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IN THE SUPREME COURT OF INDIA
CIVIL APPEAL NO. 7210 OF 2011
P. KISHORE KUMAR …APPELLANT
VS.
VITTAL K. PATKAR …RESPONDENT
JUDGMENT
1. This civil appeal arises from the judgment and decree dated 29th November, 2010 rendered by the Karnataka High Court, whereby an appeal under section 100 of the Code of Civil Procedure, 1908 (“CPC”, hereafter) was allowed, resulting in restoration of the decree passed by the Trial Court and setting aside of the first appellate decree dismissing the suit of the plaintiff – respondent (“plaintiff”, hereafter).
BRIEF RESUME OF FACTS
2. The factual matrix of the case, insofar as is relevant for the purpose of a decision on this appeal, is set out hereinbelow: i) The pleaded case in the plaint is that land comprised in Sy. No. 3, measuring 187 acres 38 guntas, in Navarathna Agrahara, Hobli, Devanhalli Taluk, Bangalore, devolved upon the plaintiff’s predecessorin-interest, K. Muniyappa @ K. Shamaiah vide a Family Settlement Deed dated 30th July, 1953. ii) 15 acres out of the said land was sold by K. Shamaiah to the vendor of the plaintiff, i.e., Smt. Akula Yogamba (“plaintiff’s vendor” hereafter) vide registered sale deed dated 14th February, 1958. iii) The Mysore (Personal & Miscellaneous) Inam Abolition Act, 1954 (“the Act” hereafter), enacted for abolition of Inams in the State of Mysore, came into force on 15th March, 1955. By virtue of the Act, all rights, title and interests in the land, hitherto vested in the Inamdars, ceased and came to be vested absolutely in the State of Mysore. However, the Act provided for an opportunity to the Inamdars to make an application under section 9 thereof to register as an occupant of the land. iv) The plaintiff’s vendor applied under section 9A of the Act and sought occupancy rights in respect of 15 acres of Sy. No. 3. According to the plaintiff, the claim of the plaintiff’s vendor succeeded before the Special Deputy Commissioner of Inams (“Commissioner”, hereafter). The Commissioner passed an order dated 25th November, 1958 (“Commissioner’s order”, hereafter) while deciding this application, which reads as follows: “Order sheet In the Order of Special Case No. 51/1958-59
┌─────────────────────────────────────────────────────────────────────────────┐ │ Sl. No. Order of proceedings with Signature of │ │ signature of Presiding parties or │ │ Officer pleaders │ │ when │ │ necessary │ │ The persons noted below have │ │ purchased the lands noted against │ │ them after the date of vesting from │ │ jodidars │ ├─────────────────────────────────────────────────────────────────────────────┤ │ 1 Sri. Keralavarma S.No. 13_33-00 │ │ 2 Sri. Lokaranjan, S. No. 13_20-00 │ │ 3 Smt. Akula Yogama S. No. 3_15_00 │ │ 4 Sri Venkata Rao S.No. 3_1-4 │ │ 5 Sri M. Raja Rao S. No. _ Dry 3-26, 6- │ │ 6 S. No. 3 ____ 12-00 │ │ 7 Hence, the claim of the applicants │ │ may be rejected and Khata u/s 9 of │ │ the Act in the name of the jodidar │ │ may be made. │ │ Sd/- │ │ Special Deputy Commissioner for │ │ Abolition of Inams Kolar District, │ │ Kolar │ │ 25th November, 1958 │ │ Order │ │ Order │ │ The claimants were not tenants at the time of vesting. Therefore, │ │ claims of Sri Keralvarma, Yogamba, Bheemavarapu Venkata Rau, │ │ Sri Ranga Rao are ordered to be rejected. These numbers are │ │ separately registered in favour of the Inamdars under Section 9. │ │ 13/33, 13/20 are registered in favour of the Inamdar Sri K. │ │ Srinivasamurthy u/s 9 and 3/15, 3/1-2, 2/3-36, 16/2-6, 3/12 are │ │ ordered to be registered as occupant. │ │ Dictated, transcript edited by me and then pronounced in open │ │ court. │ │ (sign) │ │ Special Deputy Commissioner │ │ for Abolition of Inams, Bangalore” │ │ It is the interpretation of the Commissioner’s order which forms the │ │ fulcrum of the present dispute. │ └─────────────────────────────────────────────────────────────────────────────┘
33.2. The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue.
33.3. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.”
6. Although it is true that Nazir Mohamed (supra) is a decision of recent origin and the High Court cannot be said to have the benefit of perusal thereof, there can be little doubt that the law on what would constitute a ‘substantial question of law’ within the meaning of section 100, CPC has not changed over the years and the jurisdiction continues to be limited in the sense that interference ought not to be made unless the appeal involves a substantial question of law as distinguished from a mere question of law.
7. We have held earlier that much would depend on the Commissioner’s order, the true interpretation of which was fiercely contested by senior counsel on either side. However, before embarking on the process of determining if the question of ownership of the suit property was rightly decided by the High Court, an examination of sections 9 and 9A of the Act is considered imperative.
8. A bare perusal of the aforesaid provisions reveals that while section 9 allows an Inamdar to make an application for occupancy rights, a tenant is afforded an opportunity for the same under section 9A of the Act subject to the condition that he was a tenant in respect of the subject land immediately prior to the date of vesting. Therefore, it is only a tenant or an Inamdar, who could have made such an application.
9. Let us now examine the Commissioner’s order. In the case before the Commissioner, the plaintiff’s vendor was one of the applicants while the defendant’s predecessor-in-interest was one of the respondent Inamdars. The Commissioner lucidly stated that the claimants were not tenants at the time of vesting and, therefore, the claims of, inter alia, the plaintiff’s vendor, were ordered to be rejected. It was further said that their respective survey numbers were to be registered in favour of the Inamdars under section 9. This, in our view, can have only one possible meaning, that the claim of the plaintiff’s vendor for occupancy right as a tenant was rejected, and that of the defendant’s predecessor-in-interest was acknowledged. The plaintiff’s vendor having failed to satisfy the condition of being vested with tenancy rights as on the date stipulated by section 9A and such order having remained unchallenged for all times, we are unable to agree with the argument advanced on behalf of the plaintiff.
10. Mr. S.N. Bhat for the plaintiff sought to rely on Ext. P[8] and the other revenue entries containing the name of the plaintiff and the plaintiff’s vendor to argue that the Commissioner’s order vested the plaintiff’s vendor with occupancy rights, and it is only in accordance with such order did the revenue authorities enter the plaintiff’s vendor’s name in the records. However, we are also unable to agree with such an argument.
11. It is trite law that revenue records are not documents of title.
12. This Court in Sawarni vs. Inder Kaur and Ors.[2] held that mutation in revenue records neither creates nor extinguishes title, nor does it have any presumptive value on title. All it does is entitle the person in whose favour mutation is done to pay the land revenue in question.
13. This was further affirmed in Balwant Singh & Ors vs. Daulat Singh (Dead) by LRs and Ors.[3] wherein this Court held that mere mutation of records would not divest the owners of a land of their right, title and interest in the land.
14. In Jitendra Singh vs. State of Madhya Pradesh and Ors.4, this Court after considering a catena of judgments, reiterated the principle of law as follows:
15. We may also profitably refer to the decision of this Court in Sita Ram Bhau Patil vs. Ramchandra Nago Patil (Dead) by LRs. and Ors.[5] wherein it was held that there exists no universal principle that whatever will appear in the record of rights will be presumed to be correct, when there exists evidence to the contrary.
16. In the present case, the Commissioner’s order distinctly denying the rights of occupancy to the plaintiff’s vendor is evidence that renders these revenue entries unworthy of acceptance.
17. An examination of the sale deed executed in favour of the plaintiff, also tilts the balance against him. The deed simply states that the plaintiff’s vendor traces her title not to a grant in her favour by the government, but through a sale deed executed in her favour. Further, there is a categorical recital in the deed that the property is neither Inam land nor tenanted land, and that there is no legal impediment to the sale of such property. Some element of mischief being present is clear inasmuch as a relevant fact was concealed, i.e., the plaintiff’s vendor had indeed applied for occupancy rights under the Act but had failed to secure them. Such an application would never have been necessary, had the property not been Inam or tenanted land, thus laying bare the deficiency in the plaintiff’s title. The High Court, while observing that there existed a lawfully registered sale deed in favour of the plaintiff, failed to identify this inherent defect in the title claimed by the plaintiff.
18. It is settled law that a vendor cannot transfer a title to the vendee better than he himself possesses, the principle arising from the maxim nemo dat quod non habet, i.e., "no one can confer a better title than what he himself has". In the present case, the plaintiff’s vendor having been denied the right of title in the land by the Commissioner’s order, could not have conveyed the same to her vendee.
19. In contrast, when the sale deed dated 20th June, 1984 executed in favour of the defendant is examined, there is an unequivocal and categorical recital that the vendor purchased the land from Sri K. Srinivasa Murthy, in whose favour occupancy rights were granted vide the Commissioner’s order. A comparative study of the two sale deeds leaves none in doubt that the defendant’s sale deeds, supported by the Commissioner’s order, weigh heavier in the scales of justice as compared to the plaintiff’s sale deed, which is only supported by revenue documents.
20. The deficiencies in the plaintiff’s case are further revealed by the deposition of the plaintiff, wherein he has admitted that he had not seen the Commissioner’s order, and that he “was not told that Smt. Akula Yogamba is merely a tenant and that, she had no right over the land”. The doctrine of caveat emptor tasks a vendee with the duty to diligently investigate the title he is purchasing, but the plaintiff in the present case has evidently shirked such duty for which the law cannot come to his rescue.
21. It is also curious to note that the plaintiff has placed on record endorsements issued by the Commissioner in favour of four other tenants, but has failed to produce one in his own vendor’s name. We cannot help but take an adverse view of the same against the plaintiff, since it only goes towards making denser the cloud which has been cast on the plaintiff’s title.
22. Contention advanced on behalf of the plaintiff that through the record of rights the plaintiff has established his title by a preponderance of probabilities is not sustainable. As noted above, the plaintiff failed to produce a single document of title in respect of the suit property. In a dispute with respect to determination of title, merely pointing out the lacunae in the defendant’s title would not suffice. Having instituted the suit for declaration, the burden of proof rested on the shoulders of the plaintiff to reasonably establish the probability of better title, which the plaintiff in the present case, has manifestly failed to do.
23. This Court, in Union of India and Ors. vs. Vasavi Co-operative Housing Society Limited and Ors.6, held as under:
24. This decision was affirmed, and further elaborated upon, in Jagdish Prasad Patel (Dead) thr. LRs. and Ors. vs. Shivnath and Ors.7, wherein this Court has succinctly summarized the law on burden of proof in suits for declaration of title as follows:
25. Mr. S.N. Bhat placed reliance on the decision of this Court in R.V.E. Venkatachala Gounder vs. Arulmigu Viswesaraswami & V.P. Temple[8] to contend that the plaintiff was only expected to prove his title to a high degree of probability and not beyond reasonable doubt. The principle of law argued by the learned senior counsel is not one we wish to dispute, the same having been well settled through numerous decisions of this Court. However, having led in evidence only revenue documents which are essentially fiscal in nature, we have no hesitation in holding that in the present case, the plaintiff has been unable to assert his case to a high degree of probability. It is, therefore, not enough that the plaintiff led in evidence records of rights for a number of years in an attempt to establish his title; such records would not counter the proof of occupancy rights furnished by the defendant, in a test of probative value.
26. This Court, in Somnath Burman vs. S.P. Raju and Ors.[9] held that possession can be regarded as a better title against all, except the true and lawful owner. Therefore, the multitude of revenue documents put to use to argue that the plaintiff was cultivating the suit property would not adequately meet the demands of proof made by law. The only credible document of title led as evidence in the present case was in favour of the defendant’s predecessor-in-interest; hence, it must follow that it is only the defendant who can be declared the lawful owner of the ‘B’ schedule property.
27. In the light of the discussions made above, we hold that the Trial Court erred in decreeing the suit by placing on a higher probative pedestal the revenue entries. In our considered opinion, the first appellate court rightly overturned the findings of the Trial Court and dismissed the suit. The Commissioner’s order was correctly interpreted to determine as to in whom occupancy rights vested in respect of the ‘B’ schedule property.
28. The first appellate court having examined the facts in extenso, the High Court ought not to have interfered with the findings rendered therein by virtue of being, in second appeal, a court of law. As was astutely said by this Court in Gurdev Kaur vs. Kaki10, a second appellate court is not expected to conduct a “third trial on facts” or be “one more dice in the gamble.” The decision rendered by the first appellate court, not being in violation of the settled position of law, ought not to have been interfered with. With utmost respect to the High Court, we are constrained to observe that the question framed by it could be regarded as one of law, if it all, but did not merit the label of a substantial question of law so as to warrant interference with the first appellate decree under section 100 of the CPC.
29. That apart, the High Court was remiss in reversing the findings of facts rightly arrived at by the first appellate court. The decision to adopt the Trial Court’s approach of interpreting the Commissioner’s order within the framework of the revenue records that were exhibited was yet another aspect in which the High Court fell in error. An attempt ought to have been made by the High Court to harmoniously read the Commissioner’s order with the provisions of the Act and to interpret the same so as to render it in consonance with the law, the failure of which leads to the inescapable conclusion that the same is indefensible.
30. The sequitur of this discussion, with respect, is that the High Court while rendering the judgment and order under challenge proceeded on an erroneous approach and contrary to settled law. The plaintiff having failed to meet the burden of proof imposed on him by law, his suit against the defendant must fail.
31. The impugned judgment and decree are, accordingly, set aside. The civil appeal stands allowed and the decree passed by the Trial Court, extracted hereinabove, is set aside with the result that the plaintiff’s suit shall stand dismissed. There shall be no order as to costs.
32. We, however, make it clear that any observation made in this judgment may not prejudice the plaintiff’s right, if any, in respect of ‘A’ schedule property; if in future his right is put to jeopardy and the appropriate forum is approached to protect such right, such forum shall proceed to decide the lis on its own merits. …………………………………….J (BELA M. TRIVEDI) …………………………………….J (DIPANKAR DATTA)
NEW DELHI