1984 Supreme(MP) 544

J. S. Verma, J.
Siya Govind v. Rampal.
S. A. No. 517 of 1978 (J); Decided on 31-8-1984.

Headnote:(1) Specific Relief Alit, 963-S. 38-suit for permanent injunction disputed land open space-title holder is presumed to be in possession.

       

        (2) Land Revenue Code, 1959 (M.P.)-S.117-land records-entries are presumed to be correct if not rebutted

       

        (3) Civil P.C., 1908-S. 100-finding of fact-cam be challenged if legal presumption has been ignored

       

        This is plaintiffs second appeal. It arises out of a suit for grant of a permanents injunction restraining the defendant from interfering with the plaintiffs possession over the suit land. The plaintiff claims title to the suit land by virtue of a registered sate deed (Ex. P-4) dated 3-6-1969, executed in his favour by Parmeshwardin (P.W.2), who was admittedly its owner. The suit and is 90 X 50, having an area of 4500 sq. fit and it forms a part of khasra No. 1751/3180/1, having a total area of O. 40 acre in village Sir-more, tahsil Sir-more, District Rewa. There is no dispute that after execution of this sale deed (Ex. P-4) in 1969 in favour of the plaintiff, the remaining area of the said khasra No. was sold by Parmeshwardin to the defendant. The plaintiff alleges that the defendant has threatened to dispossess him on account of which the relief of injunction has been sought.

       

        The defendant filed a written statement, which is of no real consequence. It does not say anything of significance, except that the plaintiff was not entitled to the relief of injunction the trial Court decreed the suit but the first appellate Court has reversed that decree and dismissed the suit.

       

        Held: The documents filed by the plaintiff include Pannchsala Khasra commencing from the year 1 70-71, which records plaintiffs possession over a portion of the aforesaid khasra No. measuring 90 X 50= 4500 sq. fit. Admittedly, mutation in plaintiffs favour was also made in the revenue records on the basis of the sale deed in his favour. The sale deed on which the plaintiffs title is based has also been produced. There are also documents to indicate that the plaintiff was treated to be a person in possession by the revenue authorities. There is no documentary evidence produced by the defendant in rebuttal. Even the oral evidence adduced by the defendant does not have the effect of counter-acting the ,plaintiffs evidence. Defendant Rampal as D.W.1 has clearly. stated that the. sale deed in plaintiffs favour in respect of O. 10 acre of the aforesaid khasra no. was prior to the Bale made of the remaining O. 30 acre of that khasra no. in defendants favour. From this statement of the defendant himself, it is clear that even if the sale deed in defendants favour covers the same area which had been sold earlier by a registered sale deed to the plaintiff, the plaintiffs title to it cannot be superseded by execution of a sale deed subsequently in defendants favour. There is thus no material to doubt the plaintiffs claim of title to the suit land covered by the sale deed (Ex. P.4) dated 3-6-1969 over the area of 90 X 50 = 4500 sq fit, forming part of the aforesaid khana no having a total area of O. 40 acre. On this conclusion the relief of injunction claimed in the suit cannot be refused, unless the plaintiff was found to be out of possession and he persisted in refusing to amend the plaint for seeking relief of possession also.

       

        The trial Court held that the plaintiff was in possession of the suit land covered by the sale deed (Ex. P-4) dated 3-6-1969. The first appellate Court has reversed that finding and held that the plaintiffs possession over the suit land has not been proved. This being a finding of fact, ordinarily no interference can be made therewith. However, in the present case, this finding suffers from such infirmity that it is open to interference in second appeal. The suit land is a vacant land. The ordinary presumption in Jaw, therefore, is that possession of the same is with the title holder, i. e. plaintiff in the present case, unless there be any evidence to rebut this presumption, there is no material to support the contrary view taken by the first appellate Court. As earlier stated, the documentary evidence led by the plaintiff proves not only mutation of the plaintiffs name in prospect of the suit land ill the revenue record, but that the plaintiffs possession over the suit land is also recorded therein. There is a presumption of correctness of the entries in she revenue records and unless rebutted, the plaintiffs possession over the suit land has to be accepted, for this reason also. There is no cogent material to rebut the same. The first appellate Court has reached an erroneous conclusion on the question of possession by ignoring the presumption which arises in law as a result of the plaintiffs possession being entered in the revenue records and the further presumption of possession of the title homer over vacant land. It is for this reason that the finding on the question of possession recorded by the first appellate Court, reversing that of the trial Court, bas to be set aside. In view of this conclusion that the plaintiff is in possession of the suit land, as earlier stated, there is no basis to dismiss the suit. Appeal allowed.