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Dibakar Bisi Vs. Chatto Bag - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in6Ind.Cas.672
AppellantDibakar Bisi
RespondentChatto Bag
Cases ReferredLachman Ram v. Bhim Sen Hari Ramogore Lull
Excerpt:
central provinces land revenue act (xviii, of 1881), sections 78, 82, 83, 120 clause (6), 152 clause (12), sub-section (c) - record-of-rights--presumption of correctness of entry until contrary shown--contrary may be shown otherwise than by suit under section 83. - .....the entry is passed, and within one year after the settlement comes into effect; and an order or entry recording, or omitting or refusing to record any land as sir land under sub-section (2) shall be final unless and until it is reversed or modified on appeal or revision in accordance with the provisions of sections 22 to 26.' a comparison of the language of this sub-section with that of section 82 shows that the effect given by the statute to the entry mentioned in that sub-section is different from the effect given to an entry mentioned in section 82. section 82 says that 'the entry shall be presumed to be correct until the contrary is shown,' whereas section 69, sub-section 4, says that the entry shall be final unless and until it is reversed or modified by the decree of a civil.....
Judgment:

Doss, J.

1. This a appeal is from a decision of the Subordinate Judge of Sambalpur in a suit by the plaintiff to recover arrears of rent for the years 1960, 1961 and 1962 Sambut, and for possession of a holding.

2. The plaintiff's case is that he is the occupancy-tenant under the lambardar, that the defendant is his sub-tenant, that the defendant has defaulted in paying rent for the last six years, that he occupied the holding on condition that he would surrender it whenever the plaintiff demanded it back from him, and that he had forfeited his tenancy by denying the title of the plaintiff. Upon these grounds he claimed arrears of rent for three years, the rents for the previous three years having become barred by limitation; and he has also claimed possession of the holding.

3. The defendant's case is that the plaintiff is not an occupancy-tenant under the lambardar but that he himself is the occupancy-tenant under the same lambardar and that at the last settlement of the revenue his name has been entered in the record-of-rights as the occupancy-tenant of the holding and that a purcha--by which I understand a copy of the entry in the record-of-rights is meant--has been given to him.

4. The Courts below have dismissed the suit holding that the present suit is not maintainable, unless a cancellation of the entry in the record-of-rights is obtained by a suit in the Civil Court under Section 83 of the Central Provinces Land Revenue Act (XVIII of 1881). The plaintiff has appealed, and on his behalf it has been contended that the ground upon which the suit has been dismissed is not sustainable in law. I am of opinion that this contention is correct. Section82 of the Central Provinces Land Revenue Act (XVIII of 1881) enacts that 'when the record-of-rights is duly made and attested, all entries therein shall be presumed to be correct until the contrary is shown.' Then Section 78 goes on to provide,--omitting immaterial words,--that any person deeming himself aggrieved by any decision under Section 78 or by any entry made in the record-of-rights as to any matter referred to in that section, may institute a suit in the Civil Court to have such decision set aside or such entry cancelled or amended.' It is to be observed that there is no section in the Act which defines the period within which such suit is to be brought. Section 69, Sub-section (4), is in these words: An order or entry of the Settlement Officer recording, or omitting or refusing to record any land as sir Iand under Sub-section (1)shall be final unless and until it is reversed or modified by the decree of a Civil Court in a suit instituted under Section 83 at any time after the report is attested by the Settlement Officer, or his Order regarding the entry is passed, and within one year after the settlement comes into effect; and an order or entry recording, or omitting or refusing to record any land as sir land under Sub-section (2) shall be final unless and until it is reversed or modified on appeal or revision in accordance with the provisions of Sections 22 to 26.' A comparison of the language of this sub-section with that of Section 82 shows that the effect given by the statute to the entry mentioned in that sub-section is different from the effect given to an entry mentioned in Section 82. Section 82 says that 'the entry shall be presumed to be correct until the contrary is shown,' whereas Section 69, Sub-section 4, says that the entry shall be final unless and until it is reversed or modified by the decree of a Civil Court in a suit instituted under Section 83 at any time after the report is attested by the Settlement Officer or his order regarding the entry is passed and within one year after the settlement comes into effect. This sub-section specifies the period within which a suit under Section 83 is to be brought and under that sub-section the entry mentioned therein is final unless a suit is instituted under Section 83. If the Legislature had intended to confer on an entry made under Section 72, the same degree of finality as has been attached to an entry referred to in Section 69, Sub-section 4, and that such entry could be cancelled or amended only by a suit under Section 83 and not otherwise, it would have used language similar to that used in Section 69, Sub-section 4. It seems to me that the object of the Legislature was to attach a certain probative effect to the entry on the theory that the enquiry by the Settlement Officer upon which such entry is based must be presumed to have been duly and properly made.

5. This view was also taken by the Judicial Commissioner of the Central Provinces in the case of Lachman Ram v. Bhim Sen Hari Ramogore Lull 10.C.P.L.R. 33, wherein he observed with reference to the entry as to the status of the defendant made under Section 72 of the Land Revenue Act in the record-of-rights that it would be merely a statement as to a condition of facts which in the course of his inquiry under the provisions of Section 72 of the Land Revenue Act, the Settlement Officer had ascertained and the only legal effect of it would, I think, be that it would be a piece of evidence, not conclusive in itself, but carrying a presumption of correctness until the contrary was shown. The burden of proving the incorrectness of such an entry would, of course, lie very heavily on a person who disputed its correctness.' Furthermore, if one considers the mode in which the Settlement Officer may decide a dispute under Section 78 of the Act, it becomes quite apparent that the entry in the record-of-rights cannot have the effect of depriving a man of his rights if he is able to establish such rights by conclusive proof. Section 78 enacts (I omit the immaterial words) 'If a dispute arises regarding any matter mentioned or referred to in Sections 68, 69, Sub-section (1), 70, 72 and 77, Clauses. (b), (c) and (d), the Settlement Officer shall decide it summarily after making such enquiry as he thinks fit, and shall not be bound to hear any party to such dispute, or receive any evidence tendered by any such party.' Therefore, even if there is a dispute between the parties with regard to any entry which the Settlement Officer proposes to make, the Settlement Officer is empowered to decide it summarily without hearing any party to such a dispute.

6. Section 120, Clause (b), does not, in my opinion, affect the question under consideration. All that that section lays down is that if the record-of-rights has been made over to the Deputy Commissioner, no entry in that record-of-rights can be corrected by the Deputy Commissioner on application by any person interested or of his own motion and that it can only be corrected on one or more of the grounds stated therein and on no others, one of such grounds being, as stated in Clause (6), that 'by a decree in a suit brought under Section 83 the entry has been declared to be erroneous.' The effect of that section, no doubt, is that the entry cannot be corrected except by a decree in a suit brought under Section 83 declaring the entry to be erroneous; but it does not follow that if that entry is not corrected and is left outstanding, the person affected by the entry cannot establish his right in a Civil Court, if he can do so to the satisfaction of the Court. As there is no section in the Act which limits the period within which a suit may be brought for the cancellation or amendment of the entry, there does not seem to me to be any reason why such remedy may not be obtained otherwise than by a suit brought solely for that purpose and as subsidiary to some other relief which the plaintiff may be entitled to claim. I think the remedy provided by Section 83 of the Act is cumulative and not exclusive.

7. Section 152 of the Act has been relied upon on behalf of the respondent as confirming the view taken by the Courts below that a suit under Section 83 of the Act is the only remedy which the plaintiff can avail himself of and Clause 12 of Sub-section (6) of that section has also been relied upon by him. It lay down that no Civil Court shall exercise

jurisdiction over, amongst other things, corrections of entries under Section 120, etc. As I understand that section, it means only that the entry cannot be corrected except by the Revenue authorities and that no Civil Court can exercise jurisdiction over it. In the present case a correction of the entries is not sought. All that is asked for is a declaration of the plaintiff's right and a decree for possession. The effect of the entry, as I have said, is that it shall be presumed to be correct until the contrary is shown; and the Act does not say that the contrary may be shown by a suit under Section 83 only and not otherwise. If the legislature meant what has been contended for, it would have adopted some such language in Section 83 as is contained in Section 120, namely, that such corrections may be made on one or more of the following grounds and on no others' or as is contained in the last paragraph of Section 152, namely, in all the above cases jurisdiction shall rest with the Revenue authorities only.'

8. For these reasons, I think, that the judgment and decree of the Courts below should be set aside and the case remanded to the Court of first instance for trial of the other issues.

9. The plaintiff is entitled to have the costs of this appeal. The costs of the Courts below shall abide the ultimate result.


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