohammad was in possession of the plots. This deci-
     sion was affirmed by the Addi. Commissioner, who held that the entry
     in the Khasra relied on by Ram Kumar was a fictitious one. On second
     appeal the Board of Revenue set aside the orders of the Sub-Divisional
     Officer as also of the Addi. Commissioner. The Board held that the           F
     entry in the Khasra to the effect that Ram Kumar was the occupant of
     the two plots in Fasli year 1356 was sufficient to confer Adhivasi rights.
     Thereupon Wali Mohammad filed a Writ Petition in the High Court
     challenging tiie-dedsion oi' the-Board. of Revenue. The Single Judge
     who heard the Writ Petition allowed the Writ Petition holding that the
     B_oard hac:I committed an . error of jurisdiction and consequently           G
     quashed the orders of the Board. Ram Kumar preferred a Letter Patent
     appeal against the order of the Single Judge. The Division Bench
    -allowed the appeal and set aside the order passed by the Single Judge.
     The Division Bench took the view that the entry in the revenue records
     was enough to confer rights of Adhivasi under Section 20(b) of the Act.
                                                                                  H

                                       211
     212         SUPREME COURT REPORTS               [ 1989) Supp. I S.C.R.

A          Being aggrieved by the said decision of the High Court the legal
     representatives of Wali Mohammad who has since died has filed this
     9ppeal, after obtaining Special Leave.

           Dismissing the appeal, this Court,

13       HELD: Section 20(b) of the Act deals with the question as to who
  is entitled to take or retain possession of the land in question. The plain
  language of cluase (l) of Sub-Section (b) of Section 20 of the Act, sug-
  gests that this question has to be determined on the basis of the entry in
  the Khasra or Khatauni of the Fasli year 1356. An analysis of the said
  section shows that Under sub-section (b) of section 20, the entry in the
C Khasra of Khatauni of the Fasli year 1356 shall determine the question
  as to the person who is entitled to take or retain possession of the land.
  If the entry is fictitious or is found to have been made surreptitiously
  then it can have no legal effect as it can be regarded as no entry In law,
  but merely because the entry is made incorrectly that would not lead to
  the conclusion that it ceases to be an entry. It is possible that the said
D entry may be set aside in appropriate proceedings. [214G-H; 215A)

         In the present case, although the Addi. Commissioner has held
  that the entry was fictitious, the conclusion seems to have been arrived
  at merely on the basis that Wali Mohammad was in possession in Fasli
  year 1356, with the result that the entry in the Khasra or Khatauni
E showing Ram Kumar as the occupant could not be correct. There is
  nothing to show that the said entry was fictitious or was made fraudu-
  lently or was in-correctly introduced by reason of ill-will or hostility
  towards,Wali Mohammad. In these circumstances, the entry may not
  be correct but it could not be said to be fictitious or regarded as non est.
  Merely because the entry might be incorrect, that would not make any
F differen<JO to the determination of the question as to who is entitled to be
  declared to be the Adhivasi of the land under the provisions of Section
  20(b) of the said Act. [2168-D)

        Bachan & Anr. v. Kankar & Ors., [1973) I SCR 727 and Vishwa
  Vijai Bharti v. Fakhrul Hasan & Ors., [1976) Suppl. SCR 519, referred
G to.

           CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1443
     of 1972.

           From the Judgment and Order dated 30.11.1971 of the Allaha-
H     bad High Court in Special Appeal No. 491of1963.
            WALl M;OHAMMAD v. RAM SURAT [KANIA, J.J               213

     Uma Dutt for the Appellants.                                        A
     Ms. Rachna Gupta for Bagga for the Respondents.

     The Judgment of the Court was delivered by

     KANIA, J. The appellants before us are the heirs and legal rep-     B
resentatives of one Wali Mohammad. Respondents Nos. 1 and 2 are
the sons of one Ram Kumar. Respondent No. 3 is the Board ·of
Revenue, Allahabad.

       On May 22, 1928 Wali Mohammad executed a usufructuary
mortgage in favour of Ram Kumar and Shiv Kumar in respect of two
plots. According to Wali Mohammad, he redeemed the said mortgage
                                                                         c
and took possession of the said plots in the beginning. of Fasli Year
1354 (period from I. 7.1946 to 30.6.1947) and continued to be in pos-
session thereof. On December 28, 1953 Ram Kumar moved an appli-
cation under section 232 of the U .P., Zamindari Abolition and Land
Reforms Act, 1950 (heeinafter referred to as "the said Act"), for        D
getting possession of the said two plots from Wali Mohammad on the
ground that his name was recorded in the Khasra and Khatauni of 1356
Fasli and, therefore, he was the Adhivasi of the said plots. This was
contested by Wali Mohammad. The Sub-Divisional Officer found that
Wali Mohammad was in possession of the said plots since the redemp-
tion of the said mortgage and dismissed the suit of Ram Kumar. That      E
decision was confirmed by the Additional Commissioner on appeal
holding that the entry in the Khasra relied on by Ram Kumar was
fictitious. On second appeal, the Board of Revenue set aside the deci-
sion of the Sub-Divisional Officer and the Additional Commissioner
and held that the entry in the Khasra to the effectthat Ram Kumar was
the occupant of the said plots in Khasra of Fasli Year 1356 was suffi-   F
cient to confer Adhivasi rights on him and no further inquiry was
called for to ascertain whether the said entry was correct or wrong.
Wali Mohammad filed a writ petition in the Allahabad High Court,
challenging the aforesaid decision of the Board of Revenue. The
learned Single Judge of the High Court, after hearing the arguments in
the said writ petition, allowed the same and quashed the order of the    G
Board of Revenue on the ground that the Board of Revenue had
committed an error of jurisdiction. Ram Kumar preferred a Letters
Patent Appeal against the said decision of the learned Single Judge.
The said appeal was allowed by a Division Bench of the said High
Court. The Division Bench set aside the order of the learned Single
Judge, holding that the entry in the revenue records was enough to       H
    214         SUPREME COURT REPORTS                [1989] Supp. 1 S.C.R.
                                                      /
A   confer rights of Adhivasi under section 20(b f of the-said Act. That
    decision is challenged before us in this appeal by Special Leave
    granted on the application of Wali Mohammad. Wali Mohammad died
    during the pendency of the present appeal and his heirs and legal
    representatives have been brought on record in his place.

B         The relevant provision which falls for consideration 'is clause (i)
    of sub-section (b) of section 20 of the said Act. The relevant part of
    section 20 runs as follows:

                "20. Every person who-

               {a) x           x           x
c              {b) was recorded as occupant,-
                                                             x             x


               (i) of any land other than grove land or land to which
               section 16 applies or land referred to in the proviso to
               sub-section (3) of section 27 of the U.P. Tenancy {Amend-
0              ment) Act, 1947 in the Khasra 6r Khatauni of 1356 F. pre-
               pared under sections 28 and 33 respectively of the U .P.
               Land Revenue Act, 1901 (U.P. Act III of 1901), or who
               was on the date. immediately preceding t\le date of vesting
               entitled to retain possession thereof under clause (c) of
               subcsection (1) of section 27 of the United Provinces
E              Tenancy {Amendment) Act, 1947 (U.P. Act X of 1947), or

                (ii) x          x          x          x          x

               shall, unless he has become a bhumidhar of the land under
               sub-section (2) of section 18 or an assami under clause {h)
F              of section 21, be called Adhivasi of the land and shall,
               subject to the provisions of this Act, be entitled to take or
                retain possession thereof.''

        The said section deals with the question as to who is entitled to
  take or retain possession of the land in question. The plain language of
G the aforesaid clause (i) of sub-section (b) of section 20 of the said Act
  suggests that this question has to be determined on the basis of the
  entry in the Khasra or Khatauni of 1356 Fasli Year prepared under
  sections 28 and 33 respectively of the U.P. Land Revenue Act, 1901.
  An analysis of the said section. shows that under sub-section (b) of
  section 20 the entry in the Khasra or Khatauni of the Fasli Year 1356
H shall determ_ine the question as to the person who is entitled to take or
             WALi MOHAMMAD v. RAM SURAT [KANIA, J.)                      215

retain possession of the land. It is, of course, true that if the entry is
                                                                                A
fictitious or is found to have been made surreptitiously then it can have
no legal effect as it can be regarded as no entry in law but merely
because an entry is made incorrectly that would not lead to the conclu-
sion that it ceases to be an entry. It is possible that the said entry may
be set aside in appropriate proceedings but once the entry is in exis-
tence in the Khasra or Khatauni of Fasli Year 1356, that would govern           B
the question as to who is entitled to take or retain possession of the
land to which the entry relates.

     · It was submitted by learned counsel for the appellants that if the
entry was not correct, it could not be regarded as an entry made
according to law at all and the right to take or retain possession of the
land could not be determined on the basis of an incorrect entry. He
                                                                                c
placed reliance on the decision of this Court in Bachan and another v.
Kankar and others, [1973] 1 SCR 727. In that judgment the nature of
the entries in Khasra or Khatauni is discussed and it is also discussed as
to how this entry should be made. This Court held that entries which
are not genuine cannot confer Adhivasi rights. It has been observed             D
that an entry under section 20(b) of the said Act, in order to enable a
person to obtain Adhivasi rights, must be an entry under the provi-
sions of law and entries which are not genuine cannot confer Adhivasi
rights. In _that judgment it has been stated that the High Court was
wrong when it held that though the entry was incorrect, it could not be
said to be fictitious. That observation, however, has to be understood          E
in the context of what follows, namely, that an entry which is incor-
rectly introduced into \,he records by reason of ill-will or hostility is not
only shorn of authenticity but also becomes utterly useless without any
lawful -basis. This judgment, in our view, doe.s not lay down that all
incorrect entries are fictitious but only lays down that a wrong entry or
incorrect entry which has been made by reason of ill-will or hostility          F
cannot confer any right under section 20(b) of the said Act. This deci-
sion is clarified by a subsequent judgment of this Court in Vishwa Vijai
Bharti v. Fakhru/ Hasan and others, [1976] Suppl. SCR 519, where it
has been held as follows:

            "It is' true that the entries in the revenue record ought,          G
            generally, to be accrpted at their face value and courts
            should not embark upon an appellate inquiry into their
            correctness. But the presumption of correctness can apply
            only to genuine, not forged or .fraudulent, entries. The dis-
            tinction may be fine but it is reaLThe distinction is that one
            cannot challenge the correctness of what the entry "in the          H
    216         SUPREME COURT REPORTS                 [1989] Supp. 1 S.C.R.

A              revenue record states but the entry is open to the attack
               that it was made fradulently or surreptitiously. Fraud and
               forgery rob a document of all its legal effect and cannot
               found a claim to possessory title."

B       Coming to the present case, although the Additional Commis·
  sioner has held that the entry was fictitious, that conclusion seems to
  have arrived at merely on the basis that Wali Mohammad was in pas·
  session in Fasli Year in question, with the result that the entry in the
  Khasra or Khatauni showing Ram Kumar as the occupant could not be
  correct. There is nothing to show that the said entry was fictitious or
  was made fradulently or was incorrectly introduced by reason of ill-will
C or hostility towards Wali Mohammad. In these circumstances, the en·
  try may not be correct but it could not be said to be fictitious or
  regarded as non est. Merely because the entry might be incorrect, that
  would not make any difference to the determination of the question as
  to who is entitled to be declared to be the Adhivasi of the land under
  the provisions of section 20(b) of the said Act. We agree with the
0
  conclusion and reasoning of the High Court.

          In the result, the appeal fails and is dismissed with costs.

    Y. Lal                                                  Appeal dismissed.