Maharaja Bahadur Ramranbijaya Pd. Singh and Others vs Naubat Rai and Others

Agarwala, J.—This is an appeal by the plaintiffs, and arises out of a suit to recover possession 5 of plot No. 386 in village Dhawan. Plaintiff 1 is the proprietor of the village, and plaintiff 2 is a person with whom the plot in question was settled by plaintiff 1. The plot was recorded in the record of rights in 1911 as the bakasht of the proprietor, that is to say, of plaintiff 1. In the remarks column there was an entry that so far as the trees on the plot are concerned half the interest belonged to the proprietor and half to one Parikha Rai. Parikha Rai is the ancestor of the defendants, who claim that the land is their bhaoli kasht holding.

The first Court found that the entry in the record of rights that the land was bakasht had not been rebutted by the evidence of the defendants and, therefore, he decreed the plaintiffs'' suit. In appeal the Subordinate Judge has come to the contrary decision. It will not be doing any injustice to the -learned Subordinate Judge to say that his judgment '' is so involved that it is not easy to follow his line of reasoning, but one fact obtrudes itself on almost every page and that is that the learned Subordinate Judge appears to have been under the impression that the mere fact that Parikha Rai was recorded; as having a half interest in the trees on the land was inconsistent with his not having an interest in the land itself. That, as was pointed out by Sir Dawson Miller in Bishun Pragash Narain Singh v. Sheosaran Teli AIR 1922 Pat. 497 is by no means a correct proposition. In that case there was an entry in the record of rights that the trees belonged to the tenants. The proprietor sued for a declaration that the timber of the trees belonged to him exclusively, and not to the tenants, and on his behalf it was contended that the presumption of correctness attaching to the entry in the record of rights was rebutted by the general law that trees belong to the landlord. The learned Chief Justice observed with regard to this contention: "It must be presumed that when the Assistant Settlement Officer heard the parties and arrived at the conclusion that the trees belonged to the tenants he had taken into consideration the question of whether there was or was not a custom whereby the right in the trees belonged to the tenants, or whether possibly they acquired that right in some other way as by some agreement between the landlord and themselves." In the present case it will be observed that the entry in the record does not describe Parikha Rai as a tenant of the land, so that there is even less reason to suppose that the entry implied that he had any interest in the disputed plot. From the observations of the learned Chief Justice, to which I have referred, it is clear that the learned ''Subordinate Judge was entirely wrong in supposing that the entry was in any way inconsistent with Parikha Rai not having acquired some interest in the trees by agreement or otherwise without having acquired any interest in the land on which the trees stand. Similarly, in Jagdeo Singh and Others Vs. Mahendra Singh, reliance was placed on the general law that a landlord is entitled to the timber standing on land which belongs to him and it was contended, this is sufficient to rebut the entry in the record of rights that the trees belong to the tenants. With regard to that argument Fazl Ali, J. observed: "The presumption which the learned advocate for the appellant contends should be raised under the general law can override the entry in the record of rights only if it could also be assumed that in no case whatsoever can a person other than the owner of the land acquire right in the trees standing on it."

As I read the judgment of the learned Subordinate Judge, it is largely based on the fact that the learned Subordinate Judge found that the entry in favour of Parikha Rai so far as the trees are concerned led to the inference that the entry in favour of the proprietor so far as the land is concerned was wrong. u/s 103, Tenancy Act, it is clear that both the entries give rise to a presumption as to their correctness, and that it is only by evidence that that presumption is liable to be rebutted. One part of the entry cannot be used to rebut the other part of it.

It was next contended before me that the learned Subordinate Judge has relied on a number of other facts, or as the learned advocate for the respondents described them a bundle of facts, on which he based his decision that the defendarits are bhaoli tenants of the disputed plot. An examination of the contents of this bundle, however, reveals that it consists of the view which the learned Subordinate Judge took with regard to the entry in favour of Parikha Rai, with which I have already dealt, and of very little else, and even that little was of no value as evidence in support of his conclusion. The first fact on which he relied was that at the khanapuri stage of the survey proceedings a parcha was issued in which plot No. 386 was described, along with a number of other plots, as constituting the bhaoli holding of the defendants. A question appears to have arisen in the Court below as to whether this parcha was admissible in evidence at all. The learned Subordinate Judge seems to have come to the conclusion that it was admissible, and I think that in that respect his decision is right. But he says that irrespective of the khanapuri parcha he considered that the defendants had proved that they were tenants of plot No. 386 so that it can hardly be said that the khanapuri parcha forms part of the basje of the learned Subordinate Judge''s decision. However, assuming, as it is contended for by the learned advocate for the respondents, that this is one of the circumstances on which the learned Subordinate Judge was entitled to rely and did rely, it remains to consider what is the evidentiary value of such a document. The learned advocate for the respondents himself referred to the case in Chand Ray Vs. Bhagwati Charan Goswami, in which it is held that where an entry in the record of rights is challenged the Court is entitled to take into consideration what took place at the khanapuri and attestation stages of the preparation of the record and the decision of the Settlement Officer at the attestation stage. But the learned Chief Justice, who delivered the judgment, was careful not to base his decision solely on statements made is papers prepared at the initial stages of the survey. What he said was: "Prom the evidence in the case and from a consideration of what took place during the preparation of the record of rights the learned Judicial Commissioner came to the conclusion that the plaintiffs had established their case and that the evidence was sufficient to rebut the presumption arising from the finally published record... In these circumstances it seems to me that the learned Judicial Commissioner was quite justified in considering from the verbal evidence in the case, coupled with the evidence of the attestation proceeding, that the plaintiffs'' case had been made out and that the record of rights was wrong." What these observations of the learned Chief Justice imply is that, although proceedings at the khanapuri and attestation stage are admissible for testing the correctness of the entries in the record of rights, when such entries are challenged in a civil Court they must only be considered in conjunction with evidence given at the trial in which the entries are challenged. In the present case the defendants gave no evidence whatsoever that plot No. 386 formed any part of a bhaoli holding belonging to them. One of the defendants, who was examined as defence witness 1, was especially asked whether this plot formed a part of their bhaoli holding, and he said that he did not know. There is therefore no evidence in this case which can be taken to be corroborated by or read in conjunction with the khanapuri parcha.

The only other circumstance which the learned Subordinate Judge refers to as supporting his view as to the correctness of the entry in the record of rights is that the whole of plot No. 386 is covered with trees. Why that circumstance should suggest that the land formed part of the holding of the defendants rather than being bakasht of the maliks is rather difficult to understand, unless one assumes as the learned Subordinate Judge appears to have assumed, that the very existence of the entry relating to Parikha Rai''s interest in the trees affords a basis for the view that Parikha Rai also had an interest in the land. That view, as I have already shown, is not justified on the authorities. The learned Subordinate Judge, in my opinion, has reversed the finding, arrived at by the learned Munsif without any evidence in support of his own view and on a misconception of the law, and the omission to give the same weight to the entry in favour of the proprietor as to the entry in favour of Parikha Rai. I will therefore set aside the judgment of the Subordinate Judge and reinstate that of the Munsif. The plaintiffs are entitled to their costs throughout.