Doma Singh and Others vs Jaigobind Panda

These appeals arise out of four suits relating to four different parcels of land. The plaintiffs in all these suits claimed to have the right of occupancy in the lands in dispute and prayed for a declaratory decree to this effect. The defendant on the other hand contended that the plaintiffs were mere under tenants with no right of occupancy and that there was no custom in the village which would confer the right of occupancy upon under tenants. Now it is common ground that there are two Records of rights for the Saran District where the lands are situated, one prepared during the cadastral survey and the other during the revisional survey. In the cadastral survey Record of Rights the plaintiffs are recorded as under tenants possessing what is described therein as haq muqubazat. All the Courts below are agreed that this expression means "right of occupancy" and it is not disputed therefore that the cadastral survey entry, as it stands, fully supports the claim of the plaintiffs. In the revisional khatian, however, the plaintiffs were recorded as shikmi dakhilkar. The word "shikmi" is a common expression meaning an under tenant, but the word "dakhilkar" is not very commonly used in this province and the use of this word in the Record of Rights has given rise to considerable difficulty in this case. In fact the plaintiffs themselves not understanding what the expression precisely meant suggested in their plaint that the entry had been made fraudulently and charged the defendant with having been instrumental in getting this wrong entry made.

The learned Munsif who tried the suits did not also fully understand the meaning of this entry and he therefore addressed himself mainly to the cadastral survey entry in deciding the case. He held that an under tenant cannot acquire a right of occupancy except by custom; that the oral evidence adduced on behalf of the plaintiffs was not sufficient to prove the custom alleged by them in the plaint, and that the cadastral survey entry was based upon insufficient materials. It may be necessary to state here that the plaintiffs'' case as put forward by them in the plaint was that they and their ancestors were in possession of the lands in suit for nearly 175 years and the Assistant Settlement Officer in a note which he submitted to the Settlement Officer reported that as a matter of fact the plaintiffs and their ancestors had been in possession of the lands from very ancient times and their ancestors had planted trees which looked very old. It is stated by the Munsif in his judgment that the Settlement Officer wanted to record the plaintiffs'' as occupancy raiyats, but the Assistant Settlement Officer reported that the Sitalpur factory which was represented by Mr. Lockhart claimed to be the occupancy tenant of these lands and that both parties would be satisfied if the plaintiffs were recorded as under tenants with occupancy rights. Subsequently the plaintiff''s were recorded as under tenants with occupancy rights upon the admission of Mr. Lockhart.

The view taken by the learned Munsif was that the entry was based solely on the admission of Mr. Lockhart, that the right of occupancy could not be conferred by a mere admission and that such an admission was wholly insufficient to prove the custom alleged by the plaintiffs. In this view he dismissed the plaintiffs'' suits in their entirety and awarded costs to the defendant.

The learned District Judge on appeal reversed the decision of the Munsif and in doing so pointed out: (1) that it was wrong to suppose that the entry in the cadastral survey khatian was based entirely upon the admission of Mr. Lockhart AIR 1930 45 (Privy Council) that whatever the expression dakhilkar might literally mean, there was no doubt that the entry when construed in the light of the village note meant that the holders of the lands though shikmidars had acquired occupancy rights. Not satisfied with this decision the defendant appealed to this Court and his appeal was allowed by Wort, J., who set aside the decision of the learned District Judge and restored the decision of the Munsif. The plaintiffs have now preferred this appeal under the Letters Patent of this High Court against the decision of Wort, J.

Now, the first point to be considered is as to what the expression "shikmi dakhilkar" means. The word "dakhilkar," though it is not a very familiar expression so far as this province is concerned is commonly used in the upper part of India as meaning a tenant with occupancy rights. In the Guide and Glossary to the Survey and Settlement Operations in the Patna and Bhagalpur Divisions published in 1907 the following note appears:

If to ''shikmi'' is found added ''dakhilkar'' the under raiyat has occupancy rights in respect of the holding (Section 183, Ben. Ten. Act, Illustration 2).

It is to be remembered that this work was published in 1907 and although the Glossary was prepared in connexion with the settlement operations in the Patna and Bhagalpur Divisions, there is nothing to show that they were not meant to be used by the settlement authorities in the subsequent operations in other districts. That the word "dakhilkar" was used in this sense is clear from the village note appended to the revisional survey Record of Rights wherein the existence of a custom that under-tenants have occupancy rights in the particular village is noted. In our opinion there can be no doubt that the learned District Judge was correct in holding that the plaintiffs were recorded as under tenants having right of occupancy not only in the cadastral survey Record of Rights but also in the revisional survey khatian.

The position therefore is that the plaintiffs have two Records of Rights in their favour and the value of the presumption which arises u/s 103-B, Ben. Ten. Act, as to the correctness of the entry in the revisional survey khatian is not lessened merely by the fact that the plaintiffs not knowing what the entry meant proceeded to attack it on the ground that it had wrongly omitted to describe them as possessing occupancy rights.

Section 103-B, Clause (3), runs thus:

Every entry in a Record of Rights ... shall be evidence of the matter referred to in such entry and shall be presumed to be correct until it is proved by evidence to be incorrect.

In Kali Roy v. Pratab Narayan [1907] 5 C.L.J. 92, it was observed that as the Records of Rights are prepared with considerable difficulty and the proceedings before the revenue officers are conducted with all publicity; if the entries in such records were Lightly to be discarded the result would be to frustrate the very object for which Ch. 10, Ben. Ten. Act, was enacted. Similarly in AIR 1930 45 (Privy Council) their Lordships of the Judicial Committee dealing with Section 84(3), Chota Nagpur Tenancy Act which corresponds to Section 103-B, Clause (3), Ben. Ten. Act, remarked that the entries in the Record of Rights being made after enquiry by experienced officials, are statutory evidence of great weight, and the onus is on the party impugning their correctness to establish by cogent evidence that the entries are incorrect. It is clear therefore that once these two Records of Rights had been placed before the Court, it was for the defendant to show that the entries in question were wrong. In this case it is nowhere contended that the defendant has adduced any evidence which by itself would rebut the Record of Rights. It is however urged on behalf of the defendant that the Court is entitled in law to examine and enquire into the bases upon which the entries in question were based and if it is shown that the entries were based on insufficient materials or such materials as would not justify these entries, they would stand self rebutted. This raises the question as to whether we are in possession of all the materials which were before the Settlement Officer and whether in the present state of the record we are really in a position to say that the basis of the entry in the Record of Rights was wrong.

Now, the learned Judge from whose decision this appeal has been preferred did not address himself fully to the effect of the revisional survey entry, because he was not sure as to what the expression "shikmi dakhilkar" meant. Once however it is tolerably clear that the word "shikmi dakhilkar" means an under tenant with occupancy rights, the presumption u/s 103-B, Ben. Ten. Act, will have to be given effect to in respect of this entry also and it cannot be assumed that the authorities who were in charge of the revisional survey operations slavishly followed the cadastral survey entry without making independent enquiries. Assuming however for the sake of argument that the revisional survey entry was based entirely upon the cadastral survey entry, the question still arises as to whether it is correct to say that the cadastral survey entry was based upon Mr. Lockhart''s admission only. The learned District Judge whose finding of fact cannot be challenged in second appeal has clearly found that the entry in the Record of Rights was not based merely on Mr. Lockhart''s admission but on other materials also. It is true that he has referred to certain events which preceded that entry, as we have also done in the earlier part of this judgment, and it may be conceded that it is often of the greatest value to consider the history of the proceedings which result in a particular entry in the Record of Rights; but it will be entirely wrong to assume that by relating some of the events which led up to the entry, the learned Judge meant to give an exhaustive account of all the materials upon which the survey entry was based. Again there can be no dispute that a mere admission of Mr. Lockhart cannot confer an occupancy right where it did not exist before but the plaintiffs'' have never contended that they did not possess the alleged occupancy right before or acquired it by virtue of Mr. Lockhart''s admission. Similarly the value of the admission in proof or custom may not be very great, but much depends upon what precisely Mr. Lockhart admitted and it is conceded even by the learned Counsel for the respondent that we do not precisely know what Mr. Lockhart said on that occasion. In fact the learned Counsel for the respondent urged this as a ground to show that no rule of estoppel could apply against his client as a successor-in-interest of the Sitalpur factory.

It was lastly contended on behalf of the respondent that the entry in the cadastral survey was wrong in law because the survey authorities should have realized that an under tenant cannot acquire any occupancy right except by custom and therefore there could not be any under tenant with occupancy right where no such custom had been found or separately recorded in the village note. The obvious answer however to this argument is that if under tenants can acquire occupancy right (and Section 183, Illus. 2, clearly shows that they can) and if the survey authorities were satisfied that certain under tenants had acquired occupancy right by custom, they were quite justified in making the entry in the manner they have made. It would be unreasonable to presume that the survey authorities did not know the law or the provisions of Section 183 and had recorded these persons as having occupancy right even though no custom had been proved before them. In fact the Survey Glossary to which we have referred makes a specific reference to Section 183, Illus. 2 where the meaning of the words shikmi dakhilkar is explained.

In our opinion the view taken by the learned District Judge is correct and these appeals are concluded by his findings. We would therefore allow the appeals, set aside the judgment and the decree appealed from and restore the judgment and decree of the learned District Judge decreeing the plaintiffs'' suits. The plaintiffs will be entitled to their costs in all the Court''s.

In the view that we take it is unnecessary to discuss at any great length the question, whether this is a fit case in which permission should have been granted to the plaintiffs to withdraw the suits. In any event it was discretionary with the learned Judge of this Court to whom this prayer was made for the first time to allow the plaintiffs to withdraw or not to withdraw the suits and we think that the learned Judge did rightly exercise his discretion in not permitting the withdrawal of these suits at the late stage of the litigation at which the prayer was made.