Vishwa Vijai Bharti Vs. Fakhrul Hasan
& Ors  INSC 137 (4 May 1976)
CITATION: 1976 AIR 1485 1976 SCR 519 1976 SCC
CITATOR INFO :
F 1989 SC2296 (5)
Civil Procedure Code-Secs. 100-103-Powers of
High Court to set aside finding of facts in a second appeal-If High Court must
discuss evidence while going questions of facts.
Entries in record of rights-Presumptive value
of- Presumption if applies to forged or fraudulent entries- Effect of fraud or
forgery on a document.
Mahant Bharati of temple of Shankarji Maharaj gave lands belonging to the temple on Theka to one Sukai for a period of 10
years. The Mahant obtained a decree for eviction against Sukai but it could not
be executed because of the objections raised by the respondents on the ground
that they have been cultivating the lands for several years and they were
entitled to continue in possession as Sirdars in spite of the decree against
Sukai. The lessor, therefore, instituted two separate suits under order 21 Rule
103, C.P.C. Respondents contended inter alia, that they had become hereditary
tenants and they must be deemed to have become Adhivasis of the land. The trial
court dismissed the suit. The district court reversed the finding of the trial
court in appeal and held that the appellant being the Bhumidar of the lands was
entitled to recover possession thereof from the respondents. The district Judge
held that the entries in the record of rights showing the occupation of the
respondents were fraudulent. The High Court in second appeal upset the decree
of the district court.
Allowing the appeal,
HELD: (1) The only question before the High
Court was whether the entries on which the respondents relied were genuine or
fraudulent. This is as question of fact and the High Court had no jurisdiction
to set aside the finding on that question in second appeal. The High Court
erroneously assumed that the district Court had not given any finding on the
question of fraud. The district Court had given at least half a dozen reasons
for holding that the entries were fictitious and were made surreptitiously and
[521H; 522A-H] (2) If the High Court thought
that the district court had not recorded a clear finding on that issue and if
the High Court were to determine under section 103 C.P.C. the issue under
whether the entries were fraudulent or not it was necessary for it to discuss
the evidence. But, the High Court instead placed blind and easy reliance on the
entries which are utterly uninspiring. [523A-B] (3) Entries in the revenue
record ought generally to be accepted at their lace value and courts should not
embark upon an appellate enquiry into the correctness. But the presumption of
correctness can apply only to genuine, not formed or fraudulent entries. The
distinction may be fine but it is real. Fraud and forgery rob a document of all
its legal effect and cannot found a claim lo possessory title.
ClVlL APPELLATE JURISDICTION: Civil Appeal
Nos. 1122 and 1123 of 1970 Appeals by special leave from the Judgment and order
dated the 13th February 1970 of the Allahabad High Court in S.A. Nos. 267 and
268 of 1962.
520 S. C. Manchanda, S. K. Bagga, (Mrs.)
Sureshta Bagga and (Mrs) Yash Bagga; for the Appellant.
R. N. Sharma and C. P. Lal; for Respondent.
The Judgement of the Court was delivered by
CHANDRACHUD, J.-These appeals by special leave arise out of the judgment
rendered by the High Court of Allahabad on February 13, 1970 in Second Appeals
267 and 268 of 1962.
Mahant Vishwa Nath Bharthi, the sarbrahkar of
the temple of Shankarji Maharaj, Khowja, gave lands belonging to the temple, ad
measuring about 44 acres, on Theka to one Sukai. The Thekanama was executed on
June 5, 1942 to be effective from July 1, 1942. The lease was to enure for a
period of 10 years and was due to expire on June 30, 1952.
The Thekanama contained an express term that
the Thekadar will not sub-let the leasehold property and that on the expiry of
the period of lease he shall hand over the possession of the property to the
In spite of this term against sub-letting, on
July 27, 1942 the Lessee executed a power of attorney in favour of his nephews
Haqiqullah and Ghani, apparently authorising them to cultivate the lands on his
behalf. On the expiry of the period of lease the Mahant instituted a suit for
ejectment of the lessee which was decreed on November 25, 1 952.
The Mahant then filed an application for
executing the decree but an objection was raised thereto by the respondents, Sanaullah
and Fakhrul Hasan who are respectively the brother and cousin of Haqiqullah.
They filed two separate applications objecting to the execution of the decree
on the ground that they had been cultivating the lands for several years and
that they were entitled to continue in possession as Sirdars. On June 2, 1954
the objection raised by the respondents was allowed by the executing court
which passed an order that the possession of the lands which on March 13, 1953
was given to the decree- holder in execution of the decree should be
re-delivered to the respondents. Accordingly, the respondents were put back in
possession in July, 1954.
The lessor then instituted two separate suits
under order XXI, Rule 103 of the Civil Procedure Code, the suit filed against
Fakhrul Hasan being No. 17 of 1954 and the one against Sanaullah being No. of
1954. His case was that the lands were given on lease to Sukai on condition
that he shall not sublet them, that a decree for possession was accordingly
passed against Sukai on the expiry of the lease and that the respondents had
got their names entered fraudulently in the revenue record as the cultivators
of the lands.
Respondents took up various inconsistent
pleas in answer to the suits. They contended that they were in possession of
the lands with the consent of the original lessor. that they had become
hereditary 521 tenants and that they must be deemed to have become Adhivasis of
The learned Munsiff who tried the suits
framed six issues, issue No. 2 being whether the respondents were Sirdars of
the lands as alleged in paragraphs 17 and 18 of their written statements. This
issue was referred to the revenue court for decision. The lessor having died
during the pendency of those suits, the appellant was substituted in his placed
as the Mahant of the Math. The revenue court found in favour of the respondents
and accepting that finding the trial court dismissed the suits. In appeal, the
District Court took the view that there was no justification for referring the
particular issue to the revenue court and that the trial court ought to have
decided all the issues for itself. The District Court accordingly remanded the
suit with a direction that the Munsiff should decide the suit afresh
uninfluenced by the finding given by the revenue court. The trial court then
assessed the evidence, held the respondents and dismissed both the suits by its
judgment dated November 17, 1961 The District Court reversed the findings of
the trial court in appeal and held that the appellant, being the Bhumidar of
the lands, was entitled to recover possession thereof from the respondents. The
appeals were accordingly allowed by the District Court by its judgment dated
April 18, 1962.
The respondents filed Second Appeals Nos. 267
and 268 of 1962 against the decrees passed by the District Court.
The High Court having allowed those appeals
the Mahant of the Math has filed these appeals by special leave.
The decision of these appeals involves a very
narrow question as regards the power of the High Court in second appeal.
Section 10 of the Code of Civil Procedure provides to the extent that the
appeal can lie to the High Court from a decree passed ill appeal by any court
subordinate to it if the decision is contrary to law or to some usage having the
force of law. The only question for decision before the High Court was whether
the respondents were entitled to the protection of section 20(b)(ii) of the
U.P. Zamindari Abolition and Land Reforms Act, 1 of 1951. That section
provides, in so far as material, that every person who was recorded as an
occupant of any land in the Khasra or Khatauni of 1356 Fasli but who was not in
possession in the year 1359 Fasli shall be called an 'Adhivasi' of the land and
shall be entitled to retain possession thereof. The names of the respondents
were entered as occupants in the revenue record of 1356 Fasli but after
considering the entire evidence, the District Court rejected those entries on
the ground that they were fraudulent. Thus, the only question before the High Court
was whether the entries on which the respondents relied were genuine or
That is a question of fact and the High Court
had no jurisdiction to set aside in second appeal the finding recorded on that
question by the district Court.
522 The High Court assumed erroneously that
the District Court had not given any finding on the question of fraud and on
that assumption; it accepted mechanically the entries in the revenue record
showing that the respondents were in possession of the lands as occupants. The
learned District Judge, by his judgment dated April 18, 1962 had gone in great
details into the question whether the particular entries showing that the
respondents were occupants of the land were genuine or fraudulent. Those
entries are Exs. A-5 to A-12. As pointed out by the learned Judge, the original
lessee Sukai had migrated to Bombay after handing over the charge of the lands
to his nephews who got the names of the respondents entered in the revenue
The learned Judge points out that Fakhrul
Hasan, who alone was examined on behalf of the respondents, was just a lad of
10 at the time when he is alleged to have entered into adverse possession of
the lands. Neither Sukai, who was the original lessee, nor Haqiqullah and Ghani
who were said to :
be cultivating the lands under a power of
attorney executed by Sukai, were examined by the respondents. The other
respondent Sanaullah was not living in the village at all and is said to have
been doing business in second-hand spares in Bombay. Haqiqullah was summoned by
the appellant for producing the power of attorney dated July 27, 1942 and
taking advantage of that opportunity the respondentís cross- examined him.
Haqiqullah, being a close relation of the respondents was only too willing to
oblige them by giving pre-conceived answers in the so-called cross-examination.
But the learned trial Judge overlooked that
Haqiqullah was only summoned to produce a document and by reason of section 139
of the Evidence Act he could not become a witness in the case and could not
therefore have been cross-examined on the merits of the case. But, even her
considering the evidence of Haqiqullah the learned District Judge recorded a
finding that "The entries were all fictitious". He then proceeded to
examine the documentary evidence in the case and held:
"After a careful consideration of the
pros and cons of the whole case I am of opinion that the Thekedar Sukai had I
cultivated the sir and Khudkashi of the temple land which was given to him on
Theka through his brother and his cousin, namely Haqiqullah and Ghani and these
two per sons in order to create permanent rights in the Theka property, had
fraudulently got the names of their boys entered , in the revenue records right
from the inception. I am also of the opinion that these by of the house-hold
never cultivated the land and they acquired no right, title or interest in the
We find it quite difficult to understand how
the High Court could hold that the District Court had not recorded any
"clear finding" that the entries in the revenue record for the year
1356 Fasli were fraudulent. Evidently, the attention of the High Court was not
drawn to at least half a dozen reasons given by the District Court for holding
that the entries were "fictitious" and were made
"surreptitiously" and "fraudulently".
523 We could have even appreciated if, under
section 103 of the Code of Civil Procedure, the High Court were to determine
the issue whether the entries were fraudulent, if it though, wrongly though,
that the District Court had not recorded a clear finding on that issue. But the
High Court did not discuss the evidence at all and chose instead to place a
blind and easy reliance on the entries which are utterly uninspiring. B It is
true that the entries in the revenue record ought, generally, to be accepted at
their face value and courts should not embark upon an appellate inquiry in to
their correctness. But the presumption of correctness can apply only to
genuine, not forged or fraudulent, entries.
The distinction may be fine but it is real.
The distinction is that one cannot challenge the correctness of what the entry
is the revenue record states but the entry is open to the attack that it was
Made fraudulently or surreptitiously.
Fraud and forgery rob a document of all its
legal effect and cannot found a claim to possessory title.
In Amba Prasad v. Abdul Noor Khan and
ors.(1), it was held by this Court that section 20 of the U.P. Act 1 of 1.951
does not require proof of actual possession and that its purpose is to
eliminate inquiries into disputed possession by acceptance of the entries in
the Khasra or Khatauni of 1356 Fasli. While commenting on this decision, this
Court observed in Sonawati and ors. v. Sri Ram and Anr.(2) that "the Civil
Court in adjudging a claim of a person to the rights of an adhivasi is not
called upon to make an enquiry whether the claimant was actually in possession
of the land or held the right as an occupant:
cases of fraud apart, the entry in the record
alone is relevant". We have supplied the emphasis in order to show that
the normal presumption of correctness attaching to entries in the revenue
record, which by law constitute evidence of a legal title, is displaced by
proof of fraud.
For these reasons we allow these appeals, set
aside the judgment li. Of the High Court and restore that of the District
Court. The suits filed by the appellant shall stand decreed. Respondents shall
pay to the appellant the costs of these appeals in one set.
(1)  7 S.C.R. 800.
(2)  1 S.C.R. 617, 620.