Bankey Behari Singh and Others vs Parmeshwar Singh and Others

Bucknill, J.—This was an appeal from a decision of the Sub-ordinate Judge of the first Court of Chapra, dated the 24th March 1923, by which he reversed a judgment of the Munsif of the Second Court of the same place, dated the 15th June 1922. The facts in this case are very simple. The plaintiffs are the appellants; they brought a suit to recover possession of certain land known as Survey Plot No. 1434; the plaintiffs claimed that it was their zerait but that they had been dispossessed in the year 1919. Admittedly in the old survey of 1900 the, lands were recorded as bakasht of the plaintiffs.

In the revisional survey, however, of 1920 the lands were recorded as kasht of the three defendants. The first and second defendant''s story was that in 1907 this property was settled by the plaintiffs'' predecessor with the first defendant and the husband of the second defendant. The third defendant''s story was that the land had been settled with himself and the husband of the second defendant. There was thus some dispute between the three defendants as to in whose possession the property was; but, as against the plaintiffs, they were on common ground in maintaining that the property was not the plaintiffs'' zerait. Now, the Munsif came to the conclusion that the defendants had failed to prove their settlement he thought that the entry in the revisional khatian was wrong. He was of the opinion that the rent receipts which were relied upon by the defendants were not genuine and that a statement made by the alleged settlor that one, at any rate, of the defendants was his tenant referred not to the land in question but to some other property. The Subordinate Judge, however, took a different view of the evidence.

He thought that the onus was clearly upon the plaintiffs to establish that the revisional record of rights was wrong. He came to the conclusion that the plaintiffs had failed to show that the presumption attaching to the record of rights-that the entries therein are correct had not been rebutted by the plaintiffs; he thought that their evidence to show their own khas cultivation was quite unreliable. On the other hand, he se9ms to have been of the opinion that the statement or deposition made by the alleged settlor in certain criminal proceedings that the person through whom the second defendant claimed was his tenant did indicate that he had settled land with the parson through whom two of the defendants claimed. He also came to the conclusion on the evidence that the defendants'' witnesses had satisfactorily proved that the land had been in their possession as they alleged it had been. Cinder these circumstances he held that the entries in the revisional record of rights were correct and that the defendants were indeed in possession as occupancy raiyats. He allowed the appeal with costs. Prom this decision the plaintiffs have appealed.

Now, the only arguments which have been put forward on behalf of the appellants are, firstly, that as the third defendant in the suit did not appeal, the Subordinate Judge should not; have allowed the appeal in favour of all the three defendants but should only have allowed it as against the first and second defendants and should have said nothing with regard to the third. I think that there is no force in this argument. Although it is quite clear that the third defendant did not appeal yet it must be borne in mind that although there was dispute between the first defendant and the second defendant on the one side and the third defendant (on the other side) as to who was in possession, there was the common ground that they all maintained that the plaintiffs'' claim was unfounded that the land was their zerait. Order 41, Rule 4, seems to provide for the contingency which has occurred in this case and I sea that there is a decision of this Court in S.A. No. 689 of 1922 by Mr. Justice Das on the 23rd December 1924, in which the facts and findings were very similar to those in this case.

The case is not reported but in that case the plaintiff was the appellant before Mr. Justice Das and he had sued for a declaration of title to and for recovery of possession of certain raiyati lands which were shown in the record of rights as the raiyati holdings of the defendants. The first Court had given judgment in favour of the plaintiff, but the lower appellate Court had reversed the first Court''s decision. There were three defendants but only one appeared in the trial Court; that defendant appealed to the Subordinate Judge, but the Subordinate Judge dismissed the whole of the plaintiff''s suit and it was maintained that he should not have done so. Mr. Justice Das held that having regard to the provisions of Order 41, Rule 4 he was entitled to adopt this course. See Ramtahal Singh v. Sukheswar Reyain [1916] 1 Pat. L.J. 143 and Rakhal Chandra Chatterjee v. Baji Santhal [1918] 23 C.W.N. 372.

The only other point which has been, taken on behalf of the appellants here is that the judgment of the Subordinate Judge did not sufficiently deal with the matter or else dealt with it too shortly. It is true that the judgment might have been more lengthy and perhaps it would have been better if it had been little more detailed as it was a judgment of reversal. But I fear that I cannot say that it is a judgment which is so meagre that it would be right to think of reversing the findings of fact to which he has come. It is true that he does not refer to the three receipts which the Munsif thought were not genuine. He, however, has considered and referred both to the documentary and oral evidence which the defendants produced in order to show that they were actually settled on the land.

Under these circumstances, I think that it is impossible for me to take a different view from that to which the Subordinate Judge has come and that this appeal must be dismissed with costs.