PROHLAD CHANDRA CHATTERJEE Vs. MAHENDRA NATH GOPAIT

JUDGEMENT

(1.) This is an appeal by the landlord in a suit brought by him to have an entry in the Record- of-Rights corrected. The entry is with respect to a mouzah called Dakhin Aukhua and it is Contained in what is called Part II of the general Khatian in respect of that mouzah. The entry is to the effect that in that mouzah, if inundation takes place, the raiyats are to get a rateable proportionate deduction of rent from their landlords. The judgment under appeal proceeds upon the basis that that entry attracts the presumption under Section 103-B, Sub-section (3) of the Bengal Tenancy Act; in other words, that it shall be presumed to be correct until it is proved by evidence to be incorrect. Accordingly, the learned Judge of the lower Appellate Court has approached, first, the plaintiff's evidence and ho has examined into the question whether that evidence, first of all, taken by itself, succeeds or fails to rebut the presumption of the correctness of the entry. Having dealt with the plaintiff's evidence and having come to the conclusion that it does not rebut the presumption he says that, in the circumstances, it is not necessary for him to consider the evidence on the defendant's side in detail; but he proceeds to consider it with a view to see whether there is material in the evidence adduced by the defendants which assists the plaintiff in his contention that the Record- of -Rights is incorrect, and comes to the conclusion that the oral evidence on the defendant's side rather supports than detracts from the correctness of the entry. Having dealt with the case with a view to decide whether there is any ground for supposing that the custom alleged in the Record-of- Rights is bad for any reason and having negatived that suggestion, he upholds the Record-of- Rights, allows the appeal and dismisses the plaintiff's suit,

(2.) The main contention of the plaintiff- appellant is that the entry in question is not entitled to the presumption of correctness laid down by Section 103-B of the Bengal Tenancy Act and the reason which is relied upon to take the case out of that provision is that it is not an entry in respect of a particular tenancy in the khatian which is appropriated to a particular tenant or set of tenants but is an entry in the general khatian-a statement of a rule obtaining in the village; not of a particular stipulation obtaining as between an individual landlord and an individual tenant. Such an entry of a general character, it is contended, is not within the contemplation of Section 103 of the Bengal Tenancy Act, I propose, first, to deal with this contention.

(3.) By Section 101 of the Act, the Local Government, in some cases with the sanction of the Governor General-in-Council, and in some cases without, may make an order directing that a Survey be made and a Record-of-Rights be prepared and by Clause (4) of that section "the Survey shall be made and the Record-of-Rights prepared in accordance with rules made in this behalf by the local Government." The particular order governing the present case is not in evidence and no point has been or can be made upon any specific term in that order. When we come to Section 102, we find that it provides that " where an order is made under Section 101 the particulars to be recorded shall be specified in the order and may include, either without or in addition to other particulars, some or all of the following." It will be seen, therefore, that it is for the local Government by its order to specify what is to be included for the purposes of the Record-of-Rights and it is not limited to the things which the mentioned in Section 102. Moreover, the Survey is to be made and the Record-of-Rights prepared in accordance with rules to be made by the Local Government. Now, the particular things mentioned in Section 102 not being exhaustive, it is pointed out that the general tenor of the language of Section 102 is directly applicable to entries affecting particular tenancies. The present entry comes nearest, at all events, to sub Clause (h) which is "the special conditions and incidents, if any, of the tenancy." The provisions of the Bengal Tenancy Act as regards the method of making and preparing the Record-of-Rights provide for the preliminary publication of a draft The Revenue Officer is to publish the draft in the prescribed manner, that is, in a manner to be prescribed by rules. He is to consider any objections which may be made to any entry or to any omission therefrom. After doing that, he is finally to frame the Record and to cause it to be finally published in the prescribed manner and he may publish separate draft or final records for different local areas, estates, tenures of parts thereof. It is after that final publication that the presumption of correctness is attributed to the record by the statute.