GULABSINGH NANAK Vs. (CHOWDHRY) AJMERSINGH BHOJRAJ

JUDGEMENT

(1.) 1. The facts leading to this appeal are shortly these: In the recent settlement of the Narsinghpur District, which was concluded in 1925, certain lands in Mauza Ghat Pindrai in that district belonging to the plaintiff malguzar were entered as naya nistari land, over which the resident and non-resident tenants and other persons of the village were entitled to free grazing. The plaintiff therefore brought the present suit on 27th October 1928 against a dozen tenants of his village for a declaration that the said entry was incorrect and that the custom so recorded in the wajibularz did not exist. In para. 2 of the plaint there is a definite statement by the plaintiff to the effect that the officers responsible for the settlement made the entry without any express inquiry as to the plaintiff's rights over the land and recorded it as subject to the custom of free grazing for the only reason that for some time past it was not cultivated. In their defence the tenants asserted that there was a long-established custom of free grazing over the land and that the settlement authorities correctly recorded the custom after due inquiry. Although the second issue as framed by the trial Court threw the burden of proving that the entry in question was made without inquiry by the settlement officer, upon the plaintiff, he led no evidence to prove the issue. But the Courts below however held that the onus of proof that there was no inquiry made by the settlement offices was upon the defendants. They therefore agreed in holding that the plaintiff's, claim was not barred by limitation, as-alleged by the defendants. On the merits, the Courts below also held that except as regards two fields the custom of free grazing was not established. Against the decrees of the Courts below the defendants have come up in second appeal.

(2.) IT is argued for the appellants, and I think very correctly, that the Courts below misconstrued Section 80(2), Land Revenue Act, and wrongly held that the onus of proving that there was no inquiry made by the settlement officer when he prepared the wajibularz was on the defendants-appellants. Under Section 80(1) ibid the person aggrieved by an order or entry made under Section 78 of the Act, under which the custom in question came to be recorded in the wajibularz, has to institute a suit in the civil Court within one year from the date on which the assessment is offered to the proprietor to have such order or entry cancelled or amended; and subject to the result of such suit the order or entry is conclusive. Sub-section (2) of the section, which states that nothing in Sub-section (1) shall apply to the person whose right was not expressly considered and decided by the settlement officer, is clearly an exception to Sub-section (1). When Section 78 and the rules, framed by the Local Government for the guidance of the settlement officers, make it obligatory upon the settlement officer to ascertain and record custom in each estate or village, it is to be presumed that due inquiry was made by him before he prepared his wajibularz. The burden of proof therefore that no inquiry was made by the settlement officer must lie very heavily on the person who asserts the contrary as the plaintiff did in the present case. This was exactly the view taken up this Court in Ragho v. R.M. Doye AIR 1925 Nag 324. I hold then that the burden in the present case lay upon the plaintiff to prove definitely that before recording the custom in the wajibularz his rights to the lands were not expressly considered and decided by the settlement officer.