Sheo Pershad and Others vs Jhaman Singh and Others

Das, J.—Plot 469 has been recorded in the Record-of-Rights as Ghairmazrua bandh; and certain trees standing on plot 469 have been recorded as belonging to the plaintiffs and the defendants. The plaintiffs are the admitted landlords; the defendants are the tenants in respect of the adjoining land in the putti not of the plaintiffs but of other persons. The plaintiffs embarrassed by the entry in the Records-of-Rights giving half the interest in the trees in the plot 469 to the defendants, sued for declaration that those trees belong to them and that the entry in the Record-of-Rights is wrong.

The Court of first instance decreed the plaintiff''s suit. The lower Appellate Court differed from the Court of first instance and has dismissed the plaintiff''s suit.

The first question argued before me turns on the question of onus as to which the Courts below have differed. The Court of first instance thought that the onus was on the defendants to establish that they had any title to these trees. The lower Appellate Court thought that the onus was on the plaintiffs to establish that the entry in the Record-of-Right giving half the interest in the trees to the defendants is erroneous. It is true to say that the initial onus is on the party who attacks an entry in the Record-of-Rights. It was undoubtedly for the plaintiffs to establish that they were entitled to the trees to the exclusion of the defendants. But the plaintiffs showed that the land itself was recorded as ghairmazrua bandh. In other words the land upon which the trees are planted is the property of the plaintiffs in which the defendants have no interest whatever. This consideration had great weight with the Court of first instance.

This is not at all. The learned Judge in the Court below apparently conceded that it was open to the plaintiffs to show that there were no materials upon which the survey authorities could have decided that the defendants were entitled to half the interest in the trees; but he thought that the plaintiffs placed no materials before the Court. Now this is not correct. The judgment of the learned Munsif shows that the survey authorities proceeded upon the evidence of one of the defendants to whom special oath was administered at the instance of Gaya Prasad, the gomastha of the plaintiffs. What happened was this. Gaya Prasad apparently said that if the defendants took special oath and said that they had any interest in the trees he would give up his position that the plaintiffs were entitled to the trees to the exclusion of the defendants. The defendants had no hesitation in taking this special oath and this is how the survey authorities came to record these trees in the name of the plaintiffs and defendants jointly. If the Court of first instance is right in saying that the survey authorities proceeded solely on what was stated by the defendants on special oath, then clearly there is no foundation whatever for the entry in the Record-of-Rights. Gaya Prasad had no authority from his master to consent to his master''s title being bartered away in this manner; and the survey authorities apparently did not examine the materials with a view to see whether the defendants had any interest in these trees.

Now the learned Subordinate Judge in the Court below does not deal with this matter at all. But there is a sweeping assertion that it was for the plaintiffs to show that there was no basis for the entry in the Record-of-Rights. In my opinion the way in which the learned Subordinate Judge has dealt wish this matter is somewhat unsatisfactory, and the question should be re-investigated by him.

Mr. Siveswar Dayal draws my attention to that portion of the judgment where the learned Subordinate Judge says that he is satisfied on evidence that the defendants were all along in possession of the said trees and further that the plaintiff''s and defendants were entitled to the trees jointly in equal shares. I recognise that this finding looks vary much like a finding of fact, but the way in which the learned Subordinate Judge has dealt with whole case has satisfied me that he ought to rehear the matter. The learned Judge attached too great a weight to the entry in the Record-of-Rights and overlooked the fact first that the land upon which the trees stood was Ghairmazrua bandh and that therefore the trees presumably belonged to the plaintiff''s, and secondly that the plaintiffs placed materials before the Court in support of their case that there was no foundation at all for the entry in the Record-of-Rights. I do not know what the decision of the learned Subordinate Judge would have been had he considered the matter from this point of view.

I would accordingly allow the appeal, set aside the judgment and decree passed by the Court below and remand the case to that Court for a decision according to Jaw.

Costs will abide the result and will follow the decision in the Court below.