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1994 JLJ 657
S.K. Dubey, J.
Sitaram v. Ram Charan and others
S.A. No. 186 of 1986; Decided on 23.4.1994.
(2) Land Revenue Code, 1959 (M.P.) -- S. 117 -- copy of khasra signed by patwari -- has a weaker presumptive value -- it should be proved to have been issued by him in his official capacity.
No doubt, under section 117 of the Code, there is a presumption of correctness of all entries made in land records under Chapter IX of the Code unless the contrary is proved. But, this presumption is confined to land records prepared in the manner prescribed. Under the Code, certain records are finalised after inviting objections, such as records of rights, Nistar Patrak, Wazib-ul-arz etc. and in such cases, there is a higher presumption of correctness; while certain entries are made by the Patwari on the basis of his observation on the site or on information and for such entries, the presumption is weaker, notwithstanding it is there unless it is rebutted. In the second category of the cases too, there should be an evidence that the copy issued by the Patwari is signed by him in his official capacity and the entry was made and the copy issued in the manner prescribed in the form provided by law. [Para 8
(3) Evidence Act, 1‘872 -- S. 79 -- inference of correctness of document -may be raise4 when the doc‘ument is proved to have been prepared as prescribed by law. [Para 8
(4) Evidence Act, 1812 -- S.35 -- document of the nature under -ingredients of the provision should be satisfactorily proved -- khasra issued by patwari after litigation -- patwari should be examined to satisfy genuiness of the documents signed by him. AIR 1983 SC 684 followed. [Para 8
(5) Document -- mere marking as exhibit -- does not dispense with its proof AIR 1971 SC 1865 and AIR 1976 P & H 24 relied on. [Para 9
(6) Stamp Act, 1899 -- S. 36 -- document exhibited -- does not dispense with its proof AIR 1971 SC 1865 and AIR 1976 P & H 24 relied on. [Para 9
(7) Practice (Civil) -- litigation -- rights and obligations of parties are adjudicated as they obtain at the commencement of the lis. AIR 1992 SCW 336, AIR 1976 SC 49 and AIR 1975 SC 1409 followed. 1994 (I) VIBHA 203 relied on. [Paras 9 & 10
(8) Document -- admissibility is one thing and its probative value quite another -- two aspects cannot be combined -- document may be admissible yet may not carry any conviction, weight or its probative value may be nil. AIR 1983 SC 684 followed. [Para 11
(9) Civil P.C., 1908 -- S. 100 -- finding regarding correctness or otherwise of document -- rightly raised by appreciation of legal evidence -- cannot be interferred with in second appeal. AIR 1976 SC 1485 followed. [Para 11
(10) Specific Relief Act, 1963 -- S. 34 – suit for perpetual injunction based on title -- plaintiff found in possession -- plaint should be read as a whole and not merely relief clause -- such suit is maintainable. AIR 1989 SC 108 followed. [Para 12
S.K. Dube, J.--1. This is defendant's second appeal who has lost in both the Courts below. The suit instituted by the plaintiff/respondent No.1, is for permanent injunction restraining the defendant from• interfering with his possession of the agricultural suit land consisted in Survey Nos. 46/2 and 47/1, admeasuring 2 Bighas and 4 Biswas and 1 Bigha and 18 Biswas respectively, situated at village Mahiba, Tahsil Ater, District Bhind. The plaintiff also claimed mesne profits for the damage caused to his crops. It is not in dispute that the plaintiff and defendant Nos. 1 to 5 were co-owners (Bhumiswami) of the land situated in Survey Nos. 46 and 47 & alongwith other land. The Tahsildar, under section 178 of the M.P. Land Revenue Code, 1959, for short, .the 'Code', in Case No. 17171-72/25-27, vide order dated 3.9.1973 (Ex. P/1), ordered partition of the land between the co-owners. Suit land comprised in Survey Nos. 46/2 and 47/1, fell in the share of the plaintiff, while the land comprised in Survey No. 46/2 with other land fell in the share of defendant No. 1, Budd he, father of appellant/defendant No.6. The Patwari gave a report of partition on 24.4.1978 (Ex. P/2) which was partitioned at the spot on 18.8.1977 after dividing the land as directed by the order of partition. Defendant No.6, taking advantage of the land being adjacent to the land of the plaintiff, situated at Survey No. 46/2, tried to take possession and to cultivate it. Therefore, with the help of the Patwari, a demarcation was made between the two lands by raising a 'medh' (a mud wall) on 18.8.1977. The parties, on partition, on their specific areas and khasra numbers were entered in the record of rights, i.e., the Records of khasra in respect of their title as bhumiswami and in possession. The plaintiff cultivated the land by sowing the crop of Bajra in Samvat 2034, but the defendant, by encroaching, damaged the crop. A police. report of this was made and a criminal case was registered before the A.D.H., at No. 339 of 1978.
2. Thereafter, on 7.11.1978, the plaintiff instituted the suit for permanent injunction and mesne profits. The defendants denied the claim of the plaintiff. Defendant No.6, i.e. the appellant, came with the defence that on 4.7.1978, the plaintiff gave the land on lease and he is sub-tenant since then on payment of Rs. 4/- per year as land revenue. The lease so granted was for a period of eight years. To support his defence, he produced a copy of khasra entry for the year 1978-79 (Samvat 2025), issued by the Patwari (Ex. D/1) wherein, in col. 2, after plaintiff's name, Sitaram is entered as permanent sub-tenant. Ex. D/2 is the copy of Khasra Panchsala wherien the entry for the year 1979-80 is shown as in Ex. D/1.
3. The trial Court disbelieved the defence and also discarded Ex. D/1 and D/2 as the documents were not duly proved by examining the Patwari. The trial Court found that the defendants have admitted the possession of the plaintiff over the land of Survey No. 47/1, but they deny the possession of the plaintiff over Survey No. 46/2. Therefore, the dispute only remained with respect to land comprised in Survey No. 46/2. The trial Court held that the plaintiff as co-owner was in possession and after partition, he is in possession as sole-owner over the suit land of the two survey numbers and thus decreed the suit for permanent injunction, but did not grant damages as mesne profits. Defendant No.6, aggrieved of the judgment and decree, preferred an appeal.
4. The appellate Court, after reappraisal of the evidence in detail and the genuineness of the two documents (Ex. D/1 and D/2) confirmed the findings of the trial Court and dismissed the appeal holding that the two documents were not duly proved, the story set up of sub-tenancy is false and contradictory to the defence evidence produced by defendant himself. Hence, this second appeal was admitted by this Court on the following two substantial questions of law:
"1. Whether the certifi
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