SHAIKH BANKA Vs. SHAIKH BARTUL

JUDGEMENT

(1.) This second appeal by the plaintiff arises out of a suit in ejectment in respect of two plots of land, Nos. 519 and 545, recorded in revisional survey Khata No. 959. The only question which requires an answer in this appeal is whether an earlier entry made in the record of rights prepared at the time of the cadastral survey will by itself and in law rebut the presumption of accuracy attaching to a later entry made in respect of the same lands in the record of rights prepared at the time of the revisional survey. The Courts below have answered this question in the negative, and have further held that there is no reliable evidence which rebuts the presumption of accuracy attaching to the entry made in respect of the lands in dispute in the record of rights prepared at the time of the revisional survey.

(2.) It appears that in the record of rights prepared at the time of the cadastral survey the lands were recorded as the 'Kasht' lands of an indigo factory and one Mekhar Dusadh was recorded as Shikmidar in possession. The interest of the indigo factory was purchased by one Mahadeo Rai, and at the time of the revisional survey the lands were recorded as the kasht lands of one Mekhur Dusadh. Defendant No. 3, as the heir of Mekhur Dusadh, transferred the lands to defendants 1 and 2 by a sale deed dated the 10th of January, 1936. The plaintiff, who is the appellant before us, purchased the lands by means of two sale deeds from Mahadeo and his heirs. The case of the appellant is that the lands were the basht lands of Mahadeo, and Mekhur had only a 'shikmi' right which could not be transferred.

(3.) This case of the appellant is in direct opposition to the entry made in the revisional record of rights, and the contention of learned counsel for the appellant is that the entry in the cadastral survey record of rights by itself rebuts the presumption arising out of the entry made in the later record of rights prepared at the time of the revisional survey. I may state here that the cadastral survey entry was made in 1898 and the revisional survey entry in 1918. Learned Counsel for the appellant has relied on the decision in 'RAGHUNATH MISRA v. RAM BAHERA', 1 Pat 167, where With regard to an entry in respect of some 'rafa tanki-dars' it was stated that the entry in the provincial Settlement records was sufficient to rebut the presumption arising from the entry in the records of the Revisional Settlement inasmuch as there was no procedure by which the status of the plaintiffs could have been changed from that of 'rafa-tanki-dars' to that of 'tankidars' in the interval between the two settlements. This decision was subsequently considered by another Division Bench of this Court in 'ABHIRAM v. CHINTAMANI', 6 Pat 342 where one of the Judges stated that the decision in 1 Pat 167 was not correct. The decision in 6 Pat 342 and the reasons for that decision were approved in a Special Bench decision of this Court in 'TENGAROO SUKUL v. CHATTU BHAR', 9 Pat 347 where it was clearly laid down that the presumption of correctness attaching to the later record of rights could not in law be rebutted merely by a contrary entry in an earlier record of rights. That was a case in which the question arose as to whether the land was 'zirat' land of the landlord or 'Kaimi kasht' land of the tenant. The cadastral record of rights showed the land to the zirat land, whereas the entry in the revisional record of rights showed the land as 'Kaimi kasht' land of the tenant. It was held that the presumption of accuracy attaching to the later entry was not rebutted by the entry made in cadastral record of rights.