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Judgment
Mullick, J.—These thirteen second appeals arise out of thirteen suits instituted before the Assistant Settlement Officer of Champaran u/s 106, Bengal Tenancy Act. It appears that 27 such suits were originally instituted. Twelve were decided by one judgment and 15 by another judgment, dated the 5th of April 1918.
The suits out of which these present second appeals arise belong to this latter batch. The plaintiff in all these suits was the proprietress of the Bettiah estate.
An entry having been made in the Record of Rights published u/s 103A, Bengal Tenancy Act, that the tenants were entitled to appropriate the trees standing upon their occupancy holdings, the proprietress instituted suits before the Assistant Settlement Officer for a declaration that the entry was incorrect.
The Assistant Settlement Officer and on appeal the Special Judge both held that the proprietress had no title in the trees and maintained the entry.
It appears that the plaints in the suits were amended some months after they were filed. In the original plaints the landlord seemed to have recognised a custom by which the defendants were entitled to appropriate half the trees, but in the amended plaints she appears to have withdrawn from that position and to have pleaded that she was entitled to appropriate all the trees but that as she had in fact for many years only realised half the value of the trees, the entry should be amended by limiting her right to that extent.
The Assistant Settlement Officer framed the following issues:
Is the plaintiff entitled to half share of the timber and trees standing on the present survey plots ?
What relief, if any, is the plaintiff entitled to?...
The ordinary law is that the tenant has the right to out bat the landlord the right to appropriate. If the tenant claims any right of appropriation, he must prove a custom or usage to that effect and, there-fore, it was open to the officer who prepared the Record of Bights to enquire whether the tenants had discharged the onus which the law had placed upon them. But as Section 103B, Bengal Tenancy Act, provides that the Record of Rights is presumed to be correct until the contrary is proved by evidence, the Assistant Settlement Officer was in my opinion right in placing the onus upon the plaintiff to show that she had the right to a half share.
From his judgment, however, it is not clear whether he appreciated the real position of the parties. He seems to have been under the impression that before the Revenue Officer the onus of proving a custom was upon the plaintiff. He also seams to think that in the proceedings before him it was for the plaintiff to show that there was a custom entitling her to appropriate the half share. He had before him the evidence upon which the Record of Rights was based, but he comes to no finding that this evidence was sufficient to prove a valid custom or usage in law. He relies entirely upon the weakness of the plaintiff''s evidence as to realisation, in coming to the finding that the Record of Rights has not been rebutted.
In Second Appeal No. 802, the Special Judge, Mr. Boyce, appears to have adopted the same procedure and to have thrown the burden of proving the custom upon the plaintiff. He concludes his judgment by the observation that isolated instances of the collection of the price of timber are not sufficient to prove the custom set up by her.
Mr. Adami, the learned Judge who heard the remaining oases, has stated the legal position correctly and has come to the conclusion that while the plaintiff has failed to show before the Assistant Settlement Officer that there was no custom which would justify the entry, the defendants have proved that there was a custom and that the plaintiff had abandoned her rights. The learned Judge, however, does not discuss the evidence which he considers sufficient to prove the custom set up by the defendants and in my opinion there has been no proper trial of that issue.
The Record of Rights no doubt was entitled to the benefit of the presumption attached to it, but where, as in these oases, the Court had before it the evidence upon which the record was prepared and where the plaintiff denied the correctness of the record, the Court was bound, in my opinion, to come to a finding whether that evidence was sufficient to justify the entry. This view is in accordance with the decisions of their Lordships of the Calcutta High Court in Sheonandan Persad Sukul v. Bacha Raut 4 Ind. Cas. 54 : 9 C.L.J. 284 and Bagha Mowar v. Ram Lakhan Misser 41 Ind. Cas. 804 : 27 C.L.J. 107.
The learned Special Judge Mr. Adami has held that a decision in a case u/s 103 and a judgment in a case u/s 106, Bengal Tenancy Act, regarding certain other tenants in the same village were inadmissible in the present suits, but in my opinion that view is incorrect. This decision and judgment would be relevant u/s 13 of the Indian Evidence Act.
As in my opinion there has not been an adequate and satisfactory treatment of the issue on custom in the judgments of either of the two learned Special Judges, I think their judgments and decrees should be set aside and the oases remanded for re-hearing. The Special Judge now exercising jurisdiction in the matter must come to a clear and definite finding whether the defendants have proved a valid custom entitling them to a half share in the trees. For this purpose they will be entitled to adduce before him such additional evidence as they think necessary, while the landlord will be entitled to adduce rebutting evidence in reply. If the defendants decline to adduce further evidence, the learned Judge will dispose of the case upon the evidence already on the record.
The decisions in Paldkdhari Rai v. Manners 23 C. 179 : 12 Ind. Dec. (N.S.) 119, Dalglish v. Guzuffer Hussain 28 C. 427 : 12 Ind. Deo. (N.S.) 284, Sariatullah Sarkar v. Pran Nath Nandi 26 C. 184 : 13 Ind. Deo. (N.S.) 723 may be of some assistance to the Court in coming to a proper finding.
The appeals are, therefore, decreed and the oases are remanded to the lower Court for disposal in accordance with the directions herein given,
As there has been some carelessness on the part of the plaintiff in drawing up the plaint, neither party will be allowed costs in this Court.
Sultan Ahmed, J.
I agree.