RANI HARSHAMUKHI DASI, EXECUTRIX TO ESTATE OF RAJA MANINDRA CHANDRASINHA BAHADUR OF PAIKPARA Vs. KSHITINDRA DEB ROY, SHEBAIT OF SREE SREE ISWAR HANSHEWARI THAKURANI

JUDGEMENT

(1.) This rule has been issued in respect of an order passed by the Munsif, First Court, Hooghly, in exercise of his Small Cause Court jurisdiction decreeing the plaintiffs claim for rent. The plaintiffs claimed to have 7 annas odd share of a superior interest as shebaits - the remaining share being held by opposite party 5, who was made a pro forma defendant in the suit. They sued for their share of rent accordingly. The principal defence taken was that the lands in suit, which are included in the Municipality, Chinsurah, appertained to the defendant's touzi No. 194 and not to the plaintiffs touzi No. 17. The record of rights shows the lands as being included in the plaintiffs touzi No. 17. The plaintiffs have not produced any evidence to support this entry in the record of rights nor have they shown that rent has been collected by them in respect of the disputed lands. The defendant produced some papers to show that she had been collecting rent from the tenants treating the land as appertaining to her touzi. One point in favour of the defendant is that no land of touzi No. 194 was recorded during the last settlement. The trial Court, however, has held that in the absence of any attempt to relay the lands of the touzies, the documents produced on behalf of the defendant are not sufficient to rebut the presumption arising from the entry in the record of rights. In para. 9 of the written statement an alternative defence was taken that the defendant had niskar interest in the lands in suit. It appears from the judgment of the trial Court that this defence was never pressed and no ground was raised in respect of it in the application for the present rule.

(2.) The learned advocate for the petitioner has raised three points : First, that the defence shows that the defendant has niskar interest in the suit lands, secondly, that the evidence shows that all the shebaits cosharer landlords have not been brought on to the record as parties either as plaintiffs or as pro forma defendants and thirdly that the trial Court was wrong in relying on the presumption arising from the record of rights in holding that the suit lands appertained to touzi No. 17. With regard to the first point, the petitioner is not entitled to be heard on it in view of the circumstances stated above. She neither pressed the defence in the trial Court nor made it a ground in her present application. Presumably, one reason for the course taken by her was that the defence was inconsistent with her other defence that the suit lands appertained to her touzi. However that may be, she cannot be allowed to raise the ground now. With regard to the second point, no defence was taken in the written statement that all the cosharers were not made parties to the suit. The contention is really based on the evidence furnished by the plaintiffs in proving the entry in the registered deed, EX. 2. The entry therein shows opposite party 5 as having five annas odd share, opposite parties 1, 2 and 3 as having each one anna odd share and opposite party 4 along with his two brothers Dhirendra and Saumendra as having five annas odd share. If there has been any transfer since the time when the entry in the D register was made, the present shares as shown may well be correct, t The plaintiffs are under no obligation to set forth the whole history of how they came by the shares alleged to be held by them in the plaint and in the absence of a challenge by the defendant they are under no obligation to furnish proof to explain the ehangei from what is shown in the D register. The point not having been raised by the defendant is not in issue in any way. It was raised for the first time in the grounds of the application for the present rule. The petitioner must fail on this point also. For the third point the learned advocate for the petitioner relies very strongly upon the case in Kiran Chandra Roy V/s. Srinath Chakravarty where it was stated that: Strong reliance was placed by the learned vakil for the appellants on the presumption as to the correctness of the entry in the record of rights in favour of the plaintiffs. There cannot be any doubt that the entry must be presumed to be correct unless the contrary is proved but when the matter is investigated by the civil Court and the parties adduce their evidence on the point in controversy, the entry loses its weight when the evidence discloses no foundation for it.

(3.) In that I read the judgment there was ample evidence furnished by the parties from which it could be deduced that the entry in the record of rights was wrong because unfounded. In my opinion the re mark is not to be read as laying down that a party relying on the presumption arising from the record of rights is bound to adduce evidence in support of the entry and it is not to be read as laying down that "the entry loses its weight when the evidence does not disclose that there is foundation for it." The learned Judge had previously clearly stated that the entry must be presumed to be correct until the contrary was proved and obviously the contrary cannot be proved merely by showing that the person relying on the entry has not supported it by independent evidence. If the parties in all cases are required to support the presumption arising out of the entry in the record of rights by independent evidence, then the provisions of Section 103B, Ben. Ten. Act, themselves lose their value. If the presumption itself has no value in the absence of other supporting evidence, it was not worth while for the Legislature enacting that such a presumption should arise. In my opinion in the present case the learned Munsif has committed no error in relying on the entry in the record of rights for establishing that the suit lands appertain to the touzi and there is therefore no reason for interference with the decree passed by him. The rule is discharged with costs; hearing fee, one gold mohur.