Mahanth Ram Lochan Das vs Nandi Jha and Others

Foster, J.—The plaintiff has proprietary interest to the extent of 11 annas odd in Mouza Biaspur and the defendants are proprietors of the residue. The plaintiff''s suit is for partition. The only point which is in dispute between them is whether the lands described in schedules A and B of the plaint are zerat lands of the village or the occupancy holdings of the defendants. The learned Subordinate Judge heard the defendants'' evidence first and then that of the plaintiff. In his judgment he first examined the defendants'' evidence. He pointed out. that the Record of Rights was entirely in favour of the defendants. As against this the plaintiff contended that it was brought about by the fraud of the defendants. The date of final publication was the 13th October, 1899, and from 1883 to 1920 the defendants'' ancestors held the plaintiff''s share in thika. So, it is urged, they had every chance of obtaining a fraudulent entry in the record. It is also urged that as the lands in dispute fell within the ambit of the plaintifi co-sharer''s zemindari then under the ruling in Jagdeo Narain Singh v. Baldeo Singh 71 Ind. Cas. 984 : 2 Pat. 38 : 3 P.L.T. 605 : AIR 1922 P.C. 272 : 36 C.L.J. 499 : 32 M.L.T. 1 : (1923) M.W.N. 361 : 27 C.W.N. 925 : 45 M.L.J. 460 : 49 I.A. 399 the Record of Rights must be considered to be rebutted. This is how the case is stated; I shall have more to say on this point later. The learned Subordinate Judge examined the oral evidence and came to a finding that the plaintiff''s agents attended at the time of the Survey and Settlement operations. He remarked upon the uncertainty of the plaintiff''s claim, though the suit, was instituted in June, 1922, the identity of the property claimed to be zerat was not established till June, 1923, when the plaint was extensively amended and the claim largely reduced. After noting that it lay-upon the plaintiff to prove what is zerat and what is kasht of the defendants, he points out that the plaintiff has not discharged the onus. The defendants produced old rent receipts which he found to be genuine, and he deduced from these documents the conclusion that the defendants, from the time of very remote ancestors, have been raiyats of this village. He examined the two pattas granted to the ancestors of the defendants in 1883 and 1988 and pointed out that in the first one there is no mention of any zerat at all, and laid great stress upon the second patta which mentions only 7 bighas and odd as zerat. He remarked that the defendants do not for a moment claim those lands, described in the second patta, to be part of their holding. Then he examined the Road Cess Returns of 1919, and pointed out that the lands in dispute are shown there as raiyati kasht of the defendants and that these Returns are signed by the plaintiff''s manager and attorney. As to these documents, the plaintiff pointed to the fact that they were drawn up on information provided by the defendants who were in possession as thikadars. Proceeding to the evidence of the plaintiff, the learned Subordinate Judge examined the Kabuliat of 1869 executed by an Indigo Factory Manager in favour of the plaintiff''s predecessor-in interest. In that document there is mention of zerat but without specification. The learned Subordinate Judge thought that this must be a mere formality copied from precedents. It should be noted, however, that one at least of the plaintiff''s witnesses, an old man of 75 years, Somedat Thakur deposed "Kuthi grew indigo in the land and. so I nailed it zerat." He also stated that during the time of the factory there were 30 or 40 bighas of zerat in the factory''s possession. Now looking at the term jamabandi of 1875 (Ex. 2), I see that within each tenant''s holding there was some area appropriated to the cultivation of indigo, in the total it must amount to a considerable area. Bach tenant''s rent was at certain rates according to the classes of land comprised within the holding, and a deduction of 10 annas per bigha was made upon the total area in consideration of the cultivation of indigo. The learned Subordinate Judge then examined Ex. 3 series, khasras for the period 1875 to 1879. These are partly lists of trees subject to danabandi (appraisement) and there are several Khasras danabandi (accounts of appraisement). The learned Subordinate Judge is not correct in saying that, these do not show what village they refer to. They refer to Biaspur and the names of the Brahmin tenants include several persons who we know were ancestors of the defendants. The learned Subordinate Judge found that in the plaintiff''s oral evidence there is no precise statement found as to the identity of the zerat lands. So he decided this issue against the plaintiff, who is now appealing.

The onus of proof rests upon the plaintiff, not only because he is plaintiff but because he has the Record of Rights against him. In my opinion the case of Jagdeo Narain Singh v. Baldeo Singh 71 Ind. Cas. 984 : 2 Pat. 38 : 3 P.L.T. 605 : AIR 1922 P.C. 272 : 36 C.L.J. 499 : 32 M.L.T. 1 : (1923) M.W.N. 361 : 27 C.W.N. 925 : 45 M.L.J. 460 : 49 I.A. 399 which has been quoted on the plaintiff''s side has no application to the present discussion. The right of the zemindar to rent is so universal as to be a presumptive right Section 114 of the Evidence Act would raise the presumption. It is a right all the more enforceable because the zemindar has to pass on a share of the collection to Government in the form of revenue. But the zemindar has no right generally to possession of the raiytiti holdings. The raiyat existed, before the zemindar came, and in the Permanent Settlement it was laid down that the raiyats are to be protected in their possession. That policy is carried out in the Bengal Tenancy Act. It is a mere truism to say that the zemindar has a right to all lands not held by tenants, and the proposition appears to be irrelevant, until the Record of Rights, prepared under the Bengal Tenancy Act, is, rebutted. There is hence no conflict of presumptions. In Jagdeo Narain Singh v. Baldeo Singh 71 Ind. Cas. 984 : AIR 1922 P.C. 272 : 36 C.L.J. 499 : 27 C.W.N. 925 : 45 M.L.J. 460 : 49 I.A. 399 the fact that the land of the tenants fell within the ambit of the plaintiff''s zemindari was sufficient to rebut the entry in the Record of Rights showing the defendants'' land to be free of rent and the defendant had the duty of showing by some grant or such like evidence that he in particular was relieved from the universal duty of paying rent. In the case of Sri Nath Roy v. Pratap Udai Nath Sahi Deo 82 Ind. Cas. 879 : 28 C.W.N. 145 : (1923), M.W.N. 702 : AIR 1923 P.C. 217 : 33 M.L.T. 408 the plaintiff was purchaser of the pargana which in the judgment of their Lordships of the Privy Council is found to have been a rent-paying jagir within the ambit of the zemindari of Chota Nagpur. The plaintiff''s vendor purported to be an independent talukdar of the pargana, and the defendant, the zemindar of Chota Nagpur, contended that the pargana bad been resumed" on failure of male issue in the line of dependant talukdars. The plaintiff urged that the pargana was not resumable. The Record of Rights showed it Mo be resumable; and their Lordships laid great stress on the presumption prescribed in Section 103B of the Tenancy Act. This case appearsto me to establish my argument as to the burden of proof. Had the entry been "non-resumable" the same presumptive weight would have attached to it, and the burden would have rested on the defendant zemindar; here also the zemindar has the duty of proving his claim, in face of the Record of Rights. I have examined the oral evidence in this case. In my opinion the judgment of the] learned Subordinate Judge is careful and well founded. The first witness on the plaintiff''s side informs us that he heard from tenants of the village that the land, in dispute is not kasht. He is the person named as having attended the Survey operations on behalf of the plaintiff, he denied this. He admits that the plaintiff attended the Survey operations of various other villages. He admits that the Road Cess returns are correct. So in effect he says very little for the plaintiff and makes some damaging admissions. The 2nd witness admits that he does not know the disputed land, and fie says that where the factory grew indigo the land was called zerat. He admits that two of the plaintiff''s servants attended the Survey operations in this village. The 3rd witness once served under the Patwari of Biaspur and is 71 years of age. He does not know, the disputed land and he says that his statement that the plaintiff had 40 bighas of zerat in the village is based, on papers which are at his home. The 4th witness admits that the defendants had cultivation in the village in the time of the factory, he cannot say whether that cultivation was in the land that is now the subject-matter of the suit. The 5th witness denies that the factory grew indigo in the tenants'' holdings; but he is contradicted by the plaintiff''s own document the term jamabandi of 1875. The 6th witness is Somedat Thakur whose evidence I have already referred to. He concedes that the defendants'' ancestors had raiyati holdings in the village.

The holdings of the defendants'' ancestors are shown in the jamabzndi khasra (Exs. 2 and 3 series) of 1875 to 1879, and there are old rent receipts going back to the first half of the last century. These do not however, show sufficiently clearly what area was held by these, ancestors, and what particular land: The plaint had first contained as zerat in its schedules all the lands recorded as the raiyati holdings of the defendants, bur, that was amended a year later and the area greatly reduced. The defendants have not only the Record of Rights of 1899 in their favour but also the Road Cess Returns (Exs. F to F2). The plaintiff urged that in this matter of Road Cess Returns he proceeded upon the information given by the defendants who were then thikadars in possession, and in fact I find from the oral evidence that the jamabandi was given by the thikadar to the plaintiff in order to prepare the Road Cess Returns. The plaintiff: had then a European manager. There is one important point to be noted in connection with these documents. The Road Cess Return is always divided into parts. There is a part showing lands in detail in actual occupation of the person submitting the return and there is a part showing lands held by cultivating raiyats. The latter Return (Exs. F to F2) would, in my opinion be sufficient to (give notice to the plaintiff of ah encroachment by the defendants upon zerat lands of the village if it extended to so much as 20 acres. It is signed by the plaintiff''s manager, it is stated in the plaint that the plaintiff did not get notice of the occupation by the defendants of the zerat lands until 1327 Fasli, when the plaintiff had occasion to purchase a small share from one of the co-sharers.

The plaintiff has entirely failed to prove that the lands in the possession of the defendants as recorded in the Survey khatian include zerat lands. There certainly is some zerat in the village, the zerat within the plaintiff''s share is defined by metes-and bounds and Survey numbers in the patta of 1903. The translation in the paper book is not accurate, oh page 41, line 29 of part III. It should be: "With zerat land, exclusively belonging to one the proprietor measuring 7 bighas 9 death as together with bhaoli garden bamboo clumps..."It is suggested in argument that these 7 bighas and odd constitute a proportionate part of the 10 bighas 12 kathas 4 dhurs shown in Ex, 4. One thing, however, is clear, the words "exclusively belonging" relate to the entire share demised including exclusively possessed zerat. These documents furnish some amount of positive evidence as to the identity of the so-called zerat lands, if we have to search for them in the present case. It may be mentioned here that it is not seriously contended that the term zerat as applied to the land in dispute is accurate, it should be probably bakasht malik or ghairmazrua malik, according to its condition.

For these reasons I would dismiss this appeal with costs.

Das, J.

I agree.