Deoki Nandan, J.
1. This is a plaintiff's second appeal in a suit for permanent injunction restraining the defendants from making any constructions on a portion marked Ka, Kha, Ga and Gha in the plaint map of the land described as 'Talab' No. 676. situate in village Kalaka-pura. The trial Court dismissed the suit and the appellate court has on appeal confirmed the same.
2. The trial court framed seven issues in the suit. On the first issue which was to the effect whether Hari Lal Singh was the owner of the tank in suit, if so did he mortgage the tank in favour of Sheo Baran Singh, if so when; the trial court found that Hari Lal Singh was the owner of the tank in suit and that he mortgaged it in favour of Sheo Baran Singh before the year 1319 Fasli. On issue No. 2, it was found that the plaintiffs were not owners of the tank in suit. Issue No. 3 was answered by the trial court by saying that the defendants had failed to prove that their 'Dalan' existed at the site of the disputed constructions. Issue No. 4 was answered by saying that the plaintiffs having failed to prove their title, the suit was not maintainable. Under issue No. 5, it was held that the constructions in dispute being recent, the suit was not barred by time. On issue No. 6 the trial court had already held earlier, that the suit was not under-valued and the court-fee paid was sufficient. In view of the aforesaid findings, it was held on issue No. 7, that the plaintiffs were not entitled to any relief.
3. Before the lower appellate court only two points were raised for consideration; (1) Whether the plaintiff appellants were owners of the land in dispute and the suit was maintainable; and (2) whether the old 'Dalan' of the defendant respondents was situate at the site of the constructions in dispute and the suit was barred by time. The lower appellate court held that there was no evidence on record to indicate that the mortgage in question was made more than 60 years back and that it was never redeemed. According to the lower appellate court these two facts had to be proved by cogent and conclusive evidence but the plaintiff appellants had not produced any documents to indicate that the tank was ever recorded after 1323 F as having been mortgaged to Sheo Baran Singh or his heirs. The only evidence of entries in revenue records was of the entries of the year 1319 F and the entries in the Khasra of 1370 F which showed that the tank No. 676 belonged to Satya Narain Singh and others, namely, the plaintiff. The lower appellate court was not satisfied with this evidence as sufficient for inferring the continuance of the mortgage and criticised the oral testimony of Satya Narain Singh, one of the plaintiffs, on this point as very unsatisfactory with the following observations. 'In the examination in chief he stated that when he had seen the mortgage deed he had found that it was executed in 1282 F. In cross examination he, however, stated that in 1320 F when he saw the mortgage deed it was 60 years old. All this evidence shows that actually this man never saw the mortgage deed and he was playing on his own imagination.' 'With these observations the lower appellate court held that there is no satisfactory evidence on the record to indicate that the mortgage deed was 60 years old on the date of filing of the suit. From the evidence this alone appears that in 1319F the mortgage was in existence.' The lower appellate court finally held that 'it cannot therefore be said conclusively that the mortgage was 60 years old' or that the period of limitation for filing a suit for redemption has expired. It may be here observed that the suit was filed on February 18, 1964 which would be equivalent to 1371F. Satya Narain Singh has stated in his examination in chief:
'Hari Lal Singh Ne Mere Pita Sheo Baran Singh Ke Nam Rahennama likha tha. Rehennama Ko Aaj Say 80 Sal Hogaya. 1320 F Ke Bandobust Ke Samai Mainey Dastawaz Dekha tha. 1282 F ka Likha huwa tha. Wah Rehennamma 75/ka tha. Bisheshar Dayal Katib they. Ram Govind wa Amira Singh Dixit Gawah the. Katib wa Gawah Mar Gayey. Bahut Talash Karney par Bhi Dastawaz Nahi Mila'.
The first sentence of this cross-examination is that 'Jab Mainey Dastawaz Dekha wah 60 Sal Say Ziada Purana tha Uske-bad Phir Dastawaz Nahi Mila.'
4. To read the statement of Satya Narain in the manner in which the lower appellate court has read it is not fair to the witness. He did not say that he last saw the mortgage deed in the year 1320 F. He said in his examination-in-chief that he saw it during the settlement operations of 1320 F. He did not say that that was the last time he saw it. He had clearly stated that mortgage deed was of 1282 F. The witness was an old man of 75 years when he made the statement that he saw it in the Settlement of 1320 F and that it was of 1282 F, All that he stated in the cross-examination was that the mortgage deed was more than 60 years old when he saw It. Obviously either the witness was very poor in Arithmetic, or he was referring to some occasion other than the Settlement of 1320 F on which he saw the mortgage deed (which according to his statement in the examination-in-chief was of 1282 F), when he said in his statement in the cross-examination, that the mortgage deed was more than 60 years old at the time of his seeing it. The lower appellate court held it was not proved that the mortgage deed was 60 years old. The factum of mortgage was not doubted by the lower appellate court. It has taken it to be proved that the mortgage was In existence in the year 1319 F. The mortgage deed was lost.
Being a deed executed in or after 1282 F the earliest available entry of the mortgage would be of the Settlement of 1319-1320 F. Extracts of that entry were filed by the plaintiffs in support of their case. No evidence was led by the defendants in rebuttal to show that the mortgage was not 60 years old when the suit was filed and there is nothing to show that there was any documentary evidence other than that produced by the plaintiffs to prove the exact date of the mortgage, but the plaintiffs failed to produce the same. The entries in the revenue records between the years 1323 F to 1370 F would not have shown the year of the execution of the mortgage, and the fact that the tank in suit is entered in the revenue records of 1370 F as the property of the plaintiffs, only supports the plaintiffs' case that the mortgage was past the period of redemption. Be that as it may, the crucial finding on the basis of which the lower appellate court non-suited the plaintiffs runs as follows:
'It has now been argued before me that the appellants being the Zamindars became the owners of the tank after the death of Hari Lal Singh. I am, however, of the opinion that it in no way helps the appellants. Even if the appellants are zamindars, the tenancy rights of Hari Lal Singh came to an end and they became owners as Zamindars. The mortgage also, automatically came to an end because it appears to be the case of the appellants that Hari Lal left no heirs. This indicates that the mortgage has also lost all significance because the mortgagor died without leaving any heir. After the death of the tenant his tenancy rights came to, an end and the Zamindars must have got possession over the tank. In that case the mortgage also came to an end and the Zamindars got possession of the tank in their capacity as Zamindar. After the abolition of Zamindari the tank and all other tanks being the tanks of Zamindars vested in Gaon Samaj. In these circumstances I conclude that in any view of the matter the appellants were in possession of the tank as Zamindars. After the abolition of Zamindari the tank vested in Gaon Samaj, I, therefore, confirm the finding of the learned Munsif that the applicants are not the owners of the tank in suit and that they were not in possession as such.
5. Mr. Sankatha Rai, learned counsel for the plaintiff appellants has attacked the finding by saying that the plaintiffs never claimed the land of the tank by virtue of being zamindars. The case pleaded and sought to be proved by them clearly was that the land was a 'Talab' and had been mortgaged with them by Hari Lal Singh who was tenant in the village and was in cultivatory possession thereof. The defendant-respondents did not plead that the land had vested in the Gaon Samai nor did they plead that it was not land within the meaning of the definition of that term under the U. P. Zamindari Abolition and Land Reforms Act. They had pleaded that at the site of the land in dispute they had an old Dalan from the time of their ancestors and the present Dalan had been constructed by them at the same site and had always been in possession thereof and further that the plaintiff's suit was time barred on that account. The defendants' case was disbelieved by both the courts below. Mr. Sankatha Rai urged that it was not open to the court to set up a new case in favour of the Gaon Samaj.
6. Further, in support of his submission, Mr. Sankatha Rai urged that in view of the entry in the revenue records of 1370 Fasli it could not be urged that the plaintiff's right in the land in dispute, not as one of the intermediaries of the village, but as the tenure-holder of the land in suit had vested in the State. He urged that all Gaon Samaj land was recorded as such in the revenue records after the abolition of the Zamindari and if the Gaon Samaj or the State had any doubt or dispute about the entries in the records prepared by their own officers they would not have been slow to take action in the matter and allow the entry in the plaintiffs' favour to stand in 1370 Fasli which must be presumed to have been based on the past entries particularly the position in 1356-1359 Fasli. Now, there is a presumption in favour of the correctness of the entries. It can be displaced, but to do so requires evidence. There is nothing on the record to indicate that the entry in the plaintiff's favour in 1370 F was wrong. The defendant's oral contention to the contrary was disbelieved. The plaintiff's case was believed in all particulars except the date of the creation of the mortgage and although it was accepted by both the courts below that the mortgage must have been executed some time before 1319 Fasli, they refused to go a little further and to hold that it was executed before 1310 Fasli although the entry in 1370 Fasli in the plaintiff's favour does indicate that the mortgage must have been executed sometime before 1310 Fasli.
7. The plaintiffs never claimed that the land in suit belonged to them in their proprietary right as one of the zamindars of the village. There is no pleading or evidence to that effect. The assumption made by the two courts below in this respect was illegal. As to the plaintiff's claim of title in the land on the basis of the mortgage in favour of their predecessors in interest, I am constrained to observe that on this point also the finding of the two courts below that the plaintiffs have failed to prove the date when the mortgage was made is erroneous in law. The plaintiff's evidence on this point that the mortgage was of 1282 Fasli has wrongly been disbelieved on a misconstruction of the statement of Satya Narain Singh on oath. In the absence of any other pleading or proof before the Court, the positive case of the, plaintiffs duly proved by the statement on oath which is corroborated by the entries in the revenue records could not have in law been disbelieved in a suit of a civil nature. The burden of proof required in civil cases is not that the plaintiff must prove his case beyond any shadow of doubt. There was no evidence or material on the basis of which the statement of Satya Narain Singh that the mortgage was of 1282 Fasli could have been disbelieved. The observation and findings of the two courts below are wholly conjectural and are not based on any evidence, and that being so they are not binding in second appeal. I find that, the plaintiffs' case that the mortgage was of 1282 Fasli and was past the period of redemption before 1370 Fasli is true; and the defendants' case having been disbelieved, the plaintiffs were entitled to the decree for permanent injunction claimed by them in the suit.
8. In the result, the appeal succeeds and is allowed. The judgments and decrees of the two courts below are set aside. The plaintiffs' suit for a permanent injunction for demolition of thestructures raised by the defendants and for possession over plot No. 676 of village Kala Ka Pura is decreed. The defendants are restrained from interferingwith the plaintiff's possession over the land or from making any constructions on the land. The defendants shall have three months time within which they themselves shall remove their constructions and remove the Malba from the land in suit failing which the plaintiffs shall be entitled to have the constructions demolished through the process of Court at the defendants' cost and expense and to obtain possession over the land, the costs of demolition being recoverable from the value of the Malba which may for that purpose be sold by the court, the excess, if any, be paid over to the defendants and the deficiency, if any, be recoverable from them. The defendants shall pay the plaintiff's costs throughout.