JUDGMENT
Kulwant Sahay, J.
1. The dispute in this case relates to 010 acres of land recorded in the Revisional Survey in plot No. 96-709. In the Provincial Settlement the plaintiff was recorded in respect of 143 acres of land including the land in dispute in plot No. 96. His case is that the entry in the Revisional Settlement as regards 010 acres of land in the name of the defendant in plot No. 96-709 was wrong and he suit was instituted for declaration of the plaintiffs title and recovery of possession. Both the Courts below have held that the plaintiff had failed to prove his title and possession within twelve years.
2. In second appeal it has been contended that the presumption of correctness attached to the entry in the Provincial Settlement is not rebutted by the entry in the Revisional Settlement inasmuch as the settlements in the present case were made under the provisions of the Bengal Tenancy Act and there is, in the Bengal Tenancy Act, no provision similar to the provision contained in Section 117 of the Orissa Tenancy Act. Section 117 of the Orissa Tenancy Act provides that if any entry in a Record of Rights is altered in subsequent Record of Rights, the latter entry shall be presumed to be correct until it is proved by evidence to be incorrect, but the previous entry shall be admissible as evidence of the facts existing at the time such entry was made. It is true that there is no such specific provision in the Bengal Tenancy. Act, but this provision in the Orissa Tenancy Act does not in any way affect the provisions contained in the Bengal Tenancy Act. Section 103B of the Bengal Tenancy Act gives a statutory presumption of correctness to the entries in the Record of Rights. When there are two Records of Rights prepared at different times, entries in both of them will be presumed to be correct entries of facts existing at the time the entries were made. There is nothing in the law which would entitle a party to say that the” entry in the “Subsequent record is rebutted by the entry in the previous, record. Reliance has been placed upon a decision of this Court in Raghunath Misra v. Ram Behera 75 Ind. Cas. 427 : 5 P.L.T. 140 : 1 Pat. 167 : A.I.R, 1922 Pat. 548. It is not clear as to whether their Lordships were considering the provisions of the Bengal Tenancy Actor of the Orissa Tenancy Act. Reference has been made to Section 103-B of the Bengal Tenancy Act and it has been held that where the plaintiffs were recorded as rafa tankidars in the Provincial Settlement Records and as tankidars in the Records of the Revisional Settlement, the entry in the Provincial Settlement Records was sufficient to rebut the presumption arising from the entry in the Records of the Revisional Settlement inasmuch as there was no procedure by which the status of the plaintiff could have been changed from that of a rafa tankidar to that of a tankidar in the interval between the two Settlements.
3. This decision, however, does not affect the question now before us. There is no question as regards an alternation of status between the time of the entry in the Provincial Settlement and that in the Revisional Settlement. The question is as to who was in occupation of and in possession of the land as tenant at the time of the Provincial Settlement and at the time of the Revisional Settlement. There was no question of status involved in the case and, therefore, the only question is as regards possession and I, therefore, hold that the entry in the Revisional Settlement Record cannot be considered to have been rebutted by the entry in the Provincial Settlement Record.
4. The next point argued is that as both parties challenge the correctness of the entry in the Revisional Settlement the presumption of correctness is rebutted. As regards the defendant, what he alleged was that there were certain trees standing on plot No. 96-709 which was entered in his name, but those trees were not shown in the Revisional Settlement. From this it is argued that the defendant does not admit the correctness of the entry in the Revisional Settlement. The presumption raised by the entry in the Record of Rights is a statutory presumption and the fact that both parties alleged that, the entry was incorrect in certain respects, will not take away the statutory presumption attached to it. In Murali Dhar Aditya v. Thakur Das Mondal 51 Ind. Cas. 50 an observation was made by the learned Judges of the Calcutta High Court to the effect that where both the plaintiff and the defendant in a suit repudiate an entry in the Record of Rights, the presumption arising from the Record of Rights may be held to have been rebutted. This would depend on the circumstances of each case and no hard and fast rule can be laid down. The presumption attached to the entry under the law must stand and the question as to whether the presumption had been rebutted by evidence adduced in the case must depend upon facts and circumstances in each case. We have, moreover, got the finding in the judgment of the learned Subordinate Judge to the effect that the entry in the Revisional Settlement was made on the admission of the plaintiff. There is also a finding upon the evidence that the plaintiff had failed to prove possession within twelve years of the suit. On these findings this second appeal must be dismissed with costs.
Macpherson, J.
5. I agree. The findings of the first Court were that on all the evidence oral and documentary, the plaintiff had failed to rebut the presumption attaching to the entry in the Revisional Record of Rights in favour of the defendant, which indeed had been made with the assent of the plaintiff and that the plaintiff had not been in possession within twelve, years of the institution of the suit. These, findings were affirmed on appeal. On each of these findings the suit must fail. As regards the plea advanced before us that the entry in the Revisional Record of Rights is rebutted by the entry in the Provincial Record of Rights, the position is that these were by no means the only items of evidence in favour of the defendant on which the Courts had to determine the facts and the appreciation of the facts by the lower Appellate Court on materials proper for its consideration is binding in second appeal. But even if there had been nothing more before it than the two competing entries in the Provincial and Revisional Records of Rights with presumption attaching to each of correctness at the date which it was finally published, it cannot be said as a matter of law that the earlier entry is to be preferred to the later entry. The decision in Raghunath Misra v. Ram Behera 75 ind. Cas. 427 : P.L.T. 140 : 1 Pat. 167 : A.I.R. 1922 Pat. 548, appears to me, with all respect, not to be correct. In the first place, the question is not one of law and in the second place it cannot, in the absence of other considerations (which in the ruling cited do not appear to have existed), be said to be even reasonable to prefer the earlier entry, since the presumption is that it would not have been altered by the officer revising the Record of Rights unless for good reason. Such might be either that the position had changed or that the former entry was, in spite of the presumption of correctness attaching to it, proved to his satisfaction to be erroneous.
6. To my mind the statutory presumption of correctness attaching to an entry in the Record of Rights is certainly not rebutted and generally is hardly even weakened by the fact that it is challenged or repudiated wholly or in part by both parties to a litigation. In law that presumption can under the amendment of 1907 only be rebutted by evidence that it is incorrect. And the result of experience is that an entry, which both parties assail, generally represents with substantial accuracy the actual facts as an unprejudiced observer has found them on the spot.
