Prafulla C. Pant, J.@mdashThis appeal, preferred u/s 100 of the Code of Civil Procedure, 1908, is directed against the judgment and decree dated 22.2.1977, passed by Second Additional District Judge, Nainital in Civil Appeal No. 103 of 1973 arising out of Original suit No. 59 of 1972.
2. Heard learned Counsel for the parties.
3. The brief facts of the case are that plaintiffs/appellants instituted a suit for permanent injunction, restraining the defendant from interfering in the possession of the plaintiffs/appellants over the land of Plots No. 24/2A, 24/2B, 24/3AB, 24/4, 25/1. 25/2, 26/1, 26/2, 27/1, 27/2, 28AB. 29/1, 29/2, 30, 31, 32/1, 32/2AB, 32/3, 33/1, 33/2, 33/3AB, 34. 35/1. 35/2, 35/3A, 35/3B, 36AB and 37/2B, measuring 146 Bigha 12 Biswa in village Narpatpur (Bagatpur), Pargana Bhabar Kota, Tehsil Kaladhungi, district Nainital. The plaintiffs/appellants'' case is that, they were in continuous cultivatory possession of the aforesaid plots for eight years before institution of suit and it is pleaded by them that they have been recorded as Adivasi over the land after enforcement of U. P. Zamindari Abolition and Land Reforms Act. 1950. It is alleged by the plaintiffs that the defendant trying to take forcible possession of the aforesaid land, which gave cause of action to the plaintiffs to institute this suit for injunction.
4. The defendant/respondent Jarnail Singh contested the suit by filing a written statement whereby the contents of the plaint were denied. It is pleaded by the defendant that entry as Adivasi in favour of plaintiffs was made wrongly in the fasli year of 1374 (calendar year 1967), in favour of the plaintiffs. Said entry was a forged one. It is further pleaded that in fact defendant is in cultlvatory possession of the land in suit. It is alleged by the defendant that plaintiffs have no concern over the land in question.
5. Learned trial court framed following issues on the basis of the pleadings of the parties:
(i) Whether the plaintiffs are in possession over the land in suit?
(ii) Whether the plaintiffs have legally acquired rights of Adivasi over the land in suit?
(iii) To what relief, if any, the plaintiffs are entitled.
(iv) Whether the suit is not maintainable?
(v) Whether the entries in the name of the plaintiffs in Khasra for the year 1374 fasli was forged and not in accordance with law? If so, its effect?
The trial court after recording the evidence and hearing the parties, found that the entry in the Khasra for the year 1374 fasli was a forged one. It did not find cultivatory possession of the plaintiffs over the land in suit and the suit was dismissed with costs vide judgment and decree dated 31.8.1973. Against the said judgment and decree, the plaintiffs preferred an appeal (Civil Appeal No. 103 of 1973) before the lower appellate court. After hearing the parties, the same was also dismissed, vide judgment and order dated 22.2.1977. Hence, this second appeal was filed before Allahabad High Court in the year 1977. The appeal was admitted by the said High Court vide its order dated 26.9.1977. The appeal is transferred to this Court u/s 35 of U.P. Reorganization Act, 2000, for its disposal. No substantial question of law appears to have been framed by the Allahabad High Court at the time of admission. However, the following substantial question of law arises for consideration by this Court in this second appeal on which the parties made their submissions before this Court-
Whether the entries made in the revenue record, which had attained finality u/s 44 of the U.P. Land Revenue Act, 1901, can be ignored by the civil court in a suit for injunction, while examining the fact relating to possession of a party to the suit.
6. Answer to substantial question of Law.--Section 44 of U.P. Land Revenue Act, 1901 reads as under:
44. Presumption as to entries in the annual register.--All entries in the annual register shall, until contrary is proved, be presumed to be true.''
The aforesaid Section provides presumption as to the correctness of the entries of the Revenue Record. However, the expression ''until contrary is proved'' used in the aforesaid Section, makes it clear that the presumption as to the correctness of the entry is rebuttable.
7. The plaintiffs/appellants'' case is that they were in possession of the land in suit as their names figured in the Khasara for the year 1374 fasli to 1378 fasli. Perusal of the lower court record shows that the officials of the Revenue Department were examined in the matter and from the original record it was found that the entry relied by the plaintiffs for the year 1374 fasli was a forged one. The courts below found, on examination of evidence on record, that the entries of the subsequent year up to 1378 fasli were based on the entry of 1374 fasli, which was a forged one. As to the genuineness of the entry there is concurrent finding of fact, recorded by both the Courts below, against the plaintiffs, that the entry relied by the plaintiffs was a forged one. The copy of the Khasara (record of the possession) for the year 1374 fasli (calendar year 1967) was filed by the plaintiffs to prove their possession as pleaded by them in the plaint. Since the entry was found forged one as such the trial court did not find that the plaintiffs were in possession of the land in suit. Since the presumption u/s 44 of U.P. Land Revenue Act, 1901 was a rebuttable presumption and from the original record and from the statements of revenue officials, it was established before the trial court that the entry relied by the plaintiffs was a forged one. As such in the opinion of this Court, the Courts below have committed no error of law in dismissing the suit for injunction and the first appeal. It is pertinent to mention here that the relief of injunction is an equitable relief, which can be refused to the person, who has not come with clean hands, even if he is successful in proving his possession.
8. From the above discussions, this Court is of the view that where the entry made in the revenue record is found a forged one, the civil court can ignore such entry and the presumption provided in favour of the correctness of the entry in Section 44 of U.P. Land Revenue Act, 1901 stands rebutted. Accordingly, substantial question of law stands answered.
9. For the reasons, as discussed above, this second appeal is liable to be dismissed and the same is dismissed.
No order as to costs.
