Hardeo Narayan Singh and Others vs Kapil Singh and Others

Kulwant Sahay, J.—The suit out of which the present appeal arises was instituted by the plaintiffs-appellants for a declaration of their title to, and for recovery of possession of, certain trees standing on gairmazrua lands. There was a partition of the village amongst the cosharers and several pattis were formed. The plaintiffs are the owners of a 4-annas patti and the defendants are the owners of the remaining pattis in respect of the 12-annas share. Certain lands were left joint amongst all the cosharers and in the Record-of-Rights these lands were recorded in shamilat khewat No. 9 in the name of the entire 16-annas proprietors. There was a large number of trees standing on this joint land, but the entry in the Record-of-Rights as regards the trees was that the 12-annas proprietors were in exclusive possession thereof. The plaintiffs attempted to cut one of the trees when there was opposition on behalf of the defendants and they accordingly instituted the present suit for a declaration of their title and possession.

The learned Munsif found that the plaintiffs had no title and no possession not only as regards the trees but also as regards the lands on which the trees stood.

The learned Additional District Judge on appeal has found that these gairmazrua lands appertain to the entire 16-annas proprietors of the village, but as regards the trees he found that the defendants were in adverse possession for more than 12 years and that the plaintiffs had lost their title to the trees by lapse of time.

The plaintiffs have come up in second appeal to this Court, and it is contended on their behalf that the final publication of the Record-of-Rights took place on the 23rd February 1911, and the present suit was instituted on 21st February 1923, that is, within 12 years from the late of the final publication and that therefore, the defendants had not acquired any title by adverse possession to She trees in dispute. The learned District Judge, however, points out that the draft record was prepared long before the final publication and that the adverse possession of the defendants began not from the date of the final publication of the Record-of-Rights but earlier than that. It is clear that the entry of the possession of the defendants in the Record-of-Rights must be presumed to be based on the actual possession of the defendants and that such possession must have been found by the survey officers before the date of the final publication. The difference is only of two days; the suit was instituted on 21st February 1923, and the final publication, as I have said, was on 23rd February 1911. The learned Additional District Judge was, therefore, clearly right in holding that the adverse possession of the defendant commenced some time before the date of the final publication.

It is next contended that the draft record was not admissible in evidence and reference was made to Saroop Rai v. Srikant Prasad (1). It is, no doubt, stated there in very general terms that a draft record is inadmissible in evidence, but it does not appear from the judgment as to the point in proof whereof the draft record was admitted in evidence in that case. Certainly the draft record cannot be used as evidence of the presumption of correctness of the entry made therein, but the draft record is admissible for the purpose of showing what was the entry made in the earlier proceedings before the final publication. In the present case, however, the difference is only of two days and the learned-District Judge was right in holding that the defendants had acquired title by adverse possession and that the plaintiffs had lost their title to the trees.

This appeal is dismissed with costs. The cross objections are not pressed and are also dismissed.

Macpherson, J.

I agree.