Jagdeo Singh and Others vs Mahendra Singh

Fazl Ali, J.—The dispute in this appeal relates to a mango tree which stands on land which admittedly belongs to the plaintiffs. This tree was recorded in the revisional survey papers as belonging to the defendant though according to the cadastral survey record of rights it appertained to the land of the plaintiffs. The plaintiffs brought a suit to obtain a declaration that the revisional survey entry was wrong and the tree belonged to them. The suit was decreed by the Court of first instance, but dismissed on appeal by the District Judge of Saran, who held that the revisional survey entry had not been rebutted and that the plaintiffs had failed to prove their possession of the tree within 12 years of the suit.

Only two questions have been raised in this appeal: (1) that the entry in the revisional survey Record of Rights relating to the tree has no presumption of correctness because no such entry was required to be made u/s 102, Ben. Ten. Act, and (2) that the lower appellate Court should have held that the presumption, if any, arising from the entry in the Record of Rights was amply rebutted by the general law that a tree which stands on a piece of land must be presumed to belong to the owner of the land.

As to the first proposition it has been held in various decisions of this Court that an entry in the Record of Rights in reference to trees is one which the settlement authorities are authorized to make and therefore it carries with it the presumption of correctness u/s 103-B of the Act. Besides, it has not been shown by the appellant that in the order made u/s 101 the possession of trees was not one of the particulars to be recorded in the Record of Rights.

As to the second question reliance is placed upon the case of Raghubir Misser and Others Vs. Bhajan Singh and Others, , where an observation is made that an entry in the Record of Rights cannot have the effect of overruling well established principles of law, and where such entry conflicts with the established law, the established law must prevail over the entry and the presumption attaching to the entry must be deemed to have been rebutted. This decision has been fully explained by Macpherson, J., in Malik Mokhtar Ahmad Vs. Akloo Mahto and Others, , and it has been pointed out that these observations in the judgment are mere obiter dicta. The contention which is raised in this case is exactly the contention that was raised in Bishun Prasad Singh v. Sheo Saran Teli AIR 1922 Pat 497, and it was disposed of by Sir Dawson Miller, C.J., as follows:

He (the appellant) contends that be has sufficiently discharged the onus merely by proving that the general law of the land is that he is entitled to the trees. That however is not in my opinion, sufficient in the present case to entitle him to say that he has discharged the burden. It must be presumed that when the Assistant Settlement Officer heard the parties and arrived at the conclusion that the trees belonged to the tenants he had taken into consideration the question of whether there was or was not a custom whereby the right in the trees belonged to the tenants or whether they possibly acquired that right in some other way as by some agreement between the landlord and themselves, We do not know, because the evidence is not before us, what the reasons were which induced the Assistant Settlement Officer to form the opinion which he did, but one is entitled to assume that at all events he had good ground for forming that opinion until the contrary is proved.

It appears to me that these observations fully meet the argument advanced in this case. The presumption which the learned advocate for the appellant contends should be raised under the general law can override the entry in the Record of Rights only if it could also be assumed that in no case whatsoever can a person other than the owner of the land acquire right in the trees standing on it. Even the learned advocate for the appellant concedes that no such sweeping assumption can be made. The learned advocate for the appellant also relied on Bahadur Singh v. Mohar Singh (1902) 24 All 294 and Rajkumar Roy v. Gobind Chunder Roy (1892) 19 Cal 660.

In the first mentioned case there was no Record of Rights relating to the subject matter of dispute and in the latter case it being found that the plaintiff''s title had been established with regard to the subject matter of the dispute and that the defendants had succeeded in showing that they were in possession for ten years previous to the suit, a question arose as to how the possession of the subject matter of the dispute during the two critical years preceding the ten years during which the defendants had been in possession was to be determined and the Judicial Committee simply pointed out that in such a case possession must be presumed to follow title. I do not think that any of these two decisions, when closely examined, will be found to have any application to the present case.

It appears that the appeal is entirely concluded by the findings of fact not only on the question that the revisional survey Record of Rights entry has not been rebutted, but also on the question that the plaintiff has failed to prove his possession within 12 years of the suit. The lower appellate Court has referred to the evidence adduced on behalf of the plaintiff and has pointed out that the only witness (P.W. 3), who speaks of their specific acts of possession in this case is not a reliable person. It is contended that the cadastral survey entry being in favour of the plaintiffs the lower Court should have presumed that the plaintiffs were in possession up to the date of the revisional survey.

The lower appellate Court has however considered the entire evidence in the case and has arrived at the conclusion that the plaintiffs have failed to prove that they were in possession within 12 years of the suit.

In my opinion the appeal is without any merits and must be dismissed with costs.

James, J.

I agree.