ONKAR Vs. DEVA

JUDGEMENT

(1.) This is the unsuccessful plaintiffs second appeal whose suit for recovery of possession over the land in dispute was decreed by the trial court and dismissed by the learned Additional Commissioner, Jaipur, in first appeal.

(2.) We have heard the learned counsel appearing for the parties and have examined the record as well. The plaintiff in support of his allegations produced certified copies of the entries in the Gasht Girdavari for Smt years 2007 to 2010 along with oral evidence. The entries in the Gasht Girdavari for all these consecutive years reveal that the plaintiff had been in possession of the land in dispute as a tenant to the extent of one -half, Sona grandfather of Deva defendant being shown as in possession of the other half. The trial court relying upon the entries in the Gasht Girdavari and the oral evidence led by the plaintiff decreed the suit. The learned Additional Commissioner starts with the observation that except the entries in the khasra -teep of Svt. years 2007, 2008, 2009 and 2010, there is no evidence of the fact that the respondent is a tenant of the land in dispute. This obviously is incorrect as the plaintiff had led oral evidence as well in support of his claim. The reasons advanced by the learned Additional Commissioner for discarding these entries may be quoted from the judgment itself. "The entries in the khasara -teep may be evidence of possession, but they cannot be regarded as evidence of the right of the parties in the land cultivated by them............It appears from the evidence that the khasara - teep entries began to be made in this village since Svt. 2007 only and that the entries in the khasra -teep of Svt. years 2007, 2008 and 2009 have been made by the Patwari Lakhmichand. There is nothing to show on what basis the said Patwari entered respondent as non -occupaney tenant. Lakhmichand has not been produced by the respondent. He alone was in a position to throw light on the point stated above...............Therefore, it cannot be said that there was any sound basis for the entry showing cultivation of the land in dispute by the respondent in those three years." These observations to our mind, reveal that the learned Additional Commissioner was under some misconception as to the law on the point. As laid down in sec. 36 of the Indian Evidence Act, an entry in any public or other official book, register, record stating a fact in issue or relevant fact and made by a public servant in the discharge of his official duty is itself a relevant fact It is true that revenue records are not evidence of title for they are kept for fiscal purposes. But when the facts recorded are facts which it is the duty of the revenue officer to record, then this record is evidence of those facts. The evidentiary value of such records varies with the circumstances Where entries are made after a careful public enquiry, they are cogent evidence of the facts recorded though they may not be conclusive evidence of the same. The learned Additional Commissioner appears to have been under the impression that the plaintiff was bound to prove these entries to be correct and that they were to be presumed to be incorrect unless so proved. The Patwari who was in custody of the record and issued the certified copy to the plaintiff was examined and he deposed that the certified copies were true copies of the record and that the entries as regards Svt. 2010 in the original record were made by him. It was the duty of the defendants to allege and prove circumstances which could throw reasonable suspicion or distrust upon the veracity of these entries Nothing of the sort has been done in the case. On the other hand, it has been admitted by Deva himself that he applied for correction of these entries but was unsuccessful. There are, therefore, no valid grounds to discard the entries in the annual registers. The findings of the lower appellate court on the point, therefore, are entirely against the weight of evidence on record and deserve to be rejected. Besides, as pointed out above, the plaintiff has led oral evidence as well to support his case. The trial court after discussing the same regarded it as reliable. The learned Additional Commissioner has rejected it on grounds which do not appeal to us. Ordinarily the assessment of the value of a witness by a trial court, which has the advantage or observing the bearing and demeanour of a witness should not be disturbed by an appellate court unless there be special grounds to the contrary. No such grounds have been shown to exist in this case. For these reasons we are of the opinion that the decree passed by the lower appellate court is untenable We would, therefore, allow this appeal, set aside the judgment and decree of the lower appellate court and restore that of the trial court. The parties shall bear their own costs throughout.