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Haridas Ghosh and anr. Vs. Kishan Chand Mehera - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Case NumberA.F.A.D. No. 1036 of 1944
Judge
Reported inAIR1952Cal393
ActsEvidence Act, 1872 - Section 35; Tenancy Law; ; ; Bengal Tenancy Act, 1885 - Section 103 and 103(5)
AppellantHaridas Ghosh and anr.
RespondentKishan Chand Mehera
Appellant AdvocateHiralal Chakravarty and ; Syamadas Bhattacharyya (Sr.) Advs.
Respondent AdvocatePurshottam Chatterjee, Adv.
Cases ReferredGulab Koer v. Ramratan Panday
Excerpt:
- .....munsif for a fresh trial allowing the deft. an. opportunity to adduce in evidence a copy of the draft record of rights which had been rejected by the learned munsif, both parties, in terms of the remand order would be at liberty to adduce further evidence, if they so desired. the present appeal has been preferred by the plffs. & a memorandum of cross-objection has been filed on behalf of the defendant respondent.3. mr. chakravarti appearing on behalf of the appellants contends, in the first place, that the learned subordinate judge was not right in holding that the draft record of rights was admissible in evidence, & that in any view, the case ought not to have been remitted to the trial court, but the learned subordinate judge should have disposed of the appeal on the merits after.....
Judgment:

R.P. Mookerjee, J.

1. This is a plffs'. appeal in a suit for assessment of rent in respect of certain lands which are recorded in the finally published record of rights as being held by the deft, under the plffs. & liable to be assessed with rent. The plffs. had claimed that the rent to be assessed should be at Rs. 25/3/- per year; damages had also been claimed at the same rate for use & occupation for a period of three years before the date of the institution: of the suit. The defence was that the deft, had lakheraj title to the lands & that the entries in the record of rights were wrong. The deft, also pleaded limitation & acquisition of lakheraj title by adverse possession.

2. The learned Munsif did not accept the principal contention as raised by the deft. & decreed the suit in part assessing the rent at Rs. 13/8 per year. The claim for back rent was disallowed. The deft, preferred an appeal to the Court of the Subordinate Judge, Burdwan, & the plffs. also filed a cross-objection for having the rent fixed at Rs. 25/3/- per year as claimed in the plaint. The learned Subordinate Judge allowed the appeal & directed the case to go back to the Munsif for a fresh trial allowing the deft. an. opportunity to adduce in evidence a copy of the draft record of rights which had been rejected by the learned Munsif, both parties, in terms of the remand order would be at liberty to adduce further evidence, if they so desired. The present appeal has been preferred by the plffs. & a memorandum of cross-objection has been filed on behalf of the defendant respondent.

3. Mr. Chakravarti appearing on behalf of the appellants contends, in the first place, that the learned subordinate Judge was not right in holding that the draft record of rights was admissible in evidence, & that in any view, the case ought not to have been remitted to the trial Court, but the learned Subordinate Judge should have disposed of the appeal on the merits after taking into consideration the copy of the draft, record of rights, even if such draft record be found to be admissible in evidence.

4. Under Sub-sectrion (5) of Section 103 (b), Bengal Tenancy Act, the entries in the record of rights, after final publication thereof are presumed to be correct, unless it is proved on evidence to be incorrect. The entries in the draft record of rights do not carry any presumption of correctness as in the case of those in the finally published record of rights. The question we have to consider is, not about the presumption of correctness of an entry in the draft record of rights, but whether the draft record is at all admissible in evidence.

5. Reference is made on behalf of the appellants to 'Gulab Kuer v. Ramratan', 18 C W N 896 in support of the proposition that the entries in the draft record of rights are not admissible in evidence. It appears, however, that in this case the claim, as to the amount of rent & cesses payable by the deft, was based on certain entries to the draft record of rights before the proceedings had been completed & the records finally published. The learned Subordinate Judge had thought erroneously that a presumption of the correctness of the entries in the record of right would arise even in the case of the draft record of rights. This Court overruled that view & held that until the record of rights was finally published the presumption of its correctness could not arise, & the decision as given on the draft record of rights could not be supported. The facts of this case are, therefore clearly distinguishable. Reliance is next placed by Mr. Chakravarty on 'Ambar Ali v. Lutfe Ali' 21 C W N 996 where the substantial point in controversy was whether, as alleged by the plff. a particular tank was known by the name Laskargazi. Besides oral testimony the plff. had relied upon two pieces of documentary evidence including an entry in the draft record of rights. This Court held that no reference should have been made to the entry in the draft record, specially because it transpired that the particular entry was subsequently omitted from the Records when finally published & that to the latter record alone the presumption of correctness applied. Oh a reference to 'Gulab Kuer v. Ramratan,' 18 C W N 896, It was no doubt held in this later case that the entry in the draft record, to the effect that the tank was known by the name of Laskargazi, was not admissible in evidence.

6. But the trend of authorities in the more recent cases in this Court appears to be the effect that the proceedings before the revenue authorities may be referred to for the purpose of questioning the correctness of the entry as appearing in the finally published record of rights. Entries in the revenue & settlement records are entries in public record made by a public servant in the discharge of his official duties & as such such entries are admissible in evidence under the provisions of Section 35, Evidence Act, even though the provisions of the Bengal Tenancy Act cannot be directly attracted. In the absence of anything to show that in a particular part of Register of Minhaidari villages was in excess of the official duty by reason of which it came into existence was admissible in evidence under Section 35, Evidence Act 'Dirgaj Deo v. Beni Mahto', 22 C W N 439. Relying on the observations of Lord Parker of Waddington in the above case it was held in 'Fazlur Rahaman v. Golam Kader', 30 C W N 689 apart from the provisions contained in the Bengal Tenancy Act the record of rights is admissible under Section 35, Evidence Act. To the similar effect is the decision in 'Pratap Chandra v. Jagadish Chandra', 40 C L J 331, holding that entries made in settlement khewats, even if they do not come under Section 102, Bengal Tenancy Act, are relevant under Section 35, Evidence Act. In 'Nisikanto Das v. Brojendra Nath', 47 C L J 347, a question arose, whether, after the final publication of the record of rights an order passed by the revenue authorities, at an earlier stage of the proceedings & before the final publication, was admissible in evidence or not. It was observed by Mukherjee, J. that,

'the presumption under Section 103 Clause (B), Bengal Tenancy Act, no doubt attaches to the record of rights when it is finally published; but it cannot be disputed that the order passed by a Revenue Officer directing the name of a particular person to be entered in respect of a certain property is a very valuable piece of evidence on the question of possession so far as that party is concerned. This entry which is Ex. 24 in the case does not appear to have been considered by the learned Additional Dist. J.'

The decision by the first appellate Court on the question of possession was set aside & the case remanded to the lower appellate Court to be dealt with afresh after taking in the order by the Settlement Officer which had been ignored by the Addl. Dist. J. In 'Adu Mandal v. Hiralal', 33 C W N 196. Rankin, C. J., & Mukherjee, J., held that:

'It is clear that it is quite open to a party to seek to rebut a presumption arising out of an entry in the settlement records to show by a reference to the proceedings that had been taken by the Revenue Authorities that the entry itself is wrong or is one which should not be taken at its face value.'

7. It is difficult to find how it can be said that the material upon which the entry has been made cannot be looked into for the purpose of determining whether the entry itself is correct or not. Of what evidentiary value such evidence in a particular case will be will no doubt depend on the facts & circumstances of each particular case. It will be observed that the observations in the last two cases mentioned above are not in connection with the question of admissibility of an entry in the draft record of rights but of certain orders passed by the Revenue authorities in course of the proceedings leading up to the final publication of the records. The preparation & publication of the draft record of rights are however, in course of the proceedings before the revenue authorities & the entry as made in the draft record of rights, is in pursuance of orders & directions issued by such authorities; & so in in my view there is no substantial difference, so far as admissibility is concerned, between an entry in the draft record of rights & a decision at a preliminary stage, before the final publication, made by the revenue authorities as regards facts recorded. This view is fortified by the observations by Dawson Miller, C. J., in 'Chand Roy v. Bhagwati Charan', 2 Pat. 814.

'It is quite true that no presumption arises in favour of the correctness of the draft record of rights. Such presumption only arises in favour of the finally published records, & where it is necessary to prove a fact such as the rent payable for a particular holding or any other fact recorded in the record of rights it is not sufficient to put in & rely upon the draft record as it is only the finally published records that carry any presumption with it & so it has been held (referring to 'Gulab Koer v. Ramratan Panday', 18 C WN 896, that in order to prove facts of that nature the draft record of rights is not admissible for that purpose. This, however, seems to me to go very far short of holding that the draft record of rights prepared under the Bengal Tenancy Act or under the corresponding section of the Chota Nagpur Tenancy Act is totally inadmissible in evidence for any purpose. The presumption arising from the record of rights as finally published is a presumption which may be rebutted & to my mind, it is perfectly legitimate to put in evidence the proceedings which led to the finally published records.'

The entries in the draft record of rights were held admissible & taken into consideration along with other pieces of evidence.

8. In my view the Court of appeal below was right in coming to the conclusion that the draft record of rights is admissible in evidence. It will be for the Court which considers the evidence to go into the question as to what extent the entries in the draft record of rights helped the defts. & of what evidentiary value they are.

9. Both the parties before me submit that no further evidence is required by them to be led by either of them even in the draft record of rights be admitted in evidence. That part of the order by the learned Subordinate Judge, allowing the parties to adduce further evidence, must therefore, be set aside as no further evidence is required to be taken. It is also not necessary to remand the case to the trial Court. The appeal will be reheard by the learned Subordinate Judge according to law after taking into consideration the draft record of right as one of the piece of evidence on the record.

10. In view of the orders passed above, it is not necessary for me at this stage to go into the question raised in the cross objection; it will be open to both the parties to urge all the points before the learned Subordinate Judge in support of their respective cases.

11. No orders are required to be passed in the cross-objection & in the application.

12. The appeal is allowed in part & the case remanded to the learned Subordinate Judge for rehearing according to law. The costs of this appeal will abide the result of the appeal before the Subordinate Judge.


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