Adu Mandal And Anr. vs Hira Lal Mistry And Ors. on 27 July, 1928

Calcutta High Court
Adu Mandal And Anr. vs Hira Lal Mistry And Ors. on 27 July, 1928
Equivalent citations: AIR 1929 Cal 255, 117 Ind Cas 539
Author: Mukerji


Mukerji, J.

1. This appeal arises out of a suit for declaration of title and recovery of possession. The plaintiffs have been successful in both the Courts below and the defendants have thereupon preferred this second appeal.

2. The plaintiffs’ case was that the land in suit appertained to a jama which they held under certain zemindar called the Mitras, that they had leased out the land to one Sonatan and that Sonatan had been dispossessed by the defendants in 1919. The defence, on the other hand, was that the land appertained to a jama of the defendants themselves which they held under certain zemindars called the Hatbaria zemindars.

3. The learned Subordinate Judge in concurrence with the trial Court found that the plaintiffs’ case that the land appertained to their jama under the Mitras, that the same had been leased out to Sonatan and that Sonatan had been dispossessed by the defendants had been made out. He came to this conclusion on a consideration of the evidence that there is on the record. This conclusion unquestionably is a conclusion on a question of fact.

4. The appellants, however, contend that this finding of the learned Judge had been arrived at upon a consideration of a piece of evidence which is not admissible. Their complaint is that the learned Subordinate Judge has referred to and relied upon in his judgment a document (Ex. 12) which was the decision of the Attestation Officer as between the plaintiffs and the defendants in a certain dispute that was filed in connexion with the settlement proceedings. In support of the contention that this decision is not admissible in evidence or that it cannot be relied upon for the purpose of rebutting the entry in the settlement records which is in favour of the defendants, reliance has been placed upon the decision of this Court in the case of Lakhi Nath Bera v. Nabadwip Chandra Nandi . The passage in that decision upon which reliance has been placed on behalf of the appellants as aforesaid runs in these words:

5. When the Record-of-Rights has once been finally published, it cannot be attacked on the ground that certain procedure adopted by the revenue authorities in arriving at the final conclusion does not support the entry as finally published. If the party aggrieved by that entry takes objection under the provisions of Section 105 or 106, they might be considered by the Revenue Officer. But when a Record-of-Rights is challenged in a civil Court, the party challenging this record must adduce in evidence, in order to rebut the presumption, matters other than what happened during the proceedings prior to the final publication before the Revenue Officer. It is well known that the settlement authorities may come to certain conclusions at one time of the proceeding which they may modify during the course of the preparation of the record.”

6. The facts on which these observations were made are not very clear from the report of the case as it appears in Lahhi Nath Bera v. Nabadwip Chandra Nandi . From the reference that is made in those observations to the procedure which was adopted by the Revenue authorities, it seems probable that what was contended before the learned Judges was that the entry in the Record-of-Rights was not to be given its due effect under Section 103-B, Ben. Ten. Act, because the revenue authorities had not adopted the proper procedure or because there was some defect in the procedure that was adopted by them. In my opinion, whatever may be said as regards the correctness of the aforesaid dictum of the learned Judges as applicable to the facts of the case before them, the proposition cannot be taken as one of universal application. In the case before the learned Judges in which these observations were made, it appears that the Court had not taken into account the presumption which arose upon the entry in the Record-of- Rights, but, on the other hand, held that no presumption attached to the said entry by reason of what was found to be wrong in connexion with the procedure that had been adopted by the revenue authorities. It further appears that in that case the decision of the Revenues Officer was the only material by which the presumption as to the correctness of the Record-of-Rights was sought to be rebutted. On the other hand, there are decisions of this Court amongst which reference may be made to the cases of Bagha Mowar v. Ram Lakhan [1918] 27 C.L.J. 107 and Rama Nath Sant v. Official Trustee of Bengal , in which it has been clearly laid down that the presumption under Section 103-B Ben. Ten. Act, may be rebutted either by adducing evidence external to the settlement proceedings or evidence of matters apparent on the face of those proceedings. Upon these authorities, it is clear that it is quite open to a party who seeks to rebut a presumption arising out of an entry in the settlement records to show by a reference to the proceedings that had been taken by the revenue authorities that the entry itself is wrong or is one which should not be taken at its face value. On principle, it is difficult to find how it can be said that the materials upon which the entry has been made cannot be looked into for the purpose of determining whether the entry itself is correct or not. The question of sufficiency or insufficiency of those materials is, of course, different. For these reasons I am f opinion that this contention that has been urged on behalf of the appellants must fail.

7. I may mention here that, in the case before us the learned Judge has merely referred to the judgment Ex. 12 to which exception has been taken but his findings are really based upon other materials which he has fully and properly discussed in his judgment, and it is upon a consideration of those materials that he has come to the conclusion that the presumption in question has been rebutted and-that the plaintiffs have succeeded in. establishing their case.

8. In my opinion, the appeal fails and must be dismissed with costs.

Rankin, C. J.

9. I agree.

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