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Waris Ali Khan Vs. Parshotham Narain - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad
Decided On
Judge
Reported in6Ind.Cas.609
AppellantWaris Ali Khan
RespondentParshotham Narain
Excerpt:
agra tenancy act (ii of 1901), section 291(3) - 'shall presume' moaning of presumption rebuttable, or irrebuttable--presumption--construction of statute. - - in this respect stress is laid on the fact that in sections 44 and 57 of the revenue act, iii of 1901, the legislature has laid down that the entries in the record-of-rights are to be presumed to be true until the contrary is proved, and in section 9 of the tenancy act it has been clearly laid down that certain entries made at the last revision of records shall be conclusive proof of certain facts. that the revenue court will be bound by clerical errors and by fictitious entries, such as, the entry of a hindu widow's name for consolation, and would have to give decrees to persons who clearly had no title at all. 709. the question.....tudball, j.1. this appeal arises out of a suit for profits brought by a recorded co-sharer under section 164 of the tenancy act against a lumbardar who is appellant before us.2. on second appeal to this court, the learned judge, before whom this case came, held that on the true construction of clause 3, section 201, of the agra tenancy act, a revenue court had no power to go behind the entry in the record-of-rights. in that view he remanded the case for trial of the remaining issues.3. it is urged before us that the learned judge is in error for the following reasons: first, because the words shall presume' in the above-mentioned clause must be held to mean 'shall presume until the contrary is proved' and the revenue court is, therefore, entitled to go into the point and decide whether or.....
Judgment:

Tudball, J.

1. This appeal arises out of a suit for profits brought by a recorded co-sharer under Section 164 of the Tenancy Act against a lumbardar who is appellant before us.

2. On second appeal to this Court, the learned Judge, before whom this case came, held that on the true construction of Clause 3, Section 201, of the Agra Tenancy Act, a Revenue Court had no power to go behind the entry in the record-of-rights. In that view he remanded the case for trial of the remaining issues.

3. It is urged before us that the learned Judge is in error for the following reasons: First, because the words shall presume' in the above-mentioned clause must be held to mean 'shall presume until the contrary is proved' and the Revenue Court is, therefore, entitled to go into the point and decide whether or not the plaintiff actually has title and an appeal will lie from its decision to the District Judge under Section 177(e) of the Act; secondly, that the Court ought not to read the word 'conclusively' into Clause (3); thirdly, that the same meaning should be given to the words shall presume' in this clause as is given to them in Section 4 of the Indian Evidence Act. In this respect stress is laid on the fact that in Sections 44 and 57 of the Revenue Act, III of 1901, the legislature has laid down that the entries in the record-of-rights are to be presumed to be true until the contrary is proved, and in Section 9 of the Tenancy Act it has been clearly laid down that certain entries made at the last revision of records shall be conclusive proof of certain facts. The argument is that if the legislature had intended the presumption mentioned in Section 201(3) to be conclusive, it would have plainly said so. It is further contended that if the Revenue Court cannot go behind the entry in the khewat, certain dire calamities will occur, namely, that there will be no appeal to the District Judge in suits the valuation of which is Rs. 100 or under; that the Revenue Court will be bound by clerical errors and by fictitious entries, such as, the entry of a Hindu widow's name for consolation, and would have to give decrees to persons who clearly had no title at all. The whole of the argument for the appellant amounts simply to this that Clause (3) of Section 201 merely shifts the burden of proof on to the shoulders of the defendant in a suit for profits when he contends that the plaintiff has no title, provided that the latter proves that he is the recorded owner of the share. On the other hand, the contention for the respondent is that in cases where the plaintiff is the recorded owner of the share which he claims, the Revenue Court cannot go behind that record but for the purposes of the suit must hold that he has title, leaving it to the defendant or some other interested party to go to the Civil Court to establish the fact that the plaintiff has not such title.

4. On the point before us, there has been a conflict of decisions in this Court. In Dilkuar v. Udai Ram 29 A. 148 : 4 A.L.J. 3 : A.W.N. (1906) 316, Knox, J., held that the Revenue Court was entitled to go behind the entry in the record-of-rights.

5. In Dhanka v. Umrao Singh A.W.N. (1907) 43 : 4 A.L.J. 166, Knox, J., adhered to this view but his learned colleague Richards, J., differed from him. On Letters Patent Appeal the view of Knox, J., was approved by the learned Chief Justice and Justice Sir William Burkitt, [Vide Dhanka v. Umrao Singh 30 A. 58 : A.W.N. (1907) 292.]

6. We have been referred on behalf of the appellant to the decisions reported in Inayat Ali. Khan v. Murad Ali Khan 27 A. 569 and Banwari v. Niadar 29 A. 158 : A.W.N. (1907) 5 : 4 A.L.J. 27, as opinions more or less in favour of his contention, but, in my opinion, they are not of any assistance in the matter. The opposite view was taken by Mr. Justice Karamat Husain in Har Prasad v. Syed Muhammad Bakar, Second Appeal No. 152 of 1907, and by Banerjee and Richards, JJ. in Bechan Singh v. Karan Singh 30 A. 447 : A.W.N. (1908) 186 : 5 A.L.J. 495 and in Niaz Ali Khan v. Gobind Ram 30 A. 450 (note) : A.W.N. (1908) 187 and again by Richards and Alston, JJ., in Mehrban Singh v. Umrai Singh 3 Ind. Cas. 709. The question for decision to my mind is what was the intention of the legislature as expressed by the language of the whole' of Clause (3) of Section 201. I lay emphasis on the word 'whole,' because, the learned Pleader for the appellant took these two words 'shall presume' entirely out of their context and argued as to their meaning contending that as the majority of presumptions are rebuttable (a few only being irrebuttable where the law distinctly says so), that set forth in Clause (3) of Section 201 must also be deemed to be rebuttable even in the Revenue Court. This method of arriving at the intention of the legislature is, in my opinion, utterly incorrect. The language of the whole section must receive due consideration and also other portions of the Act which bear upon the subject or throw any light upon it. Excepting those instances in which the legislature has deemed fit to empower a Revenue Court to decide questions of title, that Court has no jurisdiction in such matters. Under Section 199 of the Tenancy Act in suits and applications filed against a person alleged to be the plaintiff's tenant and in which the defendant pleads proprietary title in himself, the Revenue Court has power either to refer the defendant to a suit in the Civil Court (to be instituted within three months) for the determination of the question of title, or to determine such question of title itself. In the latter case it has been held, in Beni Pande v. Raja Kausal Kishor Parshad Mal Bahadur (9), and in other cases that such decision of the Revenue Court will operate as res judicata in respect of a subsequent suit in a Civil Court for determination of the same question.

7. In the case of suits under Chapter XII, that is, suits between co-sharers in the zamindari, the legislature has divided them into two classes; first, those in which the plaintiff is not recorded as having proprietary right entitling him to sue, and, secondly, those in which the plaintiff is recorded as having such proprietary right. In the former case, it orders the Court to proceed mutatis mutandis as directed in Section 199, that is, it gives the Revenue Court power to go into and decide the question of title if it deems fit so to do. I take it such a decision, for the reasons given in the above-mentioned case. Beni Pande v. Raja Kausal Kishor Parshad Mal Bahadur 29 A. 160 : 4 A.L.J. 53 : A.W.N. (1907), 6, would operate as res judicata in respect of a subsequent suit in a Civil Court for determination of the same question. The object of the legislature in giving these powers to the Revenue Court was to avoid the multiplicity of suits which used to occur under the Rent Act of 1831. But in the latter case, that is, where the plaintiff is recorded as having such proprietary right, the legislature has not deemed it necessary or fit to give the Revenue Court the power to proceed mutatis mutandis as directed in Section 199. On the contrary, it has enacted Clause (3) of Section 201 wherein it has laid down that if the plaintiff is recorded as having such proprietary right, the Court shall presume that he has it, but nothing in this sub-section shall affect the right of any person' to establish by suit in the Civil Court that the plaintiff' has not such proprietary right. The plain meaning of this Sub-section (3) seems to my mind to be that the Revenue Court itself shall not go into the question of title, that it shall take it for granted, for the purposes of the suit before it, that the plaintiff has title, leaving it to any person interested in disputing that title to go to the Civil Court and establish the contrary. This provision in Clause (3) is obviously in contradistinction of Clauses (1) and (2) of the section. In the latter, where the plaintiff is not recorded, the Revenue Court may go behind the record into the question of title and pass a decision which is final and binding on the parties. If the law allowed it, the same Court would be equally capable of deciding finally the question of title where the plaintiff's name is recorded in the khewat. The mere entry of the name in the khewat does not injuriously affect the intelligence and legal knowledge of an Assistant Collector and it is difficult to understand why, if the legislature intended that the Revenue Court should be able to go behind the entry in this case, it should not have allowed it to pass an equally final and binding decision. It obviously had some reason for not giving the Revenue Court's decision the finality which is secured by Clause (1) of the section and that reason was clearly that it did not intend the Court to go behind the record in the khewat, leaving the question of title to be decided by a separate suit in the Civil Court. The suit contemplated in the proviso to Clause (3) is one to be brought against the plaintiff.' If the Revenue Court could go behind the khewat in the case contemplated in this clause, its decision could not be final and binding on either party, because, the legislature has not empowered it to pass such a decision. On the contrary it has enacted the proviso to Clause (3) allowing a Civil suit to be brought against the plaintiff. It seems to me absurd that the same Court in the one set of conditions should be able to pass a final and binding decision but not be able to do so in the other set of conditions. To allow the plaintiff and defendant to challenge Revenue Courts' decisions in the Civil Courts would be an unnecessary multiplication of litigation, which the framers of the Act clearly desired to prevent. On the other hand, one can understand why the legislature allowed the defendant to go to the Civil Court when it directed the Revenue Court not to go behind the khewat. In one case it has allowed the plaintiff to demonstrate the errors of the khewat in the Revenue Court. In the other case it has allowed the defendant an opportunity of demonstrating the error but in the Civil Court, and not in the Revenue Court. It is unnecessary for me to discuss the motive which caused the legislature to adopt a different course in the latter case, though it is easily intelligible to one who has had to deal with the corrections and maintenance of Revenue records.

8. It is argued that even where the plaintiff loses, after a full trial on evidence under Clause (3), he may bring a Civil suit and raise the question again, because, the Revenue Court's decision is not final and binding. This would clearly be an unnecessary multiplication of suits, as I. have already pointed out.

9. It is next urged that if the presumption is conclusive, so far as the Revenue Court is concerned, that Court might have to pass a decree which it 'knew' to be wrong. It is difficult to see how a Court could know its decision fo be wrong, when it could not take evidence to rebut the presumption. It could only know its decision to be wrong if it took into consideration facts not in evidence before it, which it is for bidden by law to do.

10. It is further contended that the words shall presume' bear the same meaning as they bear under Section 4 of the Indian Evidence Act. and that there is no grave reason for interpreting these words as equivalent to 'shall conclusively presume.' In the first place, the meaning of 'shall presume' in the Evidence Act is given fo those words for the purposes of that Act alone. In the Revenue Act, III of 1901, Sections 44, 57 and 84, whenever the words ' shall presume' are used the legislature added the words 'until the contrary is proved.' The same is the case in Section 168 of the Tenancy Act. It is rather significant that in Section 201(3) these words were not added but that a proviso was added, showing that the defendant or any interested parly could go to the Civil Court and rebut the presumption ordered by the clause to be made in favour of the plaintiff. One cannot, also lose sight of the fact that the Evidence Act and the Tenancy Act were passed by two distinct and separate legislative bodies. No doubt in Section 9 of the Tenancy Act. it has laid down that certain entries as to permanent and fixed-rate tenures are conclusive proof but these entries are conclusive proof for all Courts, and not for the Revenue Courts alone.

11. Furthermore, if to the words 'shall presume' must be added the words 'until the contrary is proved,' the whole of Clause (3) is mere surplusage, for that presumption already exists by reason of Sections 44 and 57 of the Revenue Act, III of 1901. The wording of the proviso shows that the legislature contemplated the defendant or some other interested party, other than the plaintiff, going to the Civil Court to establish that the plaintiff has not the right. It clearly did not contemplate the plaintiff going to that Court to upset the Revenue Court's decision. But if the Court can go info the question and either party can subsequently go to the Civil Court to litigate the matter there afresh, it surely was absurd to inform only the defendant and persons other than the plaintiff that; they might resort to that Court. The proviso would surely have enabled all parties to go to the Civil Court, granting that 'shall presume' ordinarily has the meaning ascribed fo it in the Evidence Act. The context, the scope and the policy of the Act show clearly to me that in the present case they are qualified by the proviso.

12. As to the dire calamities, which have been held up as the probable and possible results of holding that the Revenue Court is bound by the khewat, all that it is necessary to say is that we are not concerned with them. They are matters for the consideration of the legislature; we are concerned only with the intention of the latter as shown by the plain language of the section and reading Clause (3) of Section 201 as a whole, there is no doubt in my mind that the intention was that the Revenue Court should not go behind the entry in the khewat.

13. As for clerical errors in the record, they can be amended at any time by the Collector, and presumably the Revenue Court trying the suit would allow a reasonable adjournment to enable the defendant to get the clerical error amended before it tried the suit; and if by that amendment the plaintiff's name were removed from the khewat, the suit would fall under Clause (1) of Section 201, and the Revenue Court could then go into the question of title. To allow the defendant to secure from the Collector an amendment of the khewat, under powers granted to him by the Revenue Act, cannot in any way amount to the Court, seized of the suit, going behind the khewat. This to me appears to be a somewhat far fetched contention.

14. As for the Hindu widow whose name is recorded for consolation, the Revenue authorities, I am sure, want none of her. They seek to secure the absolute correctness of the Revenue records. Orders for. mutation are based primarily on actual possession. If a Hindu widow were to ask a Revenue Court, acting under the Revenue Act, to record her name, openly admitting that she had no title and no possession, that Court, I take it, would rightly refuse her request. Those, who have her name recorded for consolation, usually do not openly state the true facts, and if they are privy to a wrong entry being made, the fault is theirs and they must take the consequence. It is open, moreover, to any co-sharer or lamburdar to call attention to the errors in the khewal and to secure amendments there-of, and the legislature has attempted to force persons having' title and possession to bring-about the recording of their names in the record. [Vide Section 34(5) of the Revenue Act] One of the chief objects of the Revenue Act is to secure accurate and full records of all rights in lands from which the Government draws so great a portion of its revenue. It is unnecessary for me to labour the question any more. There are other good grounds for holding the view which I take. They are to be found in the well-reasoned judgments of Banerji and Richards, JJ., in Bechan Singh v. Karan Singh 30 A. 447 : A.W.N. (1908) 186 : 5 A.L.J. 495 and I need not repeat them but i must point out that Banerji, J., has explained that the present question was hot discussed or argued in the case of Banwari v. Niadar 29 A. 158 : A.W.N. (1907) 5 : 4 A.L.J. 27, and moreover in that case the learned Judges do not express any opinion as to the Court in which the presumption may be rebutted. The decision therein is clearly not an opinion in favour of the opposite view.

15. I regret having to differ from my learned colleagues but it seems to me clear that the presumption mentioned in Clause (3) of Section 201 is one which is rebuttable only in a Civil Court and not in a Revenue Court. I would, therefore, dismiss the appeal.

John Stanley, C.J.

16. I am unable to agree in the judgment which has just been pronounced. The suit was one for a share of profits under Section 164 of the Agra Tenancy Act. The defendant traversed the title of the plaintiff and an issue was framed upon this plea. The Assistant Collector came to the conclusion upon the evidence that the plaintiff had no title and, therefore, dismissed his suit. Upon appeal the learned District Judge confirmed the decision of the Assistant Collector finding that the plaintiff had no title to the property in respect of which he claimed a share of the profits.

17. A second appeal was preferred and the claim was decreed on the ground that the Revenue Court had no power to go into the merits of the case but was bound to accept the fact that the plaintiff was a recorded sharer as conclusive proof establishing his title.

18. This appeal under the Letters Patent was then preferred, and owing to the difference of opinion amongst the Judges as to the true meaning of Section 201 of the Agra Tenancy Act, a Full Bench was nominated by me to try the appeal.

19. The question has assumed importance only from the fact that there are conflicting decisions of the High Court upon it. It is a matter, as it appears to me, of no great importance whether or not the presumption in the section is deemed to be a conclusive and irrebuttable presumption.

20. Section 164 gives the right of suit to a' co-sharer and Section 221 provides the procedure which the Revenue Court is to adopt in dealing with suits under Chapter XI (in which Chapter Section 164 falls). Section 201 divides plaintiff's claiming a share of profits into two classes. First, those who are not recorded as having proprietary rights entitlingthem to institute a suit; and, secondly, plaintiffs who are recorded as having such proprietary rights. In the case of the first class, the Court is empowered either to try the suit itself or to refer it to a Civil Court for trial; but in cases in which the plaintiffs are the recorded owners, the Revenue Court is the Court to hear and determine the suit.

21. The contention on behalf of the respondent is that if a plaintiff is recorded as a co-sharer, the Revenue Court must on proof of this pass a decree in his favour and is not entitled to admit any rebutting evidence to show that the plaintiff has not any proprietary right. Now in the first place, I may observe that if the legislature intended that the presumption should be irrebuttable or conclusive nothing would have been simpler than to express its intention by inserting between the word 'shall' and the word presume' the word 'conclusively'. In Section 9 of the Act we find, where proof is to be deeme conclusive, that the legislature uses the words 'conclusive proof.' The word presume' is well-known among lawyers. A presumption is a logical assumption that a thing is true until disproved. We have different kinds of presumptions defined in the Evidence Act, the definition as given is by the words of the Act confined to the Act itself, but the Evidence Act is an Act of general application; it is a codification of the laws of evidence intended to guide Courts and, no doubt, the framers of the Rent Act were fully aware of the meaning attributed by it to the word 'presume'. Section 4 of the Evidence Act runs as follows: 'Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it. Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved. When one fact is declared by this Act, to be conclusive proof of another, the Court shall, on proof of the onefact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it.' This is not a definition contained in an Act merely but it is the ordinary definition attributed to the word 'presume' by lawyers and text-writers. Now in the words of Lord Esher: 'if the words of an Act are clear, you must follow them even though they lead to a manifest absurdity' [The Queen v. Judge of City of London Court (1892) 1 Q.B. 290]. Lord Brougham on the same subject in Crawford v. Spooner 4 M.I.A. 179 thus observes: 'We cannot fish out what possibly may have been the intention of the legislature. We cannot aid the legislature's defective phrasing of the statute; we cannot add, and mend, and by construction, make up deficiencies which are left there. If the legislature did intend that which it has not expressed clearly; much more, if the legislature intended something very different; if the legislature intended something pretty nearly the opposite of what is said, it is not for Judges to invent something which they do not meet with in the words of the text (aiding their construction of the text always, of course, by the context); it is not for them so to supply a meaning, for, in reality, it would be supplying it: the true way in these cases is, to take the words as the legislature have given them, and to take the meaning which the words given naturally imply, unless where the construction of those words is, either by the preamble or by the context of the words in question, controlled or altered; and, therefore, if any other meaning was intended than that which the words purport plainly to import, then let another Act supply that meaning, and supply the defect in the previous Act.'

22. We have then to see whether the natural construction of the words 'shall presume' is by the context controlled or altered and whether or not any other meaning is intended than that which the words purport clearly to import. The argument on behalf of the respondent is that the latter portion of the sub-section in which these words appear so qualifies them as in effect to render necessary the interpolation of the word conclusively' so that the sub-section will run as follows:'if the plaintiff is recorded as having such proprietary right the Court shall conclusively presume that he has it.' The words following are as follows:'But nothing in this sub-section shall affect the right of any person to establish by suit in the Civil Court that the plaintiff has not such proprietary right.' A right to bring a suit in the Revenue Court for a share of profits by a co-sharer is, as I have said, given by Section 164 of the Act which is included in Chapter XI; Section 201 provides for the procedure to be adopted in suits under that Chapter. It deals, as I have said, with cases, in which the plaintiff is not recorded as having the proprietary right entitling him to institute the suit and the defendant pleads that he has not such proprietary right and cases in which the plaintiff is recorded as having such proprietary right. In the first mentioned class of cases, the procedure is laid down in Section 199 and enables the Court either to require the defendant to institute a suit in the Civil Court for determination of the question of title, or determine the question of title itself. In the case of a suit by a plaintiff, who is recorded as proprietor, the option is not given to the Court of requiring the institution of a suit in the Civil Court. The Court is in this case bound to try the suit itself. No reasons are assigned by the legislature for giving the Court power in the one case to have the suit heard in the Civil Court and not in the other. But if it is open to me to suggest a reason, it may be that the legislature considered that when a plaintiff is the recorded proprietor, the Court, which has the control of the record, title and the registers, is in a better position to investigate the claim of a person who is recorded than the Civil Court. All changes or transactions affecting the register, prescribed by Section 32 of the Land Revenue Act of 1901, are necessarily made by the Revenue officers.

23. The ground on which it is contended that the record is conclusive proof in the case of a recorded proprietor, is based, as I have said, solely on the proviso to the sub-section. This sub-section appears to me in no way to countenance such a drastic construction of the word 'presume.' It appears to me that the legislature having declared that there should be a presumption in favour of the recorded proprietor, introduced the proviso so that it should be clearly understood that the presumption should not, in any way, affect the right of any person to establish by suit in a Civil Court that the plaintiff has not the proprietary right which he claims; the sub-section is merely in a paraphrased form a repetition of Sections 44 and 57 of the Revenue Act, an A ct which was passed at the same time as the Rent Act. Section 57 of that Act provides that 'All entries in the reeord-of-rights, prepared in accordance with the provisions of this Chapter, shall be presumed to be true until the contrary is proved but no such entry shall affect the right of any person to claim and establish in the Civil Court any interest in land which requires to be recorded in the registers, prescribed by Clauses (a) to (d) of Section 32'. The wording of this sectionis practically the same as that of Section 44. Under the Revenue Act, entries in the record-of-right are prima facie evidence and it seems to me that the legislature in enacting Sub-section 3 of Section 201 merely accepted the presumption directed to be applied in the Revenue Act.

24. But it is said that in view of the provisions, to which I have referred, of the Revenue Act if this be the true construction of Sub-section 3 of Section 201 of the Rent Act, this last mentioned section is superfluous. This argument seems to me to have no force. The one Act deals with the law relating to land revenue, the other deals with the law relating to agricultural matters. It was obviously desirable to provide for the presumption in question in Section 261 so that the Act should be self-contained and there should bv no necessity to have recourse to the Revenue Act for the purpose of discovering the rule of presumption therein prescribed. The language of the proviso in Sections 44 and 57 of the Revenue Act is practically the same as that of the proviso to Sub-section (3) of Section 201 of the Rent Act.

25. It is further said that unless the expression 'shall presume' is interpreted as shall irrebuttably or conclusively presume' and the suit is decided against the recorded proprietor, no appeal is given to him by the proviso but I am unable to attach any weight to this as the proviso patently was, in my opinion, only meant to apply to a case in which the plaintiff is successful in his suit by force of the presumption created in his favour. If he is defeated in his suit, he has the right of appeal which is given by Section 177. It will be observed too that the proviso does not apply merely to the defendant but is, as I have said, quite general. It merely aims at safeguarding the interest of any person who may have title to the property.

26. The same observation is applicable also to Sections 44 and Section 57 of the Revenue Act. The presumption thereby created is created without prejudice to the right of any person to establish his title in the Civil Court. It seems to me that it would be doing violence to the language of the sub-section to interpret the expressions shall presume' as meaning 'shall conclusively presume.' If such a construction were accepted, the Revenue Court would, in the case of suits by a recorded proprietor for a share of profits, be deprived of its judicial functions and be only so much machinery for recording decrees without investigating the merits of the case. On production of the record showing the plaintiff to be a proprietor, it would be bound to pass a decree in his favour and this too notwithstanding the fact that entries in the annual registers are hereby presumed to be true until disproved. It may be, to take examples, that a person may have fraudulently or wrongfully procured the entry of his name as proprietor, or a name may have been wrongly inserted by mistake and yet a person so recorded would be entitled to a decree for a share of profits and the Court would be powerless to enquire into and examine as to the true state of facts. Then if such a recorded co-sharer did so obtain a decree for profits, the Civil Court could not interfere with the decree inasmuch as the right to sue for profits is within the exclusive jurisdiction of the Revenue Court. No doubt, any person aggrieved by such a decree can sue in the Civil Court and obtain a declaration of his title but there is no provision whereby the Civil Court can reverse the decision of the Revenue Court in a suit for profits. It is difficult to discover any good reason why the legislature should withhold from the Revenue Court the power of deciding on its merits a suit in which the plaintiff is recorded as proprietor, while it confers the power of doing so when the plaintiff is not a recorded proprietor.

27. I now desire to refer to the authorities bearing upon this question. The first case upon the subject came before my brother Knox in Dil Kuar v. Udai Ram 29 A. 148 : 4 A.L.J. 3 : A.W.N. (1906) 316. In that case he held that the presumption enjoined by Clause (3) of Section 201 of the Agra Tenancy Act, is not conclusive even in a Revenue Court, hut may be rebutted, as for instance, by evidence showing that the plaintiff had not been in possession of the property in respect of which profits are claimed for more than 12 years before suit ; and the defendants have openly denied the plaintiff's title for more than that period, In that case my brother Knox gives his reasons for accepting this view. He refered to the case of Niaz Alt Khan v. Gobind Ram 30 A. 450, which was at that time unreported and which was evidently cited in argument and observed of the decision in it as follows:I takethe decision of the Court to go no further than to say that the lower appellate Court was right in presuming upon the record that the plaintiff had a proprietary right. In other words, the fact was recorded as proved, because it had not been disproved.' The judgment in question is reported in a foot-note to the case of Bechan Singh v. Karan Singh 30 A. 447 : A.W.N. (1908) 186 : 5 A.L.J. 495. I shall quote it in extenso. 'This was a suit for profits by a person who is recorded as having the proprietary right entitling him to claim profits. Under Sub-section (3) of Section 201 of the Tenancy Act of 1901, the Court shall presume that such a person has a proprietary right. The defendant is competent to sue in a Civil Court under the proviso to that sub-section to establish that the plaintiff has not the proprietary right claimed by him. The Court below was, therefore, right in remanding the case to the Court of first instance, and we dismiss this appeal with costs.' It will be observed from a perusal of this judgment that the Court did not define the meaning of 'shall presume,'

28. The next case is that of Dhanka v. Umrao Singh A.W.N. (1907) 43 : 4 A.L.J. 166. In that case my brother Richards, dissenting from the view of my brother Knox, held that a Revenue Court is bound to act upon the presumption created by Clause (3) of Section 201, subject only to the result of a suit in a Civil Court, An appeal under the Letters Patent was preferred against the decision of the senior Judge in this case and it came before my late colleague Sir William Burkitt and myself. We considered carefully the question as also the judgments of the learned Judges who differed on it and came to the conclusion that the presumption enjoined by Section 201 is not conclusive or irrebuttable.

29. The consideration of Section 201 came before my brothers Banerji and Aikman, JJ., in the case of Bunwari Lal v. Niadar 29 A. 158 : A.W.N. (1907) 5 : 4 A.L.J. 27. In that case the plaintiffs, who were recorded co-sharers, sued another co-sharer for profits. The defendant pleaded that the plaintiffs or their predecessors-in-title had not received profits within 12 years preceding the institution of the suit, and that the suit was time-barred. It was held that it was not for the plaintiffs to prove by evidence of receipt of profits within 12 years that the right subsisted, and that Section 201 of the Agra Tenancy Act raised a presumption in their favour. The learned Judges in their judgment say: We gatherfrom the record that the plaintiffs are recorded co-sharers. Consequently the presumption referred to in the section arises in their favour, and it was not for them to prove, by evidence of receipt of profits within 12 years, that the right subsisted. It was for the defendant to rebut the presumption which the law raised in the plaintiffs' favour.' If the presumption was irrebuttable, it is obvious that the language here used is erroneous and misleading. Up to this date then we have the decisions of Knox and Burkitt, JJ., and myself supported by the views of Banerji and Aikman, JJ., expressed in the case to which I have just referred, in favour of the view that the presumption enjoined by Section 201 is not conclusive and as against these we have the dissenting opinion of my brother Richards.

30. The matter, however, was not allowed to rest here. The point came up before my brothers Banerji and Richards in the case of Bechan Singh v. Karan Singh 30 A. 447 : A.W.N. (1908) 186 : 5 A.L.J. 495. They dissented from the decision in Dilkuar v. Udai Ram 29 A. 148 : 4 A.L.J. 3 : A.W.N. (1906) 316, Banerjee, J., referring to the judgment, delivered by himself and Aikman, J, in Banwari Lal v. Niadar 29 A. 158 : A.W.N. (1907) 5 : 4 A.L.J. 27, observed in regard to the words; 'It was for the defendant to rebut the presumption the law raised in the plaintiff's favour' that this was an obiter dictum and he further said: However, it was erroneous.' The appeal of Gobind v. Saheb Ram 31 A. 257 : 6 A.L.J. 138 : 1 Ind. Cas. 885 was laid before Knox, Aikman and Griffin, JJ., with a view to having a final decision on the question. What is the meaning in the section of the words 'shall presume' was not decided but the effect of the judgment in that case is, in my opinion, to conclude the question before us. In that case, the plaintiff had obtained in 1901 certain shares in immovable property under a decree from the Munsif of Hathras. She applied for entry of her name in the revenue papers but owing to some error her name was recorded in respect of a larger share than she had obtained tinder the decree. She sued the defendants for profits calculated on the share as entered in the revenue papers. The defendants pleaded that the plaintiff was only entitled to profits in proportion to the share decreed in her favour and not as entered in the khewat. The Court of first instance decreed the claim for profits in her favour in proportion to her recorded share. The lower appellate Court modified the decree holding that the plaintiff was entitled to profits proportionate to the share she had got under the Civil Court decree. The plaintiffs then appealed to the High Court and it was held that when a Civil Court of competent jurisdiction has decided a claim to property, and this has been followed by a wrong entry in the revenue papers, in a subsequent suit for profits the claim must be in proportion to the share obtained under the Civil Court decree notwithstanding the presumption enjoined by Section 201 of the Agra Tenancy Act.

31. In Bhawani Singh v. Dilawar Khan 31 A. 253 : 6 A.L.J. 145 : 1 Ind. Cas. 886, a like question was similarly decided by the same Bench. The Judges who decided these cases did not think it necessary to interpret the words ' shall presume' in the sub-section but they held that the presumption enjoined by it was rebuttable by proof of a Civil Court decree inconsistent with it. Now it appeals to me that if the presumption enjoined in Section 201 is an irrebuttable presumption, it would not be open to the Revenue Court to allow evidence to be given even of a decree by the Civil Court so as to rebut the presumption. If it is open to the Revenue Court to admit a decree in evidence as proof of title and to rebut the plaintiff's claim, the presumption cannot be deemed to be irrebuttable. If a decree is admitted in evidence, there must necessarily also be evidence as to the indentity of the parties to it. This is wholly inconsistent with the motive that the words 'shall presume' mean shall conclusively presume.' The decision of the Full Bench in the cases, to which I have lastly referred, logically, 1 think, establishes that the presumption is not a conclusiveor irrebuttable presumption. Otherwise we shall be introducing into our legal vocabulary a hybrid presumption, a presumption which will be rebut table by proof of a decree of a Civil Court inconsistent with it but otherwise will be irrebuttable. The argument of Mr. Surendra Nath Sen was precise, clear and cogent and it carried to my mind conviction. I am still of opinion that the earlier decisions, to which I have referred, are correct and I would, therefore, allow this appeal.

Griffin, J.

32. I have little to add to what has fallen from the learned Chief Justice. The Agra Tenancy Act contains no definition of the expression 'shall presume.' The words should be understood in the sense they are defined in the Evidence Act and as they are ordinarily understood. By doing so, we shall give to the entries in the record-of-rights the probative value assigned to them by Sections 44 and 57 of the Revenue Act. With the words 'shall presume' so understood, the effect of Section 201 of the Tenancy Act is to cast on the defendant the burden of disproving the plaintiff's title when the latter produces an entry in the Revenue records as evidence of his title. If the defendant adduces evidence but fails to satisfy the Revenue Court that the plaintiff has no title, then under the proviso immediately following, the defendant or any other person is entitled to go to the Civil Court and ask for a declaration that the plaintiff has no title. The first clause of Section 201 provides that the Revenue Court may inquire into a question of title in a case where the plaintiff is not recorded as having a proprietary right entitling him to institute the suit under Chapter II of the Tenancy Act. Clause (3) is silent on this point. It is, therefore, contended that the Revenue Court has no jurisdiction to enquire into disputes when the plaintiff is recorded as having title. This argument, in my opinion, beg the question. If the words 'shall presume' are understood, as defined in the Evidence Act; it necessarily follows that the Court has power to decide upon evidence produced before it the question whether the plaintiff has or has not the title recorded in the revenue papers. The interpretation, I would put on Section 201, is intelligible in itself and is not repugnant to the context or to common sense. This being the case a Court of law should not, in my opinion, go further and speculate as to the intention of the legislature, or seek for another interpretation in the light of administrative expediency. I would, therefore, concur in the order proposed by the learned Chief Justice.

32. The order of the Court is that the appeal be allowed, the decree of the learned Judge of this Court set aside, and the decree of the lower appellate Court restored with costs in all Courts, save and except the costs of this appeal. The parties in view of the conflict of authority will abide their own costs of this appeal.


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