DEVISINGH UMRAOSINGH KSHATRIYA Vs. DHARMA BHURA NAYAK

JUDGEMENT

(1.) THE suit is by a cosharer against the lambardar for village profits for four years. We are not concerned with the last of these four in this appeal. As regards the other three, the profits were collected by the defendant's father who was then lambardar. The defendant succeeded him not only as heir, but also as lambardar, and he has been called upon to account for the three years we are concerned with in this appeal. He has accounted, but the plaintiff claims a surcharge in respect of certain sums which he says the defendant's father received as nazrana. These sums are not included in the account submitted by the defendant. The defendant of course says that his father never received them. Now it is necessary to state at the outset that the defendant has not produced the account books. He admitted as D.W. 1 that his father kept accounts and that he, the defendant, used to write them for his father. This is a very serious matter against an accounting party. It would be bad enough if he had omitted to keep accounts--but when accounts are actually kept and not produced it is legitimate for the Court to draw strong inferences from such conduct. The learned Counsel for the defendant realised that in this Court but he said that, that notwithstanding nothing could be decreed against him unless there is prima facie proof of the sums he is likely to have received. Counsel admitted that extremely slight proof would suffice in such circumstances but he contended that there must be some proof, and his case is that there is no proof which a Court of law can accept as proof in this case. The only evidence there is in this case regarding the nazrana is Ex. P-6, a document called a Fahristtabdilat. It will be necessary to explain what this document is. Section 45, Land Revenue Act, enjoins the revenue authorities to keep a record of rights. This is divided into various parts, one of which is the khasra or field book. This field book contains the names of all persons cultivating or occupying land "the right in which it is held, and the rent, if any, payable." This record of rights is prepared at the settlement. But of course the occupants of the land change in the course of time, so another part of the Act (Section 47) requires the preparation of certain "annual papers" showing the changes each year in the occupation. Originally, these papers had to be prepared and submitted by the patwaris to the revenue officers each year. But latterly the rule has been changed and now the patwari maintains what is known as the Panchasala Khasra. (A specimen copy will be found in Kathalay's Land Revenue Act, page 242.)

(2.) THIS document is maintained by the patwari and is kept with him and he does not hand it on to the higher authorities until five years have passed. He still enters the changes year by year and shows them separately, but instead of sending the original on to his superior officers every year, as was originally the case, he now does that only every five years. But in order to keep a check on him and to ensure that he does not change entries made or make false insertions he is required to submit every year a list of the alterations he makes year by year in this Panchasala Khasra. Thus at the end of the five years, when the original is handed over, the changes recorded in it can be checked against these annual lists. This latter document is the Fahrist-tabdilat or "List of Changes." The entries about the nazrana received in this case have been made here and the question is whether the law requires the patwari to make them. It is admitted that if the law requires the patwari to make these entries, then this part of Ex. P-6 will be admissible in evidence, but the defendant's learned Counsel draws attention to the specimen form given at p. 36 of Vol. I of the Patwari Manual and contends that all that the patwari is required to enter there is the "nature of the change." He contends that anything else is superfluous, and in that the law does not require it the entry regarding the superfluous matter is not covered by Section 35, Evidence Act, and so is inadmissible in the absence of the person who made it. I ought to explain here that the patwari who made these entries has not been called as a witness. If he had been called, all these difficulties would have disappeared, for then Ex. P-6 could have been used either to corroborate him, or could have been used by him for the purposes of refreshing his memory.

(3.) NOW these papers are prepared not only during the course of the settlement but also at other times, and Section 44, Land Revenue Act requires the Deputy Commissioner to arrange the patwari circles of the district into revenue inspectors' circles and Kathalay shows at p. 230 of his book that the main duty of these revenue inspectors is to supervise the maintenance and correction of the annual papers prepared by the patwaris Under Section 47 of the Act. I next turn to p. 38 of volume I of the Patwari Manual. Pages 35 onwards deal with the jamabandi, and para. 9 at page 38 states that: At the end (that is to say, of the jamabandi) will be entered the details of any siwai income obtained during the year by the malguzar.