Evidentiary value of Sanad issued by govt to property holder

Those documents were Exhibits-49 to 51, which were the receipts for the taxes paid by the first defendant from 1982 to 1984-85, but since admittedly the defendants were in possession, even according to the plaintiff, the mere payment of taxes by the defendants would not be indicative of their title to the property. Exhibit-52 was the notice sent by the Survey Officer to the defendant and Exhibit-53 was the Sanad which was issued to the first defendant. Exhibit-53 did not bear any date, but Shri Jaiswal very fairly stated that the Sanad was issued on 13-2-1985, i.e., during the pendency of the suit, which was instituted on 27-8-1984. According to Shri Jaiswal, the Sanad was an important piece of evidence showing the title to the property, because under section 20(2) of the Maharashtra Land Revenue Code, where any property or any right in or over any property is claimed by or on behalf of the Government or by any person as against the Government, it shall be lawful for the Collector or a survey officer, after formal inquiry of which due notice has been given, to pass an order deciding the claim. It is, however, difficult to see how a Sanad issued by the Nazul authority, during the pendency of the present suit based on title, could convey the title to the defendants, if none resided in them. The order would be valid only for the purpose of showing that the property did not belong to the Government and cannot be regarded as validly adjudicating the title to the property between the rival claimants. Section 35 of the Evidence Act, no doubt, makes the entries in public record relevant, but that will not be the conclusive evidence, though it will have to be regarded as a piece of evidence to be considered while deciding the issue of title.1

Bombay High Court

Sahadeo S/O Amrutrao Ingle vs Khushal S/O Naresaji Wankhade And ... on 6 September, 1991

Equivalent citations: 1993 (3) BomCR 598

M.S. Deshpande, J.

1. This second appeal by the original plaintiff is directed against the judgment and decree of the Additional District Judge, Amravati, by which he reversed the decree for possession passed by the trial Court in favour of the plaintiff and dismissed the suit.

2. The plaintiff-Sahadeo sought possession of an open site, north-south 33', east-west 22 1/2', situated within the boundaries mentioned in para-1 of the plaint, which was to the south of his house, bearing Gram Panchayat No. 537/A. According to him, the property belonged to one Shankar Ram Ingale who sold it on 28-1-1972 to one Sheshrao. Sheshrao constructed a tiled structure at the cost of Rs. 500/- on it and gave it to the first defendant for his residence, because the first defendant was closely related to him. Defendant Nos. 2 to 4 are the sons of the first defendant. The possession of the defendant Nos. 1 to 4 was, thus, permissive. In 1979, the defendants removed the tile-structure without Sheshrao's permission and without any authority and started constructing another house on it. Sheshrao, who was way from the village at that time, sent a notice to the defendants through an advocate, asking them to remove the construction. After Shankar's death on 2-3-1972, his widow and three daughters sold Shankar's field and the suit house by the sale-deed dated 28-1-1981 to the plaintiff, and Sheshrao executed a deed of consent to that sale, he having brought about that transaction. Sheshrao also executed a surrender-deed on 30-4-1984 in favour of his mother-in-law. The plaintiff, claiming to be the owner of the property, issued a notice to the defendants on 25-6-1984, asking for possession, but as possession was not delivered, he brought the suit for possession of the property.

3. The defendant Nos. 1 to 4, while denying the plaintiff's allegations, contended that they had been residing in the premises since 1950. At that time, the premises were open and the first defendant made a construction on it, he having purchased the site for Rs. 20/- in 1949 from one Bhangia Ingle of the village Pusda. There is no writing in respect of this transaction. Since then, they have been residing in the suit property as owner.

4. The learned trial Judge held that the premises were originally owned by Shankar Rama Ingale who sold them on 28-1-1972 to Sheshrao, and Sheshrao, after constructing a tiled structure on the site, allowed the defendants to reside therein. It was further held that the defendants made unauthorised construction on the plot. After Shankar's death, property was transferred by Shankar's widow and daughters to the plaintiff on 28-1-1981 with Sheshrao's consent and Sheshrao executed a surrender-deed on 30-4-1984 in favour of the plaintiff. The learned trial Judge negatived the defendants' contention that they had purchased the property from one Bhangia and that they had become owners of the suit property. Eventually, the learned trial Judge decreed the plaintiff's claim for possession together with a direction under Order 20, Rule 12 of the Code of Civil Procedure.

5. The defendants appealed to the District Court, and the learned Additional District Judge took the view that the title of Shankar Rama to the plot had not been established, and no title had been conveyed to the plaintiff by virtue of the several transactions which preceded the sale in favour of the plaintiff. He found that it was not proved that Sheshrao had made a temporary construction on the open site and had allowed the defendants to occupy the premises as licensees. Consequently, the first appellate Court set aside the decree passed by the trial Court and dismissed the suit. Feeling aggrieved by this decision, the plaintiff has come up in this second appeal.

6. The main witnesses examined by the plaintiff, in support of the claim, were Sahadeo, the plaintiff, and Sheshrao (P.Ws. 1 and 2), and they both stated that the suit site was owned by Shankar Rama Ingale who died in the year 1972. Sheshrao is the son-in-law of Shankar. On the other hand, the stand taken by the first defendant Khushal (D.W. 1), in his evidence, was that the open site original belonged to one Bhangia and that he purchased it for Rs. 20/-. There was no documentary evidence to show that the site belonged to Bhangia. The plaintiff relied on the statement dated 16th July, 1978 (Ex. D-47), with which the first defendant was confronted during his cross-examination and came to be recorded on 16-7-1978 by the Special District Inspector of Land Records and Enquiry Officer, in which Khushal stated that the property was orally gifted to him in the year 1955 by Shankar Rama Ingale who was his son-in-law and, therefore, the property came to be recorded in the name of Khushal Narasaji Wankhade. Though D.W. 1-Khushal admitted that there was a pending enquiry by the Nazul Officer, he denied having made the statement at Exhibit-47, and claimed not to have told the Nazul Officer that he had purchased the suit site from Bhangiya for Rs. 20/-. Then he corrected his version by saying that he made a statement before Nazul Officer that he had purchased the suit site for Rs. 20/- from Bhangiya. Considering that the statement recorded by the public servant in the course of enquiry had been put to Khushal in his cross-examination and there was apparently no reason why the statement should have been recorded wrongly, and the further circumstance that even according to Khushal, he had made a statement before the Nazul Officer that he had purchased the property from Bhangiya for Rs. 20/-, it would appear that the statement (Exhibit-47) must have been made by Khushal. If that was the position, then even according to the defendants, Shankar was at one time the owner of the property, and the evidence of the plaintiff and Sheshrao (P.W. 2) stands corroborated by the statement made by the first defendant himself.

7. The learned trial Judge had considered this document alongwith the evidence of the plaintiff and Sheshrao, but curiously enough this important piece of evidence was entirely overlooked by the learned Additional District Judge, and since the learned Additional District Judge mainly decided the question of ownership, without adverting to this part of the document, the finding recorded by the learned trial Judge shall have to be preferred to that of the learned Additional District Judge.

8. The assessment list at Exhibit-38 for the year 1969-70 showed that the taxes were paid to the Gram Panchayat by Shankar Rama Ingale, and this lends further corroboration to Shankar's title. Shri Jaiswal, learned Counsel for the respondents, urged that there was documentary evidence adduced by the defendants also which had not been given due weight by the learned trial Judge. Those documents were Exhibits-49 to 51, which were the receipts for the taxes paid by the first defendant from 1982 to 1984-85, but since admittedly the defendants were in possession, even according to the plaintiff, the mere payment of taxes by the defendants would not be indicative of their title to the property. Exhibit-52 was the notice sent by the Survey Officer to the defendant and Exhibit-53 was the Sanad which was issued to the first defendant. Exhibit-53 did not bear any date, but Shri Jaiswal very fairly stated that the Sanad was issued on 13-2-1985, i.e., during the pendency of the suit, which was instituted on 27-8-1984. According to Shri Jaiswal, the Sanad was an important piece of evidence showing the title to the property, because under section 20(2) of the Maharashtra Land Revenue Code, where any property or any right in or over any property is claimed by or on behalf of the Government or by any person as against the Government, it shall be lawful for the Collector or a survey officer, after formal inquiry of which due notice has been given, to pass an order deciding the claim. It is, however, difficult to see how a Sanad issued by the Nazul authority, during the pendency of the present suit based on title, could convey the title to the defendants, if none resided in them. The order would be valid only for the purpose of showing that the property did not belong to the Government and cannot be regarded as validly adjudicating the title to the property between the rival claimants. Section 35 of the Evidence Act, no doubt, makes the entries in public record relevant, but that will not be the conclusive evidence, though it will have to be regarded as a piece of evidence to be considered while deciding the issue of title.

9. Another significant circumstance was that Sheshrao, after purchasing the property by the sale-deed dated 28th January, 1972 from Shankar, claimed to have allowed the defendants to reside in the structure which stood on the suit plot. He stated in his evidence that while he was away from the village, the first defendant had constructed a new structure after dismentling the old one and he, therefore, sent a notice on 18-4-1979 (Exhibit-40) to the defendant No. 1. Admittedly, this notice was not answered by the first defendant. In the later sale-deed (Exhibit-31), which Sheshrao and others executed on 28-1-1981 in favour of the plaintiff, there was no reference to the occupation of the defendants of the suit plot. Sahadeo, the plaintiff, stated that he did not insist upon such a recital in the sale-deed, because the defendants were near relations and he had been promised that they would vacate the house. The omission to refer to the defendants' occupation of the property would not be important, because there is no dispute about the position that the defendants were in fact residing in the house and Sheshrao had, by his notice (Ex.40), informed the defendants that their acts were unauthorised.

10. Shri Jaiswal contended that the description of the property had not been correctly given, but he cannot be allowed to raise that point, for the first time, in the second appeal, because no objection to the correctness of the description had been taken by the defendants in their written-statement, and the suit proceeded on the basis that the property described in para-1 of the plaint was the subject matter of the dispute to which the plaintiff was claiming title and of which the defendants were admittedly in possession. The minor discrepancies regarding the directions in which the houses stood, in the sale-deeds, would not be of any consequence, in view of this position of the pleading. All that Shri Jaiswal could contend was that in the earlier document, namely, the sale-deed (Ex.30), the dimensions were given in cubits, while in the later sale-deed (Ex.31), they were mentioned in feet. Once the description had been given by boundaries, the description by dimensions would be secondary and the identity of the property shall have to be ascertained on the basis of the boundaries stated. I, therefore, see no substance in the plea that the description of the property by dimensions varied in the documents of title obtained by the plaintiff.

11. Shri Jaiswal urged that it would not be open normally for this Court, sitting in second appeal, to upset a finding of fact reached by the first appellate Court, after considering the evidence. I have already indicated that the trial Court had considered all the oral and documentary evidence very carefully, but the Court of appeal overlooked Exhibit-47 which was an important document. The Court of appeal overlooked that there was no controversy on the basis of the pleadings about the identity of the property concerned, but it considered the discrepancy in the numbers given to the property in the Gram Panchayat Record and the dimensions, which was not open to the Court of appeal in view of the set of pleadings. The Court of appeal also did not give importance to the defendant's omission in replying to the notice (Exhibit 40), though it would not have been a conclusive factor, but all the same it had to be taken into consideration cumulatively for the purpose of ascertaining the conduct of the defendants in relation to the property. In para-10 of his judgment, the learned Additional District Judge has referred to the discrepancies in the boundaries, appearing in the evidence of the witnesses, and felt that from the evidence it was obvious that the property did not belong to Shankar Rama Ingale but to Bhangiya Ingale. This evidently was not a proper approach to the case, considering the clear admission in the statement (Exhibit-47) to which I have already adverted. The learned Additional District Judge also did not see the glaring discrepancy in the stand of the defendants, because the stand was shifted from the oral sale, which was alleged in the written-statement, to the oral gift in Exhibit-47, and this shift only showed that the defendants were not themselves sure about the origin of their title. It was contended that the son of the first defendant had been admitted to the school at Pusda on 17-11-1965 and that the voters' list showed that the first defendant was residing in the suit premises from 1950. In fact, the voters-list was not a certified copy of the original, and even the witness -D.W.4- Ramdas, who was a clerk from Gram Panchayat office, was not in a position to vouch to the authenticity of the voters list he was producing. Since the defendants were close relations of Sheshrao, there was nothing unusual in the certificate issued by the school authorities mentioning the first defendant's son as President of Pusda. The learned Additional District Judge unfortunately relied on certain premises which had no foundation in evidence and indulged in unjustified inferences. Considering all these factors, it is difficult to accept the finding of fact recorded by the first appellate Court as binding on this Court. On the other hand, the trial Court, after a careful analysis of the evidence on record, has come to a correct conclusion.

12. With regard to Shri Jaiswal's objection that this Court would not be entitled, in the facts and circumstances of the case, to interfere with the finding of fact reached by the Court of first appeal, reference may be made only to Bhusawal Borough Municipality v. Amalgamated Electricity Co. Ltd. Bhusawal, ; Radhanath Seal. v. Haripada Jana, ; Shikharchand Jain v.

Digamber Jain Praband Karini Sabha, ; and Dilbagrai

Punjabi v. Sharad Chandra, , which show that it would be the duty of this Court to interfere in a case of this kind, where the first Appellate Court ignored the admitted position of the pleadings, overlooked material documents and indulged in surmises, while upsetting finding of fact carefully reached by the trial Court.

13. In the result, the second appeal is allowed. The decree passed by the first Appellate Court is set aside and that of the trial Court restored with cost throughout.

Print Page