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Surpat Singh v. Bhupendra Narayan Singh

Patna High Court

Oct 7, 1936

Judgment

Subsequent
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Summary of the Opinion (Mohamad Noor, J.)

Factual and Procedural Background

Two appeals arise from two separate suits instituted by the same plaintiffs against different defendants for recovery of possession of lands recorded in the Survey Records of Rights. The plaintiffs are landlords of the villages where the suit lands are situated.

In Second Appeal No. 821 of 1933 the defendant (Kumar Bhupendra Narayan Singh) was recorded in the settlement records as a rent-free tenure-holder in respect of 125.08 acres in village Achra (Kosi Diara, District of Purnea). In Second Appeal No. 1116 of 1933 the defendants were recorded as milikdar in respect of 14.03 acres in village Kusmaul (also in Kosi Diara).

The plaintiffs sued for recovery of possession and declaration of title on the basis that the defendants were in wrongful possession and that their names had been wrongly entered in the Record of Rights. Both suits were dismissed by the respective trial Courts (one by a Subordinate Judge, the other by a Munsif). The plaintiffs' appeals were dismissed by the District Judge of Purnea (in the first matter) and by the Subordinate Judge (in the second). The plaintiffs then preferred these two second appeals, which were heard together because the appellants and the principal legal points were the same.

Legal Issues Presented

Whether, and in what circumstances, the presumption of correctness attaching to entries in the Record of Rights (as provided by Section 103-B of the Bihar Tenancy Act) can be rebutted by proof that the land was within the ambit of a landlord's permanently settled village and assessed to revenue.
Whether the observations of the Judicial Committee in the cited case (referred to in the opinion as "2 Pat 38") operate as a general rule rebutting entries in the Record of Rights when the landlord proves assessment to revenue, or whether those observations are limited to malikana (a particular form of rent-free tenure arising from Permanent Settlement arrangements).
Whether, in the second suit, the statement in a sale deed describing land as "milik" is admissible to prove the substantive character of the land or is admissible only as evidence of the purchaser's assertion and conduct leading to prescription.
Whether the plaintiffs' suits were barred by prescription (i.e., whether the defendants had acquired prescriptive rights by holding the land as milikdar since at least 1909, with suit instituted after twelve years of possession).

Arguments of the Parties

Appellants' (Plaintiffs') Arguments

The lands were mal (ordinary landlord lands) belonging to the plaintiffs and not rent-free tenures of the defendants.
Even if the lands had been constituted as rent-free tenures, the defendants lost that status by adverse possession by the plaintiffs: the land had been submerged under the Kosi river and, upon emersion, came into plaintiffs' possession through their tenants.
The entries in the Record of Rights were rebutted once it was established that the lands lay within the permanently settled villages of the plaintiffs and were assessed to revenue; after that the burden lay on the defendants to prove they had acquired rent-free tenure or milik from the zamindar.
In the second appeal, it was contended that the statement in the sale deed describing the land as "milik" was not admissible evidence of its being milik.

Respondents' (Defendants') Arguments and Positions as Found by Courts

In the first suit the defendants were recorded as rent-free tenure-holders and both trial and appellate courts found that the entries in the Record of Rights were correct; the lands were unfit for immediate occupation after emersion and the defendant continued in possession on the basis of his recorded title.
In the second suit the defendant had been holding the land as milikdar at least since 1909, having purchased it under a sale deed described as milik; the defendant thereby asserted the status of milikdar upon acquiring possession and by that conduct prescribed against the plaintiffs (suit was instituted after 12 years and therefore barred).
Generally, respondents relied on the Record of Rights entries and the balance of evidence supporting their recorded status.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
2 Pat 38	The Judicial Committee's observation that once the landlord proved that the land sought to be held rent-free lay within his regularly assessed estate (mahal) and was assessed to revenue, the onus shifts to those claiming rent-free status to show relief from rent.	The court interpreted this observation as tied to the particular kind of rent-free tenure (malikana) before the Judicial Committee and held it cannot be applied as a general proposition to ordinary rent-free tenures. The passage must be read in the context of the facts (malikana arising at Permanent Settlement).
Section 103-B of the Bihar Tenancy Act (statutory provision considered)	Provides that every entry in a record of rights shall be evidence of the matter referred to and presumed correct until proved incorrect.	The court relied on the (amended) wording of Section 103-B to hold that the presumption of correctness of record entries cannot generally be rebutted by another presumption in favour of the landlord and that whether an entry is rebutted is a question of fact.
AIR 1931 Pat 224 (Boss, J.)	Noted that the amendment to Section 103-B affects how the presumption can be rebutted (i.e., it cannot be rebutted by another presumption under the general law in favour of the landlord).	The court referred to this authority to support the view that the 1907 amendment to the subsection prevents rebuttal of the Record of Rights by a general landlord-presumption and to clarify the limited scope of the Judicial Committee's observations.
12 MIA 286 (Sir James Colvile's view)	Represents an earlier general presumption favouring landlords under general law.	The court noted that, following amendment to S.103-B, that earlier presumption cannot now be used to rebut the presumption of correctness of the Record of Rights.
11 PLT 444; 59 Cal 629; 11 PLT 468; 17 PLT 507	Cases in which the decision in Jagdeo Narain (the Privy Council decision often cited as 2 Pat 38) was considered.	The court noted that in none of these cases were the Judicial Committee's observations held to have the wide effect for which the appellants contended; they were read in the context of the facts before that Court.
Kameshwar Singh v. Sakhawat Ali (P.A. No. 86 of 1933, unreported, 4th Sept 1936)	An unreported Bench decision said by the appellants' advocate to support the contention that proof of inclusion in a permanently settled and assessed village rebuts a rent-free entry.	The court acknowledged that this unreported decision supports the appellants' contention but noted that the change in Section 103-B may not have been brought to the Judicial Committee's notice in the earlier Privy Council case; in any event, the present appeals were decided on the balance of evidence and did not require a Full Bench reference.

Court's Reasoning and Analysis

The court proceeded step-by-step as follows:

Initial factual posture: The court observed that on the findings of the lower Courts the disputes were essentially factual and that "strictly speaking" no question of law arose because both trial and lower appellate courts had found the Record of Rights entries to be correct and had decided the cases on the balance of evidence.
Findings in the first appeal (No. 821 of 1933): Both lower Courts found that the lands were rent-free tenure of the defendant and that the Record of Rights entry was correct. It was also found that after emersion from the Kosi the lands were for a considerable time unfit for occupation; hence the defendant's possession based on his recorded title was maintained and plaintiffs' adverse-possession claim was disbelieved.
Findings in the second appeal (No. 1116 of 1933): The lower appellate court found that the defendant had been holding the land as milikdar since at least 1909, having purchased it by a sale deed described as milik. The court accepted that the statement in the deed was not admissible to prove the substantive nature of the land as milik, but was admissible to show the purchaser's assertion at the time he entered possession (which supported prescription). Since the suit was instituted after twelve years of that possession, it was barred.
On the question of onus: Although both parties adduced evidence and the cases were decided on the balance of evidence (so that the formal question of onus "does not really arise"), the court addressed the contested legal point because the appellants' counsel had argued it at length and had placed authorities before the court.
Interpretation of the Judicial Committee's observations (2 Pat 38): The court read the Privy Council's observations as confined to the particular form of rent-free tenure (malikana) before their Lordships—i.e., a tenure arising from the Permanent Settlement—rather than as laying down a general rule that proof of inclusion in a permanently settled, revenue-assessed village always rebuts a rent-free entry.
Effect of the 1907 amendment to Section 103-B: The court noted that Section 103-B had been amended (in 1907) to its present form declaring that every entry is evidence and presumed correct until proved incorrect. Citing AIR 1931 Pat 224, the court held that, in view of that amendment, the presumption created by the Record of Rights cannot be rebutted merely by invoking an older general presumption in favour of landlords. The court warned against a circular result where an entry of rent-free tenancy could be rebutted by another entry showing the tenancy under the landlord (i.e., assessed to revenue).
Differentiation between malikana and ordinary rent-free tenures: The court explained that malikana has its origin at the time of Permanent Settlement and denotes a proprietary or quasi-proprietary right independent of the landlord. In such cases, production of evidence that the land was included in the Permanent Settlement will rebut an entry of malikana. But where rent-free status has no connection with Permanent Settlement, assessment to revenue at settlement does not necessarily contradict an entry of rent-free status recorded at the time of the cadastral survey.
Conclusion on legal issue: The court rejected the broad contention that proof of inclusion in a permanently settled, revenue-assessed village automatically rebuts an entry of rent-free tenancy in every case. It held that whether an entry in the Record of Rights has been rebutted is a question of fact dependent on the particular circumstances and the kind of rent-free tenure claimed.
Practical disposition: Because both parties had led evidence and the lower courts had decided the matters on the balance of evidence (finding for the respondents on the facts), the court dismissed the appeals with costs in favour of the respondents who had appeared. The court also noted that in view of the factual disposition and the balance of evidence it was unnecessary to refer the matter to a Full Bench despite disagreement with a Division Bench view.

Holding and Implications

Holding: The appeals were DISMISSED.

Consequences and immediate implications:

The lower Courts' findings that the Record of Rights entries were correct were upheld on the facts; the plaintiffs' suits for recovery of possession failed.
The appeals were dismissed with costs in favour of the respondents who appeared; there will be one set of costs in each case.
The court clarified that the observations of the Judicial Committee in the cited Privy Council decision (2 Pat 38) are to be read in the light of the facts before that Court (concerning malikana) and do not establish a universal rule that proof of inclusion in a permanently settled, revenue-assessed village automatically rebuts every rent-free entry in the Record of Rights.
No broader binding precedent was expressly announced by the court beyond the factual rulings and the confined legal interpretation; the court noted the matter was decided on the balance of evidence and therefore did not refer the point to a Full Bench.

Bench: Mohamad Noor, J.; Madan, J. concurred.

Disposition: Appeals dismissed.

Show all summary ...

Mohamad Noor, J.:— These two appeals arise out of two suits instituted by the same plaintiffs against two sets of defendants for recovery of possession of certain lands on the ground that the defendants were in their wrongful possession and that their names were wrongly recorded in the Survey Records of Bights in respect of them.

2. The plaintiffs of the suits are the landlords of the villages where the suit lands are situated. The defendant of one of the suits, Kumar Bhupendra Narayan Singh (who is respondent in Second Appeal No. 821 of 1933) has been recorded in the settlement records as a rent free tenure-holder in respect of 125.08 acres of land in village Achra, situated in the area known as Kosi Diara in the District of Purnea. In the other case the defendants (who are respondents in Second Appeal No. 1116 of 1933) have been recorded as milikdar in respect of 14.03 acres of land in village Kusmaul also within Kosi Diara. The plaintiffs instituted these two suits for recovery of possession of these lands on the declaration of their title to them and on a finding that the defendants have not got the status given to them in the Record of Eights. The first suit was instituted before the Subordinate Judge and the second before the Munsif. Both of them were dismissed by the respective trial Courts. The appeal of the plaintiffs in the first suit has been dismissed by the learned District Judge of Purnea and that in the second suit by the learned Sub-ordinate Judge of the same place. The plaintiffs have, therefore preferred these two second appeals. As the appellants are the same and the points of law raised on their behalf are common to both the appeals they have been heard together.

3. Strictly speaking, on the findings of the lower Courts, no question of law arises in either of the two appeals. In Second Appeal No. 821 of 1933, the plaintiffs' case was that the suit lands were their mal lands and not rent free. They further urged that, assuming that they were rent free tenure of the defendant he lost it by the adverse possession of the plaintiffs. It was alleged by them that the lands were submerged under the Kosi river and that since they came out of the river they had been in their possession through their own tenants. There is a clear finding of the lower appellate Court which is in agreement with that of the trial Court, that the lands are the rent free tenure of the defendant and that the entry in the Record of Rights is correct. It has also been found that after their emersion from the river the lands were for a considerable time unfit for being taken possession of and therefore on the basis of his title the defendant must be held to have continued in possession. Both the Courts have disbelieved that the plaintiffs were in possession of the lands after they came out of the Kosi. Similar is the case in respect of the lands involved in Second Appeal No. 1116 of 1933. The defendant of this suit claimed, as I have said, to be the milikdar of the suit land and was recorded as such in the Record of Eights. The lower appellate Court has found that at least since 1909 he had been holding it as milikdar having in that year purchased it under a sale deed in which it was described as milik. It was also held that the entry in the Record of Rights was not proved to be incorrect by the plaintiffs. The learned advocate for the appellant has contended that the statement in the deed that the land was milik was not admissible in evidence. It is true that the statement is not admissible to prove that the land is the milik of the defendant, but it is admissible to prove that when the defendant came in possession of the land he did so with an assertion that he was holding it as a milikdar, and since then, he began to prescribe against the plaintiffs as milikdar. The suit having been instituted after 12 years of the commencement of that possession, is obviously barred. The only other point urged in this case is that the entry in the Record of Rights is based upon no evidence. No material has been placed before us to support this contention. The main contention of the learned advocates for the appellants in both the appeals has been that the onus to rebut the presumption of the correctness of the entries in the Record of Rights was wrongly placed upon the plaintiffs. It was contended that the entries stood rebutted as soon as it was admitted that the lands were within the ambit of the permanently settled villages of the plaintiffs and were assessed to revenue. After that it was incumbent on the defendants of the two suits to prove that they acquired from the zamindar either rent free tenure or milik as the case may be. Now, the question of onus does not really arise in these cases. As the learned District Judge in his judgement (appealed against in Second Appeal No. 821 of 1933) has pointed out, both the parties adduced evidence and the cases were decided on the balance of evidence. However, as the learned advocates of the appellants have very elaborately argued the question of onus and placed a number of authorities before us, I think I should give my decision especially as I find my self with all respect in disagreement with the view taken in this connexion by a Division Bench of this Court. Now, the contention of the learned advocates, as I have said, has been that the lower Courts were wrong in relying upon the entries in the Record of Bights as they were proved to be incorrect by the fact that it was established that the elands were assessed to revenue and were within the permanently settled villages of the plaintiffs. In support of this contention reliance was placed upon the observations of their Lordships of the Judicial Committee in the well known case, 2 Pat 38.1 It was contended that their Lordships have laid down that the presumption of the correctness of an entry in the Record of Rights about a certain land being rent free is rebutted if the landlord proves that the land was included within the ambit of his village which was permanently settled with him. If the facts of the case which was before their Lordships are not kept in view, the argument of the learned advocates at first sight may appear to have some force and one may think that there is a conflict between the view taken in that case and the clear words of Section 103-B of the Bihar Tenancy Act. The observations relied upon are at p. 48 of the report and are these:

Considerable stress has been laid on the assumption (i.e, the assumption under Section 103-B of the Tenancy Act). Once, however, the landlord has proved that the land which is sought to be held rent free lies within his regularly assessed estate or mahal the onus is shifted. In the present case the lands in dispute lie within the ambit of the estate which admittedly belongs to the plaintiffs and the proforma defendants for which they pay the revenue assessed on the mouza. In these circumstances it lies upon those who claim to hold the lands free of the obligation to pay rent to show by satisfactory evidence that they have been relieved of that obligation either by some contract or by some old grant recognized by Government.

4. As I shall presently show this observation is in connexion with the particular rent free tenure which was before their Lordships, i.e, malikana, and cannot be applied to ordinary rent free tenures or holdings which are before us. The correctness of an entry in a record of rights can only be rebutted by proof of facts which are inconsistent with the entry. Assessment of land revenue on any land is not inconsistent with its having been made rent free after the assessment of land revenue. It is certainly inconsistent with its being malikana which, as I shall show, originated at the time of the Permanent Settlement. I am absolutely certain that their Lordships have not laid down as a general proposition of law that the presumption of the correctness of the entries in the record of rights about a particular land being rent free is in every case rebutted by the proof that the land is within the permanently settled village of the landlord and was assessed to revenue. Obviously, whether the presumption of the correctness of an entry has been proved to be incorrect is a question of fact and has to be decided on the facts of a particular case. S. 103-B which was being considered by their Lordships runs thus (see p. 48 of the report):

Every entry in a record of rights so published (i.e, Ch. 10 of the Act) shall be presumed to be correct until the contrary is proved.

5. The sub-section now runs thus:

Every entry in a record of rights so 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.

6. Though the amendment was made in 1907 it does not seem to have been brought to the notice of their Lordships. As was pointed out by Boss, J. in AIR 1931 Pat 224,2 the presumption of the correctness of the record of rights cannot now be rebutted by another presumption under the general law in favour of the landlord as laid down by Sir James Colvile in 12 MIA 286.3 In a large number of cases the very record which shows that a particular tenancy is rent-free shows that a particular person is the landlord of the village and that the tenancy is held under him and is not revenue free, that is to say, it is assessed to revenue. Under the Bihar Tenancy Act the word ‘landlord’ is defined as a man immediately under whom a tenant holds, and ‘tenant’ is one who holds land from another person and is, but for a special contract, liable to pay rent for that land to that person. A rent free holder is in most cases a tenant. Therefore, if the contention of the learned advocates be accepted that their Lordships have held that the proof that a particular person is the landlord of a land holding it under the Permanent settlement rebuts the presumption of the record of rights that the land is held rent free by another person, then it will follow that in most cases we shall have to hold that the entry of rent free tenancy is rebutted by another entry that it is under the landlord. This will lead us to a vicious circle and we shall have to hold that their Lordships' decision is in conflict with the clear provisions of Section 103-B of the Bihar Tenancy Act, which says that every entry in the record of rights 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. We will have to insert into this section an exception that an entry about the land being held rent free shall not be presumed to be correct in cases where the land is held under a landlord of a village which has been assessed to revenue.

7. In Sri Jagarnath Kishore Lal Singh Deo v. Prasana Kumar Misra (Second Appeals Nos. 1584 to 1590, decided by me singly, on 26th April 1933), I explained that the observations of their Lordships have to be read as referring to the entry in the particular case where the claim of the defendants who were appellants before them was independently of the landlord. I quote the following passage from the judgment which I then delivered:

The defendants in that suit claimed to be malikanadars of certain lands in a village and they were recorded as such in the record of rights published under the Bengal Tenancy Act. I may note that the provision about the presumption of the correctness of the record of rights and the entry therein under the Bengal Tenancy Act is similar to the one under the Chota Nagpur Tenancy Act. Now, the plaintiff instifnted that suit for a declaration that the defendants were nob malikanadars and were liable to pay rent. The two Courts below upheld the plaintiff's contention and held that the defendants were not malikanadars of the lands. This Court in second appeal/reversed those decisions, and relying among other things upon the record of rights held in favour of the defendants. The matter went up to the Privy Council and their Lordships examined the-evidence for themselves and held that there was no malikana in the village when it was assessed to revenue in 1839. Now according to the glossary of the terms given by the Settlement Authorities in the Settlement Report of the Patna District from where that case came, ‘malikana’ means the allowance of a dispossessed malik. In some cases, the right to malikana has been compounded for a certain area of land thus known as malikana land. The word is also used in Bihar to describe the land retained by the ex-proprietors for their subsistence when parting with the estate. When at the time of Settlement Land Revenue a proprietor refused to take settlement of an estate, or the Revenue Authorities for some reason or other did not consider it proper to settle the estate with him and consequently settled it with somebody else, the ex-proprietor was allowed some compensation. This compensation was either a perpetual, annual payment of money known as the malikana money or some land in the village itself and was known as malikana land. The land was given by an arrangement between the Revenue Authorities, the new proprietor and the old proprietor. Now their Lordships of the Judicial Committee, as I have said, examined the history of the settlement of the village which had taken place by the year 1839 and came to the conclusion that the entire village was included in this settlement with the then proprietor Mt. Umatul Zohra. The passage quoted above comes after the finding and should be read in the light of the finding and referring to it. It id clear to me that what their Lordships meant was that the plaintiff having proved that the land which was claimed by the defendants to be the malikana land was included in the land which was settled with the predecessor of the plaintiff and proforma defendants and assesses with revenue, they sufficiently rebutted the presumption of the record of rights. I do not read; the passage as meaning that once the plaintiff has proved that he is the landlord of the village the presumption about the record of rights in favour of the tenancy being rent free is at once rebutted.

8. Further I said:

The important words in the judgment of their Lordships of the Judicial Committee in the case of Jagdeo Narain, are “the land which is sought to be rent free lies within his regularly assessed estate or mahal,” “the land in dispute lies within the ambit of the estate,” and “for which they pay revenue assessed in the mauza.” These facts rebutted the presumption in favour of the malikana.

9. It is obvious that a malikanadar claims a title independent of the landlord, as the malikana had its origin at the time of the Permanent Settlement. Either he claims that the land was excluded from the Permanent Settlement or that by an arrangement between the Government and the man with whom the Permanent Settlement was made a certain land was set apart for the ex-proprietor as malikana. It is obvious that in such cases the production of evidence to show that the land was in fact included in the Permanent Settlement will obviously rebut the entry of malikana in the record of rights. But in other cases where the assessment of land revenue has no connection with a land being rent free the facts found by the Settlement Authorities to have existed at the time of the cadastral survey cannot possibly be rebutted by proof of facts which existed at the time of the Permanent Settlement, and, if the facts of the case in which these observations were made were kept in view, there is no conflict between the law and the observations of their Lordships. The case of Jagdeo Narain was considered in several cases. They are 11 PLT 444;4 59 Cal 629;5 11 PLT 468;6 AIR 1931 Pat 224, already referred to, and 17 PLT 507.7 In none of these cases the observations of their Lordships of the Judicial Committee have been held to mean what the learned advocate for the appellants has contended for. The learned advocate has referred us to an unreported decision of a Bench of this Court in Kameshwar Singh v. Sakhawat Ali (P.A No. 86 of 1933, decided on 4th September 1936). This case no doubt supports the contention of the learned advocate. It seems, however, that the change in Section 103-B of the Bihar Tenancy Act, was not brought to the notice of their Lordships. However, as in the present case, in view of the fact that it has been decided on the balance of evidence, the question does not arise, it is not necessary to refer it to a Full Bench. I would dismiss the two appeals with costs in favour of those respondents who have appeared. There will be one set of costs in each case.

Madan, J.:— I agree.

K.B/A.L

10. Appeals dismissed.