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Sm. Ayesha Khanum and ors. Vs. Commissioners for the Port of Chitagong - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Reported inAIR1938Cal31
AppellantSm. Ayesha Khanum and ors.
RespondentCommissioners for the Port of Chitagong
Cases ReferredBaluchandra Sen v. Sirishchandra Sen
Excerpt:
- .....under part 2, ch. 10, bengal tenancy act, after the final publication of the record of eights. the bona fide mistakes alleged by the respondents are these : (1) although the respondents are the proprietors of the, disputed lands, government has been wrongly recorded as proprietors; (2) al-though the lands were in the khas possession. of the respondents, they were not recorded in their khas khatian namely khatian no. 252 but were wrongly recorded as being in the possession of the defendants as noabad talukdars under the government. the respondents accordingly prayed that the disputed lands should be transferred to their khas khatian from the appellants khatian namely khatian no. 532. the assistant settlement officer, who heard the application on a consideration of the evidence in this.....
Judgment:

Nasim Ali, J.

1. This appeal arises out of an application filed by the respondents under Section 115-B, Bengal Tenancy Act for correction of an entry in the finally published E.S. record relating to Mouza Bhangachar No. 171 under Thana Patiya. in the District of Chittagong. The disputed lands were recorded in Khatian No. 532 of the R. S. records as being in the possession of the appellants as appertaining to their Sadharan Noabad Taluk No. 56 under Government. The rent for the taluk was settled at Rs. 95-8-0 under Part 2, Ch. 10, Bengal Tenancy Act, after the final publication of the Record of Eights. The bona fide mistakes alleged by the respondents are these : (1) although the respondents are the proprietors of the, disputed lands, Government has been wrongly recorded as proprietors; (2) al-though the lands were in the khas possession. of the respondents, they were not recorded in their khas khatian namely Khatian No. 252 but were wrongly recorded as being in the possession of the defendants as noabad talukdars under the Government. The respondents accordingly prayed that the disputed lands should be transferred to their khas khatian from the appellants khatian namely Khatian No. 532. The Assistant Settlement Officer, who heard the application on a consideration of the evidence in this case, came to the conclusion that the respondents were the proprietors of the disputed lands but the appellants were in actual possession of the lands at the time of the revisional survey as appertaining to their Sadharan Taluk No. 56. He also held that he was not competent to alter the rent of the appellants' taluk as the rent had become conclusive under Section 104. J, Bengal Tenancy Act. He accordingly ordered the entry to be recorded in the following manner:

A (now) taluki khatian should be opened in the names of the possessors mentioned in Khatian No. 632 subordinate to Khatian No. 252 of Mouza Bhangachar No. 171 under Thana Patiya similar to the said khatian, and in the 'remark column' of the said new khatian should be entered 'inclusive of the jama of Khatian No. 532, total jama Rs. 95-8-0 ' and in the column for 'incidents' should be written 'tenure, meadi, rent liable to be enhanced'. The Dags Nos. 1731, 1734, 2780, 2784, 2791, 2792, 2788, 2787, 2769, 2793 and 2796 (i.e. the disputed lands) should be excluded from the Khatian No. 632 and included in the said new khatian. In the remark column of khatian in 532 should be mentioned 'including the jama of the said new khatian.

2. The respondents appealed to the Special Judge. The learned Special Judge on the evidence has come to the conclusion that the defendants never exercised any possession over the disputed lands and have not any right or title to them. He agreed with the Assistant Settlement Officer that the rent of the defendants' taluk could not be altered but he was of opinion that the defendants' remedy was to apply for and enforce by a suit necessary reduction of the jama on the ground of diminution of the area. He accordingly allowed the appeal and directed the transfer of the disputed lands to the respondents' Khas Khatian No. 252. The defendants appeal to this Court. Two points have been raised in support of this appeal: (1) that Section 115-B, Bengal Tenancy Act is not at all attracted to the fact of this case; (2) that the finding of the Special Judge that the defendants were not in possession of the disputed lands at any time is not a proper finding at all and is erroneous. Before 1906 entries in the finally published Record of Rights could be corrected only by suits under Section 106, Bengal Tenancy Act. In that year a new section namely 108-A was introduced into the Act and that section is now Section 115-B which is in these terms:

Any Revenue Officer specially empowered by the Local Government in this behalf may on the application or of his own motion within two years from the date of the certificate of the final publication of the Record of Bights under Sub-section 2 of Section 103-A correct any entry in any such Record of Bights which he is satisfied has been made owing to a bona fide mistake provided that no such correction shall be made if an appeal affecting such entry has been filed under Section 115-C or until reasonable notice has been given to the parties concerned to appear and be heard in the matter.

3. The entry in question shows that the defendants hold the disputed lands as noabad talukdars under Government. The rent which has been assessed under Part; 2, Ch. 10, Bengal Tenancy Act in respect of this land is payable to Government. Government therefore is interested in the entry. No notice however appears to have been given to Government in the present case. The Proviso to Section 115-B imposes a duty on the Revenue Officer exercising power under 115-B to give reasonable notice to all the parties interested in the entry to appear and be heard in the matter. In Raj Mohan Guha v. Alam Gazi (1912) 16 CLJ 339 this Court observed:

Section 108-A has a much wider scope than the correction of obvious errors or incidental slips in the Record of Bights. It entitles the Settlement Officer to correct the record where there has been bona fide mistakes. Such mistake need not necessarily be the mistake of the Settlement Officer. It may very well be a mistake by one of the parties concerned. Section 108-A in substance authorizes a Settlement Officer to reconsider the matter on merits.

4. These observations imply that Section 115-B authorizes review of the entry. That review however can be made only when the Revenue Officer is satisfied that the entry was made owing to a bona fide mistake. Bona fide means good faith. If the entry is admitted by the parties to be wrong, it may be taken to have been due to a bona fide mistake. If the entry contains clerical or arithmetical mistakes which in spite of due care and caution are bound to creep in, or where there are accidental omissions, the error may be taken to be due to bona fide mistake. In such oases the Revenue Officer can review the entry. Where, however, there is no such mistake and there is a serious dispute as to whether the entry is wrong and the decision on that dispute depends upon the weighing of the evidence before the Revenue Officer, can it be said that the entry has been made owing to a bona fide mistake? In view of my conclusion on the second point raised by the appellant, I express no final opinion on the first point raised by the learned advocate for the appellants.

5. The learned Special Judge while dealing with the question of possession of the defendants did not at all take into consideration all the evidence in the case on which the Assistant Settlement Officer relied in support of his finding that the defendants were in possession of the disputed lands at the time of the final publication of the Record of Rights. He has not also given the defendants the benefit of the statutory presumption under Section 103-B, Ben. Ten. Act. The finding of the learned Special Judge that the defendants never exercised any act of possession over the disputed land is therefore not binding on us in second appeal. As the evidence about possession which the respondents adduced to rebut the presumption is short, we asked the learned advocates on both sides in this case to place before us the whole evidence to enable us to come to a finding as to the question whether the defendants were in possession of the disputed lands at the time of the final publication of the Record of Rights. The evidence of the two witnesses examined on the side of the respondents is not sufficient to indicate that the defendants were not in possession of the disputed lands when the Record of Sights was prepared.

6. I therefore accept the finding of the trial Court that the defendants were in possession of the disputed lands at the time when the record was prepared. It cannot be said therefore that the entry about defendant's possession was made under a mistake. The result therefore is that this appeal is allowed, the judgment and decree of the Special Judge are sat aside and those of the Assistant Settlement Officer are restored with costs in this Court as well as in the lower appellate Court. Hearing fee in this appeal is assessed at two gold mohurs.

B.K. Mukherjea, J.

7. I agree with my learned brother in the order that has been passed and I desire to add a few words. Section 115-B, Ben. Ten. Act authorizes the correction of entries in a Record of Rights which has been made owing to a bona fide mistake. It is obviously a different thing from deciding a dispute and correcting an entry on that basis as is contemplated by Section 106, Ben. Ten. Act. The Legislature has allowed four months time from the date of the certificate of final publication of the Record of Rights for any aggrieved party to come before the Revenue Officer and pray for a decision of a dispute regarding an entry that has been made in or omitted from the record. When no proceeding under Section 106 is instituted and the records become final, it may still appear that there are bona fide mistakes which have crept into the records. They may not be in the nature of clerical errors or accidental slips of omissions merely, as is held in 16 C L J 339.1 But in my opinion they cannot include cases where the entries are challenged as erroneous by one party and regarding which disputes do exist which might have been decided under Section 106, Ben. Ten. Act. The Legislature cannot be taken to have intended to give the same rights to the parties under S.(115-B, Ben. Ten. Act which have been given to them already under Section 106 of the Act and that after the lapse of a period of limitation laid down in the latter section.

8. It has been held in Raj Mohan Guha v. Alam Gazi (1912) 16 CLJ 339 and in Baluchandra Sen v. Sirishchandra Sen AIR 1914 Cal 170 that the section authorizes the Revenue Officer to reconsider his decision on merits, but the reconsideration must be confined to finding out as to whether there was a bona fide mistake or not. Bona fide mistake, in my opinion, means a genuine mistake which is possible even after due care and caution. If the Settlement Officer on a consideration of the evidence before him deliberately comes to a particular conclusion regarding the rights of the parties and makes an entry to that effect in the records, however much his judgment might be wrong or the decision erroneous, it cannot be said that there was a bona fide mistake vitiating the records. On the other hand, if the conclusion drawn by the Settlement Officer does not follow from his own premises, or one part of the record contradicts the other, there may be in such and similar cases bona fide mistake and there may be scope for reconsideration of the matter on the merits. In the case before us, so far as the superior title is concerned, it cannot be disputed that the entry was due to a bona fide mistake as is apparent from the admissions of both sides and it was within the competency of the Assistant Settlement Officer to correct it under Section 115-B of the Act. So far as the question of the appellants' possession and tenancy right is concerned, I have very great doubt as to whether it can be said to be a bona fide mistake at all. It is a matter which has to be settled on a consideration of the relative weight of two sets of evidence adduced on both sides after the final publication of the Record of Rights. But as I agree with my learned brother in setting aside the finding of the lower appellate Court, and restoring that of the Assistant Settlement Officer, there can be no question of any mistake either bona fide or otherwise coming in after our decision. Under the circumstances, I agree that the appeal should be allowed, the judgment and decree of the lower Appellate Court set aside and that of the Assistant Settlement Officer restored.


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