PANIKA Vs. LOCHAN NAIK

JUDGEMENT

(1.) THIS is an appeal by defendants Nos. 2 and 4 in a suit for partition. The plaintiff was a brother of defendant No. 1, whose sons are the appellants. The suit was for partition of a piece of immovable property namely a plot of land said to have been acquired jointly by plaintiff and defendant No. 1. In the Record of Rights Mr. Dewar's settlement it was shown in the name of defendant No. 1 and the same form of entry was made in Mr. Nethersole's settlement. In the recent revision of the records in Mr. Hamid's settlement of 1925 the plot is entered jointly in the name of plaintiff and defendant No. 1. The plaintiff alleges that they were separated in mess six or seven years ago but the disputed land was joint and rents were jointly paid for it. So he claims by partition to be put in possession of half of it. The defence is that the plaintiff and defendant No. 1 were persons having no properties, that they separated and worked as labourers before the acquisition of the property in suit, that defendant No. 1 worked as an agricultural labourer under his maternal uncle Luchman and acquired the property in his own name and for himself. The Munsif dismissed the suit. The Subordinate Judge gave the plaintiff a decree, holding that in view of the entry in the settlement record of 1925 it ought to be presumed that, the parties were jointly interested in this property. In second appeal it is contended first that the settlement entry does not create or extinguish title, but is merely a piece of evidence capable of being rebutted, Secondly it is said that no suit lies or can, be maintained by the plaintiff because he has not brought into the hotchpot all the joint properties.

(2.) AS regards the first point no doubt it is true that an entry in the Record of Rights does not create or extinguish title; it is a piece of evidence and it is capable, of being rebutted. The Central Provinces Land Revenue Act, 1881, is in force in the area and under Section 82 of that Act, when the Record of Rights is duly made and attested all entries therein shall be presumed to be correct until the contrary is shown. I cannot accept the argument that because an entry in the Record of Rights does not create title, therefore, it does not, raise a presumption in favour of the title supported by it. The Subordinate Judge was entitled to act on the Record of Rights and come to a finding that the property was a joint property. The fact that the plaintiff had not been in active enjoyment of the property would not necessarily be inconsistent with his having held constructive possession as a co-sharer for such constructive possession continues until there is a definite ouster. AS regards the second point, this does not arise on the pleading of the defendants not on anything in the plaint. The plaintiff did not in his plaint allege that there were other joint properties nor did the defendants allege any such thing in the written statement. The plaintiff in his cross-examination appears to have said that there are movable properties in the possession of the defendants and that title to those properties is also joint. He has not, however, asked for partition of those properties. I do not think this should be a bar in the way of his suit. The reported cases are mostly cases where a plaintiff has been non-suited because he has kept back from partition properties in his own enjoyment, thereby attempting to defraud his co-sharers. Such conduct it has been held may defeat his suit altogether. That principle does not govern the present case. In the result the appeal fails and is dismissed. The respondent not having appeared there would be no order for costs.