Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1534 of 2009
FAROOQI BEGUM (D)
BY LRS. APPELLANT(S)
VERSUS
THE STATE OF
UTTAR PRADESH RESPONDENT(S)
J U D G M E N T
Vikram Nath, J.
Appellant has assailed the correctness of
Judgment and Order dated 21.07.2006 passed
by the Single Judge, Allahabad High Court in
Second Appeal No. 813 of 1975 between Farooqi
Begum vs. State of Uttar Pradesh, whereby the
Second Appeal was dismissed giving rise to the
Signature Not Verified
present appeal.
Digitally signed by
Indu Marwah
Date: 2022.07.20
13:19:15 IST
Reason:
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FACTS
2. The State of U.P. through Collector,
Rampur, instituted a suit for declaration,
possession and damages before the Court of
District Judge, Rampur, registered as Original
Suit No.1 of 1964, State of U.P. vs. Smt. Farooqi
Begum with respect to land in suit measuring
20 bighas 10 biswa (pukhta) situated in Village
Thotar, Tehsil Sadar, District Rampur, that it
was a government grove (known as ‘ Bagh
) and presently belonging to the
Hazoor Pasand’
U.P. State Garden Department, Rampur.
3. According to the plaint averments, the said
grove was rent free grant of the defendant long
before the merger of Rampur State and like
other Muafis ; it was granted by His Highness
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Nawab Hamid Ali Khan to his different wives
and was liable to resumption at the pleasure of
the ruler of erstwhile Rampur State; after the
death of Nawab Hamid Ali Khan in 1930, his
successor Nawab Raza Ali Khan resumed all the
Muafis of all the widows of his father including
that of the defendant; the possession of the
same was taken over by the State Authorities
soon after the resumption; the same was given
effect to in the revenue papers and the grove
concerned came to be recorded in the name of
the State ( Shamil Khalasa ); the defendant and
her Karpoons through collusion of the revenue
officers managed to get her name continued in
the Patwari’s record even though her possession
had been removed; the grove in question along
with similarly resumed grove came into the
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hands of the State of U.P. at the time of merger;
ever since the State has been selling its Bahar;
the defendant on the basis of continuance of her
name, though illegally, continued to interfere in
the possession of the State even in 1959
claiming the grove in question in her ownership;
the State of U.P. took legal steps to get the
revenue records corrected by expunging the
name of the defendant and for incorporating the
name of the State but the revenue court
declined such request of the State as such the
necessity to file the suit arose.
4. Smt. Farooqi Begum, the sole defendant,
filed the written statement denying the plaint
allegations except that the proceedings before
the revenue courts culminated in her favour; it
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was further alleged that the defendant had been
in continuous possession since 1924; the
property in suit was the holding of the
defendant on the commencement of U.P.
Zamindari Abolition and Land Reforms Act,
1952 and as such on the commencement of the
Act, the defendant became the ‘Bhumidhar’
thereof; that in proceedings for ejectment
against one Laddan Khan initiated by the
defendant, the State being a party had
acquiesced to the defendant’s title as such the
suit was barred by estoppel; further that the
Bagh Hazoor Pasand was in possession of
defendant and was her own property and
adjoining grove measuring 13 bighas 2 biswas
was the grove of the plaintiff State and was in
its possession; both these groves are separated
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by a Nala (a drain); the plaintiff had filed a suit
on a wrong advice that the grove in question
was resumed; other formal pleas of defence were
also taken in the written statement.
5. The Trial Court proceeded to frame issues
on the basis of pleadings and allowed the
parties to lead their evidence. The defendant
filed an application under Order VI Rule 17 of
1
the Code of Civil Procedure, 1908 for
amendment in the written statement on
01.11.1965. The Trial Court vide judgment
dated 13.11.1966 decreed the suit and at the
same time rejected the amendment application
on the ground that it had been filed at a very
belated stage after the arguments had been
heard. Against the said judgment dated
1 In short “CPC”
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13.11.1966, the defendant preferred an appeal
which was originally filed before the High Court
and registered as First Appeal No.61 of 1967
but later on transferred to the Court of District
Judge, Rampur, after the U.P. Civil Laws
Amendment Act, 1970.
6. In the Court of District Judge, Rampur, it
was registered as Civil Appeal No. 50 of 1970,
Smt. Farooqi Begum vs. State of U.P. The
District Judge, Rampur, vide judgment and
order dated 08.09.1971 allowed the amendment
dated 01.11.1965, set aside the judgment of the
Trial Court dated 13.11.1966 and remanded the
matter to the Trial Court for a fresh decision
after necessary reframing of issues and
opportunity to the parties to adduce evidence.
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7. After remand, the Trial Court in addition to
the already framed ten issues, further framed
four more issues and allowed the parties to lead
evidence. The Trial court vide judgment and
order dated 01.05.1973 again decreed the suit.
8. The First Appeal filed by the defendant
registered as Civil Appeal No.73 was dismissed
by IInd Additional District Judge, Rampur, vide
judgment dated 06.03.1975. Aggrieved by the
same, the defendant preferred the Second
Appeal before the High Court registered as
Second Appeal No. 813 of 1975. The learned
single Judge of the Allahabad High Court vide
judgment and order dated 21.07.2006
dismissed the Second Appeal which has given
rise to the filing of the present appeal.
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9. We have heard Ms. Nitya Ramakrishnan,
learned senior counsel for the appellants and
Mr. Tanmaya Agarwal, learned counsel for the
State. We have been taken through the material
on record by the learned counsel for the parties.
Arguments of the appellant:
10. The following submissions have been
advanced on behalf of the appellant stating that
the courts below committed the following
serious errors of law.
i. The burden of proof was wrongly shifted
on the defendantappellant.
ii. Inadmissible evidence was relied upon to
record finding in favour of the plaintiff
respondent.
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iii. Secondary evidence was relied upon
without the Recordkeeper being
examined to prove the same.
iv. Even the secondary evidence relied upon
smelt of manipulation and interpolation,
which was illegally ignored.
v. Documents were prepared in the name of
the defendantappellant, which were
specifically denied, but the same was
illegally relied upon.
vi. The core issue as to whether an
unconditional gift by a husband in favour
of his wife during the subsistence of the
marriage was irrevocable, has not been
looked into, thereby resulting into grave
error of justice.
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vii. The plaintiffrespondent had completely
failed to prove their case as there was no
evidence to support their claim but still
the suit was decreed.
viii. Relevant and admissible evidence was
illegally ignored.
ix. The pleadings of the plaintiffrespondent
were vague and not specific, nor was duly
established by evidence despite the same,
the suit was decreed.
x. The defendantappellant was throughout
in possession and, as such, had perfected
her right, title and interest on the coming
of the U.P. Zamindari Abolition & Land
Reforms Act, 1951, which aspect has not
been considered.
11. On all the above submissions, learned
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counsel for the appellants has referred in detail
to the evidence and the relevant material, which
we will refer to at a later stage.
12. On the other hand, learned counsel for the
plaintiffrespondent made the following
submissions:
i. All the three courts below have recorded
concurrent findings of fact and, as such,
do not call for any interference.
ii. Once the plaintiff and defendant both
have equal opportunity to lead evidence,
the argument regarding shifting of burden
of proof would lose its significance.
iii. The plaintiffrespondent had led cogent,
reliable and admissible evidence to
establish his case.
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iv. The courts below have taken into
consideration all the material placed
before it and after due appreciation of the
same, in accordance with law, the
findings have been recorded.
v. All the three courts have dealt with all the
specific issues framed and have recorded
their findings after due consideration of
the material placed by both the sides.
ANALYSIS:
13. The suit of the respondent instituted for the
relief of declaration, possession and mesne
profits was based on the averments that the
grant given by Nawab Hamid Ali Khan in 1924
in favour of the appellant, had been resumed by
his successor, Nawab Raza Ali Khan in the year
1930, thereafter, the respondent had entered
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into possession, the records were corrected,
however, the appellant on account of some
omission in the maintenance of the records, re
entered into possession sometimes in 1959 and,
therefore, they were compelled to file a suit. It is
also stated that the respondent made an
attempt to get the records corrected through the
revenue court by way of an application for
correction of revenue records, but the same was
rejected by the Deputy Collector in 1953.
14. On the above pleadings, the first thing
required to be proved by the plaintiffrespondent
was that there was resumption of the grant
given in favour of the appellant. For the said
purpose, neither any such order resuming the
earlier grant was filed, nor any order of the
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revenue court was filed to show that the said
resumption of grant had been incorporated in
the revenue records. The defense taken was that
all the records had been destroyed in a fire in
1947. The only evidence led by the plaintiff
respondent was filing of a true copy of Muafiat
Register and the statement of PW2 (Roop
Kishore), who was said to be working as a Clerk
in the Revenue Department.
15. We have examined the statement of PW2.
According to learned counsel for the appellant,
two basic objections were taken for not relying
upon the Muafiat Register. Firstly, it had torn
binding and had loose pages. Secondly, the
entire register was written in blueblack ink and
it is only the entry relating to the land in
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question regarding resumption was written in
black ink. These two aspects casted a doubt on
the veracity of the entries in the register and in
particular the entry relating to the resumption.
The document was, thus, a document not free
from suspicion and as such, no reliance could
be placed upon it.
16. Apart from the above, no other evidence
was led by the plaintiffrespondent to prove the
resumption. PW2 in his crossexamination, had
no explanation for the loose pages, the index i.e.
the first page and the last page being missing
with no detail of the number of pages in the said
register. Further, there was no explanation for
the difference in the ink and that too only on the
page by which, the entry relating to resumption
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with respect to the land in dispute was made.
The courts below relied upon the entries in the
Muafiat Register only for the reason that it was
a document produced by the State and the State
would have no reason to make any kind of
interpolation. There was no other supporting
document with regard to presumption of the
land in question.
17. Referring to the above documents and
statements, counsel for the appellants
submitted that grave injustice has been done to
the appellant by the courts below in holding
that there was a resumption, in the absence of
any credible, reliable evidence to that effect.
18. Prima facie, we find substance in
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submission of the learned counsel for the
appellants that apparently there was no
evidence to prove the resumption of the grant.
19. Insofar as the issue of possession is
concerned, learned counsel for the appellant
submitted that it was the specific case of the
defendantappellants that they had continued in
possession right from 1924 i.e. the time when
the grant was given. It is also submitted that
throughout in the revenue records, the
possession of the defendantappellant is
recorded. It was also submitted that 20 bighas
and odd piece of land given under the grant was
separated by a (drain) with a separate piece
Nala
of land measuring 13 bighas and odd, which
was in the possession of State Department of
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Government Garden and it was this smaller
piece of land, which was being let out by the
State of U.P., Garden Department by selling
usufruct thereof.
20. It was next submitted that Deputy Collector
in the proceedings for correction of records
initiated by the plaintiffrespondent, had made a
spot inspection not once but a couple of times.
In its order dated 03.01.1961, while rejecting
the application of the State for deleting the
name of the defendantappellant and recording
the name of the plaintiffrespondent, had
categorically recorded that the defendant
appellant was in occupation and in possession
of the land in question.
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21. It may be noted that the finding recorded
by a ClassI Officer of the State could not be
easily ignored. It is true that correction of record
proceedings is summary in nature, but when
the inspection was carried out, such finding
recorded in the order regarding possession
ought not to have been ignored.
22. It is thus apparent that plaintiffrespondent
led no evidence to establish that it was
throughout in possession since 1930 after the
resumption. The courts below have proceeded
on assumptions and presumptions to hold in
favour of the State on the question of possession
and to decree the suit.
23. On the other hand, we find that that the
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defendantappellants had filed not only
documentary evidence to prove their continuous
possession but also oral evidence, which has
been ignored.
24. It was further submitted on behalf of the
appellants that courts below have placed
reliance upon a letter of the defendantappellant
dated 19.07.1954 to draw presumption that the
defendantappellant was not in possession in
1954 and it is for this reason that she had
applied for seeking to be put back into
possession. The contents of the said letter have
been perused. According to it, there is some
land of Government and after merger the
Government Garden Department, Rampur has
taken possession over her grove and the request
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made was to direct the Government Garden
Department, Rampur to remove their possession
from her garden so that she may have full
possession of her share. This clearly means that
there was issue of some part of the land granted
to the defendantappellants being in possession
of the Garden Department, Rampur.
25. This letter has been heavily relied upon by
the courts below to record the finding of
possession in favour of the plaintiffrespondent.
The signatures on the said letter were denied by
the defendantappellant, but the same was
sought to be proved through a nephew of step
sister instead of getting the same verified by a
handwriting expert.
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26. P.W.3, Shakir Ali Khan, who claims to be a
Clerk posted as Clerk in the Garden Department
Office, in his examinationinchief has stated
that he recognizes the signature of the
defendantappellant as his wife is the step
daughter of the sister of the defendant
appellant. However, in his crossexamination,
he states that:
i. he does not know the name of the sister
of Farooqui Begum, the defendant
appellant, whose stepdaughter was his
wife; he even does not know the name of
her father; he had never exchanged any
letter with the defendantappellant; he
had not seen defendantappellant reading
and writing; he does not have any direct
relationship with the defendant. The
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credibility of the statement of PW3 to
prove the signature of the defendant also
appears to be farfetched and doubtful.
We may also note here that even if the
said letter contain the signature of the
defendant, it’s content cannot be read to
mean that the defendant was expecting
complete loss of possession over her
entire piece of land but it was only with
respect to part of the land where the
Government Garden Department had
apparently encroached upon while
demarcating.
27. Learned counsel for the plaintiffrespondent
has sought to justify the findings recorded by
the courts below referring to the various parts of
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the judgments and also taking us through the
evidence on record.
28. Learned Counsel for the defendant
appellant has vehemently argued that the gift by
a muslim husband to his wife during marriage
will be irrevocable. She has placed reliance
upon a few judgements in support of the said
submission. We are not inclined to enter into
that question as prima facie, we are of the view
that the matter requires reconsideration by the
High Court and such an issue could be raised at
that stage.
29. We have given our anxious consideration to
the arguments advanced and are of the view
that the High Court fell in error in not taking
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into consideration the relevant material and
instead relying upon inadmissible evidence or
evidence which had no bearing to the findings.
Even the burden had been wrongly placed on
the defendantappellant. Further, the High
Court ought to have carefully scrutinized the
evidence available on record and only thereafter
arrived at a conclusion.
30. In view of the above, the appeal deserves to
be allowed. It is, accordingly, allowed.
31. The judgment of the High Court impugned
in the appeal is set aside. The matter is remitted
back to the High Court.
32. The Second Appeal be restored to its
original number and may be heard and disposed
of afresh in the light of the observations made
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above.
33. Learned counsel for the parties would be at
liberty to raise all the points before the High
Court. They undertake to extend all co
operation in the hearing of the appeal before the
High Court. We also request the High Court to
decide the appeal as expeditiously as possible.
…..……..........................J.
[S. ABDUL NAZEER]
………….........................J.
[VIKRAM NATH]
NEW DELHI
JULY 12, 2022.
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