Kalyandas Adhikary and Others vs Jyoti Lal Patar and Others

Dawson-Miller, C.J.—This is an appeal under the Letters Patent from a decision, of Mr. Justice Adami affirming a decree of the District Judge. The suit was instituted by the plaintiff claiming to redeem from the Defendant No. 4, Jyoti Lal Patar certain lands in mauza Ghipida which had been mortgaged by the plaintiffs on the 5th April 1903. Although there was some dispute at the trial as to whether these lands had ever been in the possession of the plaintiffs at all, it is proved beyond all dispute and accepted by all the Courts that the land was settled, with the plaintiff or his predecessors many years ago by the predecessor of the Defendant No. 4. The Defendant No. 4 is the ghatwal of the land in question. The first defendant Chaitan Mahto is the mortgagee to whom the plaintiff mortgaged the land in 1903. The land consisted of two plots and carried a rental of Rs. 10. The portion which was mortgaged is said to have carried a proportionate rent of Rs. 6.

The mortgage was a usufructuary mortgage and was redeemable upon paying the mortgage money, Rs. 99, in Jeth of any year. The land accordingly might be redeemed upon paying the mortgage money at any time within 60 years of the date of the mortgage. What happened was, according to the plaintiffs'' case, that the plaintiffs'' predecessors had advanced certain money to the grandfather of the 4th defendant who was at the time the ghatwal of the village and that money was repayable by certain instalments equivalent to the amount of rent of this holding and by the year 1309 B.S. if the instalments were paid the debt would be discharged. The arrangement was that the rent due from the tenant should be set off against the amount due to him under the loan to the ghatwal. Therefore in 1309 rent in fact became payable to the landlord by the plaintiff for this holding. He appears, however, for some reason or another, to have been unable to pay the rent with the result that he mortgaged a portion of the land as I have already stated and with regard to the balance, the rental of which would be about Rs. 4 or Rs. 4-8-0, he made a surrender of that to the landlord.

The rent of the mortgaged portion would of course be payable by the mortgagee. Therefore the plaintiff would not be liable for that rent assuming of course that the mortgagee paid it. So matters went on until the year 1921 when the plaintiff deposited the money in Court u/s 83 of the Transfer of Property Act and claimed possession of the property. He was, however, too late in depositing the money and was unable to get possession at that time. In the following year, however, he again deposited the money in Jeth and the money being refused he brought the present suit to recover the property.

The main question for determination in this suit was whether the plaintiff had mortgaged this property to Chaitan Mahto and whether Chaitan Mahto had at a subsequent date, that is, in or about the year 1314, transferred his mortgage interest to the defendant. Admittedly the defendant was in possession of the property. He claimed, however, that he was in possession not under any mortgage; In fact he denied altogether the mortgage itself and the transfer of the mortgage right to him and his case was that he and his grandfather, the, previous ghatwal had been in possession of this property all along.

The learned Munsif found the facts in favour of the plaintiff and granted him a decree for possession of the land in suit On appeal the District Judge, although he found that the defendant''s story was not true that he had been in possession as ghatwal all along, came to the conclusion that there was no reliable Evidence to support the view that the defendant was in possession as mortgagee, and as he had been in possession for more than 12 years he had acquired a title against the plaintiff. He further found that the plaintiff had admitted in a previous suit, that he had been dispossessed from the entire jote by the grandfather of the Defendant No. 4 in the year 1314 and therefore that in any case if the plaintiff had been dispossessed of his property by the defendant''s predecessor, then the plaintiff, more than 12 years later could not sustain a suit for recovery of the land. The case came on appeal to this Court and was decided by Mr. Justice; Adami who dismissed the appeal.

The main point which has been argued before us is that the learned District-Judge improperly rejected the evidence of the record-of-rights prepared under Sections 80 and 81 of the Chota Nagpur Tenancy. Act. The record-of-rights contains am entry to the effect that the defendant, was in possession of the land in suit as a mortgagee under a transfer of the original mortgagee''s rights and if that is accepted as evidence in the case, then there is ay statutory presumption of its correctness until it is proved by evidence to be incorrect: see Section 84, Sub-section (3) of the Chota Nagpur Tenancy Act. The learned District Judge, however, rejected this evidence on the ground that the entry describing the nature of the defendant''s possession was not such an entry as was required to be made in the record-of-rights under the provisions of Section 81 and therefore was something which did not come under the provisions of Section 84, Sub-section (3) of the Act. Section 80 provides that the Local Government may make an order directing that a survey be made and a record-of-rights be prepared in respect of the lands in any local area, estate or tenure or part thereof, and the manner of preparing the record is prescribed, in the Act. Section 81 provides that where an order is made u/s 80 the particulars to be recorded shall be specified in the order and may include either without or in addition to other particulars some or all of the following, namely, (then follow) a number of matters which may be set out in the record-of-rights. The first of these is the name of each tenant or occupant.

There is not in terms any direction that an occupant holding as a usufructuary mortgagee shall be described as such, but it is certainly usual to find in the record-of-rights in Chota Nagpur and in Bengal entries of that nature describing the nature of the possession of the occupant, and as I read Section 81 particulars of that sort would be perfectly proper particulars to enter in the record-of-rights if they were specified in the order made u/s 80, for Section 81 provides that the particulars to be recorded shall be specified in the order and they may include either without or in addition to other particulars some or all of the following, namely, those set out which I have already referred to in the latter part of the section. It is clear therefore that any particulars appearing in the record-of-rights which are specified in the order made u/s 80, are proper particulars to be recorded in the record whether they come within the different classes mentioned in Section 81 or whether they are in addition thereto. The learned District Judge (and the same view was taken by Mr. Justice Adami) considered that no presumption of correctness attached to this entry u/s 84 of the Chota Nagpur Tenancy Act, because the entry was not one of the particulars for the recording of which sanction is given by Section 81 of the Act.

He further pointed out that the entry itself was incorrect in one particular, namely, that it gave the rent of the land as Rs. 10 whereas it should be Rs. 6. Assuming for a moment that the entry of Rs. 10 was incorrect although it was in fact apparently the amount of the rent payable for the whole holding, still this does not appear to me to have any bearing on the present question, namely, whether the defendant was holding the land as mortgagee or in some other capacity. It may well be that the rent of this particular land ought to have been described as Rs. 6 and by some mistake1 the rent of the whole holding, namely, Rs. 10 was put in, but that does not seem to me to detract in any way from the value of the remaining part of the entry.

It is said that as the order made u/s 80 specifying the particulars that shall be recorded has not been produced by the plaintiff it cannot be said that the particulars relied upon by him are such as were contained in the order and therefore the statutory presumption referred to in Section 84 cannot apply. I cannot take this view. The ordinary rule is with regard to official documents of this nature, that they must be presumed to be correct until the contrary is shown, that is to say, it must be presumed that the entries made in the record-of-rights were those entries and those entries only which are required to be made in the order passed u/s 80; and had the defendant wished to dispute the validity of the entry, then I think the onus would be on him to produce the order passed u/s 80 to show that these particulars were not in fact required. It seems to me therefore that the learned District Judge shut out a most valuable and cogent part of the evidence in favour of the plaintiff.

Taking this view it seems to me that there are two courses open to us either we may send the case back to the District Judge to consider again the evidence in the light of this entry in the record-of-rights which carries with it a statutory presumption as to its correctness until it is proved by evidence to be incorrect. On the other hand, we may look into the evidence which is before us and is very short and consider whether there is in fact on the record in this case any evidence at all which may be taken as rebutting the presumption arising from the record-of-rights. (His Lordship then discussed the evidence and concluded).

For these reasons it seems to me that the decision of the learned Judge of this Court and of the District Judge must be set aside and the appeal allowed with costs-here and in all the Courts below, and the decree of the Munsif should be restored.

Jwala Prasad, J.

I agree.