BHUPENDRA KRISHNA GHOSE Vs. ABDUR RAHAMAN

JUDGEMENT

(1.) These are two petitions by the landlord in two cases under Section 26-J, Ben. Ten. Act, The two opposite parties in these cases, owned each half of the Revenue Survey plot 6897 and each of them sold his half portion namely, fourth of an acre. In the documents of transfer it was stated that these were tenures and that as such no transfer fee was to be paid under Section 28-D. The landlord made an objection and stated that the lands transferred were raiyati holdings. Both parties adduced evidence. The landlord, the petitioner, produced the latest Record of Rights of 1931 showing that this plot of land was held as raiyati land by the opposite party under the petitioner. The opposite party produced a record of 1898 and certain unregistered pottas of earlier dates to show that these were tenures. If the matter had been decided according to evidence by the Court below, there would have been nothing to challenge in this Court. But it appears that the Court below misdirected itself on the point of burden of proof. When there is a conflict between old Record of Rights and a recent Record of Rights the recent record is to be presumed to be correct unless it is proved by evidence to be incorrect. The Court below erroneously threw the burden of proof upon the petitioner. The Court below thought that it was the duty of the petitioner to show that the Record of Rights of 1931 was correct and that it was the duty of the petitioner to show upon what materials the Record of Rights of 1931 was based. In this the Court below has erred in law and this has vitiated his finding. The recent Record of Rights must prevail.

(2.) In this view the rules are made absolute. The landlord is entitled to the transfer fee claimed and he will also get a quarter of the same sum as compensation.

(3.) The petitioner will be entitled to his costs in these two rules, hearing fee in each rules being assessed at one gold mohur.