WARIS ALI KHAN Vs. PARSHOTHAM NARAIN

JUDGEMENT

(1.) This appeal arises out of a suit for profits brought by a recorded co-sharer under Section 164 of the Tenancy Act against a lumbardar who is appellant before us.

(2.) On second appeal to this Court, the learned Judge, before whom this case came, held that on the true construction of Clause 3, Section 201, of the Agra Tenancy Act, a Revenue Court had no power to go behind the entry in the record- of-rights. In that view he remanded the case for trial of the remaining issues.

(3.) It is urged before us that the learned Judge is in error for the following reasons: First, because the words shall presume" in the above-mentioned clause must be held to mean "shall presume until the contrary is proved" and the Revenue Court is, therefore, entitled to go into the point and decide whether or not the plaintiff actually has title and an appeal will lie from its decision to the District Judge under Section 177(e) of the Act; secondly, that the Court ought not to read the word "conclusively" into Clause (3); thirdly, that the same meaning should be given to the words shall presume" in this clause as is given to them in Section 4 of the Indian Evidence Act. In this respect stress is laid on the fact that in Secs.44 and 57 of the Revenue Act, III of 1901, the legislature has laid down that the entries in the record-of-rights are to be presumed to be true until the contrary is proved, and in Section 9 of the Tenancy Act it has been clearly laid down that certain entries made at the last revision of records shall be conclusive proof of certain facts. The argument is that if the legislature had intended the presumption mentioned in Section 201(3) to be conclusive, it would have plainly said so. It is further contended that if the Revenue Court cannot go behind the entry in the khewat, certain dire calamities will occur, namely, that there will be no appeal to the District Judge in suits the valuation of which is Rs. 100 or under; that the Revenue Court will be bound by clerical errors and by fictitious entries, such as, the entry of a Hindu widow's name for consolation, and would have to give decrees to persons who clearly had no title at all. The whole of the argument for the appellant amounts simply to this that Clause (3) of Section 201 merely shifts the burden of proof on to the shoulders of the defendant in a suit for profits when he contends that the plaintiff has no title, provided that the latter proves that he is the recorded owner of the share. On the other hand, the contention for the respondent is that in cases where the plaintiff is the recorded owner of the share which he claims, the Revenue Court cannot go behind that record but for the purposes of the suit must hold that he has title, leaving it to the defendant or some other interested party to go to the Civil Court to establish the fact that the plaintiff has not such title.