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Ram Kumar Chackerbutty Vs. Maharaja Birendra Kishore Manikya Bahadur - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in45Ind.Cas.65
AppellantRam Kumar Chackerbutty;gour Chandra Chackerbutty
RespondentMaharaja Birendra Kishore Manikya Bahadur
Cases Referred and Birendra Kisore Manikya Bahadur v. Kailas Chandra Sarkar
Excerpt:
bengal tenancy act (viii b.c. of 1885), section 103 b - record of rights, entry in--presumption of correctness--rebuttal of presumption, whether question of fact--appeal, second--appellate court, whether can interfere with finding. - .....judge set aside the decision of the munsif and assessed rents in favour of the plaintiff. the learned judge set this evidence before him. he had the record of rights in which the defendants were stated to be settled raiyats with liability to have 4 he rents assessed. that record of rights had been duly published in the manner required by law. the learned judge was competent to act upon that as the final court of fact. the question he had to consider was whether the evidence that had been produced rebutted the presumption contained in that record. it is quite obvious, although the learned judge dealt with the matter in a somewhat summary manner in his judgment, that he came to the conclusion that the evidence that had been adduced on behalf of the defendants did not rebut the.....
Judgment:

Fletcher, J.

1. These appeals are preferred by the defendants against the judgment of the learned District Judge of Noakhali, dated the 27th June 1913, reversing the decision of the Munsif of the Second Court at Feni. The plaintiff brought the suits out of which these appeals have arisen to recover rents from the defendants as his tenants after declaration of his title to the lands. Rents were asked for a period extending from Agrahan 1314 to Kartick 1317 B.S. In their written statements the defendants set up three pleas; first of all, that they held the lands as Niskar lands, secondly, that, if they were not Niskar, their possession had been adverse to the plaintiff since the 27th Agrahan 1290 T.E. and thirdly, that the plaintiff's suits were barred by limitation. The third plea obviously has reference to the amounts of rents sued for between Agrahan 1314 and Kartick 1317 B.S. The adverse title set up was from a specific date, the 27th Agrahan 1290 T.E. The cases came on for trial. The Munsif found that none of the lands was Niskar. He, however, found that the suits were barred by limitation and 'by adverse possession from an assertion of the defendants' right during the publication of the Record of Rights. That case was not pleaded anywhere in the written statement. The adverse possession that was pleaded was said to have run from the 27th Agrahan 1290 T.E. On appeal to the lower Appellate Court; the learned District Judge set aside the decision of the Munsif and assessed rents in favour of the plaintiff. The learned Judge set this evidence before him. He had the Record of Rights in which the defendants were stated to be settled Raiyats with liability to have 4 he rents assessed. That Record of Rights had been duly published in the manner required by law. The learned Judge was competent to act upon that as the final Court of fact. The question he had to consider was whether the evidence that had been produced rebutted the presumption contained in that record. It is quite obvious, although the learned Judge dealt with the matter in a somewhat summary manner in his judgment, that he came to the conclusion that the evidence that had been adduced on behalf of the defendants did not rebut the presumption contained in the Record of Rights. That was a matter obviously within the comptence of a final Court of fact. In my opinion it is a matter incapable of being reviewed by a Court having a limited jurisdiction that this Court has in hearing a second appeal. Whether, if the matter had been open to us, we should come to the same conclusion as the learned District Judge has come is not a matter we have to consider. The learned District Judge having come to the conclusion that he should act upon the Record of Rights, we are not competent in hearing in second appeal to review that decision. I think in the result the present appeals fail and must be dismissed with costs.

2. Richardson, J.--As the decision in Aman Gazi v. Maharaja Birendra Kishore Manikya Bahadur 15 Ind. Cas. 64 : 16 C.W.N. 929 to which I was a party, has been so much referred to, I must add a few words. Having listened with an entirely open mind to the argument addressed to us by the learned Pleader for the appellant before us, I am still of opinion that the decision is correct in principle.

3. An entry in a Record of Rights is not conclusive but it is an entry to which by Statute the presumption attaches that it is correct unless and until the contrary is proved by legal evidence. In these cases the entries necessarily imply that the landlord, the respondent Maharaja, was entitled when the Record of Rights was finally published to have a fair rent assessed on the land held under him by the appellant tenants, At the time, therefore, the possession of the tenants was prima facie a possession which was subject to the liability to pay rent. Whatever adverse claim the tenants had previously set up, the landlord then succeeded in obtaining an authoritative declaration importing that the claim was unfounded. Prima facie again the subsequent possession of the tenants was a possession consistent with the entries. It was, of course, open to the tenants to show that the entries were wrong when they were made or that by reason of something which had since happened, coupled perhaps with what had happened before, they had ceased to represent the true state of things. But the burden was on the tenants to displace the entries and the results flowing from them. As I gather from the judgment of the Court below, the learned Judge was of opinion that the tenants had not succeeded in rebutting the statutory presumption or in showing that the entries no longer represented the true state of the facts. The questions which arose in that connection were essentially questione of fact and there appears to be no ground for disturbing in second appeal the conclusions arrived at by the learned District Judge. Indeed very little attempt seems to have baen made in the Courts below to show that the entry was wrong. According to the trial Court, the tenants had not shown any title to hold the land rent-free. In the Appellate Court no attempt or little attempt seems to have been made to contest this finding. The tenants seem to have relied on the fact that, before the final publication of the Record of Rights, they had asserted a claim to hold the land rent free. Their learned Pleader Stated that the assertion was made not before, but during the course of the proceedings in connection with the preparation of the Record of Rights. It is clear, as it seems to me, that the learned Judge was entitled on the question of fact to hold that the mere fact that this adverse claim had been made was not sufficient to show that the entry in the finally published record was wrong. Apparently, no prescriptive title to hold the land rent-free, acquired prior to the Record at Rights, was established to the satisfaction of either of the Courts below.

4. The case of Birendra Kisore Manikya Bahadur v. Nazir Mahommad 30 Ind. Cas 917: 22 C.L.J. 122 and Birendra Kisore Manikya Bahadur v. Kailas Chandra Sarkar 30 Ind. Cas. 937 : 22 C.L.J. 140 to which our attention was invited, were cases in which it was held in the Courts below that the entry in the Record of Rights was rebutted. There is, therefore, no conflict between our decision in the present case and the decisions arrived at in those cases. For these reasons I agree that these appeals should be dismissed with costs.


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