Malik Mokhtar Ahmad vs Akloo Mahto and Others

Macpherson, J.—This is an application for permission to appeal under the Letters Patent against the dismissal of a second appeal under Order 41, Rule 11. As Mr. Khurshaid Husnain has pressed the point very strenuously, I adopt the some what unusual course of recording my reasons for refusing permission.

Appellant sued for damages in respect of palm trees alleged to have been out and appropriated by the defendants from lands within his zamindari. The defence was that the trees stood on the nakdi lands of some of the defendants and that the trees were the property of the raiyats of the land who had cut them. The defence adduced the entry in the Record of Rights in respect of the trees which is kul haq raiyat.

The Munsif in an elaborate judgment dismissed the suit on the finding that the plaintiff had failed to rebut this entry in the Record of Rights and was not entitled to any damages since the whole property in the trees belonged to the raiyat including the felled timber. An appeal failed on the same grounds Prima facie the decision is sound.

It is now urged by Mr. Khurshaid Husnain that no presumption of correctness attaches to the entry "kul haq raiyat" since it is an entry recording a local custom and so is outside the scope of an incident of a tenancy such as is referred to in Section 102(h), Ben Ten Act. He relies upon the decisions in Raghubir Missra v. Bhajan Singh 40 Ind.Cas. 987., Suresh Chandra Rai v. Sitaram Singh 57 Ind.Cas. 126., Debi Dayal Singh and Others Vs. Mt. Gango Kuer and Others, and the judgment in Sheopratap Sahi v. Sheonandan Pandey Pat. Civ. Revn. No. 403 of 1930 which followed the last mentioned case.

The head-note in Raghubir Misser v. Bhajan Singh 40 Ind.Cas. 987 which is:

An entry in the Record of Rights cannot have the effect of overruling well-settled principles of law where such entry conflicts with the established law, the established law must prevail over the entry, and the presumption attaching to the entry must be deemed to have been rebutted.

does not really represent the actual decision. The point in controversy was the ownership of some palm trees which stood on the plaintiff''s side of an ar or boundary fence and therefore within his plot but which were shown in the Record of Rights as belonging to the defendants. As an examination of the record of the second appeal shows the lower appellate Court had set out:

I do not think there can be any doubt that the settlement entry is mistaken...and not in accordance with its own practice.

and had found that the correctness of the entry had been rebutted and that in fact the trees had been recently planted by the defendants in the plaintiff''s land without permission. The only point for decision therefore was no more than whether the entry prevailed in face of the finding of fact that it had been rebutted.

The appeal being obviously concluded by the findings of fact, the other observations in the judgment are obiter. They are also in direct conflict with the decision in Bishun Pergash v. Seosaran Teli AIR 1922 Pat. 497, where it was held that the presumption attaching to an entry in the Record of Rightg is not rebutted merely by showing that the entry is contrary to the general law on the subject with which the entry deals and therefore where the Record of Rights contained an entry that the trees belonged to the tenants, it was held that the mere fact that ordinarily the law gives to the landlord the full right in respect of the timber was not sufficient to rebut the presumption arising from the entry. Indeed with all respect they appear to be altogether contrary to the plain provision of the statute.

In Suresh Chandra Rai v. Sita Ram Singh 57 Ind.Cas. 126 it was held by a single Judge that a village custom is not one of the particulars which have to be recorded u/s 102(h), Ben. Ten. Act, and if it is recorded there is no presumption u/s 103(B), Ben. Ten. Act, that it is correct, though it is relevant evidence u/s 35, Evidence Act, and accordingly the burden of proving existing custom lies on the party who relies on the custom. Now the question for decision was whether the entry in the Record of Rights

if there is produce, the landlord gets rent upon measurement of the lands at the rate of Rs. 2-8-0 per bigha,

made in respect of a holding in the kosi area was a "special incident of the tenancy" and the decision was that as the defendants did not in their written statement contend that this was a special condition of the tenancy but alleged local custom in derogation of the common law right of the landlord, the entry in the Record of Rights did not support the case of the defendants as put forward by them. There is no suggestion that if the defence had alleged that it was an incident of the holding that the tenant paid only on the measured area of the land on which there was produce instead of alleging custom, the entry in the Record of Rights would not u/s 103(B), Ben. Ten. Act, have carried the presumption of correctness. In addition the view that an entry cannot be made u/s 102(h), of the special conditions and incidents of a tenancy simply because these are in accordance with the local custom is one to which, as at present advised, I am not prepared to subscribe. The decision of Das, J., has been considered by James, J., in Singheshwar Chowdhry Vs. Parbal Mandal, where the entry with regard to an under raiyat was shikmi dakhalkar. He observed:

It cannot be assumed as a matter of course that the entry of shikmi dakhalkar in the Record of Rights must have followed on decision of the Revenue Officer on the question of local custom but the defendant, apart from his reliance upon the entry in the Record of Rights, now founds his case upon local custom and Mr. S.N. Bose argues that it should be presumed that he always did so. Now, although it may be conceded that a Revenue Officer may be travelling out of his sphere when he records as a special incident of every tenancy in that village a local custom by which special remissions may be made in time of flood as was held by Das, J., in the case of Suresh Chandra Rai v. Sitaram Singh 57 Ind.Cas. 126., that decision should, I think, be read with reference to the particular facts of the case then under discussion, and it should not, I would respectfully submit, be extended to support a general rule that no incident of a tenancy, how vitally it may affect the status of a tenant, can be properly recorded u/s 102(h), Ben. Ten. Act, if the right or the liability recorded is based on the existence of a local custom.

Where occupancy rights may be obtained by a tenant as a result of local usage or by any other means, the Revenue Officer, whose duty it is to frame the Record of Rights must, I think, record as an incident of the tenancy the fact that the tenant possesses such rights. Revenue Officers are required u/s 102 to enter the class to which the tenant belongs, the situation and a quantity of his land, the rent payable by him, the mode in which that rent has been fixed and special conditions and incidents, of any, of the tenancy. If the under tenant enjoys occupancy rights, that is to say, if he is free from liability to eviction u/s 49, Ben. Ten. Act, and if he enjoys special privileges u/s 113, of the Act with regard to the period during which a settled rent cannot be enhanced, a Record-of-Rights which omits to mention this special incident of the tenancy, that the under raiyat enjoys occupancy rights, would be certainly defective in most important particulars.

With these remarks I respectfully agree.

The decision in Debi Dayal Singh and Others Vs. Mt. Gango Kuer and Others, expressly followed the decision in Suresh Chandra Rai v. Sitaram Singh [1920] 57 I.C. 126 and extended it to the case of an entry in the Record of Rights in respect of the rights of raiyats in the fruit and timber of trees standing on their holdings where the entry was kul haq raiyat. The decision was that the entry was not one with regard to the incidents of the tenure and did not carry with it the presumption of correctness u/s 103-B. It was on this decision that Mr. Khurshaid Hasnain laid most reliance. But upon sending for the original record of the case, I find that the decision had been reversed in Debi Dayal Singh v. Gango Kuer AIR 1931 Pat. 209, Foster, J., in delivering the judgment of the Court observed:

The entry kul haq raiyat is an entry of a special incident of the tenancy directly authorized in item (h), Section 102, Ben. Ten. Act. There is no suggestion in the entry itself or in the record of the case that this incident arises out of any custom. It may just as possibly arise from contract. It is certainly a special incident of this tenancy as it stands recorded, and there is no apparent reason why the presumption of its correctness should be removed from it.

This decision was not mentioned in argument. Indeed the serious danger of citing unauthorized law reports is well illustrated by the present case. It is highly reprehensible of compilers of such report or of any law reports to omit to report the judgment of the appellate Court reversing the decision in a case which they have reported and there can be no doubt that their failure to do so in this instance has occasioned much harm in the Courts of this Province. Steps will now be taken to have the decision reported in the Patna Series of Law Reports. I am impelled to observe that a decision in second appeal should rarely be reported until any appeal preferred against it under the Letters Patent has been determined.

In the fourth case mentioned the decision in Debi Dayal Singh and Others Vs. Mt. Gango Kuer and Others, was adduced before the Judge of this Court without any mention of the fact that it had been reversed in appeal and the learned Judge without committing himself to it guardedly directed a consideration of the evidence.

The point which was urged before me was that the matter was in doubt in view of the three decisions of single Judges cited on behalf of the appellant and the decision of James, J., which differed from them. But in my opinion there is no doubt at all by reason of the decision in the Letters Patent Appeal (8), which definitely holds that the entry kul haq raiyat in respect of trees is an entry of a special incident of a tenancy which carries the presumption u/s 103-B, Ben. Ten. Act.

The same view is implied in the decision in Bishun Pragash Narain Singh v. Sheosaran Teli AIR 1922 Pat. 497 , already cited and was taken in Bidya Prasad Singh and Others Vs. Surkhur Mahton, . There the controversy was with regard to an entry in respect of trees and the Court held:

The entry in the Record of Rights, which was made u/s 102 (h), Ben. Ten. Act, is evidence that as an incident of his tenancy the plaintiff is entitled to appropriate the timber of his trees and Section 103-B of the Act, provides that this entry must be presumed to be correct until the contrary is shown.

The same view has been admirably set out by Ross, J., in Matukdeo Narain v. Sadhusaran Ojha [1931] 12 P.L.T. 304, decided within the last ten days.

There is thus no doubt at all as to the law which is entirely against the contention of the appellant and the second appeal was correctly dismissed in limine.

The application is refused.