Richard Garth, C.J.
1. I think there is no ground for this appeal.
2. The suit was brought by the plaintiff to have his name registered as the owner of two mahals, and he made out his title in this way:
3. Asrafunnissa was the original owner of the property, and the plaintiff's case was that Asrafunnissa mortgaged it to one Hulash Chand in 1861; that Hulash Chand foreclosed the mortgage in 1864; and that Hulash Chand then sold it to the plaintiff in 1877; and he has proved these facts to the satisfaction of the lower Court.
4. Then it is also admitted by both sides that one Khudiram farmed the property from 1251 to 1260; and that from the year 1262 it has been let in patni to the representatives of Khudiram, and it has been proved that Hulash Chand, under whom the plaintiff claims, sued the representatives of Khudiram for the patni rent and obtained a decree for the years 1281 and 1283, and, moreover, that the amount of that decree was paid by the present defendant or her attorney.
5. Now this of course is a strong prim facie case made out by the plaintiff. But then it is contended by the learned pleader for the appellant, that the lower Appellate Court has not attached due weight to the case set up by the defendant.
6. The defendant's case was that one Nilmadhub Chowdhry purchased Asrafunnissa's rights in one of these mahals No. 412 in the year 1851; that he sold it to one Rudro Narain on the 30th of January 1852; and that Rudro Narain has since been registered as the proprietor.
7. It is undoubtedly admitted by both sides that for many years the registered proprietor of this mahal has been Rudro Narain; and the appellant's pleader contended that, although neither the sale certificate of 1251 to Nilmadhub Chowdhry, nor the sale from him to Rudro Narain was proved, the mere fact of Rudro Narain's name being registered as the owner of the property was sufficient evidence of title or possession, or both, to rebut the prim facie case of the plaintiff. And whatever may have been the law previous to the Bengal Act of 1876, it is said that under that Act at any rate enquiries had to be made by the Collector before the registry was made, and that the registration, being the act of a public officer recording the result of those enquiries, would be some evidence of the fact recorded.
8. I think that the entries in the register can never be evidence of title nor even of possession, except under the circumstances which I shall presently mention.
9. Let us see how the registry is made under the Act of 1876.
10. Section 20 provides that until the new registers are prepared under that Act, the old existing' registers are to be in force, and by Section 22 'the Board may order new registers to be prepared, whenever it thinks fit; and such registers are to be prepared from the registers existing at the time of the order, and from entries of subsequent changes in the intermediate registers, and from any other authentic information available to the Collector.'
11. The new registers being prepared in this way, the learned pleader contends that the entries thus made by the Collector, recording the names of the proprietors of revenue-paying estates, are, under Section 35 of the Evidence Act, evidence of the fact of proprietorship. But it seems to me that Section 35 does not say or mean anything of the kind, and I think that it would be a very alarming thing, in the interests of justice, if it did.
12. That section says, that 'any entry in a public or other official book, register or record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in the performance of a duty specially enjoined by the law of the country in which such book, register, or record is kept, is itself a relevant fact.'
13. Now I understand this section to relate to that class of cases where a public officer has to enter in a register or other book some actual fact, which is known to him; as, for instance, the fact of a death or a marriage.
14. But the entry by the Collector in the register under the Act of 1876, that any particular person is the proprietor of certain land, is not properly speaking the entry of a fact. It is a statement that the person is entitled to the property; it is the record of a right not of a fact; and although for the purpose of making that entry the Collector is sometimes bound to enquire who is the party in possession, it often happens that he makes it without any such enquiry.
15. If the production of the Register were per se evidence of what it records, that is to say, that such and such a person is the proprietor of certain property, there would never be any necessity, as it seems to me, to resort to other evidence of title. It would be quite unnecessary to prove or produce title deeds. The party who has to make out his case might keep back his title deeds if he has any, and content himself simply with producing an office copy of the register.
16. No authority has been cited in favour of that position, and speaking for myself I consider that to make such a use of Section 35 would be quite beside the proper object of the section.
17. I have said, however, that under certain circumstances I think that the register kept under the Act of 1876 might be evidence of possession. We made some observations to that effect in the case of Ram Bushan Mahto v. Jebli Mahto I.L.R. 8 Cal. 853 which has been referred to by the pleader for the appellants, and I will now proceed to explain what we meant.
18. Section 55 of Act VII of 1876 provides for cases where there is a dispute between two persons, as to which is entitled to be registered, and the Collector has to ascertain which of those persons is in possession. The section runs thus: 'If the applicant's possession of, succession to, or acquisition by transfer of the extent of interest in respect of which he has applied to be registered, is disputed by or on behalf of any person making a conflicting claim in respect thereof, and if the possession of the applicant in accordance with the application is not proved to the satisfaction of the Collector, the Collector shall determine, summarily, the right to possession in respect of the interest in dispute, and shall deliver possession accordingly, and shall make the necessary entry in the registers.'
19. Now that section, as it seems to me, constitutes the Collector a competent Court, under particular circumstances, for determining as between the two disputants, the question of possession; and his recorded decision upon that question in the register might (I do not say it would) be evidence of the fact of possession as between those two parties; but this question does not arise here, and we are not called upon to determine it in the present case.
20. It is sufficient for our present purpose to say that, as the plaintiff here has made out a prim facie case, the District Judge was right in holding that the defendant had not brought forward any available evidence to rebut it.
21. The appeal will, therefore, be dismissed with costs.
22. I also think that this appeal must be dismissed. Both parties admit that the two properties which form the subject of this litigation, originally belonged to Asrafunnissa Begum. The plaintiff makes title in this way: He says that these two properties were mortgaged by Asrafunnissa Begum to one Hulash Chand under a mortgage-deed, dated August 1861; that Hulash Chand foreclosed on 29th November 1861, and obtained possession of the properties; and that afterwards Hulash Chand, being in possession, and having a good title, sold them to him, the plaintiff.
23. This is a good title, and has been satisfactorily proved, and the question is, whether the defendants have proved a better title.
24. It seems to me that they have not. They also claim under Asrafunnissa. With respect to one property, numbered formerly 412, and recently, 2855, they say that Asrafunnissa Begum's right, title and interest was sold in execution in the year 1851, and was then purchased by Nil Madhub Chowdhry. The sale-certificate, under which Nil Madhub Chowdhry is said to have purchased, has not been produced, and the first link in the chain of title set up by the defendant is therefore wanting.
25. Then it is said that Nil Madhub Chowdhry sold to one Rudra Narain on the 30th of January 1852. This conveyance also has not been produced, and its non-production has not been accounted for. But the learned pleader for the appellant has contended that this want of direct proof of title is compensated by the fact of Rudra Narain having been registered in the old Collectorate register as the proprietor of the property. Assuming that an entry in the quinquennial register may be relevant to prove any fact which the law required to be stated in that register, I do not see how this will help the defendant, because, as a matter of fact, neither the original register, nor a copy of the entry, has been produced in the present case. The learned pleader for the appellant relies, however, upon the admission that Rudra Narain was registered; but I think that we cannot substitute this admission for the register, or a copy of the register, which if produced would show what fact or facts was or were stated therein. I am not aware that the old quinquennial register required the fact of possession to be inserted therein; and we cannot assume that the entry in the register contained any statement as to Rudro Narain's possession.
26. Then as to the value of any entry in the register kept antecedent to Beng. Act VII of 1876, I think that its value is not under any circumstances very great, and its value would be particularly small in the present case in which it is sought to substitute this piece of evidence for those documents of title which ought to be, but are not, forthcoming.
27. It is well known that one of the reasons which led to the enactment of Beng. Act VII of 1876 was that the quinquennial registers kept under the old Regulation contained no legal sanction, and contained no provision which compelled persons succeeding to property by inheritance or transfer to have their names registered.. It constantly has happened in the course of my experience that the person registered as proprietor was a person, who died half a century ago; and the very fact of these registers not being kept up to date, must very much diminish the value of any entry in them as evidence of the possession of any particular person at any particular time.
28. Under the provisions of the Beng. Act VII of 1876, there are several penalties attaching to non-registration, and there is, therefore, a much stronger presumption that the person whose name appears in the register kept under this Act is the person in possession of the property. The value of an entry in this register certainly of any new entry may, therefore, be different from that of an entry in the register kept under the old Regulation. But even with respect to the Act of 1876, the only question which the Collector is entitled to enquire into is that of possession. He has no jurisdiction to deal with the question of title, which is specially reserved for the decision of the ordinary Civil Courts.
29. I think that in a case like the present, in which the plaintiff has made out a good title by the production of those documents which he might have been expected to produce, and has also given evidence of possession, the mere fact of registration, which at best is only evidence of possession cannot be taken to constitute a better title--a title, that is, which should overcome and prevail against the title proved by the plaintiff. Therefore, as regards the property numbered 412, there can be no doubt as to the correctness of the decision of the Court below.
30. Then as to the other property numbered 1333. I find that the Subordinate Judge says that it was conceded that the plaintiff's vendor was the recorded proprietor of the mahal bearing this number in the Collector's register, and this being so, he has, so far as regards registration, all the advantage that this can confer upon the defendants, while he has also proved a good title. He is, therefore, entitled to succeed as to this property also. Under these circumstances the appeal must fail, and be dismissed with costs.