Richards, C.J:— This reference arises out of an appeal in a suit, in which a recorded co-sharer sued the lambardar for profits. The appeal coming before a Bench consisting of myself and my brother Banerji, we thought it desirable, having regard to the conflict of authority in this Court, to refer a question which arises in the appeal for determination by a Full Bench. The question is, whether, in a suit like the present, the plaintiff being a recorded co-sharer, the Revenue Court is competent to go behind the record, receive evidence and try the question of proprietary title between the parties, or is bound to dispose of the suit on the assumption that the plaintiff has the proprietary title in respect of which he is recorded. section 201 of the Agra Tenancy Act is as follows:—

“(1) If in any suit instituted under the provisions of chapter XI, the plaintiff is not recorded as having the proprietary right entitling him to institute such suit, and the defendant pleads that the plaintiff has not such proprietary fright, the court shall proceed, mutatis mutandis, as directed in section 199.

Provided that if the court adopts the procedure allowed by clause (a) of sub-section (1) of that section, the plaintiff shall be the party required to institute a suit in the Civil Court.

(2) The provisions of section 200 shall apply, mutatis mutandis, to any appeal in such suit.

(3) If the plaintiff is recorded as having such proprietary right, the court shall presume that he has it.

But nothing in this sub-section shall affect the right of any person to establish by suit in the Civil Court that the plaintiff has not such proprietary right.”

I have never had the least doubt as to the meaning and proper construction of the section, nor do I see anything wrong with its drafting. The same question exactly arose in the case of Bechan Singh v. Karan Singh. In that case my brother Banerji and I both delivered judgements, and I do not think that I can add very much to what was there stated. The question again came up in the case of Waris Ali Khan v. Parsotam Narain. A contrary view was taken by the majority of the Bench consisting of Stanley, C.J, Griffin and Tudball, JJ. Tudball, J., delivered a dissenting judgement in which I fully concur. At page 440 of the report, Stanley, C.J, quotes the remarks of Lord Brougham in the case of Crawford v. Spooner:—“We cannot fish out what possibly may have been the intention of the Legislature; we cannot aid the Legislature's defective phrasing of the Statute; we cannot add and mend, and by construction make up deficiencies which are left there. If the Legislature did intend that which it has not expressed clearly; much more if the Legislature intended something very different; if the Legislature intended something pretty nearly the opposite of what is said, it is not for Judges to invent something which they do not meet with in the words of the text (aiding their construction of the text always, of course, by the context); it is not for them so to supply a meaning, for, in reality, it would be supplying it: the true way in these cases is to take the words as the Legislature have given them, and to take the meaning which the words given naturally imply, unless where the construction of those words is, either by the preamble, or by the context of the words in question, controlled or altered; and therefore if any other meaning was intended than that which the words purport plainly to import, then let another Act supply that meaning, and supply the defect in the previous Act.”

It seems to me that the context of section 201 clearly shows that it was the intention of the Legislature that the Revenue Court in the case of a recorded co-sharer in the class of suits specified in the section should dispose of the suit in the case of a recorded co-sharer upon the assumption that the plaintiff has the proprietary title in respect of which he is recorded. The proviso to the section itself shows the limitation of the presumption. It is to be rebutted in a separate suit in the Civil Court—the court most fitted to try complicated questions of title. If it was intended that the Revenue Court in such cases was to go into evidence to rebut the presumption, I cannot see why the section provided for the case of a plaintiff who is not recorded and the case of a plaintiff who is recorded. Surely if it was intended that the Revenue Court was to try the question of proprietary title in the case of a recorded plaintiff there was no reason why the Revenue Court should not constitute itself for the purposes of the case of a Civil Court, and that the appeal should not be to the District Judge just as in the case of a plaintiff who is not recorded.

The reason suggested by Stanley, C.J, does not commend itself to me. As I pointed out in my judgement in Bechan Singh v. Karan Singh, if the true construction of the section be according to the view of the majority of the Bench in Waris Ali Khan v. Parsotam Narain, if the Revenue Court decided in favour of a recorded plaintiff and tried a complicated question of title, the defendant would be entitled under the proviso of the section to re-open the entire case, not by way of appeal but by a separate suit. Indeed, if the view of Stanley, C.J, be correct, the Revenue Court is the only court which can try the question of proprietary title between a recorded plaintiff and a defendant who pleads that the plaintiff had not proprietary title. The court has no option, as it has in the case of a plaintiff who is not recorded, of sending the parties to the Civil Court it is bound to hear the entire evidence, perhaps for several days, and et the end its labours may be completely futile because the unsuccessful defendant can re-open the entire matter in an independent suit in the Civil. Court. Nay, further, it seems to me that if the unsuccessful defendant in the Revenue Court were even to appeal under the provisions of section 177, he would still have the right to re-open the question in a subsequent suit instituted in the Civil Court.

It seems to me that if the respondent's contention be correct, clause (3) is quite superfluous. Stanley, C.J, says:—“This argument seems to me to have no force. The one Act deals with the law relating to land revenue, the other deals with the law-relating to agricultural tenancies and other matters. It was obviously desirable to provide for the presumption in question in section 201 so that the Act should be self-contained.” Surely if a non-recorded plaintiff sued a defendant who was recorded, there would be a presumption in favour of the recorded defendant, and yet it is said that clause (3) was enacted solely for the purpose of stating a presumption which would arise in favour of the entry as an entry in a public record quite irrespective of sections 44 and 57 of the Land Revenue Act and sub-section 3 of section 201 of the Tenancy Act. Why was there more necessity for stating the presumption in the case of a recorded plaintiff than in the case of a recorded defendant? One argument put forward against the view which I take is the hardship that might arise in cases in which the record is obviously wrong, or in cases in which the plaintiff may have fraudulently managed to get his name entered. It seems to me that the policy of this Act and the sister Act No. III of 1901 (Land Revenue) was to make the revenue records as valuable as possible and to put a premium upon persons who were entitled to have their names recorded, taking the necessary steps to have the record of their title made. I think that if a person entitled to be recorded as proprietor, permits a person who is not entitled to be recorded, he has only himself to blame if a decree is given against him in the Revenue Court.

Furthermore, it must be remembered that a person who has proprietary title and yet is not recorded is in by no means a disadvantageous position. He is entitled, not only to sue in the Civil Court for a declaration of his title, but he can also sue in the Revenue Court notwithstanding that he is not recorded. Having instituted his suit in the Revenue Court, that court may either try the question of title itself or refer the plaintiff to the Civil Court. In one case he has the question disposed of by the Revenue Court with an appeal to the District Judge, in the other case he goes to the Civil Court to try the question, but limitation is stayed meantime in respect of his claim for profits by reason of the fact that he has instituted a suit in the Revenue Court. Is there any just reason why a person who is recorded should be placed in a more disadvantageous position than a person who is not recorded?

In very extreme cases where it is clear that there has been some mistake in the record, it would, I think, be open to the Revenue Court to postpone the decision of the case to give the defendant an opportunity of making an application in the Revenue Court to have the entry corrected. It is said that in certain cases the Revenue authorities may refuse to amend the record even after the Civil Court has settled the question of proprietary title. I do not think that we ought to assume that the Revenue Court would do anything, so improper. It is clear from the provisions of the Land Revenue Act and the Agra Tenancy Act that, an a general rule, the Civil Court is the court to decide questions of proprietary title. I do not believe that after the question of proprietary title had been established by the Civil Court, the Revenue authorities would, on a proper application being made to them, refuse to amend their records. I have no hesitation in saying that in my opinion the Revenue Court in the present suit was not competent to go behind the record, receive evidence and try the question of proprietary title, and I think that this should be our answer to the reference.

Knox, J.:— The question referred to us for decision is thus stated:—Whether in a suit instituted under the provisions of chapter XI of the Agra Tenancy Act and where the plaintiff is recorded as having proprietary title entitling him to institute the suit, the Revenue Court is competent to go behind the record, receive evidence and itself try the question of proprietary title.”

As the referring order points out, there is a conflict of authority in the decisions of this court. In Bechan Singh v. Karan Singh, the interpretation put upon clause (3) of section 201 of the Agra Tenancy Act is that, so far as the Revenue Court is concerned, such court is bound to presume in favour of the plaintiff that he has the right to sue, and the entry of his name shall be regarded as sufficient proof and the court shall not go behind it in order to determine the question of the plaintiff's proprietary title, the remedy of the defendant being a civil suit. On the other hand, in Gobindi v. Saheb Ram,, in which I was one of the three Judges who decided the case, it was virtually held that the Revenue Court could go behind the entry and determine the question of the extent at any rate of the plaintiff's proprietary right. In that case the extent of the plaintiff's proprietary right was alone in question. Again, in War is Ali Khan v. Parsotam Narain it was held by two out of the three learned Judges who tried that case that the presumption enjoined by clause 3 of section 201 of the Agra Tenancy Act was not a conclusive but merely a rebuttable presumption. There can be little doubt, it seems to me, as to what is the ordinary and natural meaning of the words which are to be found in section 201(3) of the Agra Tenancy Act. The words “shall presume” are known and well known both to English and Indian Law(*).

Quite apart from the definition given of them in the Indian Evidence Act of 1872 which cannot be extended to other statutes except by express legislation to that effect, they have acquired a technical meaning of their own, and unless adequate grounds exist, it must be assumed that they are used in this technical meaning(†).

So far as I have been able to gather, both English and Indian Law have agreed in dividing presumptions into three classes:—

(1) conclusive or absolute presumptions of law;

(2) rebuttable or primâ facie presumptions of law;

(3) presumptions of fact.

The first class are inferences which the law will not allow to be contradicted by evidence, the second class are inferences which a Judge of fact is bound to draw from any particular evidence unless and until they are rebutted by evidence or by some other presumptions. With the third class we are not concerned in the present case.

Where the Legislature, both English and Indian, intend to lay down a conclusive presumption of law, the expressions used are “conclusively presume,” “conclusive evidence” or some similar expression. Where, on the other hand, they intend to lay down a rebuttable presumption, the phrase used is as here shall presume”.

There seems to me no reason why, if the Legislature had intended that the Revenue Courts should be barred from taking evidence as to proprietary title in suits under chapter XI, they should not, as they have done in section 9, have made clause (3) run in this wise:—“If the plaintiff is recorded as having such proprietary right, the entry shall, so far as the Revenue Court is concerned, be conclusive proof that the plaintiff has such right.”

It is however contended that there are adequate grounds in the present case for concluding that the ordinary interpretation which attaches to the phrase “shall presume” does not give the real intention of the Legislature.

In Bechan Singh v. Karan Singh, my brother Banerji says that the whole context of the section and the policy of the Act lead in his opinion to only one conclusion, namely, that the Revenue Court should not go behind the entry. In the case of a person whose name is not recorded the Act provides that the question of his title shall be tried by only one court, namely, either by the Civil or the Revenue Court which may constitute itself a Civil Court. In the case of a plaintiff who has been recorded, why should two remedies have been given to his Opponent, namely, a remedy of trial by the Revenue Court and a suit in the Civil Court?

If we were considering the language of a carefully considered and skilfully drafted Act, this argument would have much weight with me. We know, however, by experience that, as my brother Banerji points out in Bechan Singh v. Karan Singh that this Act was “not drawn up with as much care and precision as” it should have been. Where more than one incuria has crept in, it may well be that the case before us is another instance of the full significance of the words used not having been fully thought out.

Practically the same difficulty which faces us now arose in the days when Act No. XLII of 1860 was still on the Statute Book. Act No. XLII of 1860, section 1, and after it Act No. XI of 1865, section 13, expressly enacted that the Judge of the Small Cause Court shall not exercise any civil jurisdiction except under the provisions of the Act. We have no such words of express prohibition in Local Act No. II of 1901; all that we have is at the outside a clear intimation that it was the policy of the Legislature that questions affecting proprietary title should be tried by the Civil Courts only. At the same time the difficulty and hardship to the ordinary villager of being sent to the Civil Court whenever a question of title was involved was felt and the legal fiction invented that a Revenue Court before which such a question was raised could, for the time being, constitute itself as a Civil Court. In Act No. XI of 1865, the words of express prohibition do occur and the Calcutta High Court had at a very early date to decide whether Small Cause Courts could in the face of the express provision try questions of title. A Full Bench of that court in Raghooram Biswas v. Ramchunder Booby, held that Small Cause Courts have jurisdiction to try questions of title which incidentally arise in suits cognizable by them.

Small Cause Courts in these provinces on the strength of this ruling continued, so long as Act No. XI of 1865 was on the Statute Book, to try questions of title which arose before them in suits for damages, rent and the like. Conflicting decisions were, from time to time, passed. The judgement of Civil Courts was the conclusive judgement as to title. I never heard that the procedure caused any serious inconvenience.

But apart from this, and with great respect to the opinion of my learned brother, I am not at all sure that the farmers of the Act had not in their minds procedure akin to that with which we are familiar in the case where a person dispossessed of property disputes the right of the decree-holder to be put into possession. The execution court investigates summarily the matter in dispute, and the party against whom the order is passed has a right to institute a suit to establish his right over the property, but, subject to the result of such suit, if any, the order of the execution court shall be conclusive. So here the Revenue Court may have been intended to decide summarily the issue of proprietary right. But the door was left open to any person, the defendant or a third party, to establish by suit in the Civil Court that the plaintiff has not such proprietary right.

The question why two remedies were given to the defendant in one case and not in the other is nor, so easy to answer. It may have been that, with all due respect to then, he minds of the framers of the Act soared above such details. In any case, they would appear to have forgotten when they came to enact section 201 of Act No. II of 1901, what they had enacted in section 34, clause 5 of the Land Revenue Act, 1901. There they had laid down that no Revenue Court shall entertain a suit or application by the person so succeeding or otherwise obtaining possession until such person has made the report required by this section, and yet in section 201 of Act No. II they apparently authorize Revenue Courts to try the suits of plaintiffs who have never made such reports.

It must not be forgotten that the Revenue Courts are supposed to, and as a rule do, deal more swiftly with cases than the Civil Courts do or can. Their procedure is summary and intended to be summary.

I think too much may be made of another argument which has been put forward and which found favour in Bechan Singh v. Karan Singh, that the object of the Legislature was to bring pressure to bear on persons entitled to proprietary rights to have such rights recorded. It is quite true that elaborate provisions are made for the correction and preparation of these records, but the distance at which they are from accuracy may be judged from an observation which I find in the report of 1911 on the administration of the land records in the United Provinces. At page 4 may be read:—“In Basti, mutation work continues very heavy, but is kept up to date. The Registrar Kanungo's check disclosed 11,000 errors which were rectified.” To hold that the accuracy of a khewat entry in Basti was entitled to the position of an absolute presumption of law seems to me to be a step which could hardly have been contemplated by the framers of the Act in 1901 at a time, when such records were still further removed from accuracy.

I doubt whether the difficulties of effecting mutation are fully realized. I listened to arguments which seemed to imply that a proprietor armed with a Civil Court decree in his favour had merely to go to the Collector and get mutation in his favour effected as easily and swiftly as he can, say, in a registration office.

In this connection the dates contained in Gobindi v. Saheb Ram are not without interest.

Gobindi got a decree in her favour from the Civil Court on the 8th of October, 1901. She lost no time in applying to the Revenue Court, for she put in her application for mutation in pursuance of the decree by the 19th of October, 1901. It was not till the 18th of November, 1902, that the mutation order was passed, and even then the Revenue Court by some error not explained entered her name as proprietor over a far larger amount than that which the Civil Court had, given her. Apparently no one (Registrar Kanungo or other person) in spite of the elaborate precautions for correction and accuracy, observed the error until Gobindi took advantage of it in 1906 to try and get profits for this excess. Saheb Ram was innocent of any fraud or laches, and yet he was on the absolute presumption view remanded to the Civil Court to bring a suit and fight out again the battle that he had fought out in 1901. This, which all but took place in Gobindi v. Saheb Ram, will again take place if we hold that the Legislature intended section 201 (clause 3) to he an absolute presumption so far as the Revenue Courts are concerned.

Fictions of law (and presumptions are such fictions) are not for the destruction of but for the supporting of rights. As Lord Mansfield pointed out in Morris v. Peigh, they hold only in respect of the ends and purpose for which they were invented; when they are urged to an intent and purpose not within the reason and policy of the fiction the other party may show the truth. It is because I fear that this fiction may (absit omen) work strongly to the detriment of innocent villagers that I am not prepared to hold it if I can find any way of escape.

This being so, I am not prepared to recede from the view I held in Gobindi v. Saheb Ram, in which view I had the support of two learned Judges whose experience in revenue law and custom was of no mean order.

It is with the utmost regret and only after long and careful thought that I find myself compelled to differ from my learned colleagues and to hold that the words “shall presume in section 201, clause 3,” connote a rebuttable presumption.

Banerji, J.:— I expressed my views on the question referred to us in this case in my judgement in Bechan Singh v. Karan Singh and I have heard nothing to induce me to alter these views. I have shown in that judgement that the provisions of section 201 of the Agra Tenancy Act and the language used in it leave no room for doubt that it was the intention of the Legislature that where the plaintiff in a suit under chapter XI is recorded as having the proprietary right, entitling him to institute the suit, the Revenue Court should not go behind the record. It is true that in the section the words “shall presume” are used and that those words ordinarily mean that the presumption is a rebuttable one. It cannot be said that the presumption arising from the record of the plaintiff's name, referred to in the section, is one which can in no case be rebutted, as in the suit which the section authorizes the defendant to bring in the Civil Court, he can rebut the presumption and prove that the record is erroneous. In order to give effect to its intention it was not possible for the Legislature to use any other expression. It could not have said that the entry of the plaintiff's name would be “conclusive proof” of his, title, because, as I have pointed out above, the entry could be proved in the Civil Court to be erroneous. The intention of the Legislature is, in my opinion, unmistakable. I do not think it is correct to say that the language of section 201 is practically the same as that of section 44 or 57 of the Land Revenue Act. Whereas under those sections “any person” may sue in the Civil Court to establish his title, section 201 of the Tenancy Act empowers the “defendant” alone to do so. It is a fundamental principle of interpretation that the intention of the Legislature should be carried into effect unless the language used is such as clearly indicates a different intention. The utmost that can be said of the provisions of section 201 is that the language is not explicit and unmistakable. If that is so it is our duty to construe the section in such a manner as to make it harmonize with what appears to be the manifest intention of the Legislature.

I would answer the question referred to us in the negative.

Karamat Husain, J.:— I agree.

Tudball, J.:— I concur with the learned Chief Justice. I have given my opinion on the point at length in my judgement in the case of Waris Ali Khan v. Parsaram Narain, and I see no good reason to alter the opinion that I then formed after hearing full arguments on both sides no fresh argument of any weight has been advanced. It is not a question of the interpretation of the two words “shall presume,” but of the interpretation of the whole of clause (3) of section 202. I would therefore answer the question in the negative.

Chamier, J.:— I also am of opinion that the question referred to us should be answered in the negative. I do not feel that I can usefully add anything to what has been said by the learned Chief Justice in the present case and by Tudball, J., in the case of Waria Ali Khan v. Parsotam Narain. I agree with the reasons given by them for answering the present question in the negative.

Piggott, J.:— The question for determination is whether the presumption laid down by clause (3) of section 201 of the Agra Tenancy Act is conclusive or rebuttable. The argument based on the language of the section itself taken as a whole, seems to me irresistible. The very limited scope of the section shows that the Legislature conceived itself to be making special provision for a certain class of cases, and intended the provisions of the section to cover all cases of that particular class, that is to say, suits instituted under the provisions of chapter XI of the Act. A plaintiff instituting a suit under the said chapter must come under one of two descriptions: either he is recorded as possessing the proprietary right entitling him to maintain the suit as brought, or he is not. The first two clauses of section 201 lay down precisely and completely what the court is to do in the latter alternative; one would naturally expect to find in clause (1) equally precise and complete directions to meet the former alternative. If that clause be read as meaning that, if the plaintiff is recorded as having such proprietary right, the court shall proceed to dispose of the suit before it on the presumption that he has it, then the alternative is completely and precisely met. There is no need to say anything about the defendant's pleading that the plaintiff has not such right, because the fact that the plaintiff is recorded is conclusive on the point. There is no need to provide for the trying of an issue on the point, much less for a decision of such issue in a sense adverse to the plaintiff. Accordingly we find that the proviso reserves to any person interested in the matter the right to establish by suit in the Civil Court that the plaintiff has not such proprietary right. This proviso pre-supposes a decision in the suit itself in favour of the plaintiff; it is in harmony with the interpretation I have put on the words of the clause, and is not fairly to be reconciled with any theory of a rebuttable presumption, which might after all result in a decision against the plaintiff on the merits.

The question then remains whether the meaning I have put on the words “shall presume that he has it,” as used in this particular context, is one which they will reasonably bear. A negative opinion on this point has been arrived at by those learned Judges of this Court who hold that the implication of a rebuttable presumption is inextricably bound up in the expression “shall presume” either by reason of the definition contained in the Indian Evidence A ct, or by reason of their having acquired a certain technical significance when used in a legal enactment. The definition in the Indian Evidence Act seems to me irrelevant, the two Acts being by different Legislatures, and not in pari materiâ. The argument from the alleged technical meaning of the words “shall presume” cannot be pressed too far. I venture to say that the words as they stand, in their ordinary English signification, no more imply a rebuttable presumption than they do an absolute one; their meaning as used in any particular enactment must be controlled either by definition or by context. If it be admitted that they have most frequently been employed in cases where it was clear, from the context or otherwise, that a rebuttable presumption was intended, this would be no sufficient reason for approaching the consideration of the context in the particular section now before us with any bias of mind against inferences in favour of an opposite interpretation fairly arising from the wording of the section as a whole. The entire controversy seems to me to turn on the question whether we are prepared to say that the words “shall presume,” in their ordinary legal signification, clearly and necessarily imply, “shall presume until the contrary is proved,” so that they cannot with propriety be used in any context whatsoever, unless with the addition of some such adverb as “con-clusively,” in order to lay down an unrebuttable presumption. I do not think this is a correct view; and in the particular case before us the plain meaning of the words to my mind is—“shall proceed to dispose of the suit on the presumption.” It is not true that the court, when so proceeding, will have nothing left to try; it will have to go into the whole question of accounts between the parties, and may have to determine a number of issues relating thereto, but it will do so “on the presumption that the plaintiff has the proprietary right entitling him to sue which stands recorded in his favour in the Revenue Court records.” This being my view as to the meaning of the statute we are called on to interpret, I am but little concerned to discuss the question as to the intention of the Legislature in so framing the law, or possible hard cases which may arise thereunder. I may point out that the real difficulty which faced this court in the case of Bhawani Singh v. Dilawar Khan, arose from the fact that courts concerned had failed consistently to interpret section 201 of the Tenancy Act as I hold that it ought to be interpreted. If that suit had been decided once and for all “on the presumption” that the plaintiff had the right which stood recorded in his name, there would have been no time for a successful suit by the defendant, while the suit under the Tenancy Act remained pending. There will be no hard cases, of this particular kind at any rate, if persons who have successfully asserted their title in the Civil Court will take prompt steps to have the revenue records corrected accordingly. Cases of fraud and mistake the Revenue Courts may be trusted to deal with themselves; nor would the possibility of individual cases of hardship be any good reason for refusing to enforce the statute law in accordance with what appears to be its true meaning.

I would therefore hold in reply to this reference that the presumption in question is conclusive so far as Revenue Courts trying suits under chapter XI of the North-Western Provinces Tenancy Act are concerned.

The case was then laid before the Bench which referred it to Full Bench.

Richards, C.J and Banerji, J.:— This appeal arises out of a suit for profits brought by the plaintiffs who are recorded co-sharers. The court of first instance granted them a decree. The lower appellate court reversed the decree on two grounds; first, that the court was not bound to presume under section 201 of the Agra Tenancy Act, that the plaintiffs, whose names were recorded as co-sharers, had the proprietary right entitling them to institute the suit, and secondly, that the matter was res judicata in consequence of a decision of the Revenue Court in a previous suit, for profits.

The first point is concluded by the decision of the Full Bench to which it was referred in this case. According to that ruling the plaintiffs being recorded co-sharers, the Revenue Court was bound to presume that they had the right which entitled them to bring the suit.

As to the question of res judicata the decision on which the court below relies was passed before section 201 of the Agra Tenancy Act was enacted. In view of the provisions of that section, as construed, by the Full Bench, the plaintiff is entitled to maintain the suit and no question of res judicata can arise. As the court below decided the case on those preliminary grounds and did not determine the appeal on the merits, we allow the appeal, and setting aside the decree of that court, remand the case to it under order XLI, rule 23 of the Code of Civil Procedure, with directions to re-admit it under its original number in the register and dispose of it on the merits according to law-Costs here and hitherto will follow the event.

Appeal allowed.