The entry made by Patwari as noted above is to the above effect. Amar Singh being not recorded occupant, when could not acquire Asami right no question arises of he getting Sirdari right. More so entry made by Patwari as clear from the entry itself, as noted above, was not consequent to any order passed by any competent officer. Patwari (Lekhpal) was not authorised to enter the name of any person or confer any right. The High Court has held that Lekhpal (Patwari) was not entitled to make entry in Khata Khatauni of 1379-1385. We fully endorse the aforesaid view of the High court; no right was acquired on the strength of the aforesaid entry


Hon’ble Mr. Justice Ashok Bhushan

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.516 OF 2009

DHARAM SINGH (D) THR. LRS. & ORS. …APPELLANTS

Vs.

PREM SINGH (D) THR. LRS. …RESPONDENTS

J U D G M E N T

ASHOK BHUSHAN, J.

This appeal has been filed challenging the

judgment dated 28.07.2006 of High Court of

Uttarakhand by the appellants, who were the

plaintiffs in suit No. 9 of 1992. The High Court by

its judgment has allowed the first appeal filed by

the defendants-respondents setting aside the judgment

and decree dated 13.08.1996 of the District Judge in

Suit No. 9 of 1992.

  1. The brief facts of the case necessary to be

noticed for deciding this appeal are:

2.1 One Badri Aswal was the owner of agricultural

land in Khata/Khatauni No. 46 of Village

1

Gyansu, District Uttar Kashi (earlier part

of Tehri Garhwal) measuring a total of 62

Nali and 1 muthi. The said Badri had no

issue. He married one Tulsa Devi. It is

claimed that Tulsa Devi adopted one Bhopalu

as her son after death of her husband but

Bhopalu’s name could never be mutated in the

Revenue records. Tulsa Devi died much

before independence. One Amar Singh,

predecessor-in-interest of appellants claimed

to be looking after the affairs of Bhopalu

and paying land revenue on his behalf.

Bhopalu also died before independence and

after death of Bhopalu, Amar Singh continued

to be in possession of land belonging to

Tulsa Devi. Tulsa Devi’s name continued in

revenue records. Amar Singh claimed to be in

possession of the land. According to law as

was in force in Tehri Garhwal at that time

that when a tenant/owner dies without an

heir, the land is escheated to State. For

the reason, Tulsa Devi died without an heir,

2

the entire land was treated to be State

property.

2.2 The Collector, Tehri Garhwal passed an order

on 17.04.1956 and ordered that property of

Tulsa Devi be got released from the

possession of Amar Singh. However, Amar

Singh was allowed to remain in possession of

the land where his house, Gaushala and

Sagwara was situated with the condition that

total areas shall not exceed 4 Nali. A

document was written on 14.05.1956 (paper

No.23Gha/2) which recorded that Amar Singh

has handed over possession of the entire land

of Tulsa Devi except 4 Nali 1 muthi. The

plots covering that area of 4 Nali and 1

muthi was also mentioned in the said

document. The Government required land for

construction of buildings for District Uttar

Kashi, with regard to which land in Village

Gyansu was acquired. Instead of paying

compensation to tenure holders whose land was

acquired, the Government ordered to give land

3

in exchange of the land, which earlier was

recorded in the name of Tulsa Devi, which

stood escheated to the State. An exchange

document was recorded in this context where

various plots were given in exchange to

different tenant holders whose land was

acquired. The record operations in the

village in question continued from 1952 to

1963 (as has been noted by the High Court).

2.3 The name of Amar Singh was shown in

possession with regard to few plots, which

were the plots recorded in the name of Tulsa

Devi. The A.R.O. passed an order dated

06.05.1961 directing that name of Amar Singh,

who was recorded in possession be deleted.

The said order was based on a report that

name of Amar Singh has been recorded

surreptitiously by the record officials.

2.4 In area where the land in question was

situated, the Kumaon and Uttarakhand

Zamindari Abolition and Land Reforms Act,

4

1960 (hereinafter referred to as “1960 Act”)

was enforced. In accordance with the

provisions of the 1960 Act, Section 10

provides that every person who on the date

immediately preceding the appointed date was

recorded as occupants of land held by a

hissedar or a khaikar was held to be asamis.

The Patwari of the village referring to a

Government order dated 19.12.1973 made an

entry in Khata/Khatauni firstly in the Fasli

year 1979-1985 making entries as per the

above Government order. The status of asamis

w.e.f. 01.01.1974 and right of sirdar of

Khasra No. 641, 719 and 697 was entered

against the name of Amar Singh by the

Patwari. Amar Singh died in or about the

Year 1985. The appellants, who are sons of

Lt. Amar Singh filed Civil Suit No. 9 of 1992

against the defendants-respondents praying

for permanent injunction. Following reliefs

were claimed in para No. 11 of the plaint:-

a) to pass a permanent

injunction restraining the

defendant his family

5

members, agents and

labourers from forceful,

fraudulent interference in

the land in Khata Khatoni

No.195/35-K field No.719

admeasuring 2 Nali, 11 Muthi

land of village Gyansu,

Patti Barahat, Uttarkashi;

b) the cost of the case be

awarded in favour of the

plaintiffs and against the

defendant, as this Hon’ble

Court deems fit and proper

in the facts and

circumstances of the case.

2.5 The case of the plaintiff was that father of

plaintiff got sirdari rights w.e.f.

01.01.1974. Father of the plaintiffs

remained in possession till his death and

thereafter the appellants are in possession

of plot No. 719 area – 2 Nali and 1 muthi on

which they have shown mustard crops. It was

pleaded that on 27.11.1991, the defendants

damaged the mustard crops. Consequently, the

suit was filed.

2.6 The defendants in their written statements

denied the plaint allegations. Defendants’

case was that plot No. 719 and other plots

6

were recorded in the name of Tulsa Devi, who

died before the present settlement leaving no

heir, therefore, the properties of Tulsa Devi

escheated to State and vested in the State of

Uttar Pradesh. In the year 1956-57, State

needed the properties in Mauza Barahat for

construction of PWD houses, the Government

acquired property but instead of paying

compensation, the owners were given plots of

Tulsa Devi in exchange. The grandfather of

defendant Mor Singh was Maurusidar, who was

owner of plot No. 611 area of 3 Nali 2 muthi,

which was acquired by the State and in

exchange of said plots Mor Singh was given

plot Nos. 366,335, 336 and 364 corresponding

to new Plot Nos. 641, 719 and 657. After the

death of Mor Singh, partition took place and

the plots came in the kura of Narain Singh,

father of the defendants.

2.7 Narain Singh partitioned the property and

since 24.03.1969, it is the defendants, who

are the owners of the plot. Narain Singh

7

died in 1974. It was pleaded that District

Magistrate, Tehri Garhwal ordered that the

property of Tulsa Devi be got released from

the possession of Amar Singh and allowed him

to own only 4 Nali 1 muthi land. The land,

which was left with Amar Singh did not

include Plot No. 719 and with connivance of

revenue officials, he got forged entries made

with regard to Plot No. 719 and 641. It was

alleged that at the present settlement, the

Assistant Record officer ordered for striking

off the name of Amar Singh by order dated

06.05.1961 but even after directing for

deletion of his name from Plot No. 641, 749,

it continued in the Revenue records on the

basis of which Amar Singh claimed that he has

become sirdar.

2.8 It was alleged that plaintiffs are not in

possession of the plot Nos. 641 and 719 and

it is the defendants, who are in possession

and the suit is liable to be dismissed.

8

2.9 Trial court framed several issues and by

order dated 13.08.1996 decreed the suit for

injunction of the plaintiffs. Trial court

further noticed that an order was passed by

the Assistant Record Officer and in the

order, he directed for deletion of the name

of Amar Singh, the order was only in papers

and there is no proof, which has been filed

on the record to prove that actual possession

of the plot was taken from Amar Singh.

Consequently, the entries of possession

continued in favour of Amar Singh.

2.10 With regard to the case of the defendants

that possession was taken from Amar Singh of

the plot belonging to Tulsa Devi and in

exchange the plot No. 719 was given to the

predecessors-in-interest of the plaintiffs,

the trial court held that even though

document 23C indicate that plots were taken

from Amar Singh and given in supurdagi of

Malguzar but there is no proof that actual

possession was taken from Amar Singh. The

9

entries in the name of Amar Singh cannot be

held to be forged (farzi).

2.11 The defendants aggrieved by the judgment of

trial court dated 13.08.1996 filed an appeal

in the High Court. The High Court vide its

judgment dated 28.07.2006 has allowed the

first appeal and set aside the judgment of

the trial court dated 13.08.1996. High Court

held that in the record operation, there

being order passed by Assistant Record

Officer in the year 1961 directing the

deletion of entry in the name of Amar Singh,

no right can be claimed by Amar Singh on the

basis of such possession entry. High Court

further held that the entry made by the

Patwari(Lekhpal) in 1379-1385 Fasli, that

Amar Singh has become asamis and sirdar was

without authority. Patwari(Lekhpal) was not

competent to declare asami/sirdari rights and

it was only Assistant Collector, who could

have passed any such order. No order having

been passed by the competent authority giving

10

asamis/sirdari rights to Amar Singh, on the

strength of unauthorised entry made by

Patwari, Amar Singh cannot claim any right.

2.12 High Court further noticed that Amar Singh

himself in his statement, as has been

extracted, in the document dated 14.05.1956,

admitted to release the land of Tulsa Devi

from his possession except area of 4 Nali,

which was given to him under the order of

Collector, Tehri Garhwal, where his house,

Gaushala and Sagwara were situated. Amar

Singh thereafter cannot claim possession or

right with regard to any land except those 4

Nalis land, which was given to him in the

year 1956.

2.13 High Court held that although correctness of

entries in the revenue records cannot be

challenged but entries are open to attack on

the ground that it was made fraudulently or

surreptitiously. High Court held that

defendants’ case is fortified by the document

21-Ga, which indicate that the land in

11

question had been given in exchange to the

predecessor of defendants. On the aforesaid

findings, the appeal was allowed setting

aside the judgment of the trial court. The

appellants aggrieved by the judgment of the

High Court has come up in this appeal.

  1. Shri A.S. Rawat, learned senior counsel appearing

for the appellants contends that High Court erred in

setting aside the decree of trial court. He submits

that Amar Singh’s name being recorded in the revenue

records as in possession of plot in question, he

become asamis by virtue of provisions of 1960 Act and

the entry made by Patwari in Khasra “1979-1385” was

on the strength of statutory provision and Government

order issued therein. He submits that Amar Singh was

never dispossessed from plot in question. He submits

that the plot No. 719 being a very small piece of

land measuring 2 Nali 1 muthi land, which was in

possession of Amar Singh, the trial court has

correctly decreed the suit holding the Amar Singh to

have become asamis/sirdars and bhumidars. He submits

12

that entry made in favour of Amar Singh as asamis

cannot be held to be forged.

  1. Learned counsel for the respondents refuting the

submissions of the learned counsel for the appellants

contends that the plot in question was given in

exchange to the predecessor-in-interest of the

respondents in lieu of acquisition of land of

predecessor-in-interest. It is submitted that in the

exchange, plot No.719 – 2 Nali 1 muthi was given to

the defendants, which is reflected in records, Amar

Singh had no right to claim the land, which was

recorded in the name of Tulsa Devi. Tulsa Devi

having died issueless, the entire land was escheated

to State. He submits that entry of possession in the

name of Amar Singh was directed to be deleted by

competent officer in the record operation. On the

mere fact that name continued on record no rights can

be claimed by Amar Singh thereafter. There are

material on record where Amar Singh himself admitted

that he has handed over the possession of all plots

including 719 except 4 Nali 1 muthi land, which was

permitted to be retained by him. The appellants name

13

not being recorded as occupants, he cannot claim any

rights under Section 10 of the 1960 Act. learned

counsel for the respondent submits that High Court

has rightly allowed the appeal.

  1. We have considered the submissions made by the

learned counsel for the parties and perused the

records.

  1. Amar Singh, the father of the appellant, claimed

Asami/Sirdari right on Plot No.719 in the suit on the

ground that he was recorded in possession. We have

already noticed above that Plot No.719 along with

other plots was recorded in the name of Smt. Tulsa

Devi, last tenure holder. Smt. Tulsa Devi having died

without leaving any legal heirs her land escheated to

State. The Collector has also passed an order for

taking possession of land of Smt. Tulsa Devi from the

possession of Amar Singh except leaving 4 Nali one

Muthi land in the possession of Amar Singh. A

document dated 14.05.1956 was recorded in this

respect which was signed by Amar Singh. Plot No.719

was not included in 4 Nali which was left with Amar

Singh.

14

  1. The right of Amar Singh was sought to be claimed

in accordance with Section 10 sub-clause (e) of the

Act, 1960. Section 10 of the Act is as follows:

“Section 10.Sirtans to be Asamis.—Every

person who, on the date immediately

preceding the appointed date, was-

(a) a sirtan holding from aissedar; or

(b) a sirtan holding from a khaikar; or

(c) a mortgagee in actual possession of

land mentioned in Section 8; or

(d) a lessee of the rights of a hissedar

in non-khaikari land and a lessee or

sub-lessee mentioned in Section 34

of the Tehri-Garhwal Bhumi-Sambandhi

Adhikar Niyams, 1941 of the rights

of a khaikar or those of a

maurusidar in non-khaikari land

having any land in his personal

cultivation as such; or

(e) recorded as occupant of land held by

a hissedar or a khaikar as such in

the last revision of records made

under Chapter IV of the U.P. Land

Revenue Act, 1901;

shall be called asami of the land and

shall, subject to the provisions of this

Act, be entitled to take or retain

possession thereof.”

  1. Every person, who on the date immediately

preceding the appointed date, was recorded as

occupant of the land held by a hissedar or a khaikar

as such in the last revision of records made under

Chapter IV of the U.P. Land Revenue Act, 1901 shall

be called Asami of land and entitled to take or

15

retain possession thereof. For acquiring right under

Section 10 sub-clause (e) it has to be established

that person claiming Asami right was recorded as

occupant of land. The High Court in its judgment

noticed that the record operation in village in

question was undertaken between the period from 1952

to 1963. In the record operation it was noticed that

the name of Amar Singh was recorded in possession on

some plots including Plot No.719. A report was

submitted that the name of Amar Singh had been

recorded surreptitiously by the Record Operation

Officials. The report further mentioned that

possession of land has already been taken over and

handed over to the Malguzar. The Assistant Record

Officer passed an order dated 01.05.1963 English

translation of which order has been extracted by the

High Court which is to the following effect:

“The new No.719 showing Amar Singh. The

Amin has shown forged entries as is evident

from the report of S.N.T. dated 06.05.1961.

For the time being delete the possession

from these numbers and enter into the

Maurusi record of the deceased.” It was

further directed that the revenue record

may be corrected accordingly. In pursuance

of the said order the settlement record was

corrected and that document is paper No.23

Ga/2 on record.”

16

  1. When during record operation competent authority

has passed an order for deleting the name of Amar

Singh from possession whether Amar Singh can be still

treated as recorded occupant in the record so as to

acquire benefit of Asami is the question to be

answered.

  1. The trial court in its order decreeing the suit

has noticed the order of A.R.O. directing for

deletion the name of Amar Singh from record. The

trial court, however, has observed that the order

passed by the A.R.O. having not given effect in the

record and name of Amar Singh having continued in the

record he is entitled to be treated as Sirdar. The

trial court in the above context has made following

observation in its judgment:

“Ex.1 is the copy of order of A.R.O. in

present settlement by which he had passed

order for striking the name of Amar Singh

from some of the plots but again there is

nothing on record to show that this order

was complied with. The learned counsel for

the defendant contended that paper No.18-C

is another copy of paper No.12-Ka(Ex.1)

which shows that Amar Singh was present at

the time of order. However, the presence of

Amar Singh and his signature on the said

order does not prove that Amar Singh

delivered possessions of the said plots and

17

further as earlier stated that Smt. Tulasa

was not alive and possession could not be

delivered to her, therefore, even if the

entries were held forged in 1961 and in

spite of the order the entries were not

corrected by the revenue authorities, this

could not be held as forgery and fraud on

the part of plaintiff or his father and

further even there was no evidence that in

compliance of the order Amar Singh was ever

dispossessed and in spite of the said

orders, Amar Singh was in actual possession

and, therefore, he was recorded as Sirdar

on the basis of actual possession.”

  1. The statute confers Asami right to a person

recorded as occupant in the last revision of records

which were undertaken between 1952 to 1962. In the

said revision order was passed deleting the name of

Amar Singh from the record which is a fact not

disputed by any of the parties. The trial court

decreed the suit observing that even if the order was

passed there was nothing on record to show that said

order of A.R.O. was complied. The trial court further

held that it is not proved that Amar Singh was even

dispossessed in spite of the order passed by the

A.R.O. The statute conferred the benefit on a person

recorded as occupant. When in a record operation

order is passed for deleting the name of Amar Singh

from possession over the land in question, Amar Singh

18

cannot be held to be recorded occupant within the

meaning of Section 10(e).

  1. The High Court has dealt with the above aspect of

the matter and has held that continuous of entry

after the order of deletion of the name of Amar Singh

cannot confer any right. The judgment of this Court

in Vishwa Vijay Bharati vs. Fakhrul Hassan and

others, (1976) 3 SCC 642, has rightly been referred

to and relied by the High court. This Court in

paragraph 14 of the judgment was laid down following:

“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.”

  1. The order of A.R.O. directing the deletion of the

name of Amar Singh was passed on the report of Record

Operation Officials in which report it was mentioned

that the name of Amar Singh has been surreptitiously

19

recorded. The report was accepted and the direction

was issued to delete the name. We, thus, are of the

clear opinion that Asami right could not have been

obtained by Amar Singh.

  1. Learned counsel for the appellant has placed much

emphasis on the entry made by Patwari in 1379-1385,

Annexure-P/8. The entry made by Patwari with respect

to Amar Singh is as follows:

“The Government order No.291/1-4(3)/73

Revenue dated 19.12.73 a status Aasami

w.e.f. 1 January, 1974 and right of Sirdar

of Khasara No.641, 719, 720 total 6 Nali 10

Muthi at the rate of Rs.3.15 per annuam.

Sd/- Illegible

Patwari.”

  1. As per the provisions of the Act, 1960 those

persons who had acquired Asami right under the Act

were treated to be Sirdar w.e.f. 1st January, 1974.

The entry made by Patwari as noted above is to the

above effect. Amar Singh being not recorded occupant,

when could not acquire Asami right no question arises

of he getting Sirdari right. More so entry made by

Patwari as clear from the entry itself, as noted

above, was not consequent to any order passed by any

20

competent officer. Patwari (Lekhpal) was not

authorised to enter the name of any person or confer

any right. The High Court has held that Lekhpal

(Patwari) was not entitled to make entry in Khata

Khatauni of 1379-1385. We fully endorse the aforesaid

view of the High court; no right was acquired on the

strength of the aforesaid entry.

  1. One more aspect of the matter further needs to be

noted. As noted above, land of various persons was

acquired for construction of Government buildings in

which one of the persons whose land was acquired was

Mor Singh, the predecessor-in-interest of respondent.

The Government utilised the land of Tulsa Devi which

was escheated to State by giving the said land in

exchange to those persons whose land was acquired.

The order pertaining to exchange is dated 05.09.1960

which was brought on the record as Annexure-P4. In

the said order it was noticed that Amar Singh was in

possession of Plot No.719. Plot No.719 was given in

exchange to person whose land was acquired by the

State.

21

  1. The High Court has also relied on the document

paper No.23 Ga/2 which was written on 14.05.1956 in

which it is indicated that Amar Singh has handed over

the possession of the entire land of Smt. Tulsa Devi

except 4 Nali. In paragraph 17 of the judgment of the

High Court the statement of Amar Singh has been noted

to the following effect:

“17. “I Amar Singh, adopted son of

Bhopalu, Village Gyansu, Patti Brahat,

state that the escheat land of Maurasi

Tulsa, which is in my possession, will be

released from my possession and I will not

interfere in that land from today onwards

and I will be in possession of the land

which is ordered to be given to me for the

purpose of Goshala, Courtyard, Sagwara and

for Water Ponds. The number of those Plots

are Plot No.339 Sagwara, 240 Goishala, 244

House, 245, 246 Sagwara, 247, 248, 249

Sagwara and 619 Ka which is 1 Nali 15 Muthi

and total area of 4 Nali which has been

given to me.”

  1. Amar Singh himself clearly stated that the land

of Tulsa Devi which is escheated to the State will be

released from his possession and he shall not

interfere and he shall be in possession of only 4

Nali which has been given to him. Plot No.719 was not

given to him and was not included in the said 4 Nali

land which was left with him. This makes it clear

22

that he could not claim any right on Plot No.719

belonging to Tulsa Devi which was escheated to the

State and was given in exchange to predecessor-ininterest of the defendant on 05.09.1960. The claim of

the plaintiff that by virtue of entry made by Patwari

as noted above, he became Sirdar cannot be accepted.

The High Court after considering entire evidence on

record has rightly set aside the order passed by the

Trial Court.

  1. We do not find any error in the judgment of the

High Court. There being no merit in the appeal, the

appeal is dismissed.

………………….J.

( ASHOK BHUSHAN )

………………….J.

( K.M. JOSEPH )

New Delhi,

February 05, 2019.

23