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Hathising Jeebhai Baria Vs. Kuber Jetha Patel - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case Number Appeal from Order No. 54 of 1916
Judge
Reported in(1920)22BOMLR33
AppellantHathising Jeebhai Baria
RespondentKuber Jetha Patel
Excerpt:
land revenue code (bom. act v of 1879), section 155 j - record of rights entry- presumption of its correctness-retrospective effect.;the provisions of section 135 j of the land revenue code 1879 are not retrospective with regard to entries which for the purpose of determining the rights of the parties were until after the year 1913 innocuous. - .....be in the revenue year 1913-1914 subsequent to the year in which the last entry relied upon by the learned judge was made. we do not think that the provisions of section 135 j, which have just been read, can be retrospective with regard to entries which for the purpose of determining the rights of the parties were until after the year 1913 innocuous. the appellants' pleader has, therefore, successfully shown that the decree of the learned judge has been influenced materially by evidence or by a presumption which he ought not to have made. for these reasons we must remand the case to the learned judge directing him not to give effect to the presumption in section 135 j with regard to entries made prior to the operation of the amending act of 1913. if the entries in the record of bights.....
Judgment:

Basil Scott, Kt., C.J.

1. It appears from the judgment of the learned Joint Judge that he has presumed certain entries in the Record of Rights to be true. Those entries were made originally in 1905-06, and were repeated in 1912-13. The revenue years end on the 31st March. Therefore, the latter entry in the Record of Rights must be taken to have been made prior to the 31st March 1913. Bombay Act IV of 1913, which amended the Land Revenue Code, and superceded the original Record of Rights Act of 1903, enacted that a, new section 135 J should be added to the Land Revenue Code, providing that ' an entry in the Record of in the Register of mutations shall be presumed to be true until the contrary is proved or a new entry is lawfully substituted therefor.' That Amending Act did not receive the assent of the Governor General in Council until the 28th May 1913, which would be in the revenue year 1913-1914 subsequent to the year in which the last entry relied upon by the learned Judge was made. We do not think that the provisions of Section 135 J, which have just been read, can be retrospective with regard to entries which for the purpose of determining the rights of the parties were until after the year 1913 innocuous. The appellants' pleader has, therefore, successfully shown that the decree of the learned Judge has been influenced materially by evidence or by a presumption which he ought not to have made. For these reasons we must remand the case to the learned Judge directing him not to give effect to the presumption in Section 135 J with regard to entries made prior to the operation of the Amending Act of 1913. If the entries in the Record of Bights are still relied upon as of any probative value, the defendants should be allowed to give rebutting evidence with regard to the facts recorded therein, as the entries themselves appear to have been admitted at a very late stage. The learned Judge should consider the evidence already recorded, and such further evidence as may be given, in the light of the remarks in this judgment. We set aside the decree and remand the case for disposal to the lower Court. Costs costs in the cause.


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