Jagdeo Narain Singh and Others vs Bulaki Gope and Others

Das, J.—The only question raised in these appeals is whether the learned District Judge in the Court below was right in preferring the Record of Rights to the Batwara record. The Batwara record shows the land to be Bhowli land whereas the Record of Rights shows the land to be Nagdi land. The Court of first instance relied upon certain admissions made by the tenants as recorded in the Batwara record and same to the conclusion that the lands were Bhowli lands. The learned Judge in the Court below has differed from the view taken by the Court of first instance.

Now it will appear that the whole question in the case is, whether there was any admission made by the defendants before the Batwara Deputy Collector. The learned Judge in the Court below undoubtedly thought that the onus was upon the landlord to establish the identity of the tenants who are alleged to have made the admissions before the Batwara Deputy Collector.

It has been argued before us on behalf of the appellants that the learned Judge should have presumed the correctness of the record and should have sailed upon the tenants to show that there was any error in the Batwara record. Now I do not think that the position taken up by the appellants is strictly right. I quite agree that under the Evidence Acts "the Court may presume the existence of any fast whish it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in their relation to the fasts of the particular case," see Section 114 of the Evidence Act. In other words, we may presume that the official acts have bean regularly performed. But it was argued that we are further bound to presume that toe Batwara Deputy Collector satisfied himself that the persons who made the admissions before him were in fact the persons whom he had summoned under the Estates Partition Act. Now I do not agree with this contention at all. "Regularly performed" means performed with due regard to the form and procedure. There is no further presumption that we are ailed upon to make. It has been held that in the case of a Register of Marriage, for instance, the identity of the parties named in the register itself affords no proof of the identity of the parties: in other words, some evidence of the fact must be given as for instance calling the Minister''s clerk, or attesting witnesses or other persons.

Now the question in relation to the Batwara proceedings is identically the same. A record is produced by the plaintiff which is alleged to contain the admission of the defendants. The defendants deny that they ever made any admissions which are recorded in the Batwara proceeding. The identity of the parties who made those admissions must, in the first instance, be established by the plaintiff to the satisfaction of the Court, before the plaintiff can rely upon those admissions as against the tenant. In my opinion the regular performance of official acts does not imply that the representation made to them (sic) must be correct; that must be established by the plaintiff. If this point is decided against the plaintiff, then it is a question whether the Court which had to deal with the facts should have relied upon the Bitwara proceeding or upon the Record of Rights. That is essentially a question of fact.

It was argued before us that the Batwara proceeding has the same effect in law as the final entry in the Record of Rights, and for this argument the decision of Janki Dobey v. Kirtarath Roy 4 Ind. Cas. 816 : 13 C.W.N. 93 was relied upon. In that case, however, all that was held was that entries in Batwara papers are admissible in evidence, and the learned Judges were careful to add "though they may not be very valuable evidence." It was for the learned District Judge to say whether the evidence as furnished by the Batwara proceeding was so valuable as to rebut the presumption of the correctness of the Record of Rights. The learned District Judge dealt with the point and came to the conclusion that it did not rebut the presumption. I cannot say that there is any error of law involved in his finding. I must dismiss theca appeals with. costs.

Adami, J.

I agree.