1. This is a Second Appeal in a partition suit. The defendant, Kazi Mohammad Hossain is the appellant.
2. The plaintiff commenced the suit for partition of lands mentioned in the Schedule to the plaint to the, extent of plaintiff's 7 annas 12 gandas 2 krantis 14 tils share therein. The allegation of the plaintiff was that he was in joint possession of the undivided share in the suit lands and that the defendant appellant was in undivided possession of the remaining share. The plaintiff's case was that he acquired tenancy settlement of (i) 1 anna 15 gandas-2 karas 14 tils from a co-sharer landlord, Pannasundari Devi on the 15th Bhadra 4351 B.S; (ii) 1 anna 6 gandas 2 karas 2 krantis share from Biren Roy who acquired the interest of another co-sharer landlord, Rajendra Sanyal on the 3rd of Agrahayan, 1352 B.S; (iii) 2 annas 5 gandas share from another co-sharer landlord Shiba Sati Trust Estate on the 20th Chaitra, 1354 B.S; (iv) 2 annas 5 gandas share from another co-sharer landlord, namely, the Estate of Ashutosh Mitra and others on the 15th Chaitra, 1351 B.S After these aforesaid settlements the plaintiff alleged that he was in ejmali and joint possession with the defendant but as the joint possession was proving inconvenient he instituted this partition suit. The defence was a denial of the plaintiff's title and the joint possession. The defendant appellant had claimed that he was in possession of the entire 16 annas share of the lands in suit on taking tenancy settlement from all the co-sharer landlords before the Settlement alleged by the plaintiff.
3. The trial court found that the plaintiff had really shares to the extent of 6 annas 5 gandas 2 karas 14 tils and not 7 annas and odd as alleged and also found that the plaintiff was in joint possession in respect of the said share of the defendant. Therefore, the trial court passed a preliminary decree in part for partition in favour of the plaintiff declaring the aforesaid share of the plaintiff. There was, an appeal and the lower appellate court dismissed the appeal and affirmed the judgment and decree of the trial court.
4. The lower appellate court which was the last court of fact found that the defendant had not filed any scrap of paper to show that he really obtained settlement previous to the settlement obtained by the plaintiff. It was also found that except the uncorroborated oral testimony of the defendant appellant himself there was nothing to support the appellant's claim. The defendant's allegation that all the dakhilas produced by the plaintiff were concocted and fabricated was found to be entirely without substance. The defendant never even ventured to examine the landlord or their men nor did he venture to call for any paper from the landlord's she-rista in support of his contention. The landlords themselves are not challenging at all the settlement alleged by the plaintiff. Therefore, the lower appellate court came to the conclusion that there was no reason to interfere with the learned Munsif's finding that the plaintiff had really the tenancy title in respect of the lands in suit to the extent of 6 annas 5 gandas 1 kara 14 tils.
5. It was also found as a fact by the lower appellate court that the plaintiff was in joint possession with the defendant.
6. On those facts it is difficult to see what point of law can arise in the second appeal. Mr. Ghosh for the appellant at one stage urged that Samsu-juha who was one of the co-sharers was not joined in the partition suit and, therefore, the suit was bad. This point has no substance. At the trial court the defendant abandoned this point and at the lower appellate court he did not urge or press such point. The reason may not be far to seek. That reason is that the appellant himself makes the case that he took set tlement from this alleged absent co-sharer. I, therefore, overrule this point.
7. Mr. Ghosh for the appellant in fairness, must be said to have realised at the opening that there is no merit in this second appeal. But he makes a point for additional evidence. He now wants to say on the basis of an application which is taken along with this appeal that additional evidence in the shape of the revised settlement record-of-rights should be taken. To appreciate this point it will be necessary to state certain facts. This suit was instituted on or about 3rd February, 1954, about 12 years ago. The trial court passed the decree on the 9th June, 1955. The lower appellate court passed the decree on the 24th April, 1958. The final publication of the record-of-rights which are now intended to be used as additional evidence was made on the 15th March, 1962 when this second appeal was pending. Mr. Ghosh for the appellant contends that these settlement records will prove that the plaintiff is not recorded at all either as having taken settlement from different co-sharers or otherwise, but on the contrary proved the case of the defendant-appellant.
8. In support of his claim to adduce entires in the settlement record of rights as additional evidence reliance is placed first on section 103B (5) of the Bengal Tenancy Act saying, “every entry in a record of rights 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,” and also on section 44(4) of the present West Bengal Estates Acquisition Act under which the said entries in the settlement record of rights have been made stating almost in similar language as iollows: “Every entry in the record of rights finally published under sub-section (2) including an entry revised under sub-section 2(a) made under section 42A or corrected under section 45 or section 45A shall, subject to any modification by an order on appeal under under sub-section (3), be presumed to be correct until it is proved by evidence to be incorrect.”
9. In support of his contention Mr. Ghosh for the appellant has relied first on the decision in (1) C.R Macdonald v. Babu Lal Purbi, 4 C.L.J 519, where it is laid down that the presumption referred to in section 103B of the Bengal Tenancy Act is applicable to a suit which has been instituted before the publication of the record of rights in which the entry is contained. Maclean, C.J in his judgment observes that it does not make any difference whether the publication of the record of rights had or had not been made until after the suit had been instituted. Therefore, the learned Chief Justice came to the conclusion in that case that the onus was not on the defendants to prove their tenancy, but on the plaintiffs to show that the entry made was incorrect. On the ground that the court below had put the onus on the wrong shoulder the learned Chief Justice sent the case back to the lower arpellate court having regard to the presumption under section 103B of the Bengal Tenancy Act. The report of that case is very short and the judgment is equally short. It appears from that meagre report and from that short judgment that in that case the entry in the record of rights was finally published before the trial court had delivered its judgment and, therefore, the question of presumption of its accuracy before the trial court arose. Hence it was said that as the trial court did not regard that presumption it wrongly placed the onus. The reason is clear. When the statutory presumption under section 103B of the Bengal Tenancy Act operates the onus naturally is on the person who asserts that the entry is wrong to prove that the entry in the record of rights is not correct. The case, therefore, does not help directly on the point which arises for decision in the appeal before me.
10. But the case which does help the appellant's contention on this point is the case reported in (2) Indra Bhusan Saha v. Janardan Saha, 28 C.W.N 945. It lays down the proposition that the record of rights, which was published after the decision by the trial court but before the judgment was pronounced by the lower appellate court and which the defendants with all due diligence were not in a position to produce in the latter court should be admitted in evidence under Order 41, rule 27 of the Civil Procedure Code and considered in determining the status of the defendants. The court there makes it quite clear that it did not intend that there should be a de novo trial or that fresh evidence in respect of other points involved should be adduced. What the court did was to remand the case to the court of the first instance in order that the trial court might try the question of the status of the defendant after admitting the record of rights in evidence in the case and after giving the plaintiff the liberty to adduce evidence to rebut the presumption of accuracy arising from the record of rights. This Court in that case directed the trial court to dispose of the case thereafter in accordance with law. The Court there referred to the decision of the Privy Council in (3) Raja Indrajit Pratap Bahadur Sahi v. Amar Singh, 50 I.A 183, corresponding to 28 C.W.N 277. The Privy Council decision to which reference was made was only concerned with the right to adduce additional evidence in a proper case under Order 41, rule 27 of the Code of Civil Procedure. The Privy Council case was not concerned with the record of rights prepared subsequent to the decision of both the trial court and the appellate court as in the instant appeal before me.
11. On the question of admitting additional evidence in second appeal I need only refer to my own decision in (4) Manoharlal Mahabir Prosad v. Rambux Kabra, Appeal from Appellate Decree No. 168 of 1960. But that decision does not cover the point now raised. Prima facie Mr. Ghosh's contention is based on the well settled principle that the record of rights should ordinarily be presumed to be correct unless the contrary is proved by evidence. But the difficulty of Mr. Ghosh here is that the decision of the Civil Court, both the trial court and the lower appellate court, had already been given long before the record of rights was made and finally published in the present case. The important question then arises that in such a case does the presumption of the record of rights still operate or prevail. Here we have the decision of the trial court and the lower appellate court on the point on one hand and subsequent decision bf the Settlement Officer in the record of rights on the other. In that context, is it still permissible to invoke the presumption of accuracy as mentioned in section 103B of the Bengal Tenancy Act and section 44(4) of the West Bengal Estates Acquisition Act? On a very anxious consideration of this point I have come to the conclusion that in such a context there is no more scope for presumption left. I shall state the reasons briefly.
12. The presumption of accuracy is a rule of evidence. So far as the Evidence Act is concerned section 4 and section 114 of the Evidence Act deal with presumption. There are also other sections with which we need not be troubled is this appeal. Presumptions may be of fact or of law or may be of mixed fact and law. Here it is a presumption of law which means only this that law creates an artificial presumption permitting the court to draw the inference whenever the requisite facts as stated in the law are present. But it is at best a presumption and no more. The presumptipn of accuracy of the entry in the record of rights does not create or extinguish title but only raises a presumption which again is not conclusive and can be rebutted by evidence. The presumption of law in favour of the accuracy of the entry in the record of rights follows from the fact that such record is prepared after due publicity and notification and upon hearing objectors and interested parties. The entry in the record of rights made after such a procedure, therefore, is presumed to be correct until the contrary is proved by evidence. There cannot in my view, therefore, be any longer a presumption when the point in issue has already been decided on evidence between interested parties by a decision of the Civil Court. It is so not only because the Civil Court is better equipped and has larger powers to call for all evidence within the bounds of law so that the law even recognises that the statutory presumption in favour of the accuracy of the record of rights can be rebutted in such Civil Court by producing evidence to the contrary but also because the decision of the Civil Court inter parties is res judicata and binding upon the parties and can only be questioned by way of appeals and revision from that court as provided by the laws of the country, and not by non-judicial forum. A decision of the Civil Court is res judicata subject, of course, to appeals and revision between the parties. A statutory presumption cannot operate and prevail against res judicata. A subsequent entry in the record of rights which is made either by ignoring the Civil Court decision or by disregarding it cannot carry a presumption of accuracy because such a presumption can only arise where there has been no previous adjudication of the question by a properly constituted Civil Court. After such an adjudication by a competent Civil Court of the very point the matter passes beyond the stage where presumption can operate and no scope for operation of presumption is left. No doubt, where the re-cord of rights is made prior to the decision in the Civil Court, then it is for the Civil Court to presume the accuracy of that record of rights until the contrary is proved by evidence. If the Civil Court is satisfied on evidence that the entry in the record of rights is erroneous then it is for the Civil Court to say so and it is the only forum which can pronounce judgment on the correctness or otherwise of the entry in the record of rights.
13. In support of this view I shall refer to the Division Bench decision in (5) Jaladhar Bhowmick v. Birendra Nath Rai Chaudhuri, 35 C.L.J 200. This case is an authority for the proposition that the effect of the publication of the record of rights is not to sweep away all previous decisions between the parties. At page 201 of the report Mookerjee, A.C.J, observed as follows:—
“The defendants contend, however, that as on the 29th May, 1914, that is, during the pendency of the second appeal in the previous litigation, a record of rights was finally published containing entries which support their allegatons, the decree of this Court is of no effect. The courts below have over-ruled this contention and have held that the record of rights cannot nullify the effect of the previous decision as res judicata. We are of opinion that the contention of the defendants is untenable. Our attention has not been drawn to any authority, nor has reference been made to any principle which lends support to the view that the effect of the publication of the record of rights is to sweep away all previous decisions between the parties. Such a consequence would not have followed, even if the entry in the record of rights had the effect of a decision in a suit between the parties: Balkishan v. Kishan Lal, I.L.R 11 All. 148.”
14. Mr. Ghosh found it difficult to distinguish this case. He made an attempt to distinguish by saying that in that case the decision was given in a previous litigation and not in the current litigation as here in the present appeal. The point is not where the Civil Court decision was rendered. The ratio of that decision is that where a Civil Court makes a decision adjudicating the rights of the parties that decision is res judicata inter parties. Once a decision of the Civil Court is rendered after evidence no subsequent entry in the record of rights can alter that decision or modfy it and, therefore, there can be no presumption of its accuracy when it is patently and expressly in conflict with the decision of the Civil Court. To come to another conclusion will be to make the Settlement Officer and his record of rights as a kind of appellate authority over the Civil Court, a situation which the law does not recognise.
15. I shall pursue this matter to some more detail, to illustrate the principle I have just explained. If the entry in the record of rights is made and published before any decision is given by the trial court, the trial court must consider the presumption and then allow the parties an opportunity to rebut that presumption. If there is no rebutting evidence then the courts will have to accept the presumption as conclusive. But if on the other hand rebutting evidence is given which rebuts the presumption of accuracy then the courts have the jurisdiction to declare the entry in the record of rights as erroneous.
16. What happens when the record of rights is prepared and finally published after the decision given by the trial court? Normally the decision of the trial court subject of course to appeals and revisions under the law should be binding on the parties and the Settlement Authority making the re-cord-of-rights. The Settlement Authorities are bound by the Civil Court decree already on record. In this case I fail to understand how the Settlement Authorities could make he entry for the simple reason that the parties and their objectors between them certainly could have produced the decision. If I assume that they did, then in that case the Settlement Authorities preparing the record of rights contrary to the existing judicial decision, cannot there by create any presumption in favour of such record so far as the rights of such parties on the point are concerned. No doubt, the rights of persons who are not parties to the decree will not be affected by the decree and there the record of rights will be presumed to be correct in their favour until the contrary is proved by evidence, but that is not the case here before me in this appeal.
17. Mr. Ghosh has fairly conceded that there is no other merit in this second appeal and the only point for the appellant is that I should remand the case back to the lower courts to reconsider the case in the light of the subsequent record of rights. What will the courts reconsider? The courts have already fairly considered and investigated the evidence at the time when there was no record of rghts. The parties had full opportunities to produce all evidence and they availed of such opportunities. The court came to a decision on the facts whether the plaintiff had taken settlement from different co-sharers or not and found in favour of the plaintiff. On that point how is a record of rights made? A record of rights would be made on no larger evidence and facts on which the court had acted. The court acted on all relevant evidence available, on the point which was brought before the court. Therefore, there would be no point now to remit the case back to the trial court to consider this additional evidence of the subsequent record of rghts perpared contrary to the decree of the Civil Court.
18. To adopt such a course would be really meaningless from every practical point of view. Now it has taken already twelve years from the date of the institution of the suit for this re-visional record of rights to be made. Suppose I remit the case back to the trial court for further evidence on the point whether the record of rights is accurate or not and we have another period of twelve years before which the question comes up again in second appeal before this court. Is it going to be said that in the next period there will be any other other record of rights where presumption of accuracy has to be tested by the same process? Are the decisions of the court going to be risked as pawn on the chess board of the periodic revisional settlements in the country? My answer is the negative.
19. For these reasons this appeal is dismissed with costs.
20. The application for additional evidence is also dismissed.
21. Leave to appeal under Clause 15 of the Letters Patent is asked for and is refused.
S.K.B