Himachal Pradesh High Court
Reserved On: 03.03.2026 vs Of on 25 March, 2026
2026:HHC:8825
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No. 30 of 2006
Reserved on: 03.03.2026
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Date of Decision: 25.03.2026
Sharwan Lal and others ...Appellants.
Versus
of
Ses Ram (deceased) through LRs & Ors ...Respondents.
Coram
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Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes
For the Appellants : Mr Vinod Thakur, Advocate.
For the Respondents : Ms Anita, Advocate, vice Ms Anu
Tuli, Advocate, Legal Aid Counsel,
for respondent No. 1(a).
Mr Sanjeev Kuthiala, Senior
Advocate, with Ms Tamanna
Sharma, Advocate, for respondents
No. 1(b) to 1(g).
Rakesh Kainthla, Judge
The present appeal is directed against the judgment
and decree dated 29.12.2005 passed by learned District Judge,
Kullu, vide which the appeal filed by Ses Ram (original plaintiff)
was allowed and the judgment and decree passed by the learned
Civil Judge, Jr. Division, Manali camp at Kullu, District Kullu,
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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H.P. (learned Trial Court) were set aside. (Parties shall hereinafter
be referred to in the same manner as they were arrayed before the
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learned Trial Court for convenience.
2. Briefly stated, the facts giving rise to the present
appeal are that the plaintiff filed a civil suit before the learned
of
Trial Court seeking a declaration that mutation Nos. 900 and
903 of Phati Dunkhrigar attested on 13.06.2003, passed by
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learned Assistant Collector 2nd Grade Kullu in favour of the
defendant, are illegal, null and void and not binding upon the
plaintiff. It was asserted that Rirku, grandfather of the plaintiff,
was the owner in possession of the land mentioned in para (1) of
the plaint. His sons, Shupu, Birbal @ Popi, Chappu, Fagnu and
Jogni, inherited the land in equal shares after his death. Chappu
died about 51 years before the institution of the suit, and his
estate was inherited by the plaintiff. Shupu gifted his entire
property to the plaintiff. Birbal @ Popi died 29 years before the
institution of a suit, and his share was inherited by his son and
widow. Jogi died issueless about 26 years before the institution
of the suit, and his estate was inherited by Shupu and Fagnu.
However, his share was mutated in favour of Shupu, Fagnu and
Reshmu (defendant) in equal share vide mutation No. 903.
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Fagnu died issueless, and his estate was mutated in favour of
Shupu and Reshmu vide mutation No. 900. The plaintiff
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preferred an appeal before Collector, Kullu, which was decided
in his favour. The defendant preferred an appeal before the
Divisional Commissioner, which was decided in his favour. The
plaintiff filed a further appeal before the Financial
of
Commissioner, and this appeal was allowed. Mutations Nos 900
and 903 were ordered to be reviewed. Learned Assistant
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Collector 2nd Grade attested the mutation in favour of the
defendant regarding the estate of Jogi and Fagnu. Hence, a civil
suit was filed seeking the relief mentioned above.
3. The suit was opposed by filing a written statement,
taking preliminary objections regarding lack of maintainability,
improper valuation, insufficient description of the suit land,
plaintiff being estopped from filing the present suit, and the suit
being barred by limitation. It was admitted that the suit land was
earlier owned by Rirku, the plaintiff’s grandfather; the estate of
Rirku was inherited by his sons, and the estate of Birbal @ Popi
was inherited by his sons and widow. It was admitted that Jogi
was survived by Shupu, Fagnu and Reshmu and mutation No.
903 was attested to this effect. It was also admitted that Fagnu
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remained unmarried, and his estate was inherited by Shupu and
Reshmu. It was asserted that the plaintiff is estopped from
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denying that Reshmu is the daughter of Rirku because he had
not disputed this fact during the mutation proceeding. It was
claimed that the mutations were rightly attested in favour of the
defendant. Therefore, it was prayed that the suit be dismissed.
of
4. No replication was filed.
5.
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The learned Trial Court framed the following issues
on 03.08.2004: –
1. Whether the plaintiff is the owner in possession of the
suit land as alleged? OPP.
2. Whether the mutations no. 900 and 903 are wrong and
illegal, as alleged? OPP.
3. Whether the plaintiff is entitled to the prohibitory
injunction prayed for? OPP.
4. Whether the plaintiff has a cause of action? OPP.
5. Whether the suit is not maintainable in the present form?
OPD.
6. Whether the suit has not been properly valued for the
purposes of court fees and jurisdiction?OPD
7. Whether the plaintiff is estopped from filing the present
suit by his act and conduct? OPD
8. Whether the suit is time-barred? OPD
9. Whether the defendant is the daughter of late Sh. Rirku as
alleged. If so, its effect? OPD
10. Relief.
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6. The parties were called upon to produce the evidence,
and the plaintiff examined himself (PW-1), and the defendant
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examined herself (DW1).
7. The learned Trial Court held that the plaintiff had
stated in his cross-examination that Reshmu might be the
of
daughter of Rirku, but her name was not mentioned in the
record. The copy of the birth certificate (Ext.D5) showed that
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one daughter was born to Rirku on 28.01.1924. This entry was
recorded on 08.02.1924. The entry and the statement in the
cross-examination that Reshmu might be the daughter of Rirku
corroborated the defendant’s version that she is the daughter of
Rirku and entitled to succeed the estate of her brothers. Hence,
the learned Trial Court answered issue Nos. 5 and 9 in
affirmative, the rest of the issues in negative, and dismissed the
plaintiff’s suit.
8. Being aggrieved by the judgment and decree passed
by the learned Trial Court, the plaintiff preferred an appeal,
which was decided by learned District Judge Kullu (learned
Appellate Court). The learned Appellate Court held that the
defendant was bound to prove that she is the daughter of Rirku.
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She relied upon the birth certificate, in which it was mentioned
that one female child was born to Rirku. The name of the child
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was not mentioned in the certificate. Rirku had died on
11.09.1923, and the child was born on 28.01.1924, after the death
of Rirku. This was contrary to the defendant’s claim that Rirku
had died when she was six months old. The entries in the birth
of
and death registers cannot be used to prove the relationship or
the identity of a person. The relationship can be proved under
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Section 50 of the Indian Evidence Act by proving the opinion
expressed by the conduct of the persons whose knowledge of the
relationship is material. No such evidence was led. The
defendant was not proved to be the daughter of Rirku. Fagnu and
Shupu inherited the estate of Jogi after his death, and Shupu
inherited the estate of Fagnu after his death. Shupu executed a
Will in the plaintiff’s favour. Hence, the plaintiff was entitled to
the declaration sought by him. Learned Trial Court erred in
dismissing the suit. Therefore, the appeal filed by the plaintiff
was allowed, the judgment and decree passed by the learned
Trial Court were set aside, and the plaintiff’s suit was decreed.
9. Being aggrieved by the judgment and decree passed
by the learned Appellate Court, the legal representatives of the
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defendant have preferred the present appeal, which was
admitted on the following substantial questions of law on
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20.01.2006:-
1. Whether in a suit where a certificate of registration,
issued by Registrar of Births & Deaths in prima facie
admissible under Section 35 of the Indian Evidence Act,
being a public document and having come from properof
custody, and there was no necessity of examining any
witness to prove it. If so, its effect thereupon?
2. Whether the genuineness of a certificate must be
presumed under Section 79 of the Indian Evidence Act,
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and the evidence of the registering officer is not necessary
to prove the same. If so, its effect thereupon?
3. Whether, in case a judgment having been passed by the
competent authority as envisaged under a statute and the
same having attained finality, in the present case thelearned Financial Commissioner and there being a specific
bar under Section 171(2) (vi) that the jurisdiction of the
civil court is barred the suit for quashing the mutations ismaintainable in the present form?
10. I have heard Mr Vinod Thakur, learned counsel for
the appellants, Ms Anita, Advocate, vice Ms Anu Tuli, Advocate,
learned Legal Aid Counsel, for respondent No.1(a) and Mr
Sanjeev Kuthiala, learned Senior Advocate, assisted by
Ms. Tamanna Sharma, learned counsel for respondents No.1(b)
to 1(g).
11. Mr Vinod Thakur, learned counsel for the appellants,
submitted that the learned Appellate Court erred in reversing
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2026:HHC:8825the well-reasoned judgment of the learned Trial Court. The
defendant had relied upon her birth certificate to show that a
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daughter was born to Rirku. The plaintiff did not specifically
deny that one daughter was born to Rirku. This was sufficient to
establish the relationship between the defendant and Rirku. The
plaintiff had filed a civil suit for setting aside the mutation,
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which is barred under Section 171(2) (vi) of the HP Land Revenue
Act, and the learned Courts below erred in entertaining the suit.
rt
Therefore, he prayed that the present appeal be allowed, the
judgment and decree passed by the learned Appellate Court be
set aside, and the judgment and decree passed by the learned
Trial Court be restored.
12. Mr Sanjeev Kuthiala, learned Senior Advocate for the
respondents No. 1(b) to 1(g), submitted that the relationship
cannot be proved by producing the birth certificate, and the
learned Appellate Court was right in holding that the opinion of
the person knowing about the relationship was required to be
proved to establish the relationship. The defendant has filed an
application for additional evidence to prove the public record,
which is per se admissible. This record shows that Reshmu was
nowhere recorded as the daughter of Rirku. Therefore, he prayed
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that the application for additional evidence be allowed and the
appeal be dismissed.
.
13. I have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
Additional Evidence
of
14. Before adverting to substantial questions of law
framed by this Court, it is necessary to dispose of the application
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[CMP No. 12810/2014] for leading additional evidence by proving
the document on record. It has been asserted that Reshmu was
never entered as a daughter of Rirku in the Pariwar register or
genealogical table. Ses Ram had obtained the documents before
his death, and his legal representatives found the documents in
the last week of July 2014. The documents are essential for
determining the controversy pending before the Court. Hence,
the application.
15. No reply to the application was filed.
16. The plaintiff had filed a civil suit on 06.01.2004,
which was decided on 14.06.2005. An appeal was presented on
08.08.2005, which was decided on 29.12.2005. The documents
sought to be proved on record are the photocopies of the public
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documents that existed before filing the suit. There is no
explanation at all as to why the documents sought to be
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produced on record could not be produced before the learned
Trial Court or the Appellate Court. It was held in Sopanrao v. Syed
Mehmood, (2019) 7 SCC 76: (2019) 3 SCC (Civ) 467: 2019 SCC
OnLine SC 821 that where the documents were not filed before
of
the learned Courts below, and no explanation was provided for
their non-production, they cannot be taken on record. It was
rt
observed at page 81:
“13. At this stage, it would be pertinent to point out that
the appellant-defendants, during the course of this
appeal, have filed a number of applications to place onrecord certain documents which were not on the record of
the trial court. No explanation has been given in any of
these applications as to why these documents were notfiled in the trial court. These documents cannot be looked
into and entertained at this stage. The defendants did notfile these documents before the trial court. No application
was filed under Order 41 Rule 27 of the Code of CivilProcedure, 1908, for leading additional evidence before
the first appellate court or even before the High Court.
Even the applications filed before us do not set out any
reasons for not filing these documents earlier, and do not
meet the requirements of Order 41 Rule 27 of the Code of
Civil Procedure. Hence, the applications are rejected, and
the documents cannot be taken into consideration.”
17. It was held in Jagdish Prasad Patel v. Shivnath, (2019)
6 SCC 82: (2019) 3 SCC (Civ) 112: 2019 SCC OnLine SC 492 that the
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additional evidence can be led when the Trial Court had refused
to admit the evidence, the evidence was not available despite the
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exercise of due diligence and the evidence is required by the
Court to effectively adjudicate the dispute pending before it. It
was observed at page 96: –
of
“29. Under Order 41 Rule 27 CPC, the production of
additional evidence, whether oral or documentary, is
permitted only under three circumstances, which are:
(I) where the trial court had refused to admit the
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evidence, though it ought to have been admitted;
(II) the evidence was not available to the party despite
the exercise of due diligence; and(III) the appellate court required the additional
evidence so as to enable it to pronounce judgment orfor any other substantial cause of like nature.
An application for the production of additional evidence
cannot be allowed if the appellant was not diligent in
producing the relevant documents in the lower court.
However, in the interest of justice and when satisfactory
reasons are given, the court can receive additional
documents.”
18. It was laid down in North Eastern Railway
Administration. vs. Bhagwan Das, (2008) 8 SCC 511, that the
provisions of Order 41 Rule 27 do not enable an unsuccessful
litigant to patch up the weak parts of his case. It was observed:-
“13. Though the general rule is that ordinarily the
appellate court should not travel outside the record of the
lower court and additional evidence, whether oral or::: Downloaded on – 25/03/2026 20:34:39 :::CIS
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2026:HHC:8825documentary is not admitted but Section 107 CPC, which
carves out an exception to the general rule, enables an
appellate court to take additional evidence or to require.
such evidence to be taken subject to such conditions and
limitations as may be prescribed. These conditions are
prescribed under Order 41 Rule 27 CPC. Nevertheless, the
additional evidence can be admitted only when thecircumstances as stipulated in the said Rule are found to
exist. The circumstances under which additional evidence
can be adduced are:
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(i) the court from whose decree the appeal is preferred
has refused to admit evidence which ought to have
been admitted [clause (a) of sub-rule (1)], or
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(ii) the party seeking to produce additional evidence
establishes that, notwithstanding the exercise of duediligence, such evidence was not within the knowledge
or could not, after the exercise of due diligence, be
produced by him at the time when the decree appealedagainst was passed [clause (aa), inserted by Act 104 of
1976], or
(iii) the appellate court requires any document to be
produced or any witness to be examined to enable it to
pronounce judgment, or for any other substantialcause [clause (b) of sub-rule (1)].
14. It is plain that under clause (b) of sub-rule (1) of Rule
27 Order 41 CPC, with which we are concerned in the
instant case, evidence may be admitted by an appellate
authority if it “requires” to enable it to pronounce
judgment, or for any other substantial cause. The scope of
the Rule, in particular of clause (b), was examined way
back in 1931 by the Privy Council in Parsotim Thakur v. Lal
Mohar Thakur [AIR 1931 PC 143]. While observing that the
provisions of Section 107 as elucidated by Order 41 Rule 27
are clearly not intended to allow the litigant, who has
been unsuccessful in the lower court, to patch up the
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weak parts of his case and fill up omissions in the court of
appeal, it was observed as follows : (AIR p. 148)
“… Under clause (1)(b), it is only where the
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appellate court ‘requires’ it (i.e. finds it needful)
that additional evidence can be admitted. It may be
required to enable the court to pronounce
judgment, or for any other substantial cause, but in
either case, it must be the court that requires it.
This is the plain grammatical reading of the sub-
of
clause. The legitimate occasion for the exercise of
this discretion is not whenever before the appeal is
heard a party applies to adduce fresh evidence, but
‘when on examining the evidence as it stands some
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inherent lacuna or defect becomes apparent’.”
15. Again in K. Venkataramiah v. A. Seetharama Reddy [AIR
1963 SC 1526 : (1964) 2 SCR 35] a Constitution Bench of this
Court while reiterating the aforenoted observations in
Parsotim case [AIR 1931 PC 143] pointed out that the
appellate court has the power to allow additional evidence
not only if it requires such evidence “to enable it to
pronounce judgment” but also for “any other substantial
cause”. There may well be cases where even though the
court finds that it is able to pronounce judgment on the
state of the record as it is, and so, it cannot strictly say
that it requires additional evidence “to enable it to
pronounce judgment”, it still considers that in the
interest of justice something which remains obscure
should be filled up so that it can pronounce its judgment
in a more satisfactory manner. Thus, the question
whether looking into the documents, sought to be filed as
additional evidence, would be necessary to pronounce
judgment in a more satisfactory manner, has to be
considered by the Court at the time of hearing of the
appeal on merits.”
19. It was laid down by the Hon’ble Supreme Court in
Gobind Singh v. Union of India, 2026 SCC OnLine SC 339 that the
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parties can lead evidence before the appellate court after
satisfying the conditions provided under Order 41 Rule 27 of
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CPC. It was observed:
:
“11.2. In order to properly appreciate the controversy
involved, it is necessary to first advert to the statutoryof
provision applicable to the case at hand. Order XLI Rule 27
CPC reads as follows:
“27. Production of additional evidence in the appellate
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court.-
(1) The parties to an appeal shall not be entitled to
produce additional evidence, whether oral or
documentary, in the appellate court. But if-
(a) …
(aa) the party seeking to produce additional
evidence establishes that, notwithstanding the
exercise of due diligence, such evidence was notwithin his knowledge or could not, after the
exercise of due diligence, be produced by him atthe time when the decree appealed against was
passed, or
(b) …the appellate court may allow such evidence
or document to be produced, or a witness to be
examined.
(2) Wherever additional evidence is allowed to be
produced by an appellate court, the Court shall
record the reason for its admission.” (emphasis
supplied)
11.3. Rule 27, being couched in negative terms, makes it
abundantly clear that parties to an appeal are not entitled
to adduce additional evidence, whether oral or
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2026:HHC:8825expressly enumerated therein. The provision
contemplates only three eventualities in which additional
evidence may be permitted: first, where the court which.
passed the decree has refused to admit evidence which
ought to have been admitted; second, where the party
seeking to adduce such evidence establishes that,
notwithstanding the exercise of due diligence, the
evidence was not within its knowledge or could not have
been produced at the time when the decree under appeal
was passed; and third, where the appellate court itself
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requires any document to be produced or any witness to
be examined in order to enable it to pronounce judgment
or for any other substantial cause.
11.4. Accordingly, it is only upon satisfaction of any of the
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aforesaid three contingencies that an application under
Order XLI Rule 27 CPC can be entertained. Sub-rule (2) of
the said provision further mandates that where the
appellate court forms an opinion that additional evidence
is required to be admitted, it must record the reasons for
such admission. While elucidating the scope and object of
Order XLI Rule 27 CPC, this Court, in Union of India v.
Ibrahim Uddin (2012) 8 SCC 148, undertook an exhaustive
analysis of the provision. The relevant extract is
reproduced hereinafter:
“36. The general principle is that the appellate court
should not travel outside the record of the lower court and
cannot take any evidence in appeal. However, as anexception, Order 41 Rule 27 CPC enables the appellate
court to take additional evidence in exceptional
circumstances. The appellate court may permit additional
evidence only and only if the conditions laid down in this
Rule are found to exist. The parties are not entitled, as of
right, to the admission of such evidence. Thus, the
provision does not apply when, on the basis of the
evidence on record, the appellate court can pronounce a
satisfactory judgment. The matter is entirely within the
discretion of the court and is to be used sparingly. Such::: Downloaded on – 25/03/2026 20:34:39 :::CIS
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2026:HHC:8825a discretion is only a judicial discretion circumscribed
by the limitation specified in the Rule itself.
…
.
38. Under Order 41 Rule 27 CPC, the appellate court has
the power to allow a document to be produced and a
witness to be examined. But the requirement of the said
court must be limited to those cases where it found itnecessary to obtain such evidence for enabling it to
pronounce judgment. This provision does not entitle the
appellate court to let in fresh evidence at the appellateof
stage, where even without such evidence it can pronounce
judgment in a case. It does not entitle the appellate court
to let in fresh evidence only for the purpose of
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pronouncing judgment in a particular way. In other
words, it is only for removing a lacuna in the evidence
that the appellate court is empowered to admit additionalevidence.
…
41. The words “for any other substantial cause” must
be read with the word “requires” in the beginning of the
sentence, so that it is only where, for any other substantial
cause, the appellate court requires additional evidence,that this Rule will apply e.g. when evidence has been
taken by the lower court so imperfectly that the appellate
court cannot pass a satisfactory judgment.” (emphasis
supplied)Thus, a holistic reading of the aforesaid decision
makes it clear that the appellate court’s inquiry, while
considering an application for leading additional
evidence, is confined to examining whether such evidence
is necessary to remove a lacuna in the case. More
importantly, the appellate court may permit additional
evidence only upon being satisfied that the conditions
expressly stipulated under Order XLI Rule 27 CPC are
fulfilled. The parties do not possess any vested or
automatic right to seek admission of additional evidence
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2026:HHC:8825application where the appellate court is in a position to
render a satisfactory and reasoned judgment on the basis
of the evidence already available on record.
.
11.5. In State of Karnataka v. K.C. Subramanya (2014) 13 SCC
468, the appellants therein had moved an application
before the appellate court under Order XLI Rule 27 CPC
seeking leave to produce a map of the area to establishthat the disputed land constituted a public road. This
Court, while affirming the High Court’s decision to reject
the said application, held as follows:
of
“4. …On perusal of this provision, it is unambiguously
clear that the party can seek liberty to produce additional
evidence at the appellate stage, but the same can be
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permitted only if the evidence sought to be produced could
not be produced at the stage of trial in spite of exercise of
due diligence and that the evidence could not be producedas it was not within his knowledge and hence was fit to be
produced by the appellant before the appellate forum.
5. It is thus clear that there are conditions precedent
before allowing a party to adduce additional evidence at
the stage of appeal, which specifically incorporate
conditions to the effect that the party, in spite of duediligence, could not produce the evidence, and the same
cannot be allowed to be done at his leisure or sweet will.”
(emphasis supplied)
This Court thus categorically held that unless the
requirements stipulated under Order XLI Rule 27 CPC are
strictly satisfied, a party cannot be permitted to adduce
additional evidence at the appellate stage. Such
permission cannot be granted as a matter of course, nor
can additional evidence be introduced at the whim or
convenience of a litigating party.
11.6. Where the appellate court permits additional
evidence to be adduced, Order XLI Rule 27(2) CPC casts a
mandatory obligation upon the court to record the
reasons for such admission. In Ibrahim Uddin (supra), this
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Court elucidated the rationale underlying the
requirement of recording reasons in the following terms:
“42. Whenever the appellate court admits
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additional evidence, it should record its reasons for
doing so (sub-rule (2)). It is a salutary provision which
operates as a check against too easy a reception of
evidence at a late stage of litigation, and the statementof reasons may inspire confidence and disarm
objection. Another reason for this requirement is that,
where a further appeal lies from the decision, theof
record of reasons will be useful and necessary for the
court of further appeal to see if the discretion under
this Rule has been properly exercised by the court
below. The omission to record the reasons must,
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therefore, be treated as a serious defect. But this
provision is only Directory and not mandatory, if thereception of such evidence can be justified under the
Rule.”
11.7. The procedural framework under Order XLI of CPC
makes it abundantly clear that an appeal is ordinarily to
be decided on the evidence adduced before the trial court.
The appellate court is not expected to embark upon a
fresh fact-finding exercise or permit production of
additional evidence as a matter of routine. Where the
appellate court is satisfied that the material already
available on record is sufficient to enable it to pronounce
judgment, it is well within its jurisdiction to confine its
consideration to the evidence forming part of the record
of the courts below.”
20. In the present case, the documents sought to be
proved on record were public and could have been produced
before the learned Trial Court or the learned Appellate Court by
exercising due diligence. No reason has been assigned for not
producing the documents before the learned Trial Court or the
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learned Appellate Court, and it is impermissible to produce them
before this Court.
.
21. The documents sought to be produced are
photocopies of the public record. Section 65(e) permits the party
to give the secondary evidence when the original is a public
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document, but it also provides that when the original is a public
document, its certified copy and no other kind of secondary
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evidence is admissible. It was laid down by the Patna High Court
in Jai Gopal Singh v. Divisional Forest Officer, 1953 SCC OnLine Pat
29: AIR 1953 Pat 310 that it is impermissible to lead any other
evidence except the certified copy of the public document. It was
observed at page 311:
“12. What constitutes primary evidence in the case of a
document is defined in S. 62. The secondary evidence isdefined in S. 63, and under cl. (5) of that section, an oral
account of the contents of a document given by someperson who has himself seen it is also secondary
evidence. But S. 64 says that “documents must be proved
by primary evidence except in the cases hereinafter
mentioned”. Section 65 gives the list of cases in which
secondary evidence may be given of the existence,
condition or contents of a document. It has got seven
clauses. Clause (e) of that section speaks about a case
when the original is a public document within the
meaning of S. 74. In the present case, the original of the
notification is in the form of an official Gazette, which,
under S. 74, Evidence Act, is a public document. As to such::: Downloaded on – 25/03/2026 20:34:39 :::CIS
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2026:HHC:8825a document, the provision laid down in S. 65 says that “a
certified copy of the document, but no other kind of
secondary evidence, is admissible”. In this view of the.
provisions of law, I think, the notification under Section
30 of the Bihar Private Protected Forests Act, 1947, being
in the form of a public document, namely, the official
Gazette, cannot be proved by any other kind of secondaryevidence save by its certified copy.”
22. A similar view was taken by Allahabad High Court in
of
Ganesh Prasad v. Badri Prasad Bholanath, 1980 SCC OnLine All 887:
AIR 1980 All 361, wherein it was observed at page 362:
rt
6…..The court below has further relied upon another
assessment list of the subsequent quinquennial in which,according to it, the name of Umesh Chandra Gupta is
mentioned. I do not find any certified copy of the
aforesaid year. The learned counsel for the respondent
pointed out that there were two papers, 126C and 127C,which were filed in court, and subsequently the same
were proved by the clerk concerned. These papers were
filed per list 125/C by the defendant’s counsel, Sri SatyaNarain Mishra, Advocate, on 4-3-1978 after remand. I
have looked at these papers. These papers are notcertified copies issued by the Municipal Board in
accordance with Section 33 of the Municipalities Act.
These have been issued by one Rashid Ali. They do not
bear either any copying stamp, Folio or seal of the
Municipal Board. That also did not come under the
definition of certified copies as required by Section 65 of
the Evidence Act. I compared these papers with the
certified copy on record, and I find that these papers were
incorrect and wholly inadmissible in evidence. They were
not issued by the Municipal Board as required, and
further, these papers, not being the certified copies, were
inadmissible as provided by Cl. (f) of Sec. 65 read with its
proviso. This proviso completely barred any other kind of
secondary evidence except a certified copy.”
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23. Therefore, the defendant can only prove the certified
copy, and the photocopy of the certified copy is not admissible.
.
24. Consequently, the present application fails, and it is
dismissed.
Substantial Question of Law Nos. 1 and 2
of
25. These substantial questions of law are intricately
connected and are taken up together for consideration.
26.
rt
The defendant relied upon the birth certificate to
prove her relationship to Rirku. Learned Appellate Court had
rightly held that the entry in the birth certificate is per se
admissible, but there must be some evidence that the entry
pertained to a particular person. It was held by the Calcutta High
Court in Hemanta Kumar Das v. Allianz & Stuttgarter Insurance Co.
Ltd., 1937 SCC OnLine Cal 158: AIR 1938 Cal 120 that entries in the
birth and register are not sufficient without identification. It was
observed:
“These extracts were produced by a clerk in the health
department of the Corporation of Calcutta, who had no
personal knowledge about the entries and could not
vouch for their correctness. No attempt was made to
identify the persons named therein. It was suggested on
behalf of the defendants that these entries refer to the
assured and his daughter and wife. and show that he::: Downloaded on – 25/03/2026 20:34:39 :::CIS
22
2026:HHC:8825could not have been of the age stated by him. In my
opinion, they cannot be accepted without evidence of
identification, and are not sufficient in law without such.
evidence of identification to establish the defendants’
case. As was held in Draycott v. Talbot (1 E.R. 1501), entries
of the names of persons in a register of births or deaths or
marriages cannot be positive evidence of the birth, deathor marriage of such persons unless their identity is fully
proved. See also Woodroffe’s Law of Evidence Edn., 9 at
page 394. (c) A certified copy of the entry of registrationof
of a deed presented by one Noot Behari Das of 66, Simla
Street, Calcutta, in August 1891, at the Calcutta Registry
office, which purports to have been executed by
Bhairomani Dasi of 97, Naranoshi Gosh Street. This copy
rt
of the entry is admissible in evidence under Sections 74
and 77, Evidence Act, as proof of the entry but not of thecontents of the deed; see Woodroffe’s Law of Evidence
Edn., 9 page 570.
27. Nagpur High Court also held in State Government v.
Kamruddin Imamoddin, 1955 SCC OnLine MP 72: AIR 1956 Nag 74
that the identity of the person mentioned in the entry is required
to be proved by independent evidence. It was observed at page
76:
“27. True, the entry shows that the name of the girl born
to Laxman on 10-9-1939 is Jai, but, in our opinion, the
name ‘Jai’ written on 29-10-1939 is not admissible in
evidence without there being independent evidence to
prove it. The Birth and Death Register is no doubt a
document within the meaning of Section 35 of the
Evidence Act and is therefore relevant and has evidentiary
value. But this does not mean that each and every entry
made in that register is admissible in evidence.
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28. Only such entries as are made therein by persons in
the discharge of their official duty are 1 admissible. The
relevant rules do not show that any duty is enjoined on.
the person concerned to note the name of the child born.
Lord Parker of Waddington, in delivering the judgment of
the Judicial Committee of the Privy Council in — ‘Rai
Bhaiya Dirgaj Deo Bahadur v. Beni Mahto‘, AIR 1917 PC 197(1) (C), observed at page 197 (1):
“Now, clearly this register is an official document, and
therefore it is admissible in evidence under Section 35of
of the Indian Evidence Act. It may be possible that in
the case of such a document, if it could be shown that
any particular part was in excess of the official duty by
reason of which it came into existence, that part might
rt
not be admissible, but no attempt has been made to
show this in the present case.”
29. In the present case, it has been shown that the name
of “Jai” was written in Ex. P-9 in excess of the official
duty imposed on the person maintaining the register.
This part of Exhibit P-9 is, therefore, inadmissible in
evidence unless it is established by independent evidence.
The entry was made on 29-10-1939. The person who has
made it is not examined. Shravan (P.W. 9), who is
examined in connection with Exhibit P-9, admits that he
did not know who had made that entry in the register.
31. The identity of that person has to be fully established
by other evidence: — ‘Hemanta Kumar v. Alliantz Und
Stuttgarter Life Insurance Co. Ltd.‘, AIR 1938 Cal 120 (D) and
— ‘Biseswar Misra v. The King‘, AIR 1949 Orissa 22 (E).”
28. It was laid down by the Bombay High Court in
Paryanibai Raghoji Dhendge v. Bajirao Deorao Marathe, 1961 SCC
OnLine Bom 51: (1962) 64 Bom LR 86 that an entry in the birth
and death register is admissible under Section 35 of the Indian
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2026:HHC:8825
Evidence Act, but some evidence must be led to prove the
identity of the person. It was observed at page 89:
.
“11…..It is no doubt true that the entry regarding the birth
maintained in the Kotvari book, like a birth register, is
receivable in evidence under s. 35 of the Indian EvidenceAct. But it is wrong to assume that mere filing of a copy of
an entry in the birth register or the kotwari book proves
ipso facto that the entry relates to or proves the birth ofof
the person concerned; evidence has to be introduced to
connect that entry with the person whose date of birth
has to be established. Thus, the learned Judges of the
Courts below were wrong in finding that merely because a
rt
certified copy of the entry of the date of birth from the
kotwari book was filed at exh. D-S and P.W. 1, Paryanibaiadmitted that Mathurabai was called Gajri and that her
father’s name was Gunaji. This much material on record
automatically established that Mathurabai was born on
the date mentioned in exh, D-8. It was necessary for thedefendant to further lead evidence to prove by calling
relations or some other persons that Mathurabai was
born at the village from which the book entry is produced,that she was born to Gunaji, the number of children that
Gunaji had and that the report of the birth was made inrespect of the birth of Mathurabai. If this necessary and
vital link is missing in the chain of evidence, then thedefendant must be taken to have failed to connect the
entry in the kotwari book register as the entry with
respect to the date of birth of Mathurabai, which fact had
to be proved by the defendant. It is only necessary to
invite attention in this case to a few decisions such as
State of M.P. v. Kamruddm [[1955] N.L.J. 799.] Hemanta
Kumar v. Altimitz Ins. Co. [[1938] A.I.R. Cat. 120.] and
Bisesivar Misra v. The King [[1949)] A.I.R. Orissa 22.] It is
now the established rule that the connection of the
identity of the person under the entry must be established
by other evidence. Entries of names of persons in a
register of births, deaths, or marriages cannot be that::: Downloaded on – 25/03/2026 20:34:39 :::CIS
25
2026:HHC:8825evidence by itself, and the identity of the persons with the
entry should be fully proved….
29. Madras High Court also took a similar view in
.
Nagayasami Naidu v. Kochadai Naidu, 1967 SCC OnLine Mad 109:
AIR 1969 Mad 329 and observed:
Under S. 35 of the Evidence Act, it is only the entry made
by a public servant in the discharge of his official dutiesof
that is admissible as a relevant fact. (Vide Ramalinga
Reddi v. Kotayya, ILR 41 Mad 26 : (AIR 1918 Mad 451) in
which entries in birth registers kept by village officers
were held to be admissible under S. 35 of the Evidence Act.
rt
Vide also Bagiammal v. Kamalammal, AIR 1965 Mad 205.)
Sri Rajah Aiyar drew our attention to some of the cases inwhich this note of caution was indicated, that other
particulars not strictly covered by the entries are not
admissible under S. 35 of the Evidence Act. In
Venkayamma v. Gangayya, AIR 1934 Mad 16, a Bench ofthis court held that an entry in the death register extract
is not admissible to prove the age on the date of death,
even though that factum was also recorded. Again, inGurusami Nadar v. Irulappa, AIR 1934 Mad 630, in a death
register extract, a particular person was described as aChristian and the learned Judge, Varadachariar J.,
observed that at best it is safe to rely upon these registersonly with reference to the fact of death and the date of
birth.
30. It was laid down in Khatalsaheb Wd. Khadir Saheb
Inamdar v. Ameersaheb, 1994 SCC OnLine Kar 247 : (1995) 1 Kant
LJ 663, that an entry in the birth and death register is admissible
to show that a particular person mentioned in it was born on
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26
2026:HHC:8825
that day, but some evidence must be led to prove the paternity of
the person. It was observed at page 669:
.
“14. The law in this regard can be summarised as follows:
—
Birth and death extracts can be admissible in evidence
under Section 35 of the Evidence Act to show that a
particular person by that name mentioned in the
document was either born or dead on that particular day.
of
But, in order to establish that the said entry relates to a
particular person, there must be some evidence led by the
party contending that such an entry relates to a particular
person. Further, it is very clear that the entry in that birth
rt
or death extract cannot be a document to prove the
paternity of a person mentioned there, because it is notthe duty of the person who makes those entries to make
any entry as to the paternity of the person mentioned
there. The entries are only regarding birth and death of
the person concerned, and the official concerned isrequired to make these entries only in the discharge of his
official duties. The document cannot be used for any
purpose other than to prove the date of birth or death of aparticular person mentioned in the extract. On the basis
of mere entries in the birth or death extract, the paternityof a person cannot be determined. For that purpose, a
party concerned will have to lead some other evidence toprove that a particular person was born to a particular
man when that point is in issue in the case….”
31. Kerala High Court held in Suresh Babu v. State of
Kerala, 2000 SCC OnLine Ker 182: (2001) 1 KLT 80 that it is unsafe
to rely upon the entry in the birth register without the identity
of the person. It was observed at page 83:
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“6….No doubt the entry regarding the date of birth in the
register of births and deaths is admissible in evidence
under S. 35 of the Evidence Act. But, as has been held by.
this Court in Govinda Pillai Sukumara Pillai v. Lekshmi
Amma Kochappi Amma (1957 KLT 804) that it is not safe to
accept a mere entry in the birth register as proof of the
age of the child concerned without some evidence or
admission of the parties about the identity of the parents
and the child mentioned in the register. In State v.
Kumruddin (AIR 1956 Nagpur 74), it has been held that the
of
mere entry in the register of births and deaths to the
effect that a child was born to a person without any
statement as to the identity of the child is not sufficient to
prove the birth of a particular person. The identity of that
rt
person has to be fully established by other evidence….”
32. In the present case, the entry mentions that a
daughter was born to Rirku on 28.01.1924, whose birth was
registered on 08.02.1924. It does not mention the name of any
person. The defendant Reshmu stated that she was aged six
months when her father Rirku died. The copy of the mutation
(Ext.PA) mentions that Rirku S/o Parma Nand had died on
11.09.1923. Thus, Rirku had died much before the birth of his
daughter recorded in the certificate, and the testimony of the
defendant does not connect her to the entry. Thus, the learned
Appellate Court had rightly held that the evidence of the
defendant was not sufficient to infer that the birth certificate
pertained to her and that she is the daughter reflected in the
certificate.
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2026:HHC:8825
33. There is a distinction between the admissibility and
the probative value of the document. The document may be
.
admissible, but its probative value may be nil 2. It was laid down
by the Hon’ble Supreme Court in Madan Mohan Singh v. Rajni
Kant, (2010) 9 SCC 209: 2010 SCC OnLine SC 890 that an entry
made by a public official in discharge of his official duties may
of
be admissible, but the Court has to determine its probative
value. It was observed at page 215:
rt
“18. Therefore, a document may be admissible, but as towhether the entry contained therein has any probative
value may still be required to be examined in the facts and
circumstances of a particular case. The aforesaid legal
proposition stands fortified by the judgments of thisCourt in Ram Prasad Sharma v. State of Bihar [(1969) 2 SCC
359: AIR 1970 SC 326], Ram Murti v. State of Haryana
[(1970) 3 SCC 21: 1970 SCC (Cri) 371: AIR 1970 SC 1029],Dayaram v. Dawalatshah [(1971) 1 SCC 358: AIR 1971 SC
681], Harpal Singh v. State of H.P. [(1981) 1 SCC 560: 1981
SCC (Cri) 208: AIR 1981 SC 361], Ravinder Singh Gorkhi v.
State of U.P. [(2006) 5 SCC 584: (2006) 2 SCC (Cri) 632],
Babloo Pasi v. State of Jharkhand [(2008) 13 SCC 133:
(2009) 3 SCC (Cri) 266], Desh Raj v. Bodh Raj [(2008) 2 SCC
186: AIR 2008 SC 632] and Ram Suresh Singh v. Prabhat
Singh [(2009) 6 SCC 681: (2010) 2 SCC (Cri) 1194]. In these
cases, it has been held that even if the entry was made in
an official record by the official concerned in the
discharge of his official duty, it may have weight but still
may require corroboration by the person on whose
information the entry has been made and as to whether
the entry so made has been exhibited and proved. The2
State of Bihar v. Radha Krishna Singh, (1983) 3 SCC 118::: Downloaded on – 25/03/2026 20:34:39 :::CIS
29
2026:HHC:8825standard of proof required herein is the same as in other
civil and criminal cases.
19. Such entries may be in any public document, i.e.
.
school register, voters’ list, or family register prepared
under the Rules and Regulations, etc., in force, and may
be admissible under Section 35 of the Evidence Act as held
in Mohd. Ikram Hussain v. State of U.P. [AIR 1964 SC 1625:
(1964) 2 Cri LJ 590] and Santenu Mitra v. State of W.B.
[(1998) 5 SCC 697: 1998 SCC (Cri) 1381: AIR 1999 SC 1587]
20. So far as the entries made in the official record by an
of
official or person authorised in performance of official
duties are concerned, they may be admissible under
Section 35 of the Evidence Act, but the court has a right to
examine their probative value. The authenticity of the
rt
entries would depend on whose information such entries
stood recorded and what was his source of information.
The entries in the school register/school leaving
certificate are required to be proved in accordance with
the law, and the standard of proof required in such cases
remained the same as in any other civil or criminal
cases.”
34. Therefore, the learned Appellate Court was justified
in holding that mere admissibility of the document will not
show that the contents of the document were correct or that
they referred to the defendant. Thus, the mere proof of the
certificate was not sufficient to connect the defendant to Rirku.
35. Learned Appellate Court had rightly held that Section
50 of the Indian Evidence Act deals with the evidence about the
relationship. This Section was interpreted by the Hon’ble
Supreme Court in Dharmrao Sharanappa Shabadi v. Syeda Arifa
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2026:HHC:8825
Parveen, 2025 SCC OnLine SC 2155, and it was held that the
opinion expressed by the conduct regarding the relationship is a
.
relevant fact where the Court has to form an opinion regarding
the relationship between two persons. It was observed:-
“26. Dolgobinda Paricha v. Nimai Charan Misra, AIR 1959
SC 914 is an apt authority for appreciating the contours ofof
Section 50 of the Evidence Act on the opinion evidence on
the relationship in issue of fact. The following principles
can be culled out from Dolgobinda Paricha (supra):
a. Section 50 specifically makes the opinion
rt
expressed by the conduct of a person with special
knowledge relevant.
b. For the applicability of the section, there are
three essentials.
i. Firstly, the court has to form an opinion as to
the relationship of one person to another.
ii. Secondly, the opinion on this relationship
must be expressed through conduct.
iii. Thirdly, the person whose conduct expresses
the opinion must have special means of
knowledge on the subject, such as being a
member of the family or otherwise.
c. The term “opinion” is defined not as a casual
statement or gossip but as a “judgment or belief”
or a “conviction.” This belief is demonstrated and
proved through the person’s conduct or behaviour.
The conduct must be of a tenor that can only be
explained by the existence of that inner belief about
the relationship.
26.1 Chandu Lal Agarwala v. Khalilar Rahman ILR (1942) 2
Cal 299, further clarifies by stating that conduct is not the
ultimate proof of a relationship but an intermediate step.
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2026:HHC:8825
It allows the court to infer the “opinion” of the person
whose conduct is in evidence. The court then weighs this
opinion to arrive at its own conclusion regarding the
.
relationship in issue. Hence, Section 50 does not make
evidence of mere general reputation (without
accompanying conduct) admissible as proof of a
relationship. Further, if the conduct is of such a tenor, the
Court only gets to a relevant piece of evidence, namely,
the opinion of a person. It still remains for the Court to
weigh such evidence and come to its own opinion as to
of
the factum probandum, as to the relationship in question.
In conforming to the above, the conduct, being a
perceptible external fact, must be proved by “direct
evidence” as defined in Section 60 of the Evidence Act.
rt
This means that the witnesses must testify to what they
personally saw or heard.
26.2 The opinion expressed by the conduct of any person
as a member of the family or of any person otherwise has
special means of knowledge on the subject is a relevant
fact. This testimony remains as direct evidence under
Section 60 of the Evidence Act.”
36. The defendant did not examine any person having
special knowledge about the relationship to prove the
relationship between her and Rirku. She did not narrate any
conduct to show that she was treated as a daughter of Rirku.
Therefore, there was insufficient evidence to prove that the
defendant was the daughter of Rirku, and the substantial
questions of law No. 1 and 2 are answered accordingly.
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Substantial Question of Law No.3 :
37. It was submitted that the plaintiff has challenged the
.
mutation and such a suit is barred by Section 171 of the H.P. Land
Revenue Act. This submission will not help the defendant. It was
laid down by a Full Bench of this Court in Chuhniya Devi vs. Jindu
Ram (21.09.1990 – HPHC): MANU/HP/0084/1990:1991 (1) ShimLC
of
223 that the exclusion of the jurisdiction of the Civil Court is
subject to the provision of the HP Land Revenue Act and the
rt
latter itself provides that a person aggrieved by an entry in the
revenue record is entitled to file a suit for declaration of his right
under Section 46. It was observed:
“11. From the provisions noticed by us, it is clear that the
matters which are entrusted specifically to a RevenueOfficer by or under the Act are excluded from the
jurisdiction of the civil court. But the exclusion, as isevident from the opening part of Section 171, is “except as
otherwise provided by this Act”.
12. Stated more precisely, the position is that though a
civil court cannot give any direction, amongst others,
about correction of any entry in a record-of-rights,
periodical register of mutation or for framing of a record-
of-rights or annual record or the preparation, signing or
attestation of any of the documents included in the
record, any decision which it may record in respect of a
direction given by a Revenue Officer under Sub-section
(2) of Section 37 relating to the question as to who is in
possession of a property to which the dispute relates or is
the person best entitled to it as well as about any right
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under which a person is in possession, it will have to be
given effect to in the record-of-rights by the Revenue
Officer. This is more than clear from what is provided in
.
Section 37(3) and Section 46. The finality of the decision
of the Revenue Officer is expressly made subject to a
decision by the civil court by these provisions. The
jurisdiction of the civil court, in matters falling within the
ambit of these provisions, is not excluded. Instead, it has
been expressly preserved.
****
of
64. The Answer. Our answer, therefore, is:
(a) that an order made by the competent authority under
the H.P. Land Revenue Act, 1954, is open to challenge
rt
before a civil court to the extent that it relates to matters
falling within the ambit of Section 37 (3) and Section 46of that Act”
38. A similar view was taken in Ram Piari vs Devi Ram
2012(1) Him. L.R. 52 wherein it was observed:
“7. The Sub-section (1) of Section 37 provides that if
during the making, revision or preparation of any record
or in the course of any inquiry under Chapter IV a disputearises as to any matter of which an entry is to be made in
a record or in a register of mutations, a Revenue Officer
may of his own motion or on the application of any partyinterested and after such inquiry as he thinks fit,
determine the entry to be made as to that matter. The
sub-section (2) further provides that Revenue Officer
shall by order direct that, that person be put in possession
thereof, and that any entry in accordance with that order
be made in that register, under sub-section(3) direction
given by Revenue Officer under sub-section (2) is subject
to any decree or order which may be subsequently passed
by any Court of competent jurisdiction.
8. Thus, it cannot be said that the order passed by the
Revenue Officer for the correction of the entry is beyond::: Downloaded on – 25/03/2026 20:34:39 :::CIS
34
2026:HHC:8825the purview of the Civil Court. On the contrary, such an
order is subject to the decree of the Civil Court. The Civil
Court has the jurisdiction to determine the dispute raised.
by the respondent by filing the suit. The decree passed by
the District Judge is not without jurisdiction and not hit
by Section 171 of the H.P. Land Revenue Act. The
substantial question of law No.1 is decided against theappellants.”
39. This position was reiterated in State of HP vs Sukhan
of
Devi, AIR 2025 HP 133, wherein it was observed:
“25. Section 171 itself provides that the Civil Court shall
have jurisdiction if otherwise provided under the Act.
rt
Section 46, referred supra, is providing right to the
aggrieved person to file a suit being aggrieved by theentry in the record of rights/revenue record. Therefore,
Section 46 empowers the Civil Court to direct inclusion of
the name of a person in the revenue entries, subject toestablishing right by such aggrieved person by filing an
appropriate suit.”
40. In the present case, the plaintiff sought to establish
his right as the legal heir of Fagnu and Jogi, and he is entitled to
file a civil suit under Section 46 of the HP Land Revenue Act. The
provisions of Section 171 will not bar such a civil suit. Hence, this
substantial question of law is answered accordingly.
Final order:
41. In view of the above, there is no infirmity in the
judgment and decree passed by the learned Appellate Court, and
no interference is required with it. Hence, the present appeal
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fails, and the same is dismissed, so also pending miscellaneous
application(s), if any.
.
42. Records of the learned Courts below be returned
forthwith.
(Rakesh Kainthla)
Judge
of
25th March, 2026
(Nikita)
rt
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