P. KISHORE KUMARversusVITTAL K. PATKAR

                [2023] 14 S.C.R. 796 : 2023 INSC 1009



                           CASE DETAILS

                         P. KISHORE KUMAR
                                    v.
                         VITTAL K. PATKAR
                    (Civil Appeal No. 7210 of 2011)
                         NOVEMBER 20, 2023
       [BELA M. TRIVEDI AND DIPANKAR DATTA, JJ.]

                             HEADNOTES

     Issue for consideration: The plaintiff’s vendor applied u/s. 9A of the
Mysore (Personal & Miscellaneous) Inam Abolition Act, 1954 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. However, the appellant-defendant
alleged that the Commissioner’s order granted occupancy rights u/s. 9 in
favour of his predecessor-in-interest. Trial Court after examining revenue
records adduced by the plaintiff and the Commissioner’s order, held that
the ownership of the suit property vested in the plaintiff’s vendor. Whether
the High Court was justified in upholding the decision of the Trial Court.
     Mysore (Personal & Miscellaneous) Inam Abolition Act, 1954 –
Portions of Sy. No.3 was sold to two different parties, a dispute between
the two parties arose and, in fact, triggered the suit instituted by the
plaintiff, inter alia, praying for declaration of title and permanent
injunction with respect to Schedules ‘A’ and ‘B’ property, against the
defendant – The Trial Court held that the ownership of the suit property
vested in the plaintiff’s vendor – However, the first Appellate Court
overturned the findings of the Trial Court – The High Court upheld
the order of the Trial Court – Propriety:
     Held: A bare perusal of the s.9 and s.9A reveals that while s.9
allows an Inamdar to make an application for occupancy rights, a tenant
is afforded an opportunity for the same u/s. 9A of the Act subject to the

                                   796
          P. KISHORE KUMAR v. VITTAL K. PATKAR                            797


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 – In the instant 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 u/s. 9 – This
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 Commissioner’s order
distinctly denying the rights of occupancy to the plaintiff’s vendor is
evidence that renders the revenue entries unworthy of acceptance – Also,
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 – 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 – As a result, the plaintiff’s suit
shall stand dismissed. [Paras 8, 9, 16, 17, 31]
     Maxim – Nemo dat quod non habet – Whether plaintiff’s vendor
having been denied the right of title in the land by the Commissioner’s
order, could have conveyed the same to her vendee:
798           SUPREME COURT REPORTS                           [2023] 14 S.C.R.


       Held: 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 instant 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. [Para 18]
     Code of Civil Procedure, 1908 – s.100 – Mysore (Personal &
Miscellaneous) Inam Abolition Act, 1954 – The High Court framed the
following question of law for decision “Whether the lower appellate
court had erred in law in not considering Ex P-1 to Ex P-29 and the
admissions made by defendant (DW-1)?” – The High Court interpreted
the Commissioner’s order to be in favour of the plaintiff’s vendor –
Propriety:
      Held: The question framed by the High Court did not merit the label
of a substantial question of law so as to warrant interference with the first
appellate decree u/s. 100 of the CPC – That apart, the High Court was remiss
in reversing the findings of facts rightly arrived at by the first Appellate
Court – The first Appellate Court had overturned the findings of the Trial
Court, on the premise that revenue records alone could not aid the plaintiff
in establishing his title, especially in the glaring absence of any Inam grant
in favour of the plaintiff’s vendor – 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 – 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. [Paras 28, 29,30]
      Title – Documents of title – Revenue records:
     Held: It is trite law that revenue records are not documents of title.
[Para 11]
          P. KISHORE KUMAR v. VITTAL K. PATKAR                          799



       LIST OF CITATIONS AND OTHER REFERENCES

      Nazir Mohamed vs. J. Kamala (2020) 19 SCC 57; Jitendra Singh vs. State
of Madhya Pradesh and Ors. 2021 SCC OnLine SC 802; Union of India and
Ors. vs. Vasavi Co-operative Housing Society Limited and Ors. (2014) 2 SCC
269: [2014] 1 SCR 180; Jagdish Prasad Patel (Dead) thr. LRs. and Ors. vs.
Shivnath and Ors. (2019) 6 SCC 82: [2019] 6 SCR 518 – relied on.
     Sawarni vs. Inder Kaur and Ors (1996) 6 SCC 223: [1996] 5 Suppl.
SCR 165; Balwant Singh & Ors vs. Daulat Singh (Dead) by LRs and Ors.
(1997) 7 SCC 137; Sita Ram Bhau Patil vs. Ramchandra Nago Patil (Dead)
by LRs. and Ors (1977) 2 SCC 49: [1977] 2 SCR 671; R.V.E. Venkatachala
Gounder vs. Arulmigu Viswesaraswami & V.P. Temple (2003) 8 SCC 752:
[2003] 4 Suppl. SCR 450; Somnath Burman vs. S.P. Raju and Ors. (1969)
3 SCC 129: [1970] 2 SCR 869; Gurdev Kaur vs. Kaki (2007) 1 SCC 546:
[2006] 1 Suppl. SCR 27 – referred to.
       OTHER CASE DETAILS INCLUDING IMPUGNED
              ORDER AND APPEARANCES
     CIVIL APPELLATE JURISDICTION : Civil Appeal No.7210 of 2011.
    From the Judgment and Order dated 29.11.2010 of the High Court of
Karnataka at Bangalore in RSA No.1333 of 2009.
     Appearances:
     A. Diwakara, Sr. Adv., Kashi Vishweshwar, Ms. A. Sumathi, Advs. for
the Appellant.
    S. N. Bhat, Sr. Adv., Anand Sanjay M. Nuli, Ms. Akhila Wali, Shiva
Swaroop, Nanda Kumar K. B. for M/s Nuli & Nuli, Advs. for the Respondents.
       JUDGMENT / ORDER OF THE SUPREME COURT

                              JUDGMENT

     DIPANKAR DATTA, J.
     THE APPEAL
    1. This civil appeal arises from the judgment and decree dated 29th
November, 2010 rendered by the Karnataka High Court, whereby an appeal
800            SUPREME COURT REPORTS                            [2023] 14 S.C.R.


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
             predecessor-in-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
          P. KISHORE KUMAR v. VITTAL K. PATKAR                          801
                   [DIPANKAR DATTA, J.]

Sl. No. Order of proceedings with signature of Signature of parties or
        Presiding 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, 6-00
   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”
802           SUPREME COURT REPORTS                         [2023] 14 S.C.R.


      It is the interpretation of the Commissioner’s order which forms the
fulcrum of the present dispute.
      v)     While the plaintiff alleged that the claim of the plaintiff’s vendor
            was accepted, thus making the plaintiff the lawful owner with
            the better title, the appellant – defendant (“defendant” hereafter)
            in his written statement alleged that the Commissioner’s order
            granted occupancy rights under section 9 in favour of his
            predecessor-in-interest, i.e., K. Srinivasa Murty, the Inamdar,
            from whom the defendant purchased 5 acres and 28 guntas, thus
            vesting him with the better title.
      vi)   Amendments made to the Act in 1979 vested the powers of the
            Special Deputy Commissioner with the Land Tribunal. Upon
            applications being made by other tenants for occupancy rights
            in Sy. No. 3, the Land Tribunal, vide order dated 20th September,
            1982, conferred occupancy rights on the defendant’s predecessor-
            in-interest, with respect to an extent of 21 acres in Sy. No. 3. An
            endorsement to the same effect was also led in evidence by the
            defendant.
      vii) Sale deeds were thereafter executed for the same parcel of land by
           both sides. While the plaintiff’s vendor sold an extent of 15 acres
           to the plaintiff vide registered sale deed dated 12th November,
           1987, the defendant purchased 5 acres and 28 guntas comprised
           in Sy. No.3 vide registered sale deeds dated 20th June, 1984 from
           his respective vendors.
      viii) Portions of Sy. No.3 being sold to two different parties, a
            dispute between the two parties became imminent and, in fact,
            triggered O.S. 506/1995 (“the suit” hereafter) instituted by the
            plaintiff, inter alia, praying for declaration of title and permanent
            injunction with respect to Schedules ‘A’ and ‘B’ property,
            against the defendant. The prayers in the plaint are reproduced
            hereinbelow for the sake of clarity:
                 “a) declaring that the plaintiff is the absolute owner of the
                 schedule property? (sic)
      P. KISHORE KUMAR v. VITTAL K. PATKAR                          803
               [DIPANKAR DATTA, J.]

           b) for permanent injunction restraining the defendant or
           his henchmen, person from in any way interfering with
           the plaintiff’s lawful peaceful possession in both A and B
           schedule property.
           c) and for the costs and such other reliefs as this Hon’ble
           Court deems fit to grant in the circumstances of the case,
           in the interest of justice and equity.”
           The property schedules are extracted hereinbelow:
                                  “Schedule – A
           15 Acres of land situated in Sy No. 93, Old No. 3 in
           Navarathna Agrahara, Jala Hobli Devanahalli Taluk,
           Bangalore District**
                                  Schedule – B
           All the piece and parcel of the 5.28 guntas of land in Re.
           S. No. 93, Old No. 3, situated at Eastern side of by passing
           mud road situated in Navarathna Agrahara, Jala Hobli
           Devanahalli Taluk, Bangalore**”
ix)   The learned Civil Judge (“Trial Court”, hereafter) after extensive
      examination of revenue records adduced by the plaintiff, and
      the Commissioner’s order, held that the ownership of the suit
      property vested in the plaintiff’s vendor. In arriving at such a
      conclusion, the court was predominantly persuaded by Ext. P8
      (Record of Rights), which recorded that vide order dated 24th
      March 1959 passed by the Special Deputy Commissioner, Inam
      Abolition, occupancy rights had been conferred on the plaintiff’s
      vendor. However, no order or endorsement of the said date was
      actually exhibited before the Trial Court. The decree passed by
      the Trial Court is quoted below for facility of understanding:
           “After contest, it is ordered and decreed that the suit of the
           plaintiff is hereby decreed. It is declared that the plaintiff
           is the absolute owner of the B Schedule property and the
           defendant or any persons claiming through him are hereby
           permanently restrained from interfering with the peaceful
804           SUPREME COURT REPORTS                         [2023] 14 S.C.R.


                 possession and enjoyment of the plaintiff over the suit
                 schedule A and B properties.”
      x)    Aggrieved by the decree, the defendant carried it in an appeal
            under section 96 of the CPC before the learned District Judge. The
            first appellate court overturned the findings of the Trial Court, on
            the premise that revenue records alone could not aid the plaintiff
            in establishing his title, especially in the glaring absence of any
            Inam grant in favour of the plaintiff’s vendor. It was noted by
            the appellate court that though the plaintiff referred to the order
            dated 24th March, 1959, the same was not led in evidence.
      xi)   A second appeal carried by the plaintiff before the High Court
            succeeded vide the judgment and order impugned herein. The
            High Court framed the following question of law for decision
            which, according to it, was a substantial question of law:
                 “Whether the lower appellate court had erred in law in not
                 considering Ex P-1 to Ex P-29 and the admissions made
                 by defendant (DW-1)?”
      The High Court interpreted the Commissioner’s order to be in favour
of the plaintiff’s vendor, such interpretation being bolstered solely by the
revenue records exhibited by the plaintiff. Though it was noted that the grant
of occupancy rights in favour of the plaintiff’s vendor under section 9A was
contrary to the provisions of the Act, it was observed that the decision having
attained finality could not be challenged after such extensive passage of time
before a civil court. The plaintiff was, therefore, held to have established the
better title, resulting in upholding of the decree passed by the Trial Court.
      CONTENTIONS OF THE PARTIES
     3. Learned senior counsel for the defendant, Mr. A Diwakara,
highlighted the dissatisfaction recorded by the High Court with the
evidence adduced by the plaintiff, and stressed that in view of the same,
the Court could not have held the plaintiff to establish a better title than the
defendant, more so when the Court itself recorded the fact that the grant
of occupancy rights in favour of the plaintiff’s vendor under section 9A of
the Act was contrary to its import. It was argued by him that the plaintiff’s
           P. KISHORE KUMAR v. VITTAL K. PATKAR                            805
                    [DIPANKAR DATTA, J.]

vendor being a purchaser, could not have applied as an “occupant” under
the provisions of the Act, such application being restricted only to tenants.
The Commissioner’s order categorically recorded that the plaintiff’s vendor
was not a tenant at the time of vesting of the land; therefore, the order could
not, by any stretch of imagination, be interpreted to vest occupancy rights
in the plaintiff’s vendor.
       4. Per contra, Mr. S.N. Bhat, learned senior counsel for the plaintiff,
argued that the plaintiff’s vendor had made an application for occupancy
rights in 15 acres of Sy No. 3, and the Commissioner, while noting that
the vendor was not a tenant at the time of vesting, went on to record that
occupancy registration under section 9A be done. He strenuously advanced
the record of rights for the year 1983 in the name of the plaintiff’s vendor,
along with subsequent revenue entries in the name of the plaintiff, to argue
that it was the plaintiff, and his vendor before him, who were being treated
as the rightful owners by the revenue authorities, such authorities having
rightly interpreted the Commissioner’s order to mean that ownership vested
in the plaintiff’s vendor.
     ANALYSIS
    5. This Court in Nazir Mohamed vs. J. Kamala1 has crisply analysed
numerous decisions rendered by this Court on section 100 of the CPC and
summarised the law as follows:
     “30. Where no such question of law, nor even a mixed question of law
     and fact was urged before the trial court or the first appellate court, as
     in this case, a second appeal cannot be entertained. ***
     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.



1   (2020) 19 SCC 57
806           SUPREME COURT REPORTS                           [2023] 14 S.C.R.


      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.
      “9. Lands and buildings to vest in the Inamdar :-
      (1) Every Inamdar shall, with effect on and from the date of vesting,
      be entitled to be registered as an occupant of all lands other than:-
      (i) communal lands, waste lands, gomal lands, forest lands, tank beds,
      mines, quarries rivers, streams, tanks and irrigation works;
      (ii) lands in respect of which any person is entitled to be registered
      under Sections 4, 5, 6, 7 or 8; and (iii) lands upon which have been
      erected buildings owned by any person other than the Inamdar.
      (2) Every building situated within the limits of the inam which was
      owned immediately before the date of vesting by the Inamdar shall,
      with effect on and from such date, vest in the Inamdar.
      Explanation: In this section ‘inamdar’ means an Inamdar other than a
      holder of a minor inam referred to in Section 7.
           P. KISHORE KUMAR v. VITTAL K. PATKAR                             807
                    [DIPANKAR DATTA, J.]

     9A. Other Tenants of Inamdar: Every tenant of the Inamdar, other
     than the tenants entitled to be registered as occupants under Sections 4,
     5 and 6, shall, with effect on and from the date of vesting and subject
     to the provisions of Chapter III-A, be entitled to continue as a tenant
     of the land in respect of which he was a tenant immediately before
     the date of vesting.”
                                                   (emphasis supplied by us)
      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. P8 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.
808            SUPREME COURT REPORTS                         [2023] 14 S.C.R.


      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:
       “6. ***mutation entry does not confer any right, title or interest in
       favour of the person and the mutation entry in the revenue record is
       only for the fiscal purpose.”
      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,


2     (1996) 6 SCC 223
3     (1997) 7 SCC 137
4     2021 SCC OnLine SC 802
5     (1977) 2 SCC 49
           P. KISHORE KUMAR v. VITTAL K. PATKAR                            809
                    [DIPANKAR DATTA, J.]

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
810            SUPREME COURT REPORTS                         [2023] 14 S.C.R.


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:
       “15. It is trite law that, in a suit for declaration of title, the burden
       always lies on the Plaintiff to make out and establish a clear case for
       granting such a declaration and the weakness, if any, of the case set up
       by the Defendants would not be a ground to grant relief to the Plaintiff.”
      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:
       “44. In the suit for declaration for title and possession, the Plaintiffs-
       Respondents could succeed only on the strength of their own title
       and not on the weakness of the case of the Defendants-Appellants.
       The burden is on the Plaintiffs-Respondents to establish their title
       to the suit properties to show that they are entitled for a decree for
       declaration. The Plaintiffs-Respondents have neither produced the
       title document i.e. patta-lease which the Plaintiffs-Respondents are
       relying upon nor proved their right by adducing any other evidence.
       As noted above, the revenue entries relied on by them are also held
       to be not genuine. In any event, revenue entries for few Khataunis
       are not proof of title; but are mere statements for revenue purpose.
       They cannot confer any right or title on the party relying on them
       for proving their title.”



6     (2014) 2 SCC 269
7     (2019) 6 SCC 82
           P. KISHORE KUMAR v. VITTAL K. PATKAR                           811
                    [DIPANKAR DATTA, J.]

      25. Mr. S.N. Bhat placed reliance on the decision of this Court in
R.V.E. Venkatachala Gounder vs. Arulmigu Viswesaraswami & V.P.
Temple8 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


8 (2003) 8 SCC 752
9 (1969) 3 SCC 129
10 (2007) 1 SCC 546
812            SUPREME COURT REPORTS                        [2023] 14 S.C.R.


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.


Headnotes prepared by:                                            Appeal allowed.
Ankit Gyan