LACHMAN PRASAD Vs. MUSAMMAT SHITABA KUNWAR

JUDGEMENT

(1.) APPEALS Nos. 1617 and 1618 of 1917 arise out of a suit for profits brought by the plaintiff-appellant, Lachhman Prasad, who has since died and is now represented by Raja Babu. The original plaintiff sued to recover the, profits of a 5 anna, 4 pie share in the mahal for the years 1912,1913 and 1914 against Musammat Shitabo Kunwar. The defendant, among other pleas, raised the plea that the plaintiff was not the owner of the share recorded against his name. The Court of first instance found that the plaintiff was the recorded co-sharer of a 4 anna share and it gave the plaintiff a decree for a proportionate share in the profits, applying, Section 201 of the Tenancy Act and the presumption noted therein. Both parties appealed to the District Judge. While the case was pending in the Court of first in stance, the defendant applied to the Revenue Court for the removal of the plaintiff s name from the khewat. Apparently, the Court of first instance in that case disallowed the application and an appeal was preferred to the Collector who on the 5th of April 1916, i.e., some six months or more after the decision of the profits suit by the Assistant Collector of the First Grade, directed the removal of the plaintiff s name from the khewat of that year. This order of the Collector was upheld on appeal and the final order on this matter was passed on the 17th of April 1917 by the Board of Revenue. The appeals, in the meantime, were kept pending in the Court of the District Judge. The District Judge has dismissed the plaintiffs suit in toto on the ground, apparently, that since the institution of the suit the Revenue Courts had themselves removed the plaintiff s name from the khewat. Two appeals were preferred to this Court and the learned Judge of this Court before whom they came for decision referred the two appeals to a Bench of two Judges. The essentials of the case are set out very clearly in his order of reference. He remake that, when the case came up before the District Judge in appeal he took notice of the orders which had been passed by the Revenue Courts and dismissed the claim on the ground that the plaintiff was not a recorded co-sharer at the time the suit was brought. The District Judge did not say so, in so many words. What he did actually say was as follows: "This order in the Revenue Court has the same effect as if it were to be discovered now that the plaintiff was not a recorded co-sharer at the time of bringing his suit." It is a little bit difficult to understand what the District Judge meant by this, because, as a matter of actual fact, plaintiff admittedly was recorded as a co-sharer on the date on which he brought his suit and was a recorded co-sharer in the years to which the suit relates. What actually the District Judge has done is, that he treated the order of the Revenue Court as if it were the decision of a Civil Court; such as is mentioned in the last clause of Section 201 of the Tenancy Act. The meaning of Section 201, so far as the words "shall presume" are concerned, was set at rest, one would have thought, by the Full Bench decision to be found in Durga Parshad v. Hazari Singh 11 Ind. Cas 116 : 33 A 793 : 8 A.L.J. 1025. It was clearly and distinctly laid down there that the presumption, so far as the Revenue Court was concerned, was irrebuttable but that it could only be rebutted by the decision of a Civil Court to which any party might go to establish by a suit, the fact that the plaintiff had not such proprietary rights in the years in suit to which he laid claim. It is urged on behalf of the defendant-respondent that the Revenue Court has found, as a matter of fact, that the plaintiff s name had been wrongly recorded since the year 1900. It appears that the plaintiff was a sort of puisne usufructuary mortgagee and that, apparently, there was some prior mortgagee who brought a suit and it is said impleading the plaintiff obtained a decree for sale and the plaintiff lost his rights because he did not redeem the prior mortgage. This may or may not be correct, but it is open to the other side to go to the Civil Court and to settle the matter. But so far as the Revenue Court is concerned it must be presumed that the plaintiff has the right against which his name was recorded in the years in suit and at the date of the suit. We do not think that the District Judge was entitled to go behind the record or to take into consideration the subsequent amendment of the record which did not operate in regard to the years in suit but operated only from the date on which that order was passed. The Judge was wrong in treating that decision as a decision of a Civil Court such as is mentioned in the last paragraph of Section 201 of the Tenancy Act. We think that the decision of the Court below is wrong. We allow the appeal and set aside the decision of the Court below. We direct that the Court do restore the two appeals to their places on its file and determine them according to law. There are other points in the dispute which have to be decided. Costs in this Court will abide the result of the suit.