1981 Supreme(MP) 679

H. G. Mishra, J.
Bapulal v. Bhanwarlal
S. A. No. 163 of 1971 (J); Decided on 5-12-1981.

Headnote:(1) Land Revenue Code, 1959 (MP) -- S. 110 and Rule 32 -- mutation in record of rights -- possession of person mutated cannot be concluded -- nature of proceedings being fiscal, question of title is forcing to their scope.

        (2) Title -- acquisition of -- vendor having no title at the time of sale -- purchaser acquires none.

        (3) Evidence Act, 1872 -- S. 114 -- continuity of things backward as well as in future may be presumed.

        (4) Civil P. C., 1908 -- S. 100 -- finding recorded by Court below neither vitiated by law nor perverse -- not liable to be interfered with in second appeal.

        In this case the plaintiff appellant has been non-suited on the findings that at the time of execution and registration of sale-deed. Ex. P-l in favour of the plaintiff by Mst. Sunderbai, the latter was not in a position to deLi"Ver possession of the- land sold as she herself was not in possession thereof and that she had no subsisting title on the date of the sale in favour of the plaintiff appellant. In support of his claim the plaintiff has besides himself as PW 1 examined Sunderbai, his vendor (PW 2), Tulsiram (PW 3), Narayan (PW 4), Ramchandra (PW 5) and H. L. Bbudhwar Handwriting expert (Ex. P. 6). Rebuttal of the defendant Bhanwarlal has been examined as DW 1 and Kanhaiyalal (DW 2), Nandram (DW 3), Devisingh (D W 4) and Parvatsingh (D W 5) have also been examined on behalf of the defendant appellant.

        Held: After evaluating the evidence led by the parties the learned Additional District Judge has held that the plaintiff has failed to prove that the title of his vendor was subsisting on the date of execution and registration of sale-deed Ex. P. 1 by her in his favour. The Kbasra entries on record does not show Sunderbai to be in actual possession of the suit land. It IS true that the learned Additional District Judge has permitted the parties to produce certified copies of Khasra in exercise of powers under Order 4 rule 27 CPC yet no ground, on the count appears to have been made by any of the parties before him as we)) as before this Court and rightly so, because acting upon that order the plaintiff appellant also produced certified copies of Khasras marked as Ex. C-1 to C-5, for Samvat years 2010 to 2014 and on behalf of the defendants certified copies of Khasras marked as C-6, for the Samvat years 2015 to 1024 were produced. The aforesaid Khasra do not show Sunderbai to be in cultivating possession of the suit land within a period of 12 years preceding the date of commencement of the limitation Act 1963, i. e. 1-1-1964. The defendants have recorded as person in possession over the land in dispute in Khasras of 2010 and thereafter. Now as held in Ambika Prasad v. Ramekbak Rai (AIR 1966 SC 605) "if a thing or a state of things is shown to exist an inference of its

       continuity with," a reasonable proximate time both forwards and backwards may sometimes be drawn. The presumption of further continuance is noticed in illustration (d) to S. 114 (Evidence Act). In appropriate cases, an inference of the continuity of a tning or state of things backwards may be drawn under this section, though on this point the section does not give a separate illustration. The rule that the presumption of continuance may operate retrospectively has been recognised in India. This is rule of evidence by which one can presume the continuity of things backwards". Accordingly it will be presumed that the defendant respondents were in possession of the suit land prior to Savat years 2010 also. The finding recorded by the learned Additional District Judge on the point is not shown to be vitited be a mistake of law, misd`reading of evidence or perversity. Accordingly, the learned Additional District Judge appears to be right in holding that Sunderbai had no subsisting title at the time of execution of the sale-deed Ex. P-l, and as such. she could not convey any title to the plaintiff in the suit land.

        In order to resist the aforesaid conclusion, learned counsel for the plaintiff appellant placed reliance on the factum of mutation in favour of the plaintiff in pursuance of the sale deed. The name of the plaintiff appears to have been ordered to be mutated in place of Sunderbai under rule 32 of the Mutation Rules framed under S.110 of the M. P. Land Revenue Code, 1959. According to the said rule order of mutation is not required to be passed on the basis of possession. Accordingly if on the basis of the sale deed Ex. P-1, and that too behind the back of the defendant respondents the name of the plaintiff was ordered to be mutated by the Tahsil Court, merely on the strength of the mutation order it cannot be concluded that the plaintiff was in possession of the suit land or that he had subsisting title in the land in question. Mutation proceedings are essentially fiscal in character and question of title is foreign to their scope.

        In view of the aforesaid discussion, it is clear that the learned Additional District Judge was right in non-suiting the plaintiff on the ground, that the suit is burred by limitation. AIR 1966 SC 605 followed. Appeal dismissed.