JUDGMENT
1. The only question which requires consideration in this appeal is whether the learned. Judge is right in the view which he has taken as to the effect of the presumption raised in favour of an entry in the record-of-rights under Section 103(b) of the Bengal Tenancy Act as amended. The view which the learned Judge has taken is as follows: He holds that because there is a presumption under the law of the correctness of the entry in the record-of-rights and because that presumption must be accepted by the Court until it is rebutted, therefore, it is open to a person seeking to rebut the correctness in the entry, to produce evidence of facts subsequent to the publication of the record-of-rights but not to rely on documentary or oral evidence of facts anterior to the publication. This view of the law is, in our opinion, entirely wrong.
2. The question which arises is whether the entry was correct at the time when it was made, and in order to prove the correctness at that time, evidence of antecedent facts, documentary and, oral is admissible and should be taken into consideration in determining whether the presumption has been rebutted or not. In the present case the District Judge has refused to take into consideration the documentary evidence which the plaintiff relied upon for the years 1861 to 1898, and his reason for treating all this evidence as of no value is stated to be that the question whether the entry is correct or not is not affected materially by any document of a date prior to the date of publication. In this view of the law we are unable to agree. The learned Judge has also held that the fact that the entry was made in the record-of-rights was sufficient to save the defendant from the necessity of producing and proving the chitti bundabasti on which the entry was based and by which he alleged he held settlement as a raiyat. We think that the learned Judge was in wrong in the view which he took on this point also. The correctness of the entry would depend upon whether this chitti was a genuine and valid document, and whether by it the rights claimed by the defendant, which formed the subject of the entry in the record-of-rights, were really conferred. We entirely agree with the opinion expressed as to the value of the record-of-rights in the case referred to by the learned Judge in his judgment; but we are of opinion that the learned Judge has misapplied those remarks as supporting the view of the law which he has taken that when the correctness of an entry in the record of-rights is in dispute, the only evidence to rebut the correctness which can be produced and relied upon is the evidence of facts and circumstances subsequent to the publication of the record and not any documentary or oral evidence or facts and circumstances existing prior to the publication. In our opinion therefore, the grounds on which the learned District Judge has decreed the appeal and dismissed the cross-appeal cannot be maintained.
3. We, accordingly, set aside the judgment and decree of the lower appellate Court and direct that the appeal be sent back to the District Judge with directions to take into consideration the evidence which was produced before the Court of first instance and was considered by that Court in its judgment and after weighing that evidence to come to a decision whether the entry in the record-of-rights on which the defendant relied is correct or whether the case of the plaintiff is true that the land was zerait land.
4. Costs will abide the result.
