1. In the suit out of which this appeal has arisen the plaintiffs sued for a declaration of their title and confirmation of possession and for a declaration that a certain entry in the record of rights was incorrect.
2. This entry in the record of rights refers to Dags Nos. 1053 and 1057. In the record-of-rights these dags are recorded as being held by the Gramya Thakurani through the shebait Madhab Chandra Mandal as a tenant under plaintiff 3 rent-free. Plaintiffs 1 and 2 are the widows and plaintiff 3 is the daughter of one Birkishore Manna. Their case was that the dags in dispute were in their khas possession. The case of the defence was that the lands in suit never belonged to the plaintiffs alleged landlords and were never included in the plaintiffs jote but that they belonged to the idols Sitala, Kali and Mahainaya who were the village goddesses of Mauza Golabari, that the plaintiffs were never in possession of the same but that defendant 2 possessed them on behalf of the deities as a shebait. Further that the suit was barred by limitation.
3. The trial Court found that the plaintiffs had title to the lands as claimed by them but held that the suit lands were held by the deity as a tenant under the plaintiffs without payment of any rent. On these findings the trial Court dismissed the plaintiffs' claim for confirmation of khas possession or recovery of khas possession.
4. The plaintiffs appealed to the District Court. The District Court found that the title was with the plaintiffs and further found that the plaintiffs were in khas possession and were, therefore, entitled to the confirmation of their khas possession.
5. The defendants have appealed to this Court and their contention is that the learned Judge has wrongly placed the onus on the defendants. It is contended that it is not for the defendants to show that the entry in the record-of-rights was right but it is for the plaintiffs who challenge the record-of-rights to show that it is wrong.
6. The learned Judge has dealt with this portion of the case in the last paragraph of p. 8 of the paper-book where he says:
As regards the second point I cannot support the lower Court's finding. The defendants must show that the presumption claimed by them under the record-of-rights, Ex. 11(i), is based on sound basis.
7. He then proceeds to deal with the evidence that the defendants adduced and finally comes to the conclusion that the defendants have not proved their possession or that there is any village deity Mahamaya who holds the lands. He further finds that there is no evidence of the defendants' possession. The learned Judge has obviously approached the ease from a wrong standpoint. It was for the plaintiffs to show that the entry in the record-of-rights was incorrect and not for the defendants to show that the entry in the record-of-rights which was in their favour was correct. See Section 103-B, Ben. Tea. Act. Clause (3), Section 103-B, Ben. Ten. Act provides that:
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 it is proved by evidence to be incorrect.
8. In dealing with the defendants' evidence as regards possession the learned Judge has fallen into the same error. He remarks that:
As regards possession the defendants' evidence is not at all convincing. Plaintiffs have proved their possession both of Dags Nos. 1.053 and 1057. Defendants' evidence of possession of the tank is almost nil.
9. He has entirely disregarded the fact that the entry in the record of rights is in favour of the defendants. It shows it hat the defendants are in possession.
10. The order of the learned District Judge is, therefore, set aside and the appeal sent back to him for a re-hearing bearing in mind the observations we have made.
11. With regard to the question of title it has already been do-sided in favour of the plaintiffs and has not been challenged by the defendants in this Court. That question will not b3 re-opened.
12. Costs of this appeal will abide the final result.
13. I agree.