Ramgolam Singh vs Charan Mahton and Others

Rowland, J.—The plaintiff-appellant is entered in the Record of Rights finally published in 1912 as the raiyat of Khata No. 50 in village Chak Gaj Faridiawan bearing a rent of Rs. 16-10-0. The defendant is entered as an under-raiyat having occupancy rights and paying batai rent. The plaintiff served on the defendant a notice to quit u/s 49, Bengal Tenancy Act treating him as an under-raiyat liable to be evicted on notice. The defendant did not vacate the land, hence the suit. The defendants resisted the suit denying that plaintiff had any title to the land and setting themselves up as occupancy raiyats. The Munsif decreed the suit holding that the defendants were under-raiyats under the plaintiff and holding that the entry of shikmi dakhalkar in the khata does not mean that the defendants have got occupancy right. On appeal the Subordinate Judge reversed the finding of the Munsif and held that the defendants were not under-raiyats, that the plaintiff was not the landlord of the defendants and dismissed the suit. The holding had formerly been the raiyati holding of the father of defendant 1 but was sold by him on 6th June 1890, to the plaintiff by a registered sale-deed. The execution of this deed is not denied, the executant is dead and there is no evidence that the consideration for it did not pass. The document is produced by the plaintiff and it may be presumed from this that the document was for consideration. There is also the presumption of correctness attaching by statute to the entry in the Record of Rights. The lower appellate Court''s judgment does not refer to the presumption arising from custody of the document of title. As regards the presumption of correctness attaching to the Record of Rights the Subordinate Judge thinks it is rebutted by what he has found in evidence admitted in his Court at the appellate stage consisting of the records of disputes in the survey proceeding.

In second appeal it is contended that the lower appellate Court has erred in law in not considering the presumption as to consideration arising from the custody of the document and has erred in law in admitting additional evidence at the appellate stage to improve the case of the defendants and has erred in law in holding that the proceedings before the survey officer in the earlier stages of preparation of Record of Rights could rebut the correctness of the final entry. As regards the presumption arising from custody of the document, this was undoubtedly a matter which the Subordinate Judge ought to have considered. As regards the taking of additional evidence reference is made to the Privy Council decision in Parsotam Thakur v. Lal Mohar Thakur 1931 PC 143 and to Order 41, Rule 27, Civil P.C. The Privy Council have pointed out that additional evidence is only to be admitted under this rule where the appellate Court requires it. The legitimate occasion for the exercise of this discretion is not whenever before the appeal is heard a party applies to adduce fresh evidence, but, ''when on examining the evidence as it stands, some inherent lacuna or defect becomes apparent.'' It is also pointed out that whenever the Court adopts this procedure and allows such evidence to be produced, the Court shall record its reason for so doing. In the judgment all that the Subordinate Judge has to say about the procedure followed by him is "Additional evidence was however admitted in this Court." The Subordinate Judge should have given reasons but the appellant''s criticisms of the procedure followed are weakened by the fact that the appellate Court''s order-sheet shows that at the hearing the defendants (the respondents) did not object to the reception of the additional evidence, also the papers admitted being public documents, their admission is not objectionable in the same degree as if they had been private papers which could be prepared at any time.

The third objection to the judgment of the lower appellate Court is a substantial one. It was held in Tengaroo Sukul v. Chathu Bhar 1929 Pat 460, that the civil Court is not a Court of Appeal from the decision of the officer who frames the Record of Rights." This was in answer to the argument that the civil Court having before it the materials upon which the settlement officer arrived at his decision should make a fresh examination of those materials and come to its own finding. The Full Bench decision makes it quite clear that that is not a correct procedure, to do this is to ignore the presumption of correctness attaching to the Record of Rights. The Subordinate Judge has proceeded on the footing that the draft entries made by the Khanapuri Officer and Attestation Officer are entitled to more weight than the entry in the final record. This view is clearly contrary to the law as laid down by the Full Bench. The finding must be set aside. I have no doubt that the Munsif was right in finding on the basis of the Record of Rights that plaintiff was raiyat and the defendant was under-raiyat in respect of the suit lands.

For the respondent it is contended that the Munsif has fallen into an error in not giving effect to that part of the entry which represents the defendant as having occupancy right. The words are shikhmi dakhalkar. The Munsif says:

The mere entry of shikmi dakhalkar in the khatian does not mean that the defendants have got occupancy rights which an undertenant can only acquire by custom or usage, of which there is no evidence in this case, nor is it the case of the defendants.

As to this not being the case of defendants, the comment seems rather technical. The defendants all along asserted their occupancy rights though claiming them in the status of raiyats and not of under-raiyats. If the defendants do not succeed in the matter of status, it does not follow that the claim of occupancy rights should not be examined on the merits with reference to the status which is found to be theirs. The defect in the other comment of the Munsif is that he has manifestly fallen into the error of thinking that it was for the defendants to prove the custom or usage which would support the correctness of the Record of Rights whereas he should have put it on the plaintiff to disprove the correctness of the entry by proving the absence of custom and usage and thereby establishing that the Record of Rights was incorrect. Therefore, it should have been held that the defendants have occupancy rights as entered in the record and accordingly cannot be evicted. The result is that the suit must fail and the decree of the Subordinate Judge dismissing it is correct, but as the defendants took a false defence denying the plaintiff''s title altogether, I think it proper to order that the parties do bear their own costs throughout.