Naurangi Tewari and Others vs Kanhaiya Tewari and Another

James, J.—In the Record of Rights which was prepared for Pachlakhi Village in 1899 (at what is commonly called the Cadastral Survey, to distinguish it from the proceedings under Chap. X of the Bengal Tenancy Act made twenty years later, which may be referred to as the Revisional Survey), plots Nos. 26, 27, 28 and 74 were entered as forming part of the birt holding of Ramanand Tewari. In the Revisional Survey of 1919 the plots, numbered in these proceedings Nos. 49, 50, 51, 99 and 100 were entered as the birt of Naurangi Tewari. The suit out of which this appeal arises was instituted by Jai Narayan Tewari, son of Ramanand Tewari for a declaration that this land was his birt land in which Naurangi Tewari and his co sharers had no interest, and for confirmation of possession.

The defendants contested the suit claiming that the land had been in possession of their ancestors from a very long time back; and alleging that in 1889 they had mortgaged it to one Musammat Aghandi, who had subsequently sued on her mortgage which was ultimately redeemed by the mortgagors. They alleged that since that time they had been continuously in possession of this land, but that for a time they had sub-let a portion of it to a tenant named Ghuri Gour.

The Munsif of Siwan dismissed the plaintiff''s suit. He found that the defendants had proved, by the evidence of their witnesses which he accepted after discussing it, that this land was their birt of which they had been in continuous possession. He also found that the mortgage-deed of 1889 has conveyed to the mortgagee an area which corresponded with plots Nos. 49 and 50 of the Revisional Survey, and that this land was the subject-matter of the, mortgagee''s subsequent suit. He, therefore, found that the entry in the original Record of'' Rights had been rebutted and that the plaintiff had no title.

His decision was reversed on appeal by the Additional Subordinate Judge of Saran. The learned Subordinate Judge observed in the first place that regarding the plot which was numbered 74 in the Cadastral Survey there was only oral evidence of possession on either side; and since the record of the Cadastral Survey was in favour of the plaintiff, it must be presumed that that portion of the birt was in his possession then. The defendants had not been able to show at what time after the Cadastral Survey they had come into possession of this plot; and it must be presumed that the plaintiff''s possession had continued down to the date of the Revisional Survey. He, therefore held that the plaintiff''s title must be declared in respect of this plot and that the defendants must be treated as trespassers. In discussing the plaintiff''s title to the other plots, the learned Judge examined the boundaries which were given in the zurpeshgi deed of 1889.

The learned Munsif had examined these boundaries in the light of the state of affairs which was disclosed by the Record of Rights prepared to the Revisional Survey and he had found that the entries in the revised Record of Rights confirmed the boundaries given in the mortgage deed. The learned Subordinate Judge, ignoring the revised Record of Rights, compared the boundaries of the mortgage-deed with the entries in the Record of Rights of 1889 and he found that the description of the land in the zarpeshgi deed did not tally with the entries in the records of the Cadastral Survey. He, therefore, inferred that the mortgage-deed related to some land other than plots Nos. 49 and 50 of the Revisional Survey, (26 and 21 of the Cadastral Survey) and that it had no connection with the land in dispute. For the rest he dismissed the oral evidence which had been examined with some care by the learned Munsif by merely saying that there was no reliable evidence to show that the defendant respondent had been in possession of the land before the time of the Revisional Survey. By the application of the principle by which he had decided that the plaintiff must be presumed to have been in possession of plot No. 74 until the final publication of the Record of Revisional Survey, he found that the plaintiff must be presumed to have been in possession of these plots till 1919. He, therefore, decreed the plaintiff''s suit.

Mr. Hareshwar Prasad Sinha on behalf of the defendant-appellants argues in the first place that the learned Subordinate Judge was not entitled to presume that the state of affairs described in the Cadastral 8urvey continued till the time of the; Revisional Survey; and, secondly, that the learned Subordinate Judge erred in regarding the Record of Rights prepared in 1889 as not capable of being rebutted by oral evidence. He further argues that the learned Subordinate Judge has not properly considered the effect of the agreement between the boundaries of the mortgage-deed of 1889 and the state of affairs described in the Records of the Re-visional Survey, and that he ought not to have reversed the decision of the trial Court without giving some consideration to the, oral evidence in favour of the defendant.

In the first place, it appears to be clear that the learned Subordinate Judge committed an error of law when he remarked that since there was nothing but oral evidence to rebut the entry in the Cadastral Survey that entry must be treated as not having been rebutted. The presumption u/s 103B of the Bengal Tenancy Act'' is a rebuttable presumption; and when evidence has been given which indicates that the Record of Rights is incorrect, it must be considered before it can be held that the entry has not been rebutted. The learned Subordinate Judge has committed another error of law in treating the presumption of correctness which attaches to the record of possession in the Cadastral Survey of 1899 as necessarily implying that that possession continued until the final publication of the revised record in 1919. It has been pointed out by this High Court, in the unreported case of Rajrikh Pandey v. Sham Shankar Dubey L.P.A. No. 92 of 1928 decided on the 13th December, 1929 that where the revised Record of Rights is in conflict with the original record the presumption is that at some time, between the two dates of final publication ''the persons recorded in the original record lost their possession and that the persons whose names appear in the revised record obtained possession; but that there is no presumption regarding the exact time at which this change in the state of affairs took place. Further, it is clear that the learned Subordinate Judge when he was hearing the appeal ought to have considered the oral evidence; and he ought not to have set aside the'' decision of the learned Munsif which was based upon it, without giving some substantial reason for differing from the findings of the Court before whom the witnesses had actually given evidence.

Since it is clear that the decision of the learned Subordinate Judge could not be supported we have thought it better, in order to avoid a remand, to hear arguments on the issues of fact; we have ourselves examined the evidence u/s 103 of the CPC and we should only unduly prolong this litigation if we remanded the appeal for re-hearing to the successor of the Subordinate Judge who heard the appeal. Now the entries in the Record of Rights as I have observed are conflicting; and it is necessary to examine the oral evidence in order to ascertain whether either of the records has been rebutted, since the two are irreconcilable as they stand.

[His Lordship referred to the evidence and concluded as follows:]

I do not consider that it is possible to hold that the learned Munsif erred in the view which he took of the effect of the evidence which was given in his Court; and I consider that the entry in the Record of Rights which was prepared in 18y9 has been completely rebutted.

I would set aside the decree of the lower Appellate Court, and restore the decree of the learned Munsif, allowing this appeal and dismissing the plaintiff''s suit with costs throughout. The costs will include the cost of the typed copy of the evidence which was prepared for his Court if they are paid by the appellant on or before the 12th of February.

Courtney-Terrell, C.J.

I agree.