Kameshar Singh Bahadur vs Ramdhari Mandal

Fazl Ali, J.—The question to be determined in this appeal is whether some 35 acres of land comprising the greater portion of plots Nos. 1 to 39 appertain to Tauzi No. 460/1768 of village Moradpur in the district of Purnea of which the plaintiff is the proprietor or to Tauzi No. 225/1533 which belongs to defendants 1 to 12. The plaintiff purchased Tauzi No. 460/1768 at a sale held for arrears of revenue on 13th January 1923 and on 8th April 1929 he commenced the present suit with a view to have demarcated and recover possession of some 66 acres of land comprising plots Nos. 1 to 39 and plot No. 5397 which according to him appertained to Tauzi No. 460/1768. His case was that the plots in question had been wrongly recorded in the cadastral survey record of rights prepared about 1906 as appertaining to the defendants'' tauzi, whereas the case of the defendants was (defendants 1 to 12 being the landlords and defendants 13 and 14 the tenure-holders of the disputed plots) that the record of rights had been correctly prepared and that the plaintiff''s suit was barred by limitation.

The learned Subordinate Judge held that the greater portion of plots Nos. 1 to 39 appertained to the plaintiff''s tauzi but plot No. 2593 did not. He accordingly decreed the suit in part and now defendant 14, who is recorded in respect of the disputed land as tenure-holder under defendants 1 to 12, the proprietors of Tauzi No. 225/1533, has appealed. Now a number of facts may be taken to have been clearly established in this case. It appears that in 1843 one Rup Puri held about 106 bighas of milik land for which Rs. 53-3-5 was assessed as revenue, and this estate bore Tauzi No. 460 (vide Exs. 1, 4 and 5). It appears further that between 1846 and 1849 the lands of Rup Puri were sold more than once for arrears of revenue and ultimately they were purchased by Government for Re. 1 and the Collector was asked to settle them. The condition of the land about this time is described in the following words in Ex. 2, a rubkari of the Settlement Deputy Collector dated 7th June 1853:

It appeared that as a matter of fact the lands are quite parti (torn) have been washed away by the river Kosi Kalan; and like (?) the (said?) lands thousands of bighas (of lands?) around it are lying fallow (and) have become a jungle (?). On account of such a jungle, this mahal was sold by auction repeatedly (?) consecutively. The auction-purchasers could not manage to pay the rent. It was purchased by the Government and made over to me. While the settlement was not yet made, the said records were returned to the Collectorate. Thereafter on 15th May 1852 they were again (?) made over to this Court. A fresh notice was issued, No one appeared. That is from the beginning of the purchase up to the month (?) of November 1852 (during which?) a period of more than three years elapsed no one applied for settlement.

The rubkari proceeds to state that in. 1853 one Mr. Mackintosh appeared and filed an application for settlement accepting a jama of Rs. 12-9-5 and so a settlement for ten years was concluded with him. It is also stated in the rubkari that the area settled with Mr. Mackintosh was. 239 bighas 5 kathas 10 dhurs according to a laggi of four cubits. So far the history of Tauzi No. 460 can be clearly traced but what happened to the estate or to the; lands constituting it after 1863 after the term of settlement with Mr. Mackintosh had expired, we do not know. It may however be stated here that on 20th April 1932 an application was made to the Collector on behalf of defendant 14 for ascertaining "in what year and with whom the permanent settlement of Tauzi No. 460/1768 was made" and the answer-to this application was given in the following terms:

On looking into the settlement records of 460/1768 there is not seen any paper described as, permanent settlement paper although the decennial settlement papers are found.

The plaintiff does not dispute the correctness of the information supplied by the Collector, but wishes us to assume that the estate 460 must have been permanently settled with some one before the date of the cadastral survey and that the new Tauzi No. 1768 is identical with the old Tauzi No. 460. His ground for asking us to make these assumptions are that unless the land had been permanently settled it would not find a place in Part 1 of the Tauzi Roll; and the numbering of the new estate as 460/1768 by itself suggests that there must be some connexion between 460 and 1768. Now the main question to be considered in this appeal is whether the plaintiff has succeeded in establishing that the entries in the record of rights in respect of Tauzi Nos. 460/1768 and 225/1533 are incorrect. It may be stated here at once that the plaintiff has succeeded in establishing that the greater portion of plots 1 to 39 is identical with some of the lands which were in possession of Rup Puri about the year 1843. Rup Puri''s lands are described as Rup Puri milik bearing No. 161 in the revenue survey map (Ex. 12) which was prepared about the year 1846 and Ex. 9 which is a mauzawar register prepared about the same time shows that this was identical with what was then Tauzi No. 460. A commissioner who was deputed by the trial Court to make a local investigation has upon a comparison of the revenue survey map with the cadastral survey map, been able to locate some of the lands which were in possession of Rup Puri, and he has come to the conclusion that the greater portion of plots 1 to 39 represents those lands. The commissioner''s conclusions are also supported by Ex. 15, the cadastral survey map of Tauzi No. 225, in which the lands of that tauzi are described as Tengaria milik and it is noted that the old name for these lands was Rup Puri milik. In my opinion, the commissioner''s conclusion cannot be challenged in the face of the documentary evidence which is before us, and it must be held that the plaintiff has succeeded in showing that plots 1 to 39 represent at least a portion of the lands which were in possession of Rup Puri between 1843 and 1846.

It however remains to be considered whether this fact by itself is sufficient to rebut the cadastral survey entries. It is to be remembered that the plaintiff''s case is that the cadastral survey entries are wrong both with regard to the land of Tauzi No. 225/1533 and Tauzi No. 460/1768. The remarkable fact however is that none of the persons interested in the two tauzis has ever challenged the correctness of the entries and these persons have been in actual possession for a long time according to the survey entry. Thus we find from Ex. R that on 17th July 1911 the lands of Tauzi No. 460/1768 were sold in execution of a decree and purchased by Lala Deosaran Lal and others. The sale certificate gives an inventory of the property and mentions the very plots which are recorded in the cadastral survey papers as plots appertaining to Tauzi No. 460/1768. The area which is given in the sale certificate is 20.48 acres as recorded in the survey papers and not 66 acres which is stated by the plaintiff to be the area of the lands of Tauzi No. 460/1768.

Turning now to Tauzi No. 225/1533 we find that the cadastral survey entry with regard to this tauzi is strongly supported by an old document, Ex. F, which bears the date 2nd February 1892. On that date one Lal Behari Lal executed a sale-deed in favour of Lala Deosaran Lal in respect of Tengaria milik bearing Tauzi No. 225 and paying a sadar jama of Rs. 17-11-1. It is recited in this document (Ex. F) that the vendor had purchased the vended property at a public auction on 16th September 1880 in Execution Case No. 505 of 1880 of the Court of the Munsif of Purnea and that the said property had been in his possession and occupation since the date of the sale certificate; and, that his wife, in whose name the property had been purchased, stood recorded in the Government office since that date. Now, it is common ground that the Tengaria milik is identical with Rup Puri milik and indeed plots 1 to 39 have been specifically described as Tengaria milik in the cadastral survey papers. Thus the recitals in Ex. F, the correctness of which there is no reason to doubt, fully support the cadastral survey entry and show that at least since 1880 the disputed lands which stand recorded as appertaining to Tauzi No. 225/1533 have been dealt with as appertaining to Tauzi No. 225. In these circumstances it seems to me that before we can hold the survey entry to be wrong we must have before us the clearest possible evidence in support of the plaintiff''s case. But as I have already stated the plaintiff has offered no evidence to show what happened to the lands of Tauzi No. 460 after the settlement with Mr. Mackintosh. We have no direct evidence of the permanent settlement of these lands; and, even assuming that the land was permanently settled sometime or other after 1863, we do not know when and with whom the permanent settlement was made and what lands were actually settled and when and in what circumstances Tauzi No. 460/1768 was created.

In other words, there is no paper before us to show the boundaries and the area of this particular estate when it became the subject of the last permanent settlement as Tauzi No. 460 or 460/1768. Further, the plaintiff has not placed before us the papers of the decennial settlement which followed the settlement with Mr. Mackintosh, so as to enable us to hold that the identity of the estate or the lands which had in the first instance been settled with Rup Puri was preserved throughout in the subsequent settlements. On the other hand such evidence as we have before us throws great doubt on the plaintiff''s case that the boundaries and the area of the estate have remained unaffected throughout. As I have already stated, in 1843 the lands which were in possession of Rup Puri was 106 bighas odd. In certain subsequent papers the area is shown to be 66 acres, whereas in 1853 the area is found to be about 80 acres. In 1906 when the cadastral survey proceedings were concluded, the area of the lands recorded in Tauzi No. 460/1768 was 20''48 acres and before the plaintiff instituted the present suit, none of the intermediate holders of this tauzi ever came forward to say that the area had been incorrectly recorded. On the other hand, as I have already stated, Ex. R of 1911 states precisely the same area as is to be found in the Record of Rights. How are we then to conclude that the very land or estate which was in possession of Rup Puri was the subject of the last permanent settlement about which, as I have already stated, no evidence, documentary or oral, is forthcoming? We must also in this connexion remember that the lands being close to the river Kosi must have been subject to violent changes. Indeed from Ex. 2, the rubkari of 1853, it appears that the lands which were in possession of Rup Puri shortly before 1853 had been washed away and thousands of bighas round about these lands were either lying fallow or were overgrown with jungle.

Such being the local conditions it is not inconceivable that in the course of the successive settlements which followed the settlement of these lands with Mr. Mackintosh, mistakes and confusion may have occurred and the boundaries of the estate 460, even though there may have been the intention to keep the estate alive, did not remain unaffected. Thus the estate which was subsequently carved out as ''Tauzi No. 1768 may in fact not have been identical with the estate which in Rup Puri''s time bore Tauzi No. 460. The plaintiff suggests in para. 4 of his plaint that the estate which bears the new No. 1768 is identical with 460 and the suggestion receives some support from the numbering of the new tauzi as 460/1768; but even if we assume that the new tauzi 1768 is in some way or other connected with Tauzi No. 460, the fact remains that we do not know at what point of time the new tauzi was carved out and what were the boundaries of Tauzi No. 460 at that point of time when it was replaced by 1768. Indeed there is no evidence before us to enable us to say with certainty that the estate bearing Tauzi No. 460 which may have been formed at some unknown date after 1863 was identical with the estate bearing Tauzi No. 460 of 1843-46, and from this it follows as a matter of corollary that Tauzi No. 460/1768 has not been proved to be identical with Tauzi No. 460 of the revenue survey period. The plaintiff asks us to assume that Tauzi No. 460 must have remained intact throughout; but there is no justification in law for making this assumption. We are not dealing here with one of those estates which was permanently settled about 1793 or later and has been in existence ever since. We are dealing here with lands which had a chequered history, which were resumed by the Government after the permanent settlement and which have been the subject of a number of successive settlements by the Khas Mahal authorities since 1853.

The same remarks apply more or less to Tauzi No. 225/1533. The plaintiff has endeavoured to identify it with what is described as Debipur milik in the Special Kara map of the district of Bhagalpur and Purnea (Ex. 13) which was prepared in 1917 and one of the documents (Ex. 9) shows that in 1843, Tauzi No. 225 was shown as milik Moradpur bearing No. 150 in the revenue survey map. But beyond this there are no tangible materials before us to enable us to re-construct the history of this estate. On the other hand, as I have already stated, Ex. F, which is a document of 1892, lends considerable support to the cadastral survey entry with regard to the estate. Therefore in the present state of evidence I find some difficulty in holding that the plaintiff has succeeded in showing that the cadastral survey entries are wrong.

So far as the legal position of a purchaser at a revenue sale is concerned, it is now settled by a series of authorities that what passes to such a purchaser in law is the interest of the Crown subject to the payment of the Government assessment and he is remitted to all the rights possessed by the original settlor at the date of the settlement and may take advantage of that position to sweep away or get rid of all the intermediate tenures and encumbrances created by the preceding zamindar since that date: see Sonabati Kumari v. Kirtyanand Singh AIR 1935 Pat 306; Surja Kanta Acharjya v. Sarat Chandra Roy AIR 1914 PC 82 and AIR 1927 135 (Privy Council) . Thus if the plaintiff could succeed on the question of the identity of his estate and if it had been clearly established that the defendants came into possession of the estate after the last permanent settlement, the plaintiff would have been in a position to eject them successfully, because any adverse possession that may have been exercised by them prior to his purchase would have been of no avail against him, he having brought his suit within twelve years of his purchase. The difficulty, however, which confronts us in this case is that the plaintiff has not been able to show when the estate, of which he has become the owner, was permanently settled on the last occasion; and, as I have already stated, it is clear upon the evidence that the predecessors-in-interest of the defendants have been in possession of the identical lands which are claimed by the plaintiff at least since 1880. If the last permanent settlement of Tauzi No. 460/1768 took place after 1880 it is clear that they cannot be ousted. It is true that the onus of proving that the defendants have been in adverse possession since before the date of the permanent settlement is upon the defendants but the onus of proving that the cadastral survey entries are wrong is upon the plaintiff. The defendants have succeeded in proving that they and their predecessors-in-interest have been in possession of this disputed land, at least since 1880, and if the presumption of continuity of possession can be successfully invoked in their favour, as I think in the circumstances it can be, it is clear that the plaintiff cannot succeed in this case. The plaintiff has in my opinion wholly failed to show that the cadastral survey authorities were not justified in recording the disputed lands as appertaining to the defendants'' tauzi. In these circumstances I would allow the appeal and hold that the plaintiff''s suit fails and should be dismissed with costs throughout.

Wort, J.

I agree.