2007 Supreme(SC) 815

2007(5) Supreme 524
Supreme Court of India
(From Madhya Pradesh High Court)
S.B. Sinha & Markandey Katju, JJ.
Narain Prasad Aggarwal (D) by LRs. — Petitioner
versus
State of M.P. — Respondent
Appeal (civil) 4601 of 2005
Decided on : 18-05-2007

Important Points
Record of right is not a document of title. Entries made therein although are admissible as a relevant piece of evidence and although the same may also carry a presumption of correctness, but such presumption is rebuttable.
Entries made in the revenue record of rights cannot defeat the lawful title acquired by an auction purchaser.

Headnote:Words and phrases – ‘Nazul land’ – It has a definite connotation and 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 as having belonged to a former Government.” –“Nazul” is that land which if kept as open site carries more importance and not agriculture related – 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. (Para 19 and 20)

       Indian Evidence Act, 1872 – Section 35 – Record of right is not a document of title – Entries made therein although are admissible as a relevant piece of evidence and although the same may also carry a presumption of correctness, but such presumption is rebuttable – Documents whereupon the learned trial judge placed reliance to hold that the State had title over the property in question, were documents of year 1920-21 which must have been taken into consideration by the Settlement Commissioner when the order dated 30.10.1922 was passed categorically holding that no deed of lease having been executed in respect of the land in question, the title of the said Putri Sethani should be deemed to be that of a permanent lessee – The trial judge also categorically recorded finding that the State had admitted the documents relied upon by the plaintiff and had not also controverted the evidence adduced by him – The findings being self contradictory the trial court could not have dismissed the suit – 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 – Therefore the findings of the trial judge as affirmed by High Court cannot be agreed to. (Paras 21 to 24)

       Transfer of Property Act, 1882 – Sections 105 and 107 – The existence of a lease deed must be proved and the lease must also answer the legal requirements contained in Section 105 and 107 – In a case involving the State and particularly when the nature of the land is claimed to be Nazul land, it was imperative on the part of the State to execute a deed of lease but execution of such a document has not been proved – The trial judge therefore committed a manifest error in solely relying upon 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 cannot defeat the lawful title acquired by an auction purchaser, particularly when Putri Sethani had questioned the order passed by the Collector of the District before the Commissioner of Settlement which ended in her favour – Well settled that payment or non-payment of rent does not create or extinguish title. (Para 25)

       Code of Civil Procedure, 1908– Section *** – Ordinarily, moffusil pleadings are not to be strictly construed and pleadings, as is well known, must be construed in its entirety – a (Paras 26, 27)

       Facts of the case :

       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 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.

       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. An application was filed by the plaintiff-appellant and the defendant 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 authority 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 been challenged.

       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.

       Appellant Narain Prasad Aggarwal, thereafter, filed a suit in the Court of District Judge, Hoshangabad.

       Declaring title of the plaintiff, only in view of the entries made in the revenue records, the suit was held to be not maintainable.

       Findings of the Court :

       Findings of the trial judge as affirmed by High Court being erroneous and self contradictory cannot be agreed to.

       Result : Appeal allowed with cost.