Farooqi Begum (D) By Lrs. vs The State Of Uttar Pradesh

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)

JUDGMENT

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

present appeal.

Signature Not Verified Digitally signed by Jayant Kumar Arora Date: 2022.07.12 16:50:09 IST Reason: 1 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

Hazoor Pasand’) and presently belonging to the

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

2 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

3 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

4 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

5 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

the Code of Civil Procedure, 19081 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”

6 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.

8

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.

9 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.

10 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

11 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.

12 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

13 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

14 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

15 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

16 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

17 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 Nala(drain) with a separate piece

of land measuring 13 bighas and odd, which

was in the possession of State Department of

18 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

20 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

21 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

23 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

24 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

25 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

26 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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