MAHARAJA BAHADUR RAMRANBIJAYA PD SINGH Vs. NAUBAT RAI

JUDGEMENT

(1.) This is an appeal by the plaintiffs, and arises out of a suit to recover possession 5 of plot No. 386 in village Dhawan. Plaintiff 1 is the proprietor of the village, and plaintiff 2 is a person with whom the plot in question was settled by plaintiff 1. The plot was recorded in the record of rights in 1911 as the bakasht of the proprietor, that is to say, of plaintiff 1. In the remarks column there was an entry that so far as the trees on the plot are concerned half the interest belonged to the proprietor and half to one Parikha Rai. Parikha Rai is the ancestor of the defendants, who claim that the land is their bhaoli kasht holding.

(2.) The first Court found that the entry in the record of rights that the land was bakasht had not been rebutted by the evidence of the defendants and, therefore, he decreed the plaintiffs suit. In appeal the Subordinate Judge has come to the contrary decision. It will not be doing any injustice to the -learned Subordinate Judge to say that his judgment is so involved that it is not easy to follow his line of reasoning, but one fact obtrudes itself on almost every page and that is that the learned Subordinate Judge appears to have been under the impression that the mere fact that Parikha Rai was recorded; as having a half interest in the trees on the land was inconsistent with his not having an interest in the land itself. That, as was pointed out by Sir Dawson Miller in Bishun Pragash Narain Singh V/s. Sheosaran Teli A.I.R. 1922 Pat. 497 is by no means a correct proposition. In that case there was an entry in the record of rights that the trees belonged to the tenants. The proprietor sued for a declaration that the timber of the trees belonged to him exclusively, and not to the tenants, and on his behalf it was contended that the presumption of correctness attaching to the entry in the record of rights was rebutted by the general law that trees belong to the landlord. The learned Chief Justice observed with regard to this contention: "It must be presumed that when the Assistant Settlement Officer heard the parties and arrived at the conclusion that the trees belonged to the tenants he had taken into consideration the question of whether there was or was not a custom whereby the right in the trees belonged to the tenants, or whether possibly they acquired that right in some other way as by some agreement between the landlord and themselves." In the present case it will be observed that the entry in the record does not describe Parikha Rai as a tenant of the land, so that there is even less reason to suppose that the entry implied that he had any interest in the disputed plot. From the observations of the learned Chief Justice, to which I have referred, it is clear that the learned Subordinate Judge was entirely wrong in supposing that the entry was in any way inconsistent with Parikha Rai not having acquired some interest in the trees by agreement or otherwise without having acquired any interest in the land on which the trees stand. Similarly, in Jagdeo Singh V/s. Mahendra Singh A.I.R. 1934 Pat. 287 reliance was placed on the general law that a landlord is entitled to the timber standing on land which belongs to him and it was contended, this is sufficient to rebut the entry in the record of rights that the trees belong to the tenants. With regard to that argument Fazl Ali, J. observed: "The presumption which the learned advocate for the appellant contends should be raised under the general law can override the entry in the record of rights only if it could also be assumed that in no case whatsoever can a person other than the owner of the land acquire right in the trees standing on it."

(3.) As I read the judgment of the learned Subordinate Judge, it is largely based on the fact that the learned Subordinate Judge found that the entry in favour of Parikha Rai so far as the trees are concerned led to the inference that the entry in favour of the proprietor so far as the land is concerned was wrong. Under Section 103, Tenancy Act, it is clear that both the entries give rise to a presumption as to their correctness, and that it is only by evidence that that presumption is liable to be rebutted. One part of the entry cannot be used to rebut the other part of it.