PARAN MUNDA Vs. SANTOSH MAHTO

JUDGEMENT

(1.) The respondents instituted the two suits out of which these two appeals have arisen to recover possession of certain land. In Second Appeal No. 515 the land consists of three plots Nos. 2309, 2310 and 2311, which were recorded in the revisional survey in 1931 as in possession of the defendants. The lands in dispute in Second Appeal No. 516 are Plots Nos. 2316, 2317 and 2322, which at the revisional survey were also recorded in the names of the defendants. At the cadastral survey of 1906 all these lands were recorded in possession of the father of the plaintiffs. The plaintiffs allege that the entry in the revisional survey is wrong and that they were in fact in possession at the time of the revisional survey. The first Court found in favour of the defendants, and dismissed the plaintiffs suits. On appeal by the plaintiffs the decision of the first Court has been reversed.

(2.) I propose first to deal with Second Appeal No. 515. The learned appellate Court's judgment in this appeal is challenged on the ground that he has relied on inadmissible evidence. The evidence which is challenged as inadmissible is a statement in the judgment of the Attestation Officer during the revisional survey that the landlord of this land had admitted that the rent for it was being paid by the plaintiffs. In my opinion, the contention is well founded that this alleged admission by the landlord at the attestation stage is not admissible for the purpose of proving the truth of what the landlord then alleged without examining the landlord himself. But it by no means follows that the improper admission of this evidence vitiates the judgment. If the Court is satisfied that even excluding this evidence there is other evidence on the record which would have led the Court of fact to the same conclusion its judgment should not be upset. Now, as regards the question of fact before the Court, it was whether the entry in the revisional survey is correct. In the revisional survey this land was recorded as quabil lagan. In the cadastral survey of 1906 the rent of the land was shown as Rs. 15-7-0. It must be presumed that the entry in the cadastral survey was right at the time that it was made. There is no evidence that at any time between the cadastral and revisional surveys the rent, which was actually assessed on the land, became not payable either by contract between the parties, or by a rent free grant in favour of the defendants. The entry that the land is quabil lagan in the revisional survey therefore is, in my opinion, self-contained evidence that that entry is incorrect at least in this respect. So far as the entry showing possession of the defendants is concerned, it has been contended, on the basis of several decisions of this Court, that where there are two inconsistent survey entries regarding the possession of the parties, each must be presumed to be incorrect at the time that it was made, and the change of possession must therefore be held to have occurred at some time between the entries. That of course when the only evidence before the Court are the entries in the survey papers. But when there is other evidence on the record it has to be decided whether this other evidence is preferable to the evidence afforded by the survey papers.

(3.) Now the defence in the present case was that at some time, more than forty years ago, the lands in dispute had fallen to the share of the defendants and they had been in possession ever since. They therefore alleged that the entry in the cadastral survey was wrong. The plaintiffs, on the other hand, denied the story of the defendants being in possession for the period of which the latter alleged, and the Court has found that the defence is entirely untrue in this respect. In coming to this conclusion, it has relied on a judgment of a criminal case of 1901 in which the plaintiffs asserted their possession of the land in dispute, and possession was held to be with them. Now if this judgment be admissible, it undoubtedly disproves the defendants case, but it is contended that the judgment is inadmissible against the defendants who were not parties to the criminal proceedings. It is not the decision on which reliance can be placed to prove the plaintiffs possession in 1901, but the fact that at that point of time they asserted their title is admissible, under Section 13, Evidence Act. In my opinion, therefore,) the finding of the Court below is not vitiated by its reliance on the plaintiffs assertion of possession in 1901. Now, the defendants case being that they were in possession long before 1906, the date of the cadastral survey and it never having been alleged by the defendants that they obtained possession at any other time, the ordinary rule that they will be presumed to have obtained possession between the cadastral and revisional surveys does not apply. The plaintiffs, on the other hand, had given evidence that they were in possession in 1931. The Court has not anywhere given any reasons for disbelieving this evidence, or even stated that the evidence is not believed. While, on the other hand, it is not expressly stated that the evidence given on behalf of the plaintiffs is accepted, it is clear that it must have been accepted, because the conclusion reached by, the Court is the conclusion which would be reached if that evidence were true.