Anantakrishna Ayyar, J.
1. In this case the plaintiff is the appellant before me. He instituted the original suit to recover possession of three acres and odd of land alleged to be included in his holding as a ryot under the defendant, the Maharajah of Pithapuram. His case is that the defendant encroached upon the suit three acres and odd, which were in the plaintiff's possession, for the purpose of constructing bungalows for the estate officials. The plaintiff alleged that the defendant promised to give him about 14 acres of another land called Bangaru Doddi but that the defendant did not do so, and consequently the present suit was instituted within 12 years from the date of trespass by the defendant. The plea of the defendant was that the plaintiff relinquished the suit lands in his favour and that in consideration thereof he (the defendant) gave the plaintiff an equal extent out of Bangaru Doddi land to be held as ryoti land and also agreed to give the plaintiff the remaining ten acres of Bangaru Doddi land as ordinary tenant to be in possession for the time being as the Maharajah's tenant, and that really there was an exchange between the plaintiff and the defendant, the plaintiff getting three acres of the Bangaru Doddi land and the defendant getting the three acres in suit out of the ryoti land in the possession of the plaintiff. The defendant also raised the plea that very costly buildings said to be worth about a lakh of rupees have been raised on the property in suit, and it was because the plaintiff was evicted by a decree of Court in connexion with the ten acres of Bangaru Doddi land of which he was given possession as ordinary tenant that the present suit was instituted by him to spite the defendant. The first three issues raised in the suit were as follows:
1. Whether the plaintiff has relinquished the suit holding as alleged?
2. Whether the plaintiff is estopped from denying the defendant's title?
3. Whether the defendant acquired a valid and binding title in the suit land?
2. The District Munsif held that the defendant's case was not proved, but having regard to the fact that the defendant had put up costly buildings on the plaintiff's site and the plaintiff was aware of that and allowed the construction to proceed, the equities of the case could be best worked out by directing the defendant to pay the plaintiff a sum of Rs. 1,590. Accordingly, he gave the plaintiff a decree for that amount, and dismissed his suit for possession of the land. Before I leave the Munsif's judgment, I think it proper to remark that though the above three issues were framed in the case and though a lot of evidence was adduced, the District Munsif disposed of the three issues in a single paragraph-para. 6-without discussing the evidence. After writing a few sentences, the District Munsif ends the paragraph as follows: 'I find the first three issues against defendant.' The judgment is very unsatisfactory. The District Munsif ought to have discussed the evidence in respect of each issue and recorded his finding thereon.
3. As could be expected, neither party was satisfied with such a decree. The defendant preferred an appeal against the decree directing him to pay Rs, 1,590 to the plaintiff. The plaintiff was not satisfied with the money; he wanted his land. So there was an appeal by the defendant and a memorandum of objections filed by the plaintiff. The learned Subordinate Judge framed the first point for decision before him as follows:
Whether the exchange relied on by the defendant (appellant) is true, valid and binding in law
4. He came to the conclusion that there was an exchange of the suit land for the three acres and odd of Bangaru Doddi land. Having found that there was this exchange, he came to the conclusion that the plaintiff had no title to the suit land and reversed the decision of the first Court and dismissed the suit.
5. In this second appeal preferred by the plaintiff, his learned advocate first complained that the lower appellate Court was not right in discussing this question of exchange. He pointed out that issue 1 raised in the case is whether there was any relinquishment and not whether there was any exchange. With reference to this point, there is the written statement of the defendant printed at p. 1 of the pleadings-para. 4 of which says:
What is known as Bangaru Doddi is acres 13-76 in extent. As the plaintiff wanted that he should be given another land separately inasmuch as he lost the land taken up for bungalows, the plaintiff was permanently given acres 3-18 of land out of Bangaru Doddi with a cist of Rs. 47 and odd. Pattas and muchilikas were exchanged in the said manner between the plaintiff and the defendants.
6. The substance of that plea is that the plaintiff gave the Maharajah three and odd acres of the suit ryoti land and the Maharajah gave plaintiff 3 and odd acres of the Bangaru Doddi land. In substance it is exchange. Though the word does not appear in the written statement, I think there can be little doubt that was what the parties understood. Even in the judgment of the learned District Munsif in para. 6 I have already adverted to, the first sentence is this:
The exchange and surrender are not evidenced by any registered document.
7. Therefore I consider that the plea raised by the learned advocate for the appellant, namely, that no question of exchange was really raised but only a question of relinquishment, is not substantially correct.
8. Further, even if it is a question of relinquishment at does not really matter. The case of the plaintiff is that the suit land was his ryoti land, and it is therefore open to him to relinquish any portion of the ryoti land in favour of his landholder, the defendant. Such an arrangement does not require to be evidenced by any writing; much less does it require registration for its validity. That being so, the fact that the word ''exchange' was not used in the written statement does not really work to the prejudice of the defendant in this particular case.
9. On the merits, I think the circumstances mentioned by the lower appellate Court are very strong and I do not see any grounds on which I can interfere. In the first place, it points out that in the old muchilikas executed by the plaintiff the extent of the land held by the plaintiff in the suit locality is mentioned by him as 45 acres and odd. After this exchange or relinquishment of 1909, the subsequent muchilikas executed by the plaintiff mention the extent of his land as 41 acres and odd, the difference being accounted for by three acres and odd having been delivered over to the Maharajah, the Maharajah giving the plaintiff in exchange patta in respect of three acres and odd of the Bangaru Doddi land. The plaintiff executed a mortgage in respect of his other lands situated near the suit land. In that he specifically refers to the remaining land (mentioning the extent in his possession after deducting the three and odd acres taken by the zamindar for the purpose of building bungalows). Finally in his deposition also he admitted that when he was given pattas for the land, ordinary seri pattah was given in respect of the three acres and odd of Bangaru Doddi land and ordinary pattah as given to an ordinary tenant, and not pattah as given to a ryot, was given in respect of the remaining land. It is unnecessary for me to go into the details or into the reasons given by the lower appellate Court for upholding the defendant's contention. There is plenty of evidence on which the Subordinate Judge could have come to the conclusion he has come to and I think that his conclusion on the merits of the case must be accepted by me.
10. The further point that was raised by the learned advocate for the appellant was that if it is a case of exchange, the theory of the doctrine of part performance could not be invoked in the absence of some writing, though there need not be any writing registered. However, he himself quite properly admitted that according to the decisions of this Court, such writing is not a necessary preliminary condition before the doctrine of part performance could be invoked. That being so, I am bound by those decisions and the absence of any writing in connexion with this exchange is not a valid objection.
11. The last argument raised by the learned advocate for the appellant was this. There is the provision of the Estates Land Act, Chap. 11, under which entries in Record-of-Rights prepared under the Act are conclusive and final unless suits be filed within the time limited by the provisions of the Act. The facts necessary to appreciate this argument are these. The exchange or the relinquishment in question in the present case took place in 1909 or in 1910. It is admitted that there was a Record-of-Rights prepared in connexion with this village of the defendant zamindar, and that the plaintiff is recorded as a ryot in respect of the suit three acres also along with the other 41 acres which he has got in this suit locality. It was therefore argued that the Record-of-Rights is final and the entries therein could not be called in question unless a suit had been filed within the time specified in Sections 173 and 179 of the Act. I called upon the learned Advocate General to answer the appellant's case only with reference to this argument based upon the Record-of-Rights. To this the learned Advocate General argued that a distinction must be made between the Record-of-Rights contemplated by Section 165 and the settlement of rents.
12. The Record-of-Rights is a procedure under which the different rights that exist between the landholder and the tenant relating to the holding are recorded and any other rights lawfully incident to the holding are also recorded. All that is done in a summary sort of way and the record so prepared is published. It is after the publication of the Record-of-Rights, that is, the record of existing rights, that any question relating to the settlement of rents arises. With reference to the settlement of rents, enquiries are made and when the particular matters contemplated by Section 165 are settled, the prior Record-of-Rights would be modified by the insertion of the new rights ascertained between the parties relating to the rents. Section 173 only declares that any person aggrieved by an entry in a settlement record prepared under Sections 168 to 171 and incorporated in a Record-of-Rights finally published under Sub-section (3), Section 170, or by an omission to settle a rent, may institute a suit in the civil Court which would have jurisdiction to entertain a suit for the possession of the land to which the entry relates or in respect of which the omission was made. It should be noted that the reference is to the entries in the settlement record, and not the original Record-of-Rights. No doubt, the settlement record would be incorporated in the original Record-of-Rights, but it is only with reference to the settlement record that this particular contemplated suit is mentioned, with the penalty attached for the non-institution of the suit. As regards the argument based on Section 173, Section 179 says that no suit shall be brought in any civil Court in respect of any order directing the preparation of a Record-of-Rights under this chapter or in respect of the framing, publication, signing or attestation of such a record or any part of it, or, save as provided in Section 173, for the alteration of any entry in such a record of a rent settled under Sections 168 to 172. Thus, if it is intended to call in question any order directing the preparation of a Record-of-Rights, a suit would have to be instituted. That is all with reference to the Record-of-Rights. The subsequent portion relates only to record of rents settled under the settlement of rents, which should be impugned by proper suit. That being so, the scheme of Chap. 11, Estates Land Act would seem to show that in cases like the present where a ryot is only mentioned as a ryot in respect of a particular holding in the Record-of-Rights, no suit need be instituted under Sections 173 and 179, on pain of the party being unable to agitate that question further. Finally in Section 167 (3) which is the section that directly relates to the Record-of-Rights, the only provision made is this:
Every entry in a Record-of-Rights so published shall be evidence of the matter referred to in such entry and shall be presumed to be correct until the contrary is proved.
13. This does not declare that any entries in the Record-of-Rights mentioned therein shall be conclusive and that the correctness of the same should not be contested unless a suit is filed. It only says that the Record-of-Rights shall be evidence and its correctness shall be presumed. In the particular case before me, the lower appellate Court has considered this to be presumptive evidence, and having regard to the other evidence, thought it proper to attach such importance to it as it thought fit.
14. The learned Advocate General quoted also one or two decisions under the Bengal Tenancy Act to support his contention. He stated that substantially the provisions of the Bengal Tenancy Act relating to the provisions under discussion are the same, as the provisions in the Madras Estates Land Act. The first case is that reported in Kiran Chandra v. Srinath Chakravarthy : AIR1927Cal210 . I think that case supports the line of argument adopted by him before me: see also the case in Beecharam v. Purna : AIR1925Cal845 referred to by him.
15. I put the question to the learned advocate for the appellant whether he would not have to go to this extent if his contention be correct, namely, if in the present case his client had sold in 1911 by a registered document the particular land in suit to somebody for proper consideration but the vendee did not take proper steps to see that the Record-of-Rights was corrected by having his name inserted instead of the vendor's namely the plaintiff's, and if he files a suit for recovery of possession or the question of ownership arises in some other proceedings, whether according to his contention he would be prepared to say that unless the vendee filed a suit and had the Record-of-Rights rectified, the vendee could not enforce his rights as owner. Obviously, the learned advocate was under difficulty to answer this question. It seems he must go to that extent, and say that the vendee in the case put, would practically be in the same position as the Maharajah in the present case, if his contention is right.
16. For the reasons given above, I think the lower appellate Court was right in its conclusion and that the suit was properly dismissed. The second appeal is dismissed with costs.