Moti Lal Jain vs Mukhtiar Singh
2005 Latest Caselaw 192 Del

JUDGMENT

Sanjay Kishan Kaul, J.

1. The appellant was the owner of land measuring 20 bighas 7 biswas situated in the revenue estate of Village Baharpur, Near Kalkaji, New Delhi. The land was originally owned by the father of appellant and recorded in the Jamabandi in the year 1949-50. The mutation was sanctioned in favor of the appellant on 20.09.1973.

2. Out of the aforesaid land, 18 bighas 4 biswas of land was acquired in pursuance to the proceedings under The Land Acquisition Act, 1894 ( hereinafter to be referred to as, `the said Act' ) and the Award was made by the Land Acquisition Collector on 25.06.1979.

3. A dispute arose about the disbursement of compensation in view of the claim raised by the respondent who alleged that he was in possession of the land in question and was quarrying stones from the land. A part of the stones extracted from the quarry were stated to be lying at site. This was naturally disputed by the appellant.

4. It may be noticed that the original claim of the respondent was based on being in quarry possession as a Bhoomidar under The Delhi Land Reforms Act, 1954, but this claim was subsequently amended to that of a non-occupancy tenant under the provisions of The Punjab Land Revenue Act, 1887, ( hereinafter to be referred to as 'PLR Act' ), the enactment governing the land in question.

5. A reference was made under the provisions of Section 30/31 of the said Act and in terms of the order/judgment dated 07.10.1980 in LAC No. 70/71, learned Additional District Judge ( for short, `ADJ' ) held that the appellant as owner was entitled to 40% of the compensation, while 60% of the compensation would be payable to the respondent. The present appeal has been filed by the appellant aggrieved by the said order/judgment.

6. The respondent, in order to substantiate his plea before the learned ADJ, relied upon the copies of Khasra Girdawris and the copy of Jamabandi in terms whereof the predecessor-in-interest of the appellant was recorded in possession of the land and succession to the appellant on the demise of his father was also recorded. The possession of the respondent was recorded in Khasra Girdawris from 1975 to 1979. The only independent witness called to the witness box was Shri Yad Ram, who was working as a Naib Tehsildar from the year 1969 to April, 1980 and affirmed to correctness of the documents filed on the basis of verification from the record, though the same were not made in his hand. None of the parties sought the presence of revenue authority, which had recorded the revenue entries. Learned ADJ noted the fact that nature of the land as recorded in the Jamabandi was Ghair Mumkin Pahar and in the Khasra Girdawris as Ghair Mumkin Dharamsala. There was no recording of any unauthorised possession on the land and nothing was brought on record before learned ADJ by the appellant to suggest that the entries had been challenged in appropriate proceedings.

7. It may be noticed in this behalf that in terms of the provisions of Section 45 of the PLR Act, a suit could have been brought by any person aggrieved by the record of rights. The said Section is as under:

"45. Suit for declaratory decree by persons aggrieved by an entry in a record - If any person considers himself aggrieved as to any right of which he is in possession by an entry in a record-of-rights or in an annual record, he may institute a suit for a declaration of his right under Chapter VI of the Specific Relief Act, 1877."

8. The aforesaid Section, thus, makes it clear that correctness of the record of rights could be challenged in a civil suit and a suit could have been brought by the person aggrieved by certain entries in the Khasra Girdawri for rectification of the entry in the revenue records. This was admittedly never done by the appellant.

9. Learned counsel for the appellant initially sought to contend that the Khasra Girdawri had only rebutable evidenciary value and that the Khasra Girdawri is not an entry of records. It is also sought to be contended that the occupancy rights are matters of contract and only recording of an entry in the revenue records does not confer any rights.

10. In our considered view, it is not necessary to go into depth on this issue as there is no dispute over the legal propositions.

11. It may, however, be mentioned that learned counsel for the parties referred to a number of judgments to establish the propositions.

12. Learned counsel for the appellant referred to judgment of the Apex Court in Durga Das v. Collector & Ors., to contend that an entry in the revenue record would not confer any title. To advance the same plea, learned counsel referred to the judgment in Wali Mohammad & Ors. v. Mohammad Baksh & Ors., . A reference was made to the judgment of Division Bench of the Punjab High Court in Ammar Ahmed Khan & Anr. v. Union of India & Ors., to advance once again the same plea and to contend that the presumption raised by the revenue entry is not conclusive but prima facie. It was further held that it was open to the party concerned to apply for correction of the entries appearing in the revenue papers and this omission on his part cannot preclude him from showing by independent evidence that entries are not correct.

13. On the other hand, learned senior counsel for the respondent referred to judgment of the Apex Court in Shri Raja Durga Singh of Solon v. Tholu & Ors., to advance the plea of only presumptive value of an entry in the revenue records.

14. Learned senior counsel further referred to judgment of the Apex Court in Sahabdar Khan & Anr. v. Sadloo Khan (Dead) By LRs & Ors., for the proposition that a revenue entry made can be validly accepted unless challenged.

15. Learned senior counsel also referred to judgment of the Apex Court in Wali Mohammad (Deceased) By LRs v. Ram Surat & Ors., where the passage from Vishwa Vijay Bharati v. Fakhrul Hassan, was cited with approval as under:

" 5. ... ... ... ...

" 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 into 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 in the revenue record states but the entry is open to the attach 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."

6. Coming to the present case, although the Additional Commissioner has held that the entry was fictitious, that conclusion seems to have been arrived at merely on the basis that Wali Mohammad was in possession of fasli year in question, with the result that the entry in the Khasra or Khatauni showing Ram Kumar as the occupant could not be correct. There is nothing to show that the said entry was fictitious or was made fraudulently or was incorrectly introduced by reason of ill-will or hostility towards Wali Mohammad. In these circumstances, the entry may not be correct but it could not be said to be fictitious or regarded as non-est. Merely because the entry might be incorrect, that would not make any difference to the determination of the question as to who is entitled to be declared to be the Adhivasi of the land under the provisions of Section 20(b) of the said Act. We agree with the conclusion and reasoning of the High Court."

16. Learned senior counsel referred to judgment of the Apex Court in Balwant Singh & Anr. v. Daulat Singh (Dead) By LRs & Ors., to contend that under tenancy and land laws, entries and mutation must be taken as correct unless contrary is established.

17. In our considered view, the aforesaid plea of the appellant cannot be sustained on account of two reasons. Firstly, the appellant did not lead any such evidence, which could rebut the presumption in favor of the respondent. Not only this, admittedly no suit was filed for correction of the revenue records as mentioned aforesaid and as could have been done under the provisions of Section 45 of the PLR Act.

18. It may also be noticed that the reference has been made under the provisions of Section 30/31 of the said Act and not under Section 18(1) of the said Act. The reference has been made not on the application of the party (which would be under Section 18 of the said Act), but by the Collector under Section 30 of the said Act and, thus, the only issue to be considered is the apportionment. The relevant para 8 of the order/judgment is as under:

" 8. The reasonable proportion of the compensation amount as between the owner and tenant, to my mind, is 40:60%. So 40% of the compensation amount shall be paid to IP No. 1 while 60% of the compensation amount shall be paid to IP No. 2. Nazir shall comply."

19. Learned senior counsel for the respondent further sought to contend by reference to judgment of the Apex Court in Prayag Upnivesh Awas Evam Nirman Sahkari Samiti Ltd. v. Allahabad Vikas Pradikaran & Anr., that the matter in issue before the Reference Court was only of apportionment of compensation and not of the right of the respondent to get some amount. This plea is based on the direction contained in the order of the Land Acquisition Collector making the reference where on the issue of apportionment, it is stated as under:

" 30. Compensation will be paid to the interested persons on the basis of the latest entries in the revenue record."

It was, thus, submitted that the Reference Court had no jurisdiction to decide the matter not referred to it and in the absence of a reference made under Section 18, the only matter relating to apportionment of compensation could be gone into on reference being made under Section 30 of the said Act.

20. Learned counsel for the appellant confronted with the aforesaid sought to contend that the reference was wrongly made. It was, however, not disputed that the order of reference was never challenged. Not only this, when learned counsel for the appellant was asked to point out from the Grounds of Appeal whether any such challenge was made before this Court, learned counsel was unable to point out so and, in fact, conceded that this plea was not raised. It was, however, sought to be contended that the same being a legal plea can be raised at any time. We are unable to accept the said plea since even a legal plea has to be raised in the Grounds of Appeal and the present matter really was not merely a question of legal plea, but whether the appellant was aggrieved with the order of reference. Since the reference was made only under Section 30 and not under Section 18 of the said Act, the only question to be considered was of the apportionment of compensation.

21. It may be noticed that distinction between the reference made under Section 18 and the reference made under Section 30 of the said Act was considered by the Apex Court in Sharda Devi v. State of Bihar & Anr., . It was held that under Section 30, the only disputes which are referable are (i) any dispute as to apportionment of the amount of compensation or part thereof; or (ii) a dispute as to persons to whom the amount of compensation or any part thereof is payable. However, under Section 30 of the said Act, the Collector may refer such dispute to the decision of the Reference Court as it deems appropriate and, thus, has a discretion in the matter. This mandates that the Reference Court will go into the issue referred to by the Land Acquisition Collector. Thus, the question of entitlement itself could have been gone into by the Reference Court. However, while making the reference, the Land Acquisition Collector has specifically stated that the compensation will be paid to the interested persons on the basis of the latest entries made in the revenue records and to that extent, a limited reference has been made. Thus, the entries of the revenue records were required to be considered for apportionment.

22. Be that as it may, learned ADJ has considered even the question of entitlement and has come to the conclusion that the respondent would be entitled to a part of the compensation. The Reference Court has taken into consideration the entries made in the revenue records and the apportionment has been made on the basis of 40 : 60 between the owner and the tenant. No submission was really made by learned counsel for the appellant on the issue of the extent of the apportionment nor are we really called upon to go into the issue in view of the apportionment already having been arrived at in terms of the impugned order.

23. The appeal is dismissed leaving the parties to bear their own costs.