JAGESHWAR RAMSAHAY AHIR Vs. PARMESHWAR RAMPRASAD YADAV

JUDGEMENT

(1.) This is a second appeal under Section 100, C.P.C. by the defendant. The following substantial questions of law were formulated by order dated 13-5-1996 at the time of admission of this appeal:-(1) "Whether the finding recorded by the Lower Appellate Court that the respondents had perfected their title by adverse possession is vitiated on account of the fact that it has not considered the fact that there are no consistent entries in the various Khasra, filed by the respondents"?(2) "Whether the lower Appellate Court was entitled to consider the entry made by the Patwari in remark column in view of the decision given in Churamani v. Ramadhar, 1991 MPLJ 311"?(3) "Whether the lower Appellate Court has rightly considered Ex. P-11, a judgment delivered under Section 447 of I.P.C. for coming to conclusion that the respondents Nos. 1 to 3 were in possession of the suit land"?

(2.) The lands in dispute are Khasra Nos. 16, 17 and 18/1 area 0.18, 0.45 and 0.08 acre respectively of village Tikat, Tehsil Mauganj, district Rewa. The patta of these lands stood in the name of Ramsahai, father of defendant Jageshwar at the time of settlement in the years 1923-27. The plaintiffs' case is that after the death of Ramsahai his son Jageshwar was minor and his mother had shifted to another village after her remarriage. The plaintiffs claim that these lands were allotted to their father Ram Prasad Yadav by Laxminarain who was Thekedar of Ilaqa Naigarhi. It was done orally. He constructed a house on a portion of Khasra No. 18 and he was cultivating the other lands. The plaintiffs are in actual possession of these lands. They have perfected their title by adverse possession. The defendant claims that he has all along been in possession of the lands and the story of allotment of these lands to the father of the plaintiffs is false. The trial Court and the first appellate Court on the basis of the entries in the Khasra from the years 1956-57 to 1982-83 and oral evidence has held that the plaintiffs and their father have been in adverse possession of these lands and therefore the title of the defendant's father has been extinguished.

(3.) It has been argued on behalf of the appellant/defendant that the Courts below have ignored the principles of law laid down by a Division Bench of this Court in Churamani v. Ramadhar, 1991 MPLJ 311 in which it has been laid down that a presumption as regards continuity of possession of the plaintiffs over the suit land could not be drawn in favour of the plaintiffs on the basis of the remarks recorded in the remarks column. No presumption of correctness can attach to an entry made by the patwari in the remarks column of a Khasra or field book showing therein some third party/trespasser to be in possession the land held by a bhumiswami and recorded as such in his name in the said land records. Presumption under Section 117 of the Code applies to those entries which are required to be made under Chapter IX and in respect of entries in other land records prepared under the Code. The provisions of the Code or the Rules made thereunder do not require the patwari to make any entry in the remarks column and if such an entry is made, the same cannot have any presumptive value as regards its correctness under Section 117 of the Code. As there is no such duty cast on the patwari to make an entry in the remarks column there arises no question of drawing any presumption under Section 114(e) of the Evidence Act regarding any act of the patwari having been regularly performed.