Skip to content


Tokhi Sahu Vs. Tosi Munda and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Judge
Reported in3Ind.Cas.689
AppellantTokhi Sahu
RespondentTosi Munda and ors.
Excerpt:
chota nagpur tenancy act (i of 1879, b.c. as amended by act v of 1905, b.c.) sections 123, 164 - bengal tenancy act (viii. of 1885), section 103b--entry of mundari klmntkatti tenancy--suit to correct entry does not lie--presumption. - .....164 does not apply, (2) that if it does apply, it does not cover the entries in respect of the lands in suit, (3) that section 103b does not apply to suits of this nature, and if it does, the presumption is rebutted. we need not consider the first and second of these grounds of appeal, because the lands are in mundari khunt-kattidari tenancies, but however that may be, the presumption of section 103b certainly for the reasons already assigned in our opinion does apply to lands in suit in this case, and for the reasons already given in suit no. 59 we think the learned judge has committed no error in law in saying that the presumption arising under section 103-b as to the correctness has not been rebutted. we, therefore, dismiss this appeal with costs.4. the last appeal is 1208,.....
Judgment:

1. These are four appeals against the decisions of the Judicial Commissioner of. Chota Nagpore who has disposed of the four suits out of which these appeals arise in one judgment, though he has dealt separately with each suit. The suits before him were numbered 60, 59, 57 and 58. The appeals before us are 1109, which relates to suit No. 60, 1206 which relates to suit No. 59, 1207 which relates to 57 and 1208 which relates to suit No. 58. We take up first, the appeal No. 1109 which relates to suit No. 60. We may mention that these suits have been brought by a person who is described by the Judicial Commissioner as a Bania, who has bought certain tenures under the provisions of Section 123 of Act I of 1879. The land in dispute had been settled and a record-of-rights regarding them has been drawn up and the plaintiff, the purchaser of the mouza has now brought these suits to have a declaration that the entries in the record-of-rights as regards the lands in dispute are incorrect. The first appeal 1109 which relates to suit No. 60 has reference to certain plots of land which have been entered in the record-of-rights as mundari khunt khattidari tenancies. The learned Judicial Commissioner has, therefore, held that the provision of Section 164 of Act I of 1879, as amended by Act V of 1905, apply and that consequently the entries in the record of rights with regard to these lands are conclusive evidence of the nature and incidents of such tenancies as well as of all particulars recorded in such entries. He has, therefore, dismissed the suit, and refused the plaintiff the declaration he seeks for. The plaintiff appeals and on his behalf it has been contended, (1) that Section 164 does not preclude a person, from proving that the entry is in correct when a suit is brought for that purpose; (2) even if that section applies, the entries with regard to the land in dispute are not covered by the section; (3) that the learned Judicial Commissioner is in error in supposing that the plaintiff who purchased under Section 123 of Act I of 1879 purchased only the, right, title and interest of two headmen of the village, whereas as a matter of fact he purchased the tenure itself (4) that the question of 12 years' limitation does not arise in a suit between landlord and tenant. We are of opinion with regard to the first of these grounds that the provisions of Section 164 Act I of 1879 as amended by Act V of 1905 do apply to a suit of this nature. The learned pleader contends that those provisions only apply to a suit in which the nature and incidents of the tenancy are involved, that is to say, not to a suit brought for a declaration that the entries are incorrect. But we are decidedly of a contrary opinion. We consider that the object of the provisions of Section 164 as amended by Act V of 1905 was to make the entries of record-of-rights in cases of mundari khunt khattidari tenancies irrebuttable in suits of such a nature as this. The provisions of the section are that the entries in record-of-rights relating to mundari khunt 'khattidari tenancies shall be conclusive evidence and that means, we think, that the Legislature intended to preclude suits of this nature being brought to prove that the entries made by the Settlement Officer in the record-of-rights with relation to such tenancies are incorrect. Then the next ground is that even if the provisions of Section 164 apply, the entry which is the subject-matter of this suit is not an entry covered by Section 164. The entries complained of in this case are entries declaring that the tenants of the land have to pay certain rents named in the record-of-rights to a person other ,than the plaintiff. The learned pleader for the appellant contends that such entries are not entries of the nature and incidents of the tenancy. But we cannot agree with him. But however that may be, we must be guided by the provisions of Section 164 as amended by Act V of 1905, which say; 'and of all particulars recorded in such entries.' The word 'particulars' has a very wide application and must cover such entries as are complained in this suit. The next ground of appeal is that the plaintiff did not purchase only the interest of two headmen. This appears to be perfectly immaterial, as the plaintiff is now precluded from questioning the entries in the record-of-rights relating to this land and from proving that the entries are incorrect. As for the last ground of appeal, namely that the question of 12 years' limitation does not arise in a suit between landlord and tenant, we need only say, that this is a suit in which the plain* tiff's right as landlord is not admitted but on the contrary is denied. We, therefore, dismiss this appeal with costs.

2. We now turn to appeal No. 1206 which, relates to suit No. 59. In this case the declaration sought for is that the plot of land in dispute which is recorded as appertaining to a certain mokarari is not really the subject of the lease. The learned Judicial Commissioner has decided that the entries in the record-of-rights relating to these lands in which they have been recorded as appertaining to the mokarari must under Section 103B of the Bengal Tenancy Act be presumed to be correct and that being so, and there being no sufficient rebutting evidence in this case to show that they were entered wrongly, the plaintiff is not entitled to the declaration sought for. The grounds of appeal, following the grounds of the previous appeal, are (1) that Section 103B does not apply to a suit of this kind; (2) even if it does apply, there is sufficient rebutting evidence, and (3) that the admission of the lessee, that is to say, of the mokararidur is binding on him. We can, only say that, in our opinion, the provisions of Section 103B do apply to this case, there being no limitation as to the nature of the suit to which they apply. That section is 'that every entry in a record-of-rights so published shall be presumed to be correct until the contrary is proved.' Such a presumption must arise in a case of this nature. The question as to whether there has been sufficient rebutting evidence is a question of fact and it is not our duty in second appeal to go into the evidence and see whether there is sufficient rebutting evidence or not; but if we were to do so, we would have no hesitation in recording oar opinion that the Judge is right in saying that there is no sufficient rebutting evidence. It is to be observed that the Judge has considered the oral evidence in the case namely, the evidence of the plaintiff and one Paulas Christian but he says that their evidence is entirely untrustworthy. The learned pleader calls our attention to the terms of the mokarari itself, but there is nothing in the mokarari which leads us to suppose that the entries in the record-of-rights as regards the land in dispute are incorrect. The mokarari gives certain boundaries of the land leased in the mokarari. These boundaries are very vague and wide. Whether they included the lands in dispute or not, we cannot tell. The pleader for the appellant seems to find fault with the learned Judicial Commissioner, because he has not made any local enquiry in this case, but it appears that the plaintiff never asked him to do so. The pleader for the appellant points out that the Judicial Commissioner has made a mistake in speaking of the evidence of the lessee as given by his son, whereas it was really given by the lessee himself, so that the admission which he speaks of in his judgment as that of the son of. the mo-kararidar is really an admission of the mo-kararidav. But tin's is immaterial. This lessee has admitted that the mokarari does not cover the land in suit and, therefore, his evidence to this extent supports the plaintiff's case. But he has explained that although the lands are not really included in the mokarari he thought that they were. The pleader contends that this admission of the lessee binds him. But it is perfectly immaterial, as this admission of an ignorant person cannot settle the question whether the lands are included in the mokarari or not. That can only be determined by an accurate local investigation. No such investigation has taken place. He thinks that the entries in the record-of-rights with regard to this particular suit. have not been proved to be incorrect. The appeal, therefore, fails and is dismissed with costs.

3. We now turn to appeal No. 1207 which relates to suit No. 57. The learned Judicial Commissioner has dismissed the plaintiff's suit agreeing with the Munsif in this case also. The pleader for the appellant raises the same contention as he raised in the previous appeals, namely (1) that Section 164 does not apply, (2) that if it does apply, it does not cover the entries in respect of the lands in suit, (3) that Section 103B does not apply to suits of this nature, and if it does, the presumption is rebutted. We need not consider the first and second of these grounds of appeal, because the lands are in mundari khunt-kattidari tenancies, but however that may be, the presumption of Section 103B certainly for the reasons already assigned in our opinion does apply to lands in suit in this case, and for the reasons already given in suit No. 59 we think the learned Judge has committed no error in law in saying that the presumption arising under Section 103-B as to the correctness has not been rebutted. We, therefore, dismiss this appeal with costs.

4. The last appeal is 1208, relating to suit No. 58 of the lower Court. This suit relates to gair mazure and ryoti lands. The learned Judge is of opinion that these lands all form part of the khunt khatti tenancy and that if they do not, the plaintiff is met by the presumption under Section 103B which he has not rebutted. The grounds of appeal urged are, (1) that Section 164 does not apply, (2) Section 103-B does not apply and (3) the learned Judge should not have gone into the question as to whether the parties when they executed the kabuliat executed it under a mistaken impression or not, seeing that the kabuliat does not include the land in dispute. We need say nothing about the first ground, because we think that although the learned Judge has spoken of these as forming part of the khunt khatti tenancy, they are not entered in the record-of-rights as such lands. But Section 103 B does apply, and the learned Judicial Commissioner has rightly said that the evidence is not sufficient to rebut the presumption under this section. It is quite immaterial whether the Judge went into the question as to whether the parties, when they executed the kabuliat, executed it under a mistaken impression. What is material in this case is whether the lands are covered by the mokaraii or not, and the plaintiff has not been able to show that they are not included in the mokarari. Under these circumstances, we see no reason to interfere with the judgment of the lower appellate Court. We dismiss this appeal also with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //