1. This first appeal raises the question whether a plot of land measuring 1035 square yards and situate along-side the city wall, old Delhi, is the property of Government or of Mst. Qalsum-ul-Nissa, defendant No. 1.
2. The plaintiffs in this case are the Governor-General of India in Council and the Delhi Improvement Trust while the contesting defendants are Mst. Qalsum-ul-Nissa, defendant No. 1 and Messrs Ravi Brothers, defendant No. 2.
3. On 30-4-1947 the plaintiffs brought a suit against the defendants for the possession of a plot of land, 1988 square yards in extent, situate outside the city wall of Delhi and for the issue of an Injunction requiring the defendants to close the five doors which were opened by them after breaking open a part of the city wall in June or July 1946. The defendants admitted that the plaintiffs were owners of a portion of the plot measuring 953 square yards but denied their claim in respect of the remaining portion measuring 1035 squareyards, hereinafter referred to as the plot of land in question. They stated that the plot of land in question has always been the property of Mst. Qalsum-ul-Nissa or her predecessors-in-interest, that it has always been in the possession of the proprietors thereof, that the five doors which are alleged to have been opened in the city wall were opened long before the year 1866, and that as the plaintiffs were never in possession of the land during a period of sixty years immediately prior to the institution of the suit, the suit is barred by time.
The trial Court found in favour of the plaintiffs and granted a decree against the defendants. The latter are dissatisfied with the order and have come to this Court in appeal.
4. The plaintiffs' claim for possession is based almost entirely on the entries which appear in the record of rights. These entries indicate that Government is the owner of the plot in question and that the defendants are trespassers. The defendants, on the other hand, have produced a number of documents to show that this plot of land is their own exclusive property.
5. The documents on which the defendants rely may be taken first. On 21-6-1868 one Mrs. Allan County, who was the owner of the Danpur Estate consisting of two houses, out-houses, stables, etc., sold this estate and a 'Baghicha' below the city wall on the bank of river 'Jamuna' to one Wazir Singh for a sum of Rs. 22,000/-. The site occupied by the 'Kothis' measured 7380 square yards and 16 'biswas' and that occupied by the 'baghieha' measured 1035 square yards. On 28-8-1871 Mst. Surasti, widow of Wazir Singh, sold this property including the plot of land in question to Bankc Lal, Lal Singh and Kishan Singh for Rs. 15,000/-. On 25-11-1875 the property was partitioned and the plot of land in question fell to the share of Lal Singh and Kishan Singh. On 6-7-1385 Lal Singh and Kishan Singh sold the property to Shambhu Nath for Eg. 15,000/- and on 14-4-1888 Shambhu Nath sold this property to Kanwar Mohammad Masud Ali Khan for Rs. 15,500/-.
On 12-3-1920 Mst. Qalsum-ul-Nissa, defendant No. 1, daughter of Kanwar Mohammad Masud Ali Khan created a 'Wakf-ul-aulad' and constituted herself as 'mutwalli. On 20-5-1941 she executed a deed of lease for a period of twenty years in favour of Pandit Ram Chandar Bhardwaj, proprietor of Messrs. Ravi Brothers. It is common ground that Messrs. Ravi Brothers are in possession of the plot of land in question.
6. The revenue papers, which have been produced by the plaintiff's, show that during the period 1888-1839 a plot of land, of which the plot of land in question forms a part was owned by Government, was covered by an orchard and was in the possession of one Lal Singh tenant without payment of rent. During the period 1889 to 1901 the land is shown not as an orchard but as banjar jadid and the tenant is shown to be paying no rent but only the revenue and cesses leviable thereon. From 1900 to 1906 the plot of land is shown to be in the possession of Nawab Mashuq Ali Khan, father of defendant No. 1. From 1908 to 1914Mashuq Ali Khan is shown continuously as a non-occupancy tenant. Thereafter, for some reasonwhich is not apparent on the record, the name of Mashuq Ali Khan is completely obliterated from the records.
From 1915 to 1926 the owner himself i.e., the Governor General-in-Council is shown to be in possession; from 1928 to 1941 he is shown to be in possession through contractors who pay rent to Government. These entries appear to indicate that the land in question is in proprietorship of Government, that it was in the possession of certain tenants such as Lal Singh and Mashuq Ali Khan from 1888 to 1914, that these tenants paid no rent to Government, that the possession was resumed by Government in the year 1915-1916 and that ever since that year Government has been letting out this plot of land and neighbouring plots to various persons other than the defendants or their predccessors-in-interest.
7. The first point for decision is whether the plot of land measuring 1035 square yards which was sold by Mrs. Alien County in the year 1866 forms part of the land for the possession of which the present suit has been brought. The plaintiffs allege that the plot sold by Mrs. County is situate inside the city wall while the defendants allege that it is situate outside the city wall. A perusal of the sale deeds and the other documents which have been produced in this case leaves no doubt in my mind that the plea put forward by the defendants has been fully substantiated.
The first and perhaps the most important piece of evidence is the sale deed executed by Mrs. Alien County herself. It relates to the sale of the Danpur Estate and a plot of land measuring 1035 square yards and proceeds to describe the property as follows:
'There are two kothis, built of pucca masonry, known as old Chhapakhana, Delhi, bearing No. 33 in the Government papers, together with Government houses, out-houses, stable, a pucca well, Lal Darwaza Teghadar, 'land of the Baghicha below the city wall on the bank of river Jamuna', a few fruit bearing and barren trees and two 'hujras' built partly of 'kacha' and partly of pucca masonry, with a 'kacha khasposh' facing the South, adjoining each other in entirety and the goods appertaining thereto.'
In a later portion of the sale deed the plot is referred to
'as the land of the 'baghicha' (orchard) in lower storey on the bank of river Jamuna having fruit bearing and barren trees.'
The eastern boundary of the property is described as follows:
'sold extending to river Jamuna, a portion of the land adjoining river Janiuna and Lal Gate Teghadar.'
The expressions 'land of the 'baghicha' below, the city wall', 'the land of the 'baghicha' on the bank of river Janiuna' and 'land adjoining river Jamuna' which appear in this deed of sale and other subsequent documents make it quite clear that the plot of land which was sold by Mrs. County was situate outside the city wall and extended to the river, and consequently that it formed part of the plot of land for the possession of which the present suit has been brought. The identity of these two plots is further established by the fact that according to the revenue papers on which the plaintiffs rely the plot of land in question was in the actual physical possession of Lal Singh and Mashuq Ali Khan, predecessors-in-in-terest of defendant No. 1 during the period 1880 to 1914.
8. As against the overwhelming evidence that has been produced by the defendants all that the plaintiffs have been able to state is that if the defendants were certain that the 'baghicha' which figures in the various sale deeds and other documents was outside the city wall, it was open to them to have the whole area in their possession measured and to prove to the satisfaction of the trial Court that the plot of land in question was actually sold to them. The non-production of this evidence cannot, in my opinion, detract materially from the value of the other evidence which has been produced in this case.
9. The only other point which requires determination is whether the revenue entries which indicate that Government is the owner of the plot of land in question should take precedence over the recitals in the sale deeds and other documents which declare that Mst. Qalsum-ul-Nissa or her predecessors-in-interest were the owners thereof. In other words, the question is whether the relationship of landlord and tenant existed between Government and the predecessors-in-interest of Qalsum-ul-Nissa or whether the latter were in possession of this property in their own independent right.
Mr. Bishan Narain, who appears for the plaintiffs, contends that a presumption of correctness attaches to entries in the record of rights and that this presumption is strengthened by the fact that as the plot of land in question is situate outside the city wall and adjacent to the bed of the river, it is extremely improbable that any one but Government could be the owner thereof. It is contended further that had the entries in the revenue papers been incorrect, the defendants would have taken steps to have the mistakes rectified. It is true that a presumption of correctness attaches to entries appearing in the record of rights but it must be remembered that, as pointed out in -- 'Wall Mohammad v. Mohammad Baksh', AIR 1930 P. C 91 (A) such entries are not foundations of title but are mere items of evidence. The presumption raised by them is not conclusive, but 'prima facie' merely, and while it must prevail where there is no rebutting evidence, it may be repelled by other evidence and circumstances showing that the entries are not correct.
In the present case this presumption has been rebutted by the following facts and circumstances, namely;
(1) that Government have produced no oral or documentary evidence to show that prior to the year 1380 the plot of land in question belonged to Government;
(2) that Jagdish Parshad, District Qanungo, Delhi, who appears as P. W. 2 states that according to the 'khasra pamaish' for theyear 1880 the plot of land In question is shown as ''baghicha malkiyat Lal Singh and Kishan Singh';
(3) that the defendants have established by the production of various documents that several persons (other than Government) have claimed to be owners of the plot of land in question, for example, Mrs. Alien County (1866), widow of Wazir Singh (1871). Banke Lal, Lal Singh and Kishan Singh (1375), Lal Singh and Kishan Singh (1885), Sambhu Nath (1888), and Kanwar Mohammad Masud Ali Khan and his daughter Mst. Qalsum-ul-Nissa defendant No. 1;
(4) that the entries in revenue papers fully corroborate the assertion of the defendants that Lal Singh and Mohammad Masud Ali Khan were in possession of the plot of land in question from the year 1880 to the year 1914; and
(5) that although Lal Singh and Mohammad Masud Ali Khan are shown as tenants under Government they never paid any rent to Government for the use and occupation of the property.
In the present case the predecessors-in-interest of Mst. Qalsum-ul-Nissa continued to remain in possession of the property without paying any rent or 'malkana' to Government and this fact strongly supports the assertion made by the defendants that they were in possession of the property in their capacity as owners and not in their capacity as tenants.
10. The relationship of landlord and tenant comes into existence as the result of an agreement, express or implied. It may be implied from the acts and conduct of the parties which indicate that the landlord intended to divest himself of the possession of the premises and that the tenant intended to assume possession thereof. One of the most important circumstances from which this inference may be drawn is the payment of rent, for although rent is not an essential, it is a normal incident of tenancy, and the fact that a person in possession of the premises paid rent to the owner thereof indicates to an extent at least that the relationship of landlord and tenant exists between the parties. On the other hand the fact that no rent was paid would lead one to a contrary conclusion and negative the existence of such relationship.
The facts and circumstances of the present case lead me irresistibly to the conclusion that Mst. Qalsum-ul-Nissa and her prcdecessors-in-interest were not in possession of the property in their capacity as tenants of Government but in their own independent right as owners thereof. In --'Sher and Ors. v. Phmnan Ram and Ors.', (1940) 42 PLR 497 (B), it Wits held that when a person other than the real owner is found to be in possession of land belonging to any person, the revenue officers frequently enter that person as a tenant-at-will of the owner. It is true that, as contended by Mr. Bishan Narain, it was open to the defendants to apply for the correction of the entries appearing in the revenue papers but this omission on their part cannot, in my opinion,preclude them from showing by Independent evidence that the entries are not correct. -They and their predecessors-in-interest were in possession of the property ever since the year 1866 and were probably not aware that adverse entries were being made against them in revenue papers.
Nor can I find any substance in the contention that the plot of land in question which was situate outside the city wall could not but have been the property of Government. The Indian Mutiny broke out in the year 1857 and it is by no means improbable that in the unsettled conditions which prevailed at the time the plot of Land in question was acquired by purchase or otherwise by the owner of the Danpur Estate who was probably an Englishman. It is not necessary, however, to enter into the realms of conjecture, for it is abundantly clear from the sale deed executed by Mrs. Alien County as long ago as the year 1866 that the plot of land in question was her own property. The assertion made in the sale deed that she was owner of the said property has not been rebutted by any convincing evidence.
11. I am satisfied from the evidence on record that Mst. Qalsum-ul-Nissa is the owner of a plot of land measuring 1035 square yards which forms part of the land for the possession of which the present suit has been brought. I would accordingly accept the appeal to the extent that the plaintiffs would be granted a decree not for the possession of 1988 square yards claimed by them but for the possession of 953 square yards. The defendants will be entitled to retain possession of the remaining plot of land measuring 1035 square yards lying alongside the city wall towards the north of the 'burj'. It is bounded as follows:
East: Bela Road.
North: Property of Government.
West: City wall.
The decree requiring the defendants to close the doors opening on the plot of land belonging to them will be vacated. The defendants will be entitled to proportionate costs here and below.
12. I agree and would like to add a few words of 'my own. Prom the evidence on the record it has been established beyond all reasonable doubt that a considerable portion of plot 'A' marked on the plan Exh. P. 3. belongs to the appellants and not to the plaintiffs. The original title deeds in favour of Mrs. Alien County have been lost, but from the documents available and the entries in the revenue records it is clear that:
(1) what Mrs. Alien County sold on 21-6-1866 to Wazir Singh from whom eventually the property came down to the appellants were (a) two houses inside the city walls and (b) a 'Baghicha' measuring 1035 square yards outside the city walls and lying on the bank of the river Jamuna. At that time the river Jamuna flowed very near the city walls. There was only a narrow strip in-between which was later defined as 'khasra' No. 34. It was this strip which was sold by Mrs. Alien County to Waz.ir Singh along with two 'kothis' inside the city walls. The wordingof the sale deed in Persian makes this point quite clear and is susceptible of no other meaning than that the 'baghicha' lay outside the city walls.
(2) The area of the 'baghicha' was 1035 square yards and it lay just beyond the three gates in the city walls which exist up to the present day.
(3) Possession of 'Khasra' No. 34 which lies outside the city walls and in front of the three gates passed to the respective vendees. In 1880 Lal Singh is shown in possession of it. Lal Singh sold the property to Shambhu Nath in 1885 and Shambhu Nath sold it to the ancestor of the defendant No. 1 in 1888. No change in the revenue records appears to have been made but in 1900-01 Mashuq Ali is shown in possession. Mashuq All's possession continued till 1915 when the Bela Road was built in order to stem the erosive tendencies of the river Jamuna. The revenue records after this date show that the Government was in possession, but there can be no doubt that Mashuq Ali and his descendants continued to remain in possession and they are in possession up to the present day.
(4) In the revenue records 'khasra' No. 34 which occupies the position of plot 'A' is entered as a 'baghicha'.
(5) No rent was ever paid by Lal Singh or Mashuq Ali and it is clear that their occupation was not the occupation of tenants although the revenue records describe them as such.
(6) The District Qanungo (P. W. 2) on referring to his paper said that in 1880 'khasra' No. 34 was owned by Lal Singh.
13. It is therefore clear that a portion of plot 'A' was in the original instance owned by Mrs. Alien County and was transferred by her to Wazir Singh from whom it came to the present defendants by a series of transactions and by inheritance. The evidence is more than sufficient to rebut the initial presumption of the plaintiffs' ownership arising from entries in the revenue records. The defendants are therefore entitled to an area of 1035 square yards forming a strip lying outside and along the city walls in front of the three gates which exist there. The area should be measured from the corner formed by the Burj and the city wall. The total area of plot 'A' is a few hundred yards more and the plaintiffs are entitled to a decree in respect of the balance and also in respect of the plot 'B' which is not now claimed by the appellants.