Maharani Janki Kuar vs Usman Sain and Others

Ross, J.—These appeals arise out of suits u/s 106 of the Bengal Tenancy Act. The plaintiff claimed that the entry in the Record of Rights to the effect that all rights in the timber on the land in suit were in the tenants should be cancelled; and that it should be held that she was entitled to half the timber of the value there of. The Assistant Settlement Officer dismissed the suits and the Special Judge upheld his decision.

It is contended on behalf of the appellant that both Courts have misapprehended the nature of the plaintiff''s claim and have consequently misplaced the burden of proof. The allegation in the plaint is that although according to law the plaintiff alone is entitled to the entire timber, yet since she and her predecessors had for a long time been getting only half, she claimed only half. The Assistant Settlement Officer held, first, that there was a presumption in favour of the defendants arising out of the entry in the Record of Rights and secondly, that the plaintiff had set up a custom entitling her to half the timber, which she had to prove. Precisely the same grounds have been taken by the District Judge He holds that it is for the plaintiff to rebut the entry in the Record of Rights and that the evidence which she has given is insufficient to prove the general custom alleged.

As to the first point, assuming in favour of the defendants that the presumption of correctness does attach to the Record of Bights even in a suit u/s 106 to set aside an entry therein, it has been held in Janki Kuer v. Saudagar Ram 56 Ind. Cas. 417 : 1 P.L.T. 221 : (1920) Pat. 177 that where the Court has before it the evidence upon which the record was prepared and where the plaintiff denies the correctness of the record, the Court is bound to coma to a finding whether that evidence is sufficient to justify the entry. No such finding has been come to in the present case.

Then it is contended that there is a clear presumption attaching to the previous Record of Rights which is not the subject matter of the present litigation. All that that entry shows is Bakabze birit bandobastidar. The entry cannot be read as entitling the defendant''s to the timber of the trees and to any share therein, It merely records that the trees are in their possession and is different from the entry in the revisional record which is kul haq birit bandobastidar.

As to the second point there can be no doubt that both the Courts below have gone wrong. Under the general law the plaintiff is entitled to the timber of the trees. This right has been modified by her admission in favour of the tenants that the tenants get half; but that is not to set up any custom, as has bean bald in Bameshwar Singh Bahadur v. Basudeva Singh 60 Ind. Cas. 521 : 6 P.L.J. 127. The plaintiff does not base her claim on any custom but on the general law. She makes a congestion in favour of the tenants; but where the tenants set up a right in derogation of the general law, that right must be proved.

It was urged on behalf of the respondents that they are Birit bandobastidar and that the incidents of their tenancy differ from those of. an occupancy tenancy. I see no justification for this view. They may pay no rent; or, rather, they may originally have paid no rent--rent has now been assessed and they are recorded as kaimi tenants; but the mere fact that they pay no rent does not alter their status as tenants and does not modify the general law governing the rights of landlord and tenant in respect of timber.

There is no finding by either Court that the defendants have established their right to half the timber and in the absence of any finding or evidence to that effect, the plaintiff must succeed on the general law. The result in that the appeals must be decreed with costs and the suits decreed with costs throughout.