KATWARU YADAV AND ANR. Vs. RAM SURAT HARIJAN

JUDGEMENT

(1.) This is a plaintiff's second appeal arising out of a suit for injunction to restrain the defendant from interfering with the plaintiff's possession over an agricultural land and for possession in the alternative. The plaintiffs claimed that they were occupancy tenants of the land in suit before the enforcement of the U.P. Zamindari Abolition and Land Reforms Act and became sirdars thereafter. They alleged that the defendant succeeded in getting certain entries made in his favour in the village papers and was trying to interfere with the plaintiff's possession on the strength of those entries. The defendant contested the suit claiming that he was a sub-tenant of the plaintiffs and thus acquired the rights of a sirdar under the provisions of the U.P. Zamindari Abolition and Land Reforms Act. He further claimed to have become a sirdar by virtue of being recorded as an occupant in the records of 1356 F. and again by virtue of having been in cultivatory possession in 1359 Fasli. The trial Court decreed the suit, but on appeal the learned Civil Judge dismissed it with the finding that the defendant was formerly a sub-tenant of the plots in suit as alleged by him, has been in continuous possession thereof since 1353F. and had acquired the rights of a sirdar.

(2.) The judgment of the learned Civil Judge clearly indicates that the findings recorded by him are largely based on the entries in the village records particularly khasras of 1355, 1356, 1358 and 1359 Faslis in which the defendant is shown as a sub-tenant. It was alleged by the plaintiffs that the entries relating to sub-tenancy were not in the hand-writing of the village patwari but in that of the defendant himself. It is noted in the judgment of the trial court that the defendant's counsel admitted that the entries of sub-tenancy in the above mentioned khasras were not in the hand-writing of the patwari but he suggested that the partwari appeared to have taken the assistance of some other persons in the preparation of the village records on account of over-work. While the trial court did not definitely find that the said entries were in the hand-writing of the defendant himself, it felt doubtful about their genuineness and observed that at any rate the value of the entries was in the circumstances of the case greatly diminished. The learned Civil Judge did not however attach much value to this feature of the entries and relied on them for the conclusions reached by him. I must say that this aspect of the case deserved greater attention than was given to it by the learned Civil Judge as it raised a question which may vitally affect the result of the case.

(3.) In order that an entry in a public record may be receivable in evidence it is imperative that it should have been made by a public servant in the discharge of his official duty or by any other person in performance of a duty specially enjoined by the law of the country in which such record is kept. That is the obvious requirement of Sec. 35 of the Indian Evidence Act under which the entry is relevant. If, therefore, the entry has not been made by a public servant one of the essential ingredients constituting relevancy is lacking in it and the mere fact of its existence in a public record would not impart to it the character of evidence. It is certainly true that if an entry is found in a public record it may be presumed to have ben made by the public servant entrusted with the preparation of the record but if it is admitted or clearly proved that the entry is not in the hand-writing of the public servant so entrusted, it will have to be established either by evidence or by circumstances that despite the entry not being in his hand-writing it was really 'made' by him inasmuch as it was at his instance and on his direction that the entry came to find place in the record. It may be conceded that in demanding that an entry, to be recognisable as evidence, should be made by the public servant concerned, the law does not insist that it should be in the hand-writing of that public servant; but there can be no manner of doubt that the law does make it an essential prerequisite for the relevant of the entry that it should represent an act of the public servant on whom the responsibility for the entry has been made to rest. The public servant may make the entry on his personal observation or knowledge, or on the basis of information received from others; but the entry has always to be his personal act in the sense that it is either in his own hand-writing or written on his dictation and direction. The duty to make the entry is cast by the law relating to it on a particular individual by reason of the office he holds and the trust for a faithful discharge of that duty is reposed in him. It is, therefore, he who has to perform the duty and carry out the trust, and nobody else can be a substitute for him unless the law so provides. If this were not so and if an entry made by a person other than the public servant concerned were to be regarded as acceptable in evidence the consequences will really be most startling and disastrous. However, it cannot be disputed that a vicarious performance of the duty in regard to the making of an entry in a public record is not contemplated by Sec. 35 of the Indian Evidence Act.