KISHAN Vs. LILA

JUDGEMENT

(1.) This second appeal arises out of the following circumstances - - Kishna and Bhora plaintiffs brought suit in the court of the S.D.O., Behror against Kaluram and Sohan for recovery of possession over the land in dispute Khasra No. 33 measuring 6 biswas in Morodi. The allegations contained in the plaint were that the plaintiffs had been cultivating the land in dispute since long, that Kaluram defendant No. 1 who is the proprietor Biswedar of the land sold it to Sohan in Svt. 2007 and that on 23.8.50 the plaintiffs were wrongfully dispossed. The suit was instituted on 17.10.51. The trial court framed the following three issues - -

(2.) After hearing the arguments of the learned counsel for the parties, the Board by its order, dated 7.4.54 framed the following issue and remitted the same to the trial court for recording the evidence of the parties and returning it along with its finding - - "Were the defendants in possession over the land in dispute in Svt. 2006 as tenants." After recording the evidence led by the parties the trial court has returned the record with its finding that the plaintiffs were in possession of the land in dispute in Svt. 2006 as tenants. A certified copy of the sale -deed and mutation No. 199, dated 7.1.52 which does not appear to have been sanctioned as yet, were also produced before us by the respondent.

(3.) It stands established clearly that the plaintiffs are recorded as Gair Morusi, Morusi Kashthkar of 10 ears standing in Khasrateep of Svt. 2005 under Kalu landlord. The learned Additional Commissioner has discarded this entry on the ground that "there is always the possibility of the entries in the Khasrateep being manipulated by the Patwaris at the instance of the interested parties." It is true that no presumption of truth attaches to the entries in the annual records Gasht Girdawari as in the case of Record of Rights but that by itself would not mean that the entries in the Gasht Girdawari are always to be discarded without any examination of the attendant circumstances. Entries in Gasht Girdawari are made by village Patwaris in the discharge of their official functions in accordance with the prescribed procedure and are therefore relevant under the provisions of sec. 35 of the Indian Evidence Act. Revenue Records are maintained for fiscal purposes and when the facts recorded are facts which it is the duty of the revenue officer to record then the record is evidence of those facts ; the eviden -tiary value varies with the circumstances. Where the entries are made after a careful enquiry they are cogent evidence of the facts recorded though they may not be conclusive. The learned Additional Commissioner has discarded this evidence merely on the conjecture that the Patwari may have manipulated it. This evidently cannot be a safe ground for rejecting an entry. There should be proof of existing circumstances which may raise an inference that the official concerned was acting corruptly or negligently while making entries in the record and if there is absolutely nothing to discredit his method the entry should not be discarded lightly. In the present case, the Patwari was examined as a witness by the plaintiffs. It was open to the defendants to cross -examine him in case their version was that the entry was collusive or fraudulent. Nothing of the sort was even attempted by them. Even in the face of these facts if it surmised that the Patwari may have acted collusively it would be putting a case in the mouth of the defendants which they had never alleged themselves. It is also important to point out here that the Patwari has made it clear in his statement that in Smtv 2006 no entry about change in cultivation was made in village Roznamcha which also means that cultivation over the land in dispute in Svt. 2006 remained with the party which was in possession in the precious year. The entry in Svt. 2006 was originally made as Makbuza Malkan. The plaintiffs applied for correction of these entries against Kalu and were successful. Kalu went up in appeal against this decision of the District Land Record Officer but met with no success. The learned Additional Commissioner has ignored this decision on the ground that Sohanlal was not made a party to these proceedings and when Sohanlal himself applied for being joined in those proceedings the plaintiffs resisted his demand. It is no doubt true that these proceedings were only between the plaintiffs and Kalu and hence Sohanlal cannot be deemed to be bound by the decisions given in those proceedings. But the fact remains that in Svt. 2006 there was no change in cultivation and that in Svt. 2005 the plaintiffs were in possession over the land in dispute and these facts are patent enough to raise the inference that possession in Svt. 2006 as well continued with the plaintiffs. The evidence recorded by the trial court, after the issue en the point was remitted to it by the Board also makes it perfectly clear and no valid grounds have been shown to discard this evidence. In the sale -deed, it is true, it has been mentioned that possession had been transferred by Kalu in favour of the vendee. This sale -deed was executed on 21.8.50 and according to the plaintiffs they were dispossessed wrongfully on 23.8.50. The subject of transfer was the biswedari interest held by Kalu. There is absolutely nothing in this document to suggest that the plaintiffs were not holding any tenancy rights over the land. A sale of biswedari rights keeping in tact the existing tenancy rights is perfectly possible and the sale -deed in respect of this land could be easily interpreted in this manner as well. The findings arrived at by the learned Additional Commissioner are entirely against the weight of evidence on record. The plaintiffs have established successfully the fact that they were in possession of the land in dispute till they were disposed wrongfully by the defendant as alleged in the plaint. The decree of the lower appellate court is clearly untenable. We would, therefore, allow this appeal, set aside the decree of the lower appellate court and restore that of the trial court. The appellants shall get their costs from the respondent throughout.