SHANKERLAL Vs. PARTAP

JUDGEMENT

(1.) THIS is the unsuccessful plaintiff's second appeal whose suit for recovery of arrears of rent of the land in dispute for Svt. 2000 and Svt. 2001 was decreed in part by the trial court but was dismissed by the first appellate court on the ground that the plaintiff had failed to establish the relationship of a landholder and tenant between the parties.

(2.) BHAIRU respondent being a minor, Shri Jagdish Beharilal Advocate was appointed as his guardian ad litem by the court. The other two respondents. Pratap and Mst. Radha, did not put it appearance despite notice and hence the case was heard exparte. The learned counsel appearing for the appellants have vehemently challenged the finding of the lower appellate court on the point as to whether the relationship of a landholder and tenant has been proved to exist between the parties or not. It has been argued that documentary evidence has been ignored for inadequate reasons and that the findings are based mostly on conjectures. On an examination of the record, we find much substance in this contention. In the first place there exits on record the statement of Kishorilal, Havaldar, P. W. 1 He has stated,on the basis of the entries in the records, that the plaintiffs are recorded as Dolidars of the land in dispute and that the defendants are show as tenants of the same. The learned Additional Commissioner has observed that "this is a mere factual record and is not indicative of the capacity or right in which the appellant (Pratap) had been cultivating this land. " It is true that the record shows the existence of a fact as observed by the village Patwari in the dicha-arge of the duties placed upon him by law. He is duty bound to record the facts as come to his knowledge and whenever the question is as to whether a particular fact was not found by the Patwari, the entries in the revenue papers, generally speaking provide a strong piece of testimony. It is one thing to observe that no presumption of truth attaches to a particular entry and it is quite another thing to ascertain as to whether a particular entry is or is not worth of credence. An entry made by an official in the course of his official functions is generally considered a reliable piece of testimony unless it is shown to be worthless or suspicious by other evidence in the context. There is absolutely nothing on the record to suggest that the entries deposed by Kishorilal deserve rejection or are open to any distrust or suspicion. Pratap defendant pleaded that his possession over the land in dispute was in the nature of a mortgage. As pointed out by the lower appellate court itself no reliable evidence was led on his behalf. Evidently the weight of evidence is in favour of the plaintiffs. Secondly there also exists on record a "receipt"; Ex. P-l, which has been proved to have been executed by Hansa, father of BHAIRU, minor and brother of Pratap defendant No. 3 and father-in-law of Mst. Radha. It was executed on Bhadva Sudi 3 of Svt. 1998 corresponding to 25th August, 1941. It is clear from a perusal of the contents of this document that Hansa admitted him-to be the tenant of the land in dispute and agreed to pay Rs. 290/-as rent for Svt. 1998 and Svt. 1999. This document besides this stipulation of rent for these two years, contains other items as well e. g. a statement of account between the parties as a result of which Rs. 1131/8/-were shown as outstanding against the plaintiffs and being duet to Hansa, the rents that were paid by Hansa from Svt. 1994 to Svt. 1997 etc. The oral evidence led by the plaintiffs coupled with this documentary evidence leaves no room to doubt that the relationship between the parties is clearly that of a landholder and tenant and the finding of the learned Additional Commissioner on the point is clearly untenable being much against the weight of evidence on record. We reverse that finding and agree with the trial court in holding that the plaintiffs have established the fact that the defendants are the tenants of the land in dispute and are liable to pay arrears of rent for Samvat year 2000 and 2001.