BABRU LAL Vs. JAI CHAND

JUDGEMENT

(1.) BOTH these revisions (No. 21 & 22 of 1955 District Udaipur) arise out of a single appellate order of the Divisional Commissioner, Udaipur dated 19. 8. 55 and will be disposed of by this judgment. Put briefly the facts of the case are that Kamla Gadri brought a suit for redemption of mortgage over agricultural Khasra Nos. 30,31,33,34 and 35 measuring 15 bighas 17 biswas in village Chak Kanod against Babru and others in the court of the Munsiff Kanod on 26. 7. 46 The defendant Babru in his written statement admitted the existence of the alleged mortgage over khasra Nos, 30,33, and 34 but as regards the others he pleaded his own Bapi rights. The learned Munsiff by his decision dated 13. 5. 53 decreed the suit in its entirety. Babru went up in appeal before the Civil Judge who set aside the decision of the trial court on the ground that the Rajasthan Revenue Courts (Procedure & Jurisdiction) Act, 1951 had divested the Munsiff's court of jurisdiction over the suit and hence the same was directed to be tried in a revenue court. Thereafter the Assistant Collector, Vallabhnagar after trying the same granted a decree in favour of the plaintiff in respect of all khasra numbers on 31. 1. 55. The defendant went up in appeal before the Collector, Udaipur who modified the decree of the trial court so as to exclude khasra numbers 34 and 35 from its perview. BOTH the parties filed second appeals before the Divisional Commissioner, Udaipur, who by his decision dated 19. 8. 55 modified the decrees of the lower courts so as to make the decree of redemption effective in respect of khasra numbers 31,33,34,35 but ineffective and inoperative as against khasra No. 30. As regards Khasra No. 32 which doe? not form the subject matter of the suit, it was also observed by the learned Commissioner "that status quo will be maintained but it shall not remain with Babru who will have a right to field No. 30 only. " Hence both the parties have filed revisions before us. We have heard the learned counsel appearing for the parties and have gone through the record as well. It is clear to our minds that the learned Commissioner and the Collector have overlooked a very material and important evidence existing on the record and have concentrated their attention only upon the interpretation of the mortgage deed of Svt. 1977. As regards this mortgage deed it is clear that it cannot provide any accurate or infallible basis for deciding the area which was placed under the mortgage. The wordings in the mortgage deed are as follows: - "kudau Nag Ek Marmalo jira upar khet nag teen to upar jagah nau bigha ka asare gahane malo. " Stress is laid upon two factors in the passage occurring above. The first is that the number of fields mentioned therein is three only and hence the decree in no case should be for more than three khasra numbers. This is manifestly untenable. There may have been three fields in St. 1977 but it cannot be ruled out on that basis that in subsequent years there may have been a division of those fields as a result whereof the number may swell from three to five or six. The second factor is that the area is mentioned round about 9 bighas. It is common knowledge that this area has no reference to actual measurements for they were not known as such prior to the settlement which was carried out in St. 1999. This measurement is evidently a result of sheer guess or conjecture work. It is also not clear as to what were the dimensions of the Bigha in that year and how do they compare with those adopted during settlement operations.) The area in the mortgage deed is clearly mentioned on the basis of rough surmises. It is significant to observe in this connection that when Chandanmal brought a suit against Babru for ejectment in respect of 11 bighas of land then it was pleaded by Babru that the land in dispute was under mortgage with him from Kamla, father of Jai Chand and others. This also shows that the actual area was a matter of sheer guess work till it was reduced to exact dimensions during the settlement operations. Thus both these factors on which the lower appellate courts have placed almost exclusive reliance lose their significance. We would now examine the other material evidence which has been omitted by the lower courts. As pointed out above, the area was settled in Svt. 1999 and during the settlement operations Records of Rights were prepared as laid down in Sec. 55 of Kanun Mal Mewar, 1947. Kamla son of Kishna, Gadri has been shown as mortgagor of Khasra Nos. 30,31,32,33,34 and 35-total six Khasra numbers measuring 20 bighas 15 biswas. Babru son of Deva, Luhar has been shown as Murtahan Bil Kabz in respect of all these Khasra numbers. It is significant to observe that Babru never thought it fit to challenge these entries in the Record of Rights and this failure on his part is bound to raise an adverse inference and legal presumption against him as provided in secs. 56 and 57 of Kanun Mal Mewar, 1947. It is still more significant to note that a certified copy of the Jamabandi was produced by Babru's counsel on 16. 9. 47 in support of his contention in the suit that was instituted against him by Chandan Mal. In that suit Babru was anxious to prove that the land in dispute was mortgaged with him by Kamla and that Chandanmal had no right or interest thereto. Entries in the Record of Rights are to be presumed genuine unless the contrary is proved by the party challenging their truth. In the present case we find that Babru challenged these entries to some extent but admitted their genuineness to the other extent. He admitted the creation of the mortgage over Nos. 32,33 and 34 but denied the same as regards Khasra Nos. 30,31 and 34. Thus khasra numbers 30,31 and 35, he claimed to be of his own Bapi But strangely enough not a shread of evidence was led to substantiate this allegation. The learned counsel for Babru has frankly conceded before us that no evidence whatsoever exists on record in support of this contention. In other words, the result is that the entries were subjected to a frivolous challenge and no attempt whatsoever has been made to prove that challenge. As pointed out above, prior to the institution of this suit Babru was not only cognisant of the state of entries in the Record of Rights but had although been regarding them as representing faithfully the actual state of affairs. When Chandanmal challenged him with a suit, he produced these entries and obviously intended to rely upon them. It should not be open to him now to plead that he had no knowledge of the entries or that they are incorrect. No action whatsoever was taken by him to have the entries rectified in case he deemed them to be incorrect. On the other hand, he was always treating them as perfectly correct and genuine. The learned Commissioner and the Collector have while giving their decision completely overlooked these entices as nothing whatsoever has been mentioned by them in their judgments. If these entries had been considered by them, the result would have been different. They have based their judgments on the entries in the mortgage deed and for reasons pointed out above, those entries, do not provide a safe basis for decision of the suit. It may be observed here that the learned Commissioner exceeded his jurisdiction in giving a decision as regards Khasra No. 32 as wall for obviously it was not included in the plaint and hence did not form the subject matter of the proceeding. We would, therefore, allow these revisions, set aside the orders of both the appellate courts and restore that of the trial court dated 31. 1. 55. .