ORDER
S.R. Nayak, J.
1. This first appeal is by the defendants directed against the judgment and decree dated 29-11-1993 passed in O.S. No. 276 of 1988 on the file of III Addl. Judge, City Civil Court, Hyderabad at Secunderabad, decreeing the suit filed by the respondents - plaintiffs. The respondents are the plaintiffs. The parties are referred to in this judgment as they are arrayed in the suit. The plaintiffs filed the suit O.S. No. 276 of 1988 for decree declaring the plaintiffs to be the owners of the suit land bearing Sy. No. 234 admeasuring Ac. 2.33 gts. situated at Tokatta village, Bowenpally, Secunderabad Taluk, Hyderabad District (hereinafter shortly referred to as 'suit land') and for perpetual injunction restraining the defendants 1 and 2 from interfering with the possession of the plaintiffs.
2. The material averments in the plaint be stated briefly as under:
The 1st plaintiff is the widow and the 2nd plaintiff is the daughter of one Late B.V. Prakasa Reddy. B.V. Prakasa Reddy was the owner and pattedar of the suit land and he died in the year 1982 leaving behind the plaintiffs as his legal heirs and successors. B.V. Prakasa Reddy had leased out the suit land to one Achaiah, s/o Ramaiah. The Tenancy Certificate was issued in the name of Achaiah and after the death of Achaiah, his two brothers viz., Sainna and Jogaiah continued to be in possession of the land as tenants. The ownership of B.V. Prakasa Reddy remained unchallenged. When the matter stood thus the defendants have set up false plea that the suit land forms part of General Land Register (GLR) Sy. No. 586 and classified as A-2 and sought to evict the protected tenants from the suit land. The protected tenants filed a suit O.S. No. 1433 of 1980 in the Court of V Asst. Judge, City Civil Court, Hyderabad, for perpetual injunction. In the said suit, the 2nd defendant set up the false plea that the suit land forms part of GLR Sy. No. 586. Since more than 40 to 50 years B.V. Prakasa Reddy continued to be in possession through tenants and since the 2nd defendant had put up a false plea that the suit land forms part of GLR Sy. No. 586, the suit is filed praying for the relief as aforesaid.
3. The 1st defendant filed the Written Statement contesting the claim of the plaintiffs. The 2nd defendant while denying the ownership of Late B.V. Prakasa Reddy and possession of the tenants under him claimed that the suit land forms part of GLR Sy. No. 586 admeasuring Ac. 9.39 cts. and the said land is the absolute property of the Government of India. It is also contended that as per the GLR maintained by the 2nd defendant under the Cantonment Land Administrative Rules, 1937, the entire land in GLR Sy. No. 586 of which the suit land forms part, is classified as A-2, i.e., the land not actually used or occupied by the Military authorities, but the same is reserved for military purposes. In the Written Statement, it is also contended that in fact Ac. 7.72 cts. forming part of GLR Sy. No. 586 was the subject matter of litigation between Smt. Sharfunnissa Begum and the Military Estate Officer in O.S. No. 421 of 1972 on the file of the I Asst. judge, City Civil Court, Hyderabad. The said suit was filed by Smt. Sharfunnissa Begum for permanent injunction and for specific performance of the agreement of lease alleged to have been executed in her favour, and in that suit she categorically admitted that the suit land is the property of Government of India. The said suit was ultimately dismissed on 17-3-1976. In the Written Statement, it was also claimed that Jogaiah was in unlawful and wrongful possession of the suit land and therefore proceedings under the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, were initiated against him and at that stage, Jogaiah and another person by name Voosaiah filed the suit O.S. No. 1433 of 1980 against the 2nd defendant in the Court of the V Assistant Judge, City Civil Court, Hyderabad, for permanent injunction and obtained an ex parte order of status quo against the 2nd defendant. However, later, on 4-11-1982 the suit was dismissed for default. Thereafter, taking recourse to the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, the 2nd defendant took over possession of the suit land on 23-2-1983 and there afterwards the suit O.S. No. 1433 of 1980 was restored to the file of the Civil Court on 26-4-1983.
4. On the basis of the pleadings, the learned Trial Judge framed the following issues for trial.
(1) Whether the plaint allegations are true and correct?
(2) Whether the plaintiffs are entitled for the declaration of title as prayed for?
(3) Whether the plaintiffs are entitled to a permanent injunction as prayed for?
(4) To what relief?
On behalf of the plaintiffs, the husband of the 2nd plaintiff and the son-in-law of the 1st plaintiff viz., one T. Gopala Reddy was examined as P.W. 1 and they also examined three more witnesses as P.Ws. 2 to 4 and produced documents marked as Exs.A-1 to A-33. On behalf of the defendants, D.W. 1 is examined and Exs.B-1 to B-13 are marked.
5. The learned Trial Judge after appreciation of evidence, oral and documentary, decreed the suit. Hence this first appeal.
6. Smt. A. Chaya Devi, learned Standing Counsel for the appellants would contend that the plaintiffs have utterly failed to prove the title to and possession of the suit land. The learned Counsel elaborating this contention would point out that the findings recorded by the Court below in favour of the plaintiffs are essentially grounded on the entries in the record-of-rights and pahanis of the suit land and those documents cannot be treated as title documents. The learned Counsel would also maintain that the burden to prove that the suit land does not form part of GLR Sy. No. 586 is on the plaintiffs and the plaintiffs have not discharged that burden at all. The learned Counsel would also maintain that the evidence on record clearly establishes that the suit land forms part of GLR Sy. No. 586. On the other hand, Sri B.D. Maheswara Reddy, learned Counsel for respondents-plaintiffs would submit that the title to and possession of the suit land is satisfactorily proved by the plaintiffs by adducing oral and documentary evidence; the contention of the learned Counsel for the appellants that the burden to prove the fact that the suit land does not form part of GLR Sy. No. 586 lies on the plaintiffs is apparently untenable; on the other hand, it is the burden of the respondents-defendants to prove that fact and they have miserably failed to prove that the suit land forms part of GLR Sy. No. 586.
7. Having regard to the contentions raised before the Court in this first appeal, the following points for determination arise:
(i) Whether the plaintiffs have proved their title to and possession of the suit land?
(ii) Whether the suit land forms part of GLR Sy. No. 586?
It is the case of the plaintiffs that B.V. Prakasa Reddy was the owner and pattedar of the suit land. It is an agricultural land bearing revenue Sy. No. 234 admeasuring Ac. 2.33 gts. situated at Thokatta village and the said land was leased to one Achaiah and after his death, to his brothers by name Sainna and Jogaiah. All the records-of-rights and pahanis stood in the name of B.V. Prakasa Reddy till his death in the year 1982, and the plaintiffs being the successors of the deceased B.V. Prakasa Reddy, their names are mutated in the records-of-rights and pahanis of the suit land. In support of their plea, the plaintiffs have produced pahanis for the years 1971-72 to 1988-89, the mutation extract dated 20-8-1988 (Ex.A-14) and the land revenue receipts Exs.A-15 to A-30, the demand notice for land revenue for the year 1956 to 1964 (Ex.A-31). These documents establish that late Sri B.V. Prakasa Reddy was the owner and occupier of the suit land till his death and after his death the plaintiffs inherited the suit land. It is true that the mutation of names in revenue record is no evidence of title, though it may be relevant for other purposes. It is also true that a presumption of correctness is attached to entries appearing in the record-of-rights, but such entries are not the foundations of title, but are mere items of evidence, The presumption raised by those entries is not conclusive, but 'prima facie' merely, and while it must prevail where there is no rebutting evidence; it may be repelled by other evidence and circumstances showing that those entries are not correct. The Supreme Court in Shikarchand v. D.J.P. Karini Sabha, : [1974]3SCR101 held that Khasra is a record-of right. Although the record-of-rights is not a document of title, the Court is perfectly entitled to take into consideration the entry in the record-of-rights for coming to the conclusion that certain person is the owner of the land in question. The party relying on presumption of correctness need not prove foundation or basis of correctness. Where the entry in the record-of-rights shows the suit land in the name of the plaintiff, the onus is on the defendant to prove that the said entry in favour of the plaintiff is not correct. As pointed out supra, the plaintiffs have produced the record of rights as well as the pahanis to establish their title to and possession of the suit land. In the Commissioner's report Ex.C-2, it is stated that the suit land is a patta land and it stands registered in the name of late Sri B.V. Prakasa Reddy as per the existing Shethwar of 1311 and 1356 Fasli (1901 and 1946) of Thokatta village of Secunderabad Mandal. The Commissioner was examined as P.W.2. He has stated that the suit land is a patta land standing in the name of late B.V. Prakasa Reddy. As against this documentary and oral evidence, there is no iota of rebuttal evidence produced by the defendants to destroy the presumption to be drawn from the record-of-rights and the pahanis. On the other had, it has come in the evidence of D.W.I that at no point of time any step was taken by the defendants to challenge the correctness of the entries in the record-of-rights and pahanis of the suit land. It is also admitted by the Defendant No. 1 in his evidence that on the date of giving evidence, the protected tenant by name Jogaiah was in possession of the suit land. Therefore, as noted supra, though the presumption of correctness attached to entries appearing in the record-of-rights and the pahansis is not conclusive, but that presumption should prevail where there is no rebutting evidence. In the instant case, in the absence of any rebutting evidence to destroy the presumption to be drawn from the entries in the record-of-rights and pahanis of the suit land and also having regard to the oral evidence of P.Ws. and particularly that of P.W.2, it cannot be said that the finding recorded by the learned Trial Judge that the appellants (sic. respondents) proved their title to and possession of the suit land is erroneous and not supported by evidence.
8. Adverting to the 2nd point, it is relevant to note at the threshold that the contention of the learned Counsel for the appellants - defendants that the burden to prove the fact that the suit land does not form part of GLR Sy. No. 586 is on the plaintiffs is apparently untenable.
9. No issue whether the suit schedule land forms part of GLR Sy. No. 586 is framed by the Court below. However, this point is considered by the learned Trial Judge while deciding issues Nos. 1 to 3. Sections 101 - 104 of the Indian Evidence Act deal with the burden of proof. It is well settled that the burden of proving a fact rests on the party, who substantially asserts the affirmative of the issue and not upon the party who denies it; for a negative is usually incapable of proof. Section 102 of the Indian Evidence Act embodies a test for ascertaining on which side the burden of proof lies. Section 102 states that the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. It means that when the burden of proof lies on a party, that party must fail if he does not discharge the burden by giving evidence. In Mills v. Barber -1 M & W 427 as cited in Sarkar's Law of Evidence (12th edition), the two best tests for ascertaining on whom the burden of proof lies are suggested and they are, to consider first which party would succeed if no evidence were given on either side; and secondly, what would be the effect of striking out of the record the allegation to be proved. The onus lies on whichever party would fail, if either of these steps were pursued. By applying these two celebrated tests, the argument of the learned Standing Counsel for the appellants - defendants should be determined. If these two tests are applied to the facts of this case/it becomes quite apparent that the burden of proving the fact that the suit schedule land forms part of GLR Sy. No. 586 is on the defendants. Added to this, Section 103 of the Evidence Act provides that the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. Here again a test is provided. In the present case, it is the defendants who wish the Court to believe that the suit schedule land forms part of GLR Sy. No. 586 and it is not the plaintiffs who wish the Court to believe that the suit schedule land forms part of GLR Sy. No. 586. In other words, the burden of proof lies on the person who asserts the affirmative of the issue. Therefore, there is no merit in the contention of the learned Standing Counsel for the appellants - defendants that the burden of proving the fact that the suit schedule land does not form part of GLR Sy. No. 586 lies on the plaintiffs.
10. The next limb of the second point is whether the defendants-appellants have discharged the burden in proving that the suit land forms part of GLR Sy. No. 586. Here again, the defendants have utterly failed to prove that fact. It is relevant to note that in the suit, P.W.2 was appointed as Commissioner to find out whether the suit land falls within the GLR Sy. No. 586. P.W.2 is the Deputy Inspector of Survey in the Office of the Deputy Director of Survey and Records, Hyderabad. In his evidence he has categorically stated that he surveyed the suit land and demarcated its boundaries with reference to the survey records, such as, village plan, tippon of Survey Number and its surrounding Survey numbers. It has also come in the evidence that when P.W.2 surveyed the lands, the employees of the defendants were present. Ex.C-2 dated 16-3-1989 is the report of the Commissioner - P.W.2. In the said report, he has stated that the suit land is a patta land standing in the name of late B.V. Prakasa Reddy as per the Shetwar of 1356 Fasli to an extent of Ac. 2.33 gts. Ex.C-3 is the plan prepared by P.W.2. P.W.2 has stated that the defendants filed a Work Memo before him under Ex.C~4 in which they asked the Commissioner to superimpose GLR Sy. No. 586 over Sy. No. 234 and find out whether the suit land falls within GLR Sy. No. 586. P.W.2 has categorically stated that he took into consideration all the points raised by the defendants in their Work Memo and answered the same as shown in Ex.C-3. Dealing with the pillars existing in and around GLR Sy. No. 586, P.W.2 has stated that pillar No. 19 exists in between the boundary of the suit land and Sy.Nos. 235 and 248; Pillar No. 20 exists in between boundaries of suit land and Sy. No. 233 and Pillar No. 2 exists in between Sy. No. 230 and the suit land and that there are no military pillars in Sy. No. 234 (suit land). P.W.2 has also stated that during the survey of the suit land, he found M/s. B. Voosaiah, B. Satyanarayana, B. Sudershan in possession of the land. P.W.2 has also stated that the defendants did not produce any relevant records with regard to GLR register or maps to him at the time of execution of the warrant; there is the land of the defendants at the right side of the suit land and there is a road in between the suit land and the land of the defendants. It has also come in the evidence that throughout the Government was collecting the land revenue in respect of the suit land, and none of the records-of-rights and pahanis marked in the suit reflect the ownership of Government or the defendants at any point of time. It has also come in the evidence that in the Cantonment area also, there are certain private lands. Although the defendants heavily depended upon Ex.B-2, the original of the same was not filed and there is absolutely no evidence to show on what basis Ex.B-2 was prepared and how the revenue Sy. No. 234 is super-imposed in GLR Sy. No. 586. Therefore the learned Trial Judge is justified in observing that if really as per Ex.B-2, the suit land is forming part of GLR Sy. No. 586, nothing prevented the defendants to handover the original of Ex.B-2 and there is absolutely no explanation for not producing original Ex.B-2. None of the documents produced by the defendants have any bearing or can be correlated to the suit land. Therefore as rightly held by the learned trial Judge that defendants have utterly failed to prove that the suit land forms part of GLR Sy. No. 586,1 do not find any ground to reverse the findings recorded by the learned trial Judge.
11. In the result, the appeal fails and the same is dismissed with costs.