Satya Charan Shrimani vs Shib Charan Trigunait

Agarwala, J.—The dispute in this suit relates to five small parcels of land situate in mauza Angarpathra in the Manbhum District of Chota Nagpur which belongs to certain persons who may conveniently be called the Trigunaits and who hereinafter will be referred to as the lessors. In 1894, the lessors granted a mining lease of 100 bighas of land to Jogendra Sreemani, and a few days later a similar lease of 101 bighas lying east of Sreemani''s grant to Nagendra Mitra. In each instance the demised land was divided into two blocks by the Railway line which runs through the mauza from west to east. Plaintiff-appellants No. 2, the National Goal Company, are the present sub lessees of the land leased to Sreemani while the defendants respondents, who are also Trigunaits and own a one third share of the proprietary interests have acquired the leasehold interest of Nagendra Mitra. On January 8, 1925, the Record of Rights in respect of Angarpathra was finally published. Plots Nos. 306,357 and 358, which, plaintiffs allege, fall within the boundaries of their grant south of the Railway line, were recorded on the basis of possession in the gairmazrua malik khatian of the defendants-respondents tenure, and plots Nos. 341 and 342, which they allege fall within their grant north of the line, were recorded as appertaining to plaintiffs'' leasehold, but in the possession of the defendants as subordinate tenure-holders to the plaintiffs and as holding belagan, kabit lagan.

The present suit was instituted on March 2,1928, by Satya Charan Sreemani, son of Jogendra Sreemani and the National Coal Company. Plaintiffs prayed for a declaration of their title to the disputed plots and for recovery of possession and for a declaration that the eastern and southern boundaries of their grants are as shown in a map prepared by a Commissioner appointed for the purpose in Title Suit No. 132 of 1910. The learned Subordinate Judge found that there were no materials before him from which the boundaries between the plaintiffs and defendants leasehold land could be ascertained; that the plaintiffs had never been in possession of the plots in dispute; and that the defendants title to these plots must be presumed from the fact that they were and had always been in possession of them. He, therefore, dismissed the suit and the plaintiffs have preferred this appeal. The first contention of the appellants is that in so far as their title to the disputed plots has been recorded in the Record of Rights, the onus of displacing the presumption of correctness attaching to the entry by reason of Section 84(3), Chota Nagpur Tenancy Act, 1908, lies on the respondents. In reply to this contention it was argued on behalf of the respondents that the land in dispute being non-agricultural land, the preparation of the Record of Rights was ultra vires the survey authorities and that consequently no presumption of correctness attaches to the entries in it.

In support of the first part of this proposition reference was made to the decisions in Raniganj Coal Association, Ltd. v. Jadoonath Ghose 105 Ind. Cas. 299 : AIR 1927 Mad. 908 : 26 L.W. 355 : 53 M.L.J. 407, E.J. Rooke v. Bengal Coal Co. Ltd. (1920) A.C. 324 : 122 L.T. 530 : 89 L.J.K.B. 323 , and B.N. Ry. Co. Ltd. Vs. Dhanjishah Pestonji and Another, . The first of these cases was a suit for recovery of rent and one of the questions which arose was whether it was governed by the general law of limitation contained in Article 116, Limitation Act, 1908, or by Art, 2, Schedule 3, Bengal Tenancy Act 1885. The question whether Chap. 10, Bengal Tenancy Act, relating to the preparation of the Record of Rights applied did not arise. E.J. Rooke v. Bengal Coal Co., Ltd. (1920) A.C. 324 : 122 L.T. 530 : 89 L.J.K.B. 323, was also a suit to recover rent and the only question agitated was whether the suit was entertainable by the Revenue Court or whether it should have been instituted in the ordinary Civil Court.

In the third case B.N. Ry. Co. Ltd. Vs. Dhanjishah Pestonji and Another, ., the lessor sued for recovery of royalty due under a mining lease and on the question of limitation the Court relied on the decision in Ranigunj Coal Association Ltd. v. Jadoonath Ghose 105 Ind. Cas. 299 : AIR 1927 Mad. 908 : 26 L.W. 355 : 53 M.L.J. 407 None of these cases assist in the solution of the question now under consideration. Reference was also made to Shaikh Elahi Bakhsh Vs. E.I. Railway Administration, ., Sasi Kanta v. Sandhya Moni Dasya 73 Ind. Cas.1027 : AIR 1923 : A.I.R 1923 Bom. 452 : 47 B 785 : 25 Bom. L.R. 513:133 Ind. Cas.451. Ganesh Dass-Bisheshwar Lal Vs. East Indian Railway Company, . and Puran Das Vs. East Indian Railway Co., In the case in Shaikh Elahi Bakhsh Vs. E.I. Railway Administration, . it was held that Section 103, Bengal Tenancy Act, does not apply to non-agricultural land situated in a mofussil Municipality, i.e., that with regard to such land an application for settlement of rents is not entertain able by a revenue officer in cases where a settlement of land revenue is not being made or is not about to be made. The decision is not an authority for the proposition that the Chota Nagpur Tenancy Act excludes non-agricultural land from survey operations. Furthermore, in that case a Record of Rights had been prepared u/s 105, Bengal Tenancy Act, and there is nothing in the report of the appeal to indicate that it was held or even contended that the preparation of the record was ultra vires.

In the case The Saraspur Manufacture Co. Vs. B.B. and C.I. Railway Co., , it was contended that no presumption of correctness attached to an entry in the Record of Rights that certain lands were chandinia or bazar land, the argument being that such land is not subject to the Bengal Tenancy Act. It was found as a fact that the land was agricultural land. Furthermore, it was held that the presumption of correctness attaching to the Record of Rights did arise although their landlords expressed an opinion that the force of the presumption in the case of bazar lands is not as great as in the case of "matters which, are rightly and properly included in the Record of Rights." A similar view was taken in the case Ganesh Dass-Bisheshwar Lal Vs. East Indian Railway Company, . These two cases were cited with approval in the case Puran Das Vs. East Indian Railway Co., These cases, so far from supporting the respondents contention, are cases in which the presumption as to the correctness of an entry in the Record of Rights was treated as arising even with regard to non-agricultural lands. The weight to be attached to a rebuttable presumption necessarily depends on the circumstances of each case. The cases cited, therefore, cannot be taken to be authorities for the proposition that an entry in the Record of Rights, with respect to non-agricultural lands is, in law, entitled to less weight than a similar entry with respect of agricultural lands. Section 80, Chota Nagpur Tenancy Act, 1908, authorizes the Local Government to direct the preparation of a Record of Rights "in respect of the land" (not necessarily the agricultural land) "in any local area, estate, or tenure or part thereof." Unless the notification expressly excludes non-agricultural lands there is nothing in this provision to indicate that such lands, situated in the area or estate to be surveyed, are to be excluded. Indeed in Nagendra Nath Sen Vs. B. and N.W. Ry. Co. and Another, it was held that in the absence of a notification of exclusion u/s 101, Sub-section (1),,Bengal Tenancy Act, the mere fact that land is non-agricultural, as for example homestead land, situated within a municipality, is not sufficient to exclude it from the operation of Chap. X relating to the preparation of the Record of Rights. Among the particulars which the revenue officer may be directed to record under the Chota Nagpur Tenancy Act are:

Section 81(a), the name of each tenant or occupant, (c) the situation and quantity and one or more of the boundaries of the land held by each tenant or occupier.

Section 84(3) requires that

every entry in a Record of Rights which has been finally published shall be evidence of the matter referred to in such entry and shall be presumed to be correct until it is proved, by evidence, to be incorrect.

It is not suggested that non-agricultural land was expressly excluded from the survey of Manbhum. The principles followed in the preparation of the Record of Rights of land in the occupation of mine owners are stated thus in Mr. Gokhale''s: "Final Report of the Survey and Settlement Operations of the District of Manbhum, 1918-25,"

(a) Where a mine owner had also taken a lease of the surface, he was automatically given a khewat and treated as any ordinary tenure-holder. The uncultivated land on which the colliery actually stood was recorded in the anabad khatian. (b) Where the mine owner had merely obtained permission to occupy a part of the surface for purposes of working the mine or had acquired waste land for mining purposes only, the lands in actual possession of the mine owner were recorded in a separate khatian. No rent was attested and in the column for status the words "colliery company" were written, (c) Where the land occupied by a mine owner was not demarcated on the ground and its boundary could not be definitely ascertained the buildings and other details were surveyed and linked up with the surrounding waste land on the map and the name of the mine owner or colliery company shown against the plot in the ashize mashur or list of notable objects but no khewat or khatian was prepared. Such cases were very few.

The plaintiffs right to the surface of the land covered by their grant was established in a previous suit with the lessors (see Ex. 18, the judgment of the High Court) The next contention of the learned Advocate for the respondents was that even though the entries must be presumed to be correct until proved to be incorrect, their incorrectness may be established by reference to the state of things existing before the Record of Rights was prepared. In this connection reference was made to Rama Nath v. Official Trustee of Bengal 92 Ind. Cas. 332 : AIR 1926 Lah.116 : 6 Lah. 499 . G.I.P. Ry. Co. and Others Vs. Jugul kishore-Mukat Lal . and The East Indian Railway Co. and Another Vs. Chinmay Charan Sanyal, . In the first of these cases it was held that the pre-sumption u/s 103-B, Bengal Tenancy Act, 1885, may be rebutted by evidence external to the settlement proceedings or evidence of matters apparent on the face of those proceedings and in the second case, that an entry in settlement records may be shown to be wrong by reference to the proceedings that had been taken by the revenue authorities. Similarly, in the Patna case, the proceedings which led up to the finally published record of rights were held to be admissible for the purpose of rebutting the presumption. The view is new well established by authority and is not challenged though caution is required in its application to particular cases. The next stage in the contention on behalf of the respondents was that when evidence has been adduced by both sides, the presumption is rebutted if the evidence in support of the entry is unreliable. In Kiran Chandra Roy v. Srinath Chakravarty 61 Ind. Cas. 926 : AIR 1921 Lah. 1 : 133 3 Lah. L.J. 297. which was cited for the respondents, it was held that when the correctness of an entry is investigated in the Civil Courts and the parties adduce evidence on the point in controversy, the entry loses its weight when the evidence discloses no foundation for it. In the next case cited on this point, Secretary of State Vs. Bhagwan Das and Another ., it was held that the fact that the only evidence on which the Settlement Officer based the entry does not support his conclusions, is the strongest possible proof that the entry is incorrect. These authorities cannot usefully be applied to the facts of any case unless all the materials on which the Settlement Officer based his conclusions are known. Under the statute the duty of a Court of law is, plainly, to presume an entry in the record of rights to be correct until it is proved by evidence to be incorrect.

The statute requires that the evidence relied on to rebut the presumption must, show definitely that the entry is incorrect and in my opinion, evidence which merely suggests a doubt as to the correctness of the entry, or evidence about which it is arguable that some other person might have reached a conclusion different from that of the Settlement Officer, is not sufficient to rebut the presumption of correctness attaching to an entry in the record of rights. The points in dispute between the parties in the present appeal depend upon the correct ascertainment of the boundaries of the plaintiffs lease on the east and south east of the land demised. [After examining the evidence regarding the boundaries and the several maps produced, His Lordship proceeded.] The learned Court below, on an examination of the evidence afforded by the maps already referred to, came to the conclusion that they were of no assistance in ascertaining correctly the boundary line between the lands of the contesting parties. With that conclusion I am unable to agree for the, reasons already stated. The survey map agrees with the appellants previous maps in respect of the boundary between the two leases of 1894, in regard to plot No. 345 in which are included 306 and 358, In this respect the survey record is in support of appellants contention. With regard to the question of possession, it is admitted by the plaintiffs that the defendants are in possession of the there disputed plots south of the Railway line, namely plots Nos. 306, 357 and 358. After discussing the question His Lordship concluded. In the result, therefore, I would grant the plaintiffs a declaration that the eastern and south-eastern boundaries of their grant are as shown in the map (Ex. 4-b), made by Upendra Mohan Das Gupta (according to which plots Nos. 306, 341/342; 357 and 358 fall within the plaintiffs lease), a decree for recovery of possession of plots Nos. 306, 341, 342 and 358 and an injunction prohibiting the defendants from entering upon the plaintiffs leasehold land except, plot No. 357 of the cadastral survey map (in respect of which the plaintiffs have failed to prove they were in possession within 12 years of suit and in respect of which the appeal is, therefore dismissed.) The plaintiffs will be entitled, to half their costs in both Courts. The decree should take note of the extra court-fees realized on the plaint and memorandum of appeal.

Macpherson, J.

I agree.