MADHORAO NARAYANRAO GHATATE Vs. RAMKUWARSHA

JUDGEMENT

(1.) Defendant 1 appeals from a decree of the High Court of Nagpur dated 22nd Match 1938, which reversed a decree dated 30 July 1934, of the Additional District Judge of Bhandara in the Central Provinces. The suit which was brought in 1931 has reference to the zemindari of Dalli, which is situate in the tahsil of Sakoli in the Bhandara district. By it the plaintiff Ramkuwarsha sought to establish that this zemindari is an impartible estate which belongs solely to himself and of which he is in exclusive possession. The trial Court dismissed the suit but the High Court on appeal decreed it, holding that the zamindari is one that vests in the chosen head of the family for the time being. The head of the family recorded in the revenue records as zemindar and lambardar from time to time since 1866 may be here set out: 1866 Duragsha. 1866-1911 Dewajee. 1911-1925 Sakharam. 1925- Ramkuwarsha, plaintiff. Dewajee was an adopted son; he is described as adopted in Duragsha's lifetime. Sakharam was the eldest son of Dewajee and the plaintiff Ramkuwarsha is the eldest son of Sakharam. The occasion for the suit and the need for certain consequential relief claimed thereby arose out of the fact that on 16 June 1910 - 21 years before - nine persons claiming in accordance with the revenue records to be cosharers in the zamindari to the extent of eleven annas and three pies had executed a deed mortgaging their interests in favour of the appellant's father. Among these mortgagors were defendants 2 and 3 Tukaram and Gangsha, sons of one Chainsha, a first cousin of Duragsha. In 1916 and 1917 Sakharam as zemindar had bought up the interests of the other seven mortgagors excepting their sir lands. He had also in 1917 acquired six pies out of the share of Tukaram and Gangsha at a sale in execution of a decree which had been obtained against them by a stranger to the family. In 1925 the appellant had sued to enforce the mortgage of 1910 and had obtained a final decree for sale on 12 November 1929. On 17 June, 1981, when the present suit was filed, this decree was in process of execution by the Deputy Commissioner under the Central Provinces Land Alienation Act (C. P. Act 2 of 1916). The present plaintiff Ramkuwarsha had been impleaded by the appellant in the mortgage suit and had in that suit endeavoured to dispute the title of the mortgagors; but this procedure was held to be incompetent and he was driven to a suit of his own. The contest now is between the appellant who as defendant 1 stands upon his right as mortgagee and the plaintiff who asserts that the sole interest in the mortgaged subjects is in himself, the mortgagors having had no title notwithstanding that they or their predecessors have been recorded in the revenue papers as cosharers since 1866.

(2.) An argument has been advanced for the appellant that S. 100, Central Provinces Land Revenue Act (CP Act 2 of 1917) bars the plaintiff's claim, but their Lordships do not think that this section has been shown to apply to the facts of this case and they do not further refer to it. The appellant relies also on the presumption of correctness which sub-s. (3) of S. 80 of the same Act attaches to the revenue records. Apart from those provisions, it would not appear that in point of law there is anything to prevent the plaintiff from proving if he can that the records are erroneous even upon a fundamental matter. But, to be effective for this purpose, since many of the entries challenged have come upon the record by consent of the zamindar of the day and at the instance of members of the family the most cogent evidence would seem to be required. Their Lordships will review these entries and then enquire as to the sufficiency of the evidence which is put forward to disprove them.

(3.) In Duragsha's time: In 1863 there began certain proceedings leading up to the first settlement, sometimes called the 80 years settlement, which was completed by Mr. A. J. Lawrence and introduced from 1866-7. Duragsha had been zemindar since about 1847. On 5 September 1863, the Settlement Superintendent issued a notice calling upon anyone who claimed proprietary right along with Duragsha, then in possession, to file his claim. Duragsha's general agent (mukhtyaram) Yeshwantrao made a statement on 4 November 1863. He had no documents but gave the traditional version of the history, or the historical claims, of the zemindari and its previous holders. He spoke of Duragsha having cosharers of his cousins Chainsha and Dansha living with him, as well as of other cosharers who maintained themselves by cultivating lands and were given cash, e.g., at the time of marriage. He referred to Duragsha and his predecessors as having the management (vahivat) and being solely entitled to the cash income. A pedigree table dated 4 November 1863, was filed which stated as to each relative whether he was joint or separate and if separate what lands were held by him in lieu of his share. This is Ex. P.3 and is found by the trial Judge to be more correct than the pedigree exhibited to the plaint which has been manipulated to suit the plaintiff's original case that the zemindari always descended to the eldest son. On 7 November 1863, two other witnesses spoke of relatives of Duragsha as being "joint" with him, and on 13 November the Superintendent decided that further enquiry was necessary. Yeshwantrao on 21 December 1863, said that Duragsha, Chainsha and Dansha were all joint. In September 1865, Duragsha himself gave evidence. Asked about his cosharers he said "we and they are joint" and he mentioned seven persons including himself as such cosharers, viz., Mohan, Doma, Chainsha, Dansha, Alam, Bapu and himself the lambardar. The rest of the family, he said, ware separate, and had been so for 60 years, cultivating separate land given to them free for their maintenance. He called three of such members to say so, viz., Lalsha, Karnu and Badu. On 12 January 1866, the Settlement Superintendent made an order in which he set out the names of the persons in each of two classes: (1) the class of those who were joint with Duragsha in the zemindari lands with the amount of their share; (2) the class of those who were separate and the amount and location of land which they held free.