Ghoghar Raut vs Jagarnath Prasad Singh and Others

Meredith, J.—This is a plaintiff''s second appeal; against a judgment of reversal.

The suit was for declaration of title to and recovery of possession over 1.12 acres of land, khesra No. 71, Khata No. 75 of village Mohanpur, and the plaintiff claimed title as his ancestral kast land on the basis of an entry in the Record of Rights in the year 1896 recording it in the name of his grandfather Arjun Raut. He asserted that he had been in possession until he was forcibly dispossessed by the defendants landlords in Baisakh, 1348 Fasli.

The defendants contended that the disputed land had been their zerait or bakasht since before the cadastral survey, and they had all along been in possession.

The learned Subordinate Judge on the basis of certain partition papers, and the fact that the plaintiff could produce no rent receipts for the whole period of 40 years, held that the presumption of correctness of the Record of Rights had been rebutted, and the plaintiff had not established title. Secondly, that the suit was barred by limitation, because the plaintiff had not proved possession within 12 years of the suit. (He should perhaps have said two years of the suit, as dispossession was alleged by the landlords).

Mr. Bhabanand Mukherjee in a very able argument has contended, first, that the batwara papers were inadmissible, and, secondly, that in view of the survey entry there was no onus on the plaintiff to prove possession within the period of limitation, but the onus was shifted to the defendants to prove when the plaintiff had been dispossessed, and there was no finding upon that point.

With regard to the survey papers, the defendants put in Ex. B/1, barawarda of Collectorate partition which took place in the year 1897, the year after the publication of the record of rights. In that document it appeared that the plot was described and treated as zerait. They also put in the barawarda of a subsequent civil Court partition (Ex. B), which showed that the land had been similarly treated.

Mr. Mukherjee relies upon a decision of a Judge of this Court sitting singly in Rudra Narain Singh v. Maharaja Rameshwar Singh AIR 1916 Pat. 37 in which it was laid down that batwara papers are not admissible in evidence against persons who were not parties to the batwara proceedings. I am of opinion, however, that the word" "inadmissible was used somewhat loosely in that case. Such papers are, I think, undoubtedly admissible u/s 13, Evidence Act as instances in which the right in question was claimed and recognised. Section 13 does not say that they are admissible only where the documents are inter partes. They are, I think, admissible to show that a particular right was asserted or recognised, irrespective of who the parties may have been at the time. It is the fact of the assertion of the right that they are admissible to prove, and the fact of assertion of a right has nothing to do with particular parties. They are, of course not binding against tenants who were not parties in the batwara proceedings, but that is a different matter. They also carry no presumption of correctness ( Lachhandhari and Another Vs. Rajpat Mahaton and Others, but that again does not touch the question of admissibility. Admissibility of evidence is one thing, and the weight to be attached to it is quite another. In Sheikh Jaki Mamood v. Dino Bandhu Bhattacharjee (09) 2 I.C. 367 it has been laid down that the partition paper prepared u/s 57, Estates Partition Act is admissible in evidence u/s 13, Evidence Act as record of a transaction in which the, right to certain plots is recognised. In Raja Shiva Prasad Singh Vs. Hira Singh and Others, it has been held that a batwara barawarda prepared under the provisions of chapter 7 of the Estates Partition Act, 1876. by the Deputy Collector, in the course of his official duty, is admissible as a public document u/s 35, and is evidence against the landlord in whose presence it was made.

Once it be held that the barawardas were admissible, then the finding based on those documents and on the failure to produce any rent receipts over a long period cannot be touched in second appeal. The question of the weight to be attached to such evidence and whether it is sufficient to rebut the presumption of correctness of the Record of Rights is one for the Courts of fact.

Then on the point of limitation, the general rule has been finally settled so far as this Court is concerned in Raja Shiva Prasad Singh Vs. Hira Singh and Others, . Mr. Mukherjee relies upon Sheikh Barkat Ali v. Basant Nunia AIR 1917 Cal. 79. In that case in a suit for ejectment it was hold that the Record of Rights raised a presumption in the plaintiff''s favour, and shifted the onus on the defendants to establish affirmatively that the plaintiff had been out of possession for more than the statutory period. It was necessary for the Judge to find when the plaintiff was dispossessed.

In my view, if that decision is at all correct it cannot be regarded as applicable in this Court in view of the principles laid down in the Pull Bench case I have referred to. The decision can only be based on the general rule of evidence in favour of presuming the continuity of things shown to exist at a prior date. It is certainly a plausible argument that if the plaintiff has shown that he was in possession in 1896 he must be presumed to have continued in possession unless and until his dispossession is proved by the defendants. But the presumption in question is a general presumption. It would equally apply no matter what the evidence on which the plaintiff relied to prove his possession in 1896. The plaintiff might conceivably have shown conclusively, say by an admission of the defendant, that he was in possession in April, 1896. Nevertheless, in view of the Full Bench case it would have to be held that he could not succeed. The general presumption of continuance of an existing state of affairs would not help him, and he would have independently to prove his possession within the statutory period. How then can he be in a more favourable position where he relies merely on the presumption of the Record of Rights to show that he was in possession in 1896? The general presumption, if it could carry him to success, would equally carry him to success in both cases; but when the Pull Bench says that it cannot carry him to success even if he has fully established his possession outside the statutory period, then how can it avail merely because he relies upon the Record of Rights. The actual presumption of correctness which the Record of Rights carries is merely that he was in possession at the time the record was made. Anything further depends on the general rule of evidence, to which I have referred, and I can only interpret the Pull Bench decision as holding that general rule of evidence in favour of presuming the continuity of things shown to exist at a prior date cannot be availed of in suits for ejectment.

For the reasons I have given, I think that the finding that the appellant had not established title must stand, and the view taken on the question of limitation was correct. The appeal, therefore, fails, and is dismissed with costs.