Lachhandhari and Another vs Rajpat Mahaton and Others

Chatterji, J.—This appeal arises out of a suit relating to revisional survey plot 2835 which corresponds to cadastral survey plot 1593 of khata 84. This half of the batwara plot 680 of a khatian was prepared some time in 1897. In the batwara this plot 680 stands recorded in the names of Dhanraj uncle of one Hansraj and of Daulat, father of plaintiff 1. In the cadastral survey plot 1593 has been recorded in the name of Daulat and his brother Ajodhya is mentioned therein as Jodha; while in the revisional survey the plot has been recorded in the name of Hansraj who has made a gift subsequent of this property to the defendants. There was an intermediate public record, namely, the batwara khatian prepared some time before the revisional survey and there the land in dispute stands recorded in the names of the plaintiff''s branch.

The case for the plaintiffs is that the land in suit really belongs to them but has been wrongly recorded in the revisional survey in the name of Hansraj the predecessor of the defendants'' while the case for the defence is that the entry in the cadastral survey was wrong and the correct entry has been made in the revisional survey Record-of-Rights.

The learned Munsiff accepted the case for the defence and dismissed the suit. The learned Subordinate Judge in appeal, on the other hand, thought that the entry in the revisional Record-of-Rights was sufficiently rebutted and passed a decree in favour of the plaintiffs. This is clearly a finding of fact and ordinarily we are not competent to go into this finding in second appeal, but it is urged on behalf of the appellants that the decision of the Subordinate Judge is wrong because he has been influenced by what he alleges to be the presumption arising out of the entry in the recent batwara khatian. This is what the learned Subordinate Judge states on this point:

The new batwara was conducted under the new Batwara Act, which attaches to it a presumption of the same sort as the law gives to the suvey entries.

Now we think that the learned Subordinate Judge has fallen into an error in thinking that a batwara entry under the new Partition Act carries with it a presumption of the same character as is attached to an entry in the cadastral or revisional survey. In fact, the presumption conveyed by the survey entries arises out of the statutory provision in Section 103-B, Ben. Ten. Act. There is nothing in the Batwara Act to show that an entry therein will carry any such presumption.

Our attention has been drawn to the case of Debi Lal Sah v. Ram Bibeki Singh [1921] 63 I.C. 194. where the headnote shows that a party has in his favour the presumption of the Record-of-Rights prepared in partition proceedings under the Estates Partition Act, but it is to be remembered that Jwala Prasad J., was dealing in that case, with the rights of the proprietors inter se and in fact he states that the partition Record-of-Rights raises a presumption as to the possession of the plaintiffs over the land in suit according to the admission of the defendant and his cosharers.

This shews that the learned Judge did not attach a presumption to the batwara Record-of-Rights apart from the admission of the defendant and his cosharers. Then it is settled law that every judicial pronouncement must be read in reference to the facts and circumstances of that particular case. This case is certainly no authority for the proposition that a batwara entry shall carry a presumption under all circumstances. Therefore we think that the learned Subordinate Judge has expressed himself rather loosely on this part of the case.

In this view we thought that we might look into the evidence adduced on both sides ourselves in order to find whether the decision on the finding of fact is correct or not. The whole of the evidence oral and documentary has been placed before us and after carefully considering the same we are satisfied that the finding of fact far from being erroneous is supported by the evidence as also the circumstances of the ease. It is admitted that Hansraj is removed from the plaintiffs by some degrees. It is also admitted that the branch to which Hansraj belongs has got a separate khata with separate lands.

It therefore does not seem likely that one particular plot of land 680 would be recorded in the name jointly of Hansraj''s uncle Dhanraj and the plaintiffs'' father Daulat. On a careful consideration, as I have said, of the entire evidence and the circumstances we think that the finding of fact has been correctly arrived at and there is no reason why we should disturb the decision of the learned Subordinate Judge. The appeal is accordingly dismissed with costs.

Courtney-Terrell, C.J.

I agree.