Madhya Pradesh High Court
The State Of Madhya Pradesh vs Smt.Shingar Bai on 17 June, 2025
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
REPORTABLE
1 FA No-208-2008
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 17th OF JUNE, 2025
FIRST APPEAL No. 208 OF 2008
STATE OF MADYA PRADESH
Vs.
SMT. SHINGAR BAI AND OTHERS
.............................................................................................................................
Appearance
Shri Ajay Ojha - Government Advocate for the appellant/defendant.
Shri Rajas Pohankar - Advocate for respondent Nos.1 to 3/plaintiffs.
Shri S.P. Rai - Advocate for the proposed respondent.
.............................................................................................................................
Reserved on : 07.05.2025
Pronounced on : 17.06.2025
JUDGMENT
At the request of learned counsel for the parties, this appeal is finally
heard.
2. In this appeal filed under Section 96 of the Code of Civil Procedure,
assail is made to the impugned judgment and decree dated 24.10.2007
passed by the Court of Eighth Additional District Judge, Bhopal, in Civil
Suit No.10-A/2005 whereby granting decree of declaration and mandatory
injunction, the trial Court had decreed the suit in the plaintiffs' favour.
3. As per facts of the case, a suit was filed by the plaintiffs claiming
declaration and mandatory injunction. As per the plaint averments, the suit
land ad-measuring 41.52 acres, situates at Village Goura, PH No.40,
2 FA No-208-2008
Revenue Survey No.234, Tahsil Hujur, District Bhopal and is being owned
and possessed by the plaintiffs which according to them is their ancestral
property.
(3.1) According to the plaintiffs, some part of the said land was in the
shape of Pathar whereas in the remaining part, they are doing cultivation.
According to the plaintiffs, over the said land, a pucca house and 'Well'
are also situated.
(3.2) As per the plaintiffs, their predecessor Mohanlal, whose name is
shown to be a bhumiswami in the revenue records, died in the year 1953
and thereafter, his two sons namely Ramdayal and Sitaram came in
possession over the land in question. Although, after the death of
Mohanlal, one of his sons namely Sitaram started living in his maternal
home and thereafter, some part of land was being cultivated by Ramdayal
whereas other was given on batiya, but after the death of Ramdayal and
Sitaram, the land was being taken care of and cultivated by Shingar Bai.
(3.3) As per the plaintiffs, neither the suit land was sold; acquired by the
State Government nor it was vested in any of the schemes or policies of
the State Government. In the year 2000-01, Shingar Bai had given the suit
land to Yunus Khan on batiya, who later on, tried to grab the said land and
thereafter, Shingar Bai filed a suit which, on 26.01.2005, got withdrawn as
the parties had settled their grievances.
(3.4) Pursuant to the dispute arose between Shingar Bai and Yunus Khan,
Shingar Bai had obtained the revenue records of the suit land from 1939
till 2002-03 and then only, she got the information that the suit land was
shown to be a land of Mohanlal s/o Kashiram and after his death in the
3 FA No-208-2008
year 1953, the said land was recorded in the name of his legal heirs i.e. her
two brothers and plaintiff herself.
(3.5) As per the plaint averments, in the year 1954, the suit land was
shown to be in two khasra numbers. Although, in one khasra number, the
names of plaintiff and her two brothers were recorded but the other khasra
number was kept vacant and that information was not there in the
knowledge of the plaintiffs for the reason that since the suit land was
recorded as a Pathar land and, therefore, it was free from any outstanding
towards the land revenue and as such, no communication was made in this
regard between the plaintiffs and revenue authorities and thereafter,
revenue records were not being properly maintained and in fact, the names
of the plaintiffs from the column of ownership 'swamitwa' got removed.
However, according to the plaintiffs, they are still in possession over the
suit land.
(3.6) According to the plaintiffs, even in the year 2000, their possession
over the land in question could not be recorded and thereafter, under some
mistake, the suit land was shown to be the land of the State and, therefore,
defendant No.1 had initiated the proceeding of allotment of suit land in
favour of defendant No.2 (respondent No.4 herein) and as such, a public
notice got issued on 09.01.2004 in Dainik Bhaskar inviting objections in
respect of allotment of land likely to be made in favour of defendant No.2
and then only, the plaintiffs, on 15.01.2004 had published their objection
and in fact, on the same date they had also submitted their written
objection before the Nazul Officer, Bhopal stating therein that the suit land
belonged to them and as such, the State has no right to allot it in favour of
defendant No.2.
4 FA No-208-2008
(3.7) Subsequently, on 25.01.2005, a revenue inspector along with two
policemen came on spot and pressurized the plaintiffs to remove their
possession over the land in question otherwise, they will be removed
forcefully and as such, left with no other alternative remedy, the plaintiffs
had filed the suit.
(3.8) According to the plaintiffs, the cause of action arose in their favour
on 09.01.2004 when they came to know about the notice published on
behalf of the State inviting objections about the allotment of land likely to
be made in favour of defendant No.2 and thereafter, another cause of
action arose when on 25.01.2005, the revenue inspector along with two
policemen came on spot and pressurized them to remove their possession
over the land in question and as such, it was claimed that their suit was
within time because the same was filed only on 29.01.2005.
(3.9) Written-statement was also filed by defendant No.1 claiming therein
that the suit land belongs to the State. According to defendant No.1, from
1955-56, since the suit land is shown to be Pathar in the revenue records,
therefore, no question for its acquisition arose. It is further stated that the
plaintiffs were not cultivating the said land. In the written-statement, an
objection in respect of maintainability of suit on the ground of res judicata
had also been raised saying that on an earlier occasion, a suit filed by the
plaintiffs even between the same parties got withdrawn that too without
there being any liberty and as such, subsequent suit is not maintainable.
(3.10) In the written-statement, defendant No.1 had also denied the fact
that under some mistake, the suit land is being shown to be the State land.
According to defendant No.1, since the plaintiffs are trying to grab the suit
land, therefore, they had filed the suit on the false and incorrect facts. In
5 FA No-208-2008
the written-statement, defendant No.1 had also denied the fact about any
ownership and possession of the plaintiffs over the suit land. According to
them, the suit is time barred. It was further claimed that the suit is liable to
be dismissed on the ground that proper Court-fee had not been paid by the
plaintiffs.
(3.11) Ultimately, the trial Court vide impugned judgment and decree
dated 24.10.2007 had decreed the suit in the plaintiffs' favour holding
therein that they are the bhumiswami of the suit land. The trial Court had
directed that defendant No.1 shall record the plaintiffs' name in khasra
panshala treating them to be the bhumiswami. The trial Court had also
declared the proceeding initiated by defendant No.1 for allotment of suit
land in favour of defendant No.2, as illegal and void. The defendants were
also restrained from interfering in the possession of the plaintiffs over the
suit land.
4. Learned counsel for the appellant is challenging the impugned
judgment and decree mainly on the ground that while shifting the burden
of proof upon the appellant/defendant, the trial Court had committed an
error. It is contended that the Court had further failed to see that the suit
ought to have been dismissed on the ground that it was hopelessly barred
by time because as per the admission of the plaintiffs themselves, their
names were not there in the revenue records since 1954 and, therefore, it is
clear that suit was filed after almost 60 years. It is contended by the
appellant that the suit was also liable to be dismissed on the ground of res
judicata because earlier suit filed by the plaintiffs got withdrawn without
there being any liberty and, therefore, as per the provision of Order 23 of
the CPC, once earlier suit constituted between the same party got
6 FA No-208-2008
withdrawn that too without any liberty, then subsequent suit filed between
the same party is not maintainable. It is further contended by learned
counsel for the appellant that the observation with regard to the ownership
of the plaintiffs interpreting 'GAIR MAKBUZA NAKABIL KASTA
PATHAR' was based upon perverse finding. As per learned counsel for the
appellant, after introducing the Code i.e. M.P. Land Revenue Code, 1959,
the suit land automatically got vested in the State. It is further contended
that in the year 1939, by making manipulation, the name of Mohanlal s/o
Kashiram got substituted in the revenue records that too without there
being any foundation and for that no sufficient explanation was given and
as such, the Court had to draw an adverse inference in this regard, but the
Court failed to do so. It is further contended that the trial Court acted
illegally without considering the fact that after 1954, the name of
predecessor of the plaintiffs was not shown in the revenue records whereas
the land was shown as a Pathar and as such, it had to be considered a land
of the State Government. Further, the fact of non-payment of land revenue
had also not been taken note of in a proper manner and even the trial Court
failed to appreciate the fact that when the land was recorded as a barren
land, then it cannot be considered to be the land of a private person.
5. On the other hand, learned counsel for the respondents has opposed
the submissions advanced by learned counsel for the appellant and
submitted that the impugned judgment and decree passed by the trial Court
is based upon the evidence adduced by the parties during the course of
trial. It is contended that during trial, in fact, the defendant/appellant failed
to adduce any evidence to establish as to how, the suit land belonged to the
State. It is further contended that the revenue entries, since 1939 onward,
7 FA No-208-2008
are not only showing the name of predecessor of the plaintiffs as the
bhumiswami, but they are also showing their possession over the suit land.
It is submitted that after the death of Mohanlal (original owner of the
land), though, their legal heirs came on record, but later on, revenue
records were not properly maintained and in the year 1989, all of a sudden,
the suit land was shown to be a land of the State Government. It is also
contended that the appellant failed to show as to how the name of State got
recorded in the revenue records against the suit land. It is further submitted
that the State Government though had produced a witness, but she herself
had admitted that neither there was any order nor any entry prior to 1989
in the revenue records showing that the suit land belonged to the State. It
is also contended that the said witness had further failed to disclose the
fact as to how the revenue entries got changed when no order in this regard
was passed by any competent authority. It is also contended by learned
counsel for the respondents that the trial Court, on the basis of old revenue
entries showing the name of predecessor of the plaintiffs as a bhumiswami,
had found that the suit land is continuously in their possession and as such,
rightly decreed the suit in the plaintiffs' favour. According to him, this
appeal being misconceived, is liable to be dismissed.
6. I have heard the arguments advanced by learned counsel for the
parties and perused the record.
7. The trial Court, considering the pleadings made by the parties, had
framed as many as eight issues including the issues with regard to
maintainability of suit on the grounds of res judicata and limitation. The
trial Court had further framed the issue about the proceeding initiated by
the State for allotment of the suit land in favour of defendant No.2.
8 FA No-208-2008
8. For deciding the dispute involved in this case and ascertaining the
correctness of the impugned judgment and decree, it is to be seen as to
whether these three issues have rightly been dealt with and answered by
the trial Court or not and, therefore, I am giving my opinion in respect of
those issues.
9. So far as question of limitation is concerned, the trial Court had
considered that as per the averments made in the plaint itself, first cause of
action arose in favour of the plaintiffs in the year 2004 when a notice got
published in Dainik Bhaskar inviting objections with regard to allotment
of the suit land likely to be made in favour of defendant No.2 and
thereafter, second cause of action arose in the year 2005 when a revenue
inspector came on spot along with two police persons and asked the
plaintiffs to remove their possession over the suit land otherwise the same
would be done forcefully and, therefore, looking to the date of filing the
suit i.e. 29.01.2005, the trial Court had decided the said issue saying that
the suit was filed within limitation. However, considering the facts and
circumstances of the case, I am also of the opinion that in the present case,
first cause of action arose in favour of the plaintiffs only after publication
of notice inviting objections in respect of allotment of the suit land likely
to be made in favour of defendant No.2. However, in response to the same,
the plaintiffs had not only published their objection in the newspaper but
also submitted a written objection before the Nazul Officer, Bhopal.
Likewise, second cause of action arose when the revenue inspector came
on spot and asked the plaintiffs to remove their possession over the suit
land and, therefore, looking to the period of limitation for filing the suit in
respect of declaration as prescribed under Article 58 of the Limitation Act
9 FA No-208-2008
i.e. three years, the trial Court, in my opinion, had rightly observed that the
suit filed by the plaintiffs was within limitation.
10. As regards, the issue of res judicata, though a suit was filed by the
plaintiffs against Yunus Khan, but in the said suit, the State was only a
formal party and in fact, no relief was claimed against the State and
ultimately, the matter got compromised between the parties; neither any
order on merit was passed nor any issue was framed, then the subsequent
suit filed by the plaintiffs cannot be said to be not maintainable on the
ground of res judicata. It is also pertinent to mention here that in the
earlier suit filed by the plaintiffs, relief was claimed only against Yunus
Khan, but in the subsequent suit, relief of title was being claimed against
the State and, therefore, it does not attract the principles of res judicata
and under such circumstances, even the provisions of Order 23 of the CPC
do not come in the way of the plaintiffs for the reason that the subsequent
suit was filed between different parties. As such, while deciding the said
issue, the finding so given by the trial Court that subsequent suit does not
attract the principles of res judicata, cannot be said to be perverse in any
manner. That apart, before the trial Court, the State was failed to produce
any document showing that in the earlier suit, relief was claimed against
the State and as such, the finding given by the trial Court in this regard
cannot be said to be improper.
11. Now the basic issue involved in this case is as to whether under the
existing facts and circumstances of the case, a decree of declaration and
title could have been granted in favour of plaintiffs and as such, finding
given by the trial Court in this regard can be said to be perverse as has
been contended by learned counsel for the appellant or not.
10 FA No-208-2008
The plaintiffs had filed revenue records from 1939 and since those
documents were in Urdu, therefore, a person well versed in Urdu
language; did his higher secondary with said language and was in a
position to translate those documents, was brought to the witness-box and
had stated before the trial Court that the documents Ex.P-17 and Ex.P-18
are showing the name of Mohanlal s/o Kashiram as the owner
(bhumiswami) of the suit land and in fact, his possession is also showing
therein. He had also stated that in one of the documents (Ex.P-17), the
name of Mohanlal was deleted by red-ink and thereafter, names of
Ramdayal, Shingar Bai and Sitaram got recorded.
At the same time, Naib Tahsildar namely Mrs. Sunita Lal was also
examined, who, in her statement had very categorically stated that she had
no knowledge about the fact as to how the name of the State came in Ex.P-
35. She had also admitted the fact that without there being any order or
following any procedure, such entries were made in favour of the State.
She had further admitted that in Ex.P-2, the name of Mohanlal s/o
Kashiram got recorded as bhumiswami, but the name of State was not
there. However, she had submitted that the suit land was shown to be a
Pathar and as such, it otherwise means that it belongs to the State.
Although, she had admitted that from 1959 till 2005, the name of the
State was there in the revenue records, but she failed to demonstrate as to
how in Ex.P-35, the name of State has come in the revenue records. She
had also admitted that in the document (Ex.P-19), till 1934, revenue
records were blank. She had further admitted that since she had not
inspected the suit land, therefore, not in a position to say whether any
'Well' is situated there or not. She had also admitted that no report of any
11 FA No-208-2008
encroachment over the land was ever produced before her.
12. Under the existing scenario, it is clear that by producing the relevant
documents i.e. revenue entries, the plaintiffs had successfully proved their
title and possession over suit lend whereas the State failed to show as to
under what authority, the name of the State got recorded in the revenue
records and as to how, they could claim their title over the suit land. So far
as the contention made by learned counsel for the appellant that the
plaintiffs had to prove their title is concerned, I am not convinced with the
same for the reason that as per the provision of Section 117 of the M.P.
Land Revenue Code 1959, a presumption with regard to entries in the
revenue records can be considered to be correct until contrary is proved.
As is clear from record, before the trial Court, the State was failed to
produce any material contrary to the revenue entries shown to have been
made since 1939 and even before this Court, nothing has been produced
by the State to hold that the finding given by the trial Court is perverse and
contrary to law.
13. Dealing with almost similar circumstances, the Supreme Court in a
case reported in (2020) 11 SCC 242 [Pratap Singh (Dead) Through
Legal Representatives and others Vs. Shiv Ram (Dead) Through Legal
Representatives] has observed as under:-
'15. The record produced by Lalita Chauhan (DW 8) for correction of
khasra girdawari entries is not relevant and admissible before the civil court.
The proceedings before the Revenue Officer for correction of revenue
record are summary in nature. The statements recorded by the Revenue
Officer during the proceedings for correction of revenue record are not per
se admissible in evidence. Maybe the evidence of the witnesses could be
used to confront the witness being a previous statement if such a statement
is made on oath. Therefore, the reference of corrections of khasra girdawari
proceedings is wholly unwarranted when such entries are not proved to be
12 FA No-208-2008
incorrect.
16. As per Section 32(2)(a) of the 1954 Act, record-of-rights i.e.
jamabandi, shall include the name of persons who are landowners, tenants or
assignees of land revenue and also the rent, land revenue, rates, cesses or
other payments due from and to each of those persons and to the
Government. On the other hand, the periodical record i.e. khasra girdawari,
as mentioned in Section 34 of the 1954 Act, is to be prepared every year as
the proof of the statements, as mentioned in sub-section (2) clause (a) of
Section 32, which includes the name of the landowners, tenants and the rent
and land revenue payable. In terms of Section 45 of the 1954 Act, the
record-of-rights as prepared in terms of Sections 32 and 34 of the 1954 Act
carries a presumption of truth. Still further, any person who is aggrieved by
any entry in the record-of-rights or in a periodical record has a right to
invoke the jurisdiction of the civil court for correction of the entries in terms
of Section 46 of the 1954 Act.
17. The detailed procedure for recording of periodical record-of-
rights as well as the record-of-rights in terms of Sections 32 and 34 of the
1954 Act has been prescribed. The record-of-rights contains entries of the
revenue record for the four years. Such record-of-rights carries the
presumption of correctness in terms of Section 45 of the 1954 Act and also
Section 35 of the Evidence Act, 1872 (for short "the Evidence Act"). Section
109 of the Evidence Act further contemplates that whether there exists a
relationship of landowner and tenant and the burden of proving such a
relationship is on the person who affirms it.
18. The relevant provisions of the Evidence Act read as under:
"35. Relevancy of entry in public record or an electronic
record made in performance of duty.--An entry in any public or
other official book, register or record or an electronic record, stating a
fact in issue or relevant fact, and made by a public servant in the
discharge of his official duty, or by any other person in performance
of a duty specially enjoined by the law of the country in which such
book, register, or record or an electronic record is kept, is itself a
relevant fact.
* * *
109. Burden of proof as to relationship in the cases of
partners, landlord and tenant, principal and agent.--When the
question is whether persons are partners, landlord and tenant, or
principal and agent, and it has been shown that they have been acting
as such, the burden of proving that they do not stand, or have ceased
to stand, to each other in those relationships respectively, is on the
person who affirms it."
13 FA No-208-2008
19. In the State of Himachal Pradesh, jamabandi, under Section 32 of
the 1954 Act as well as khasra girdawari, under Section 34 of the 1954 Act,
both are record-of-rights in terms of Section 32 of the 1954 Act, and have
statutory presumption of truth. How that presumption can be inferred has
come up for consideration before this Court in Harish Chander v. Ghisa Ram
[Harish Chander v. Ghisa Ram, (1981) 1 SCC 431] . This Court held that the
entries in the jamabandi carry presumption of truth but such presumption is
rebuttable. Once that presumption is raised, still another comes to the aid of
Respondent 1 [therein] [Ed.: The facts of Harish Chander, (1981) 1 SCC
431, are that the name of Respondent 1 therein was recorded as a tenant in
the jamabandi for the year 1959-60 (Ext. P-1) and consistently thereafter till
the year 1968 (Khasra-girdawaris Exts. P-2 to P-7). Thus it was held that the
statutory presumption of truth of these entries was attracted to the benefit of
Respondent 1 tenant, and so also the reversal of burden of proof under
Section 109 of the Evidence Act, 1872, was held to be to his benefit. The
facts of the present case are exactly the opposite--see para 20 below--there
is no entry at all in the record-of-rights of the tenancy claimed by the
respondent-defendant herein. Thus, the presumption of the truth of the
record-of-rights has been held to enure to the benefit of the appellants whose
names were found to be recorded in the record-of-rights.] by reason of the
rule contained in Section 109 of the Evidence Act, namely, that when two
persons have been shown to stand to each other in the relationship of
landlord and tenant, the burden of proving that such relationship has ceased,
is on the party who so asserts. It was held as under: (SCC pp. 431-433, paras
2 & 6)
"2. ... Apart from the oral evidence there is no material on the
record which may indicate the falsity of any of the entries in the
revenue records and we are of the opinion that the lower courts were
fully justified in relying on them.
* * *
6. No suspicion can attach to the entries in the jamabandi for
the year 1959-60, nor have the contents of that document been
assailed before us. A presumption of truth attaches to those entries in
view of the provisions of Section 44 of the Punjab Land Revenue
Act. That presumption is no doubt rebuttable but no attempt has been
made to displace it. Further, once that presumption is raised, still
another comes to the aid of Respondent 1 by reason of the rule
contained in Section 109 of the Evidence Act, 1872, namely, that
when two persons have been shown to stand to each other in the
relationship of landlord and tenant, the burden of proving that such
relationship has ceased, is on the party who so asserts. It may
therefore be legitimately presumed that the plaintiff continued to
possess the land as a tenant till the institution of the suit."
14 FA No-208-2008
20. The present is a case where no relationship of landlord and tenant
is mentioned in the revenue record though required in terms of Section 32(2)
(a) of 1954 Act. In the absence of entry in the revenue record, which is also
expected to contain the entry of rent and possession, the tenancy cannot be
treated to be in existence only on the basis of oral evidence of the witnesses
examined by the defendant. The burden of proving the relationship was on
the defendant. Such burden cannot be said to be rebutted only by oral
evidence. The witnesses may lie but the documents do not, is a golden rule.
The presumption of truth attached to the revenue record can be rebutted only
on the basis of evidence of impeccable integrity and reliability. The oral
evidence can always be adduced contrary to the revenue record but such oral
testimony will not be sufficient to hold that the statutory presumption stands
rebutted.
21. This Court in Vishwa Vijay Bharati v. Fakhrul Hassan [Vishwa
Vijay Bharati v. Fakhrul Hassan, (1976) 3 SCC 642] held that the entries in
the revenue record ought to be generally 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. This Court held as under: (Fakhrul Hassan case [Vishwa
Vijay Bharati v. Fakhrul Hassan, (1976) 3 SCC 642] , SCC p. 645, para 14)
"14. 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 attack
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."
22. This Court in Guru Amarjit Singh v. Rattan Chand [Guru Amarjit
Singh v. Rattan Chand, (1993) 4 SCC 349 : AIR 1994 SC 227] was
examining a dispute of relationship of landlord and tenant. A copy of more
than thirty years old lease deed was produced to prove the relationship
between landowner and tenant. However, the revenue record did not show
any payment of rent but only existence of terms of lease to pay rent. This
Court held that non-production of the receipts of payment of rent clearly
indicates that there was no relationship between landlord and tenants.
23. In Sodhi Transport Co. v. State of U.P. [Sodhi Transport Co. v.
State of U.P., (1986) 2 SCC 486 : 1986 SCC (Tax) 410] , this Court was
considering Section 28-B of the Uttar Pradesh Sales Tax Act, 1948 which
raises a presumption of sale of goods in a manner prescribed therein. This
15 FA No-208-2008
Court considered Section 4 of the Evidence Act and also the previous
judgments and held as under: (SCC p. 496, para 14)
"14. A presumption is not in itself evidence but only makes a
prima facie case for party in whose favour it exists. It is a rule
concerning evidence. It indicates the person on whom the burden of
proof lies. When presumption is conclusive, it obviates the
production of any other evidence to dislodge the conclusion to be
drawn on proof of certain facts. But when it is rebuttable it only
points out the party on whom lies the duty of going forward with
evidence on the fact presumed, and when that party has produced
evidence fairly and reasonably tending to show that the real fact is
not as presumed the purpose of presumption is over. Then the
evidence will determine the true nature of the fact to be established.
The rules of presumption are deduced from enlightened human
knowledge and experience and are drawn from the connection,
relation and coincidence of facts, and circumstances."
24. In another judgment in Kumar Exports v. Sharma Carpets
[Kumar Exports v. Sharma Carpets, (2009) 2 SCC 513 : (2009) 1 SCC
(Civ) 629 : (2009) 1 SCC (Cri) 823] , this Court examined the presumption
of fact in proceedings under Section 138 of the Negotiable Instruments Act,
1881. It was held that bare denial of the passing of the consideration and
existence of debt, apparently would not serve the purpose of the accused.
Something which is probable has to be brought on record for getting the
burden of proof shifted to the complainant. It was held as under: (SCC p.
521, para 21)
"21. The accused has also an option to prove the non-existence
of consideration and debt or liability either by letting in evidence or
in some clear and exceptional cases, from the case set out by the
complainant, that is, the averments in the complaint, the case set out
in the statutory notice and evidence adduced by the complainant
during the trial. Once such rebuttal evidence is adduced and accepted
by the court, having regard to all the circumstances of the case and
the preponderance of probabilities, the evidential burden shifts back
to the complainant and, thereafter, the presumptions under Sections
118 and 139 of the Act will not again come to the complainant's
rescue."
25. The presumption of truth attached to the revenue record can be
rebutted if such entry was made fraudulently or surreptitiously (Vishwa
Vijay Bharati case [Vishwa Vijay Bharati v. Fakhrul Hassan, (1976) 3 SCC
642] ) or where such entry has not been made by following the prescribed
procedure (Bhimappa Channappa Kapali v. Bhimappa Satyappa
Kamagouda [Bhimappa Channappa Kapali v. Bhimappa Satyappa
16 FA No-208-2008
Kamagouda, (2012) 13 SCC 759 : (2014) 5 SCC (Civ) 419] ). Even in Guru
Amarjit Singh [Guru Amarjit Singh v. Rattan Chand, (1993) 4 SCC 349 :
AIR 1994 SC 227], where thirty years' old lease deed was produced, this
Court had not accepted the proof of the relationship between landowner and
tenant in absence of receipt of payment of rent.
26. Therefore, we find that the presumption of truth attached to
the record-of-rights can be rebutted only if there is a fraud in the entry
or the entry was surreptitiously made or that prescribed procedure was
not followed. It will not be proper to rely on the oral evidence to rebut
the statutory presumption as the credibility of oral evidence vis-à-vis
documentary evidence is at a much weaker level.
27. In view thereof, we find that the High Court has erred in law in
allowing the defendant's appeal relying upon oral evidence to rebut the
statutory presumption of truth attached to the revenue record. The onus of
proof was placed on the defendant by the learned trial court. The burden is
on the person who asserts such a relationship as per Section 109 of the
Evidence Act. The defendant has failed to rebut the presumption of truth on
the basis of reliable, trustworthy and cogent documentary evidence to prove
the relationship of a tenant.'
(emphasis supplied)
14. In view of the aforesaid enunciation of law, I have no hesitation to
say this appeal is without any merit and accordingly, it is hereby
dismissed.
(SANJAY DWIVEDI)
JUDGE
dm
