HANUMANTHA Vs. GOWDAIAH AND

JUDGEMENT

(1.) The dispute in this case relates to lands in a jodi village Dondenaballi, Magadi Taluk, of which Defendant 12 is the khayamguttadar. Survey & Settlement are not introduced in this village taut what is called Pahani Soodu was prepared in 1916. As purchasers from the jodidar under a registered sale deed dated 11-1-1944 of an extent of about 9 acres in Survey No. 59 and part of S. No. 62 and as lessees of the rest of S. No. 62 the plaintiffs sued the defendants for declaration of their tight to the said lands and setting aside the order under Section 145, Criminal P. C. passed in favour of defendants 1 to 11. They also sought for payment of Rs. 80/- in deposit in the criminal Court.

(2.) Defendant 12 admitted the sale and conceded the claim but defendants 1 to 11 pleaded that the lands are not alienable as these were given away as Inam for pateli service and as kodige, that the defendants are in possession of the lands in their own right each holding portions thereof and that plaintiffs are not entitled to the declaration applied for.

(3.) The principal point in controversy between the parties is whether an absolute or limited right in the lands was conveyed to the plaintiffs by the sale; in other words whether the plaintiffs were entitled to possession of the lands or only to recover the kandayam due on the lands. The trial Court decreed the suit as prayed for and the decree has been confirmed in appeal. Defendants 1 to 11 have preferred this second appeal questioning the decision only as regards the lands purchased by the plaintiffs. 3a. It is argued that the Courts below have not correctly appreciated the evidence and failed to give due effect to the entries in the survey records. Consideration of the oral evidence' cannot reasonably be pressed, at this stage since two courts have expressed that it is not satisfactory and even otherwise it is not a safe basis for determination of title. Both parties trace title to the land from the acts of the jodidar and as such the question is as to who acquired rights to the land from him. The present Jodidar who is defendant 12 supports the plaintiffs and there is a registered document Ex. A in support of the plaintiffs. 3b. The appellants can succeed only it they are able to prove that prior to Ex. A they had become the owners of the property. Admittedly there is no document in their favour. The extent of the portion which each of the Appellants claims is not specific and no receipt for payment of kandayam by any of them is produced in the case. The plea in the written statement is that the lands are kodige inamthi as evidenced by Pahani Soodu and form part of Gowdike Inam lands. The jodidar who is examined as P. W. 5 states that there is no Patel or shanghogue for the village but this cannot be true in view of Exs. X and X(a) which are orders of the Deputy Commissioner appointing one Kenchiah as Patel in 1880 and 1881 and Exs. XII and XIII communications addressed by others to the Patel. From the fact of the village having a Patel it does not follow that the lands were set apart as Inam for his services. The contention of the appellants mainly was that the lands were Kodagi, given to others in consideration of attending to the upkeep of the tank. 3c. In the glossary to the Revenue Manual Vol. I page 477 the meaning of Kodige Inam is given as land granted free of tax or on light assessment in consideration of services rendered in the construction or restoration of tanks on condition of their being maintained in good repair. The plaintiffs admit that the land is called Kodige hola only for the purpose of distinguishing it from other lands and not to signify that it was inam. For the appellants it is argued that the description of the land as Kodagi implies grant for a special purpose and that this is strengthened by the names of persons other than the jodidar being entered as 'Kardadars' in the survey record, Ex. XVI prepared in 1916. Exhibit XVI is styled a 'detailed survey book' containing particulars as regards classification of each land, the persons present at the time and in occupation. As regards the survey numbers assigned to the suit land under the heading "Name of Karda" names of persons other than the jodidar are noted. 3d. The point for consideration is whether this is sufficient to hold that the jodidar has no right to the lands irrespective of the appellants being descendants or heirs of the persons mentioned in Ex. XVI and entitled as such to rely on the entry to sup-port their claim as this is a suit for ejectment and plaintiffs have to fail unless they make out a title of their own to the property independently of the weakness of defendants' case. The term 'Karda' according to Survey Manual, Vol. I, page 61 is synonymous with khata and Kardadar signifies occupant. The entries in Ex. XVI are apparently based on the information furnished to the survey officers but there is no indication of the source or nature of information. In the column headed 'person present' the name of the jodidar is not found and there is nothing to show that the entries were made with his knowledge or consent. Nevertheless these are entitled to weight as having been made in the ordinary course of official duty several years ago & there is no motive or reason at the time for anything being written contrary to existing facts. Though as a piece of evidence the entries are admissible and of value, these cannot be deemed to be conclusive. It is not part of the duty of the survey officers to determine questions of title or the nature of the rights of persons in occupation of the lands. Whether occupants of lands are khadim or permanent tenants is a question to be decided in consideration of the materials which may be of a varied kind with respect to the several lands in the village. The presumption in the case of lands situated in a jodi village is against permanent tenancy and in the absence of satisfactory proof that any one has acquired a particular right to the land, it will be absolutely at the disposal of the jodidar. See 8 Mys LJ 528(A). The entries in the survey records do not disclose the basis on which these were made, the persons who were examined and if any documents were referred to. Nor is it clear by whom the entry was made and if any responsible officer checked it. Whether the jodidar who is the person affected was examined at all about the correctness of the claim of any occupant is uncertain, as there is no statutory provision or proof concerning it. Several years ago it was pointed out by this Court in 7 Mys LR 20803) that for proof of title survey records are not conclusive. The Madras' High Court has expressed the same view in --'Narayana Jogithaya v. Secy, of State', AIR 1916 Mad 56B(C). Similar expression is found in --'Wall Mahomed v. Mahomed Bakhsh', AIR 1930 PC 91(D). 3e. 34 Mys CCR 349 (E), on which appellants' counsel relied does not warrant a different or higher value being given to survey records and for the decision in the case the evidence and probabilities were taken into account apart from the entries. The following statement in the judgment is pertinent :