Appeal No 107 of 1953
Appeal by special leave from the judgment and decree dated the 7th February 1949 of the Patna High Court in appeal from original decrees No 230 and 268 of 1945 arising out of the decree dated the 9th 3 day of August 1945 of the Second Court of Subordinate Judge at Monghyr in Title Suit No 40 of 1943
P K Chatterjee for the appellants
Tarachand Brijmohanlal B C Misra and section Barneshwar Prasad for respondents Nos
3 to 6 20 to 25 and 27 to 39
January 16
The Judgment of the Court was delivered by VENKATARAMA AYYAR J
The properties which are the subject matter of this litigation are agricultural lands of the extent of 18 acres 23 cents situate in Mauza Chowki
They originally belonged to Khiran Rai Firangi Rai and others and were usufructuarily mortgaged by them on 10 8 1900 to Babunath Prasad and Babu Misri Lal under two sudbharna deeds Exhibits 2 and 3 for a sum of Rs 1600
The defendants of the first party are the representatives of these mortgagees
In execution of a money decree passed against the mortgagors 9 acres 6 cents out of the above lands were brought to sale on 11 6 1907 and purchased by Rameshwar Prasad Singh the undivided uncle of the first plaintiff
On 23 12 1913 the remaining extent of 9 acres 17 cents was purchased by the
first plaintiff from the mortgagors and thus the plaintiffs who were members of a joint Hindu family became entitled to all the interests of the mortgagors in the suit lands
In 1943 they deposited under section 83 of the Transfer of Property Act the amounts due on the mortgage deeds Exhibits 2 and 3 in the court of the District Munsif Monghyr
The defendants of the first party withdrew the amount and the mortgages thus became redeemed
When the plaintiffs attempted to take khas or actual possession of the lands they were obstructed by the defendants of the second party who claimed occupancy rights therein
The plaintiffs then instituted the suit out of which the present appeal arises in the court of the Subordinate Judge Monghyr for recovery of possession of the lands from the second party defendants
4 The plaintiffs alleged that the lands were kamat khudkast  which had been in the personal enjoyment of Khiran Rai and Firangi Rai and thereafter of the mortgagees and the defendants of the first party by virtue of the sudbharna deeds Exhibits 2 and 3 that the second party defendants claimed rights as occupancy raiyats under a settlement by the mortgagees that the settlement was not real or bona fide and was not binding on the mortgagors
In the alternative the plaintiffs claimed damages against the defendants of the first party if it was found that the second party bad acquired occupancy rights under a settle ment from them
Both sets of defendants denied that the lands were kamat lands or that the defendants of the first party settled the defendants of the second party as raiyats on the land
They pleaded that the latter had been in possession even prior to the mortgages Exhibits 2 and 3 under a settlement with the mortgagors and that accordingly the plaintiffs were entitled neither to possession from the second party nor damages from the first party
The Subordinate Judge of Mongbyr who tried the suit held that the lands were private lands of the proprietors that the defendants of the second party or their predecessors in title bad not been inducted on the lands by the mortgagors that they were put into possession by the mortgagees only under the lease deed Exhibit 2a dated 27th May 1905 that they were mere creatures of the first party and that the settlement was not bona fide and not binding on the plaintiffs
He accordingly granted a decree in favour of the plaintiffs in ejectment
Against this judgment there was an appeal by the defendants to the High Court of Patna which agreed with the Subordinate Judge that the defendants of the second party were inducted into possession only in 1905 under the lease deed Exhibit 2a and that they were not raiyats settled by the mortgagors prior to 1900
But the learned Judges held that the suit lands were not proved to be sir  or private lands that the second party defendants were not the creatures of the first party that the lease deed Exhibit 2a was a 5 bona fide transaction and that the recognition of the defendants of the second party by the mortgagees as tenants would confer occupancy rights on them
In the result the suit was dismissed
The plaintiffs appeal
It may be stated that the alternative claim for damages against the first party was abandoned by the plaintiffs and the only relief now claimed is possession of lands as against the second party
Mr Misra counsel for the first party had accordingly nothing to say about the merits of the controversy between the appellants and the second party defendants and merely pressed for his costs being awarded
It was the second party appearing by counsel Mr Tarachand Brijmohan Lal that vigorously contested the appeal
The substantial question that arises for our decision is whether the lands in dispute are private lands of the proprietor
Section 1202 of the Bihar Tenancy Act VIII of 1885 hereinafter referred to as the Act enacts a presumption that land is not a proprietor s private land until the contrary is shown
And further there was a cadastral survey in 1908 and in the final notification published under section 103 A of the Act the lands were recorded as in the possession of the second party defendants whose status was described as kaimi  or settled raiyats
Under section 103 B3 every entry in a record of rights so published shall be evidence of the matter referred to in such entry and shall be presumed to be correct until it is proved by evidence to be incorrect
The result of both these provisions is that the burden is on the proprietor clearly to establish that the lands are his private lands
Some oral evidence has been adduced by both sides as to the character of the lands but it is too vague recent and interested to be of much value and the question therefore falls primarily to be decided on the documentary evidence in the case
The earliest document bearing on the question is Exhibit 1 which is a mortgage deed executed by the previous owners Firangi Rai and others to Harbans Narain Singh on the 10th April 1893 over a portion 6 of the suit lands
Therein it is recited that the mortgagors mortgage hypothecate and render liable the properties constituting the proprietory mukarri interest with all the zamindari rights and claims including the khudkasht kamat lands
The word khudkasht  means personal cultivation and that is a neutral expression which might include both private lands and bakasht lands that is to say raiyati lands which had come into the possession of the proprietor by surrender abandonment or otherwise
But the word kamat  has a definite connotation and means private lands
Vide section 116 of the Bihar Tenancy Act
If the recital in Exhibit I is to be accepted as correct the lands were on that date in the personal cultivation of the proprietor as private lands
Exhibits 2 and 3 are the sudbharna deeds dated 10 8 1900 under which the first party defendants got into possession of the suit lands
They are in the same terms and recite the at the mortgagees are to enter into possession and occupation of lands  cultivate or cause to be cultivated the same for their self satisfaction and that after the expiry of the period fixed for redemption the mortgagors are to pay the mortgage amounts in one lump and take back the properties in our sir and khas possession
The word sir  is synonymous with kamat  and ziraat  and means private lands of the proprietor
Vide section 116
These recitals are of considerable importance as they occur in deeds inter parties
The respondents are right in contending that they cannot be regarded as admissions by the mortgagees as the deeds were executed by the mortgagors but they are certainly admissible under section 13 of the Evidence Act as assertions of title and as it is under these documents that the first party defendants claim their probative value as against them and as against the second party defendants who claim under them is high
Exhibit I b is a simple mortgage executed by Firangi Rai and others on 21 12 1901 in favour of one Chhotu Singh over some properties forming part of the suit lands
It also contains the recital that these properties are kamat khudkasht lands
There 7 is finally the lease deed executed in favour of the first party by the defendants of the second party Exhibit 2a under which the latter came into possession of the lands
It recites that the lands had been in the exclusive cultivation of Babu Nath Prasad and Babu Misri Lal that the lessees will give up possession of the lands at the end of the term which was a period of 2 years and that the lessors will be competent to bring the lands mentioned in this kabuliat under their exclusive cultivation
As these documents are ante litem motam and as some of them are inter parties and extend over a considerable period of time they form cogent and strong evidence that the lands are private lands
Now what is the evidence adduced by the defendants to rebut the inference to be drawn from them None
They simply trust to the presumptions in their favour enacted in sections 1202 and 103 B of the Act to non suit the plaintiffs
But these are rebuttable presumptions and they have in our opinion been rebutted by the evidence in the suit which is all one way
It was argued for the respondents that even if the evidence referred to above was accepted that would be insufficient under section 120 of the Act to support a finding that the lands were private lands
Section 120 runs as follows 1 The Revenue Officer shall record as a proprietor s private land a land which is proved to have been cultivated as khamar ziraat  sir nij nijjot or kamat by the propriet or himself with his own stock or by his own servants or by hired labour for twelve continuous years immediately before the passing of this Act and b cultivated land which is recognised by village usage as proprietor s khamar ziraat sir nij nijjot or kamat
2 In determining whether any other land ought to be recorded as a proprietor s private land the officer shall have regard to local custom and to the question whether the land was before the second day 8 of March 1883 specifically let as proprietor s private land and to any other evidence that may be produced but shall presume that land is not a proprietor s private land until the contrary is shown
3If any question arises in a Civil Court as to whether land is or is not a proprietor s private land the Court shall have regard to the rules laid down in this section for the guidance of Revenue Officers
The contention of the respondents is that under this section before lands could be held to be private it must be shown that they had been cultivated as private lands for 12 years prior to the date of the Act and that as the evidence in the case went back only to 1893 the requirements of the section were not satisfied
This argument proceeds on a misconception about the true scope of section 120
That section does not enact that no land shall be recorded as private unless it is proved to have been cultivated as private land for 12 years prior to the date of the Act
It only provides that when that is proved it shall be recorded as private land
But when no such evidence is forthcoming it does not preclude that fact from being established by any other evidence that may be produced if that is relevant and admissible under the provisions of the Evidence Act
That was the view taken in Maharaja Kesho Prasad Singh vs Parmeshri Prasad Singh1 and on appeal the Privy Council agreed with it in Bindeshwari Prasad Singh vs Maharaja Kesho Prasad Singh2
The position therefore is that section 120 merely enacts certain rules of evidence to be followed in an enquiry as to whether a disputed land is ziraat 
When in such enquiry the facts mentioned in section 1201 are established the law raises a presumptio juris et de jure that the lands are private
But where such evidence is not available that fact can still be estab lished by otber and satisfactory evidence
What has to be decided therefore is whether the evidence actually adduced by the plaintiffs in the present case is 1 Patna 414
2 1926 53 IA 164 9 sufficient to discharge the burden which the law casts on them and to prove that the lands are kamat  or sir  lands
For the reasons already given weare of opinion that it is sufficient to justify a findidg in the affirmative
Strong reliance was placed by the respondents on Exhibits F 1 and F 11 which are khatians relating to the suit lands published on 7 12 1909 recording them as in the possession of the defendants of the second party as kaimi  and on the presumption under section 103 B that that entry is correct
This presumption it is contended is particularly strong in the present case because the predecessors in title of the plaintiffs were parties to the proceedings and contested the same and that the record of rights was made after considering their objections
The plaintiffs however denied that they were parties to the proceedings and contended that they were taken behind their back by the mortgagees and the second party defendants acting in collusion with a view to defeat their rights
Exhibits A 1 and A 11 are certified copies of the objection petitions stated to have been filed by the mortgagors under section 103 A of the Act and they purport to have been signed by one Chulai Mahto as karpardaz of some of the mortgagors
The plaintiffs deny the genuineness of the signatures in Exhibits A 1 and A 11 and also the authority of Chulai Mahto to represent the mortgagors
There is no evidence that the signatures on Exhibits A 1 and A 1 1 are true but the defendants rely on the presumption enacted in section 90 of the Evidence Act in favour of their genuineness
But Exhibits A 1 and A 1 I are merely certified copies of the objection petitions filed before the Survey Officer and not the originals and it was held in Basant vs Brijraj1 that the presumption enacted in the section can be raised only with reference to original documents and not to copies thereof
There is the further difficulty in the way of the respondents that the documents are signed by Chulai Mahto as agent and there is no proof that he was an agent 1 1935 62 IA 180
10 and section 90 does not authorise the raising of a presumption as to the existence of authority on the part of Chulai Mahto to represent the mortgagors
It is again to be noted that the objection on the merits raised in Exhibits A 1 and A 11 that the lands are bakasht lands in the possession of mortgagees is not one which it was to the interests of the mortgagors to put forward as if accepted it would preclude them from admitting tenants in respect of them without conferring on them the status of settled raiyats and occupancy rights under section 21 of the Act
It was only if the lands were private lands that the proprietor would be entitled to cultivate them personally and that was the claim which they had been making consistently from 1893 onwards
The claim put forward in Exhibits A 1 and and A 11 is destructive of the rights claimed all along by the mortgagors and amounts to an admission that the lands are not private and raises the doubt that the petitions were not really inspired by them
It should also be mentioned that at the hearing of the petition no evidence was adduced by the mortgagors and the decision of the Survey Officer was given practically ex parte
The mortgagees were parties to the proceedings and they did not appear and produce the mortgage deeds Exhibits 2 and 3 under which they got into possession and which described the lands as sir 
It was to the interests of the mortgagees that the lands should be held to be sir  and it was further their duty to defend the title of the mortgagors as against the claim made by the tenants that they were raiyati lands
Why then did they not produce Exhibits 2 and 3 at the hearing The recitals in the lease deed Exhibit 2a which was executed by the defendants of the second party were inconsistent with their claim that the lands were raiyati
Why did they not produce it at the hearing  Thereis therefore much to be said for the contention ofthe appellants that the proceedings evidenced by Exhibits A 1 and A 11 were collusive in character
But even assuming that they were real that 11 would not materially affect the result as the true effect of a record of rights under section 103 A is not to create rights where none existed but simply to raise a presumption under section 103 B that such  rights exist and that presumption is one liable to be rebutted
There is a long line of authorities that a person who attacks a record made under section 103 A as incorrect discharges the burden which the law casts on him under section 103 B by showing that it was not justified on the materials on which it is based
Vide Bogha Mower vs Ram Lakhan1 and Eakub Ali vs Muhammad Ali2
And where as here no evidence was placed before the authorities who made the record he has only to produce evidence which satisfies the court that the entry is erroneous
Whether the question is considered with reference to the presumption under section 1202 or section 103 B the position is the same
The plaintiffs who claim that the lands are kamat have to establish it by clear and satisfactory evidence
If the evidence adduced by them is sufficient as we have held it is to establish it the presumption under section 103 B equally with that under section 1202 becomes displaced
In the result we are of opinion that the suit lands are the private lands of the proprietor
It was next contended that even if the lands were private lands that would not prevent the acquis tion of occupancy rights by the tenants under Chapter V as the restriction provided in section 116 in that behalf did not apply on the facts of the present case and that in consequence no relief in ejectment could be granted
Section 116 enacts omitting what is not material that nothing in Chapter V shall confer a right of occupancy in a proprietor s private land where any such land is held under a lease for a term of years or under a lease from year to year
 In the present case the tenants got into possession under Exhibit 2a which was a lease for two years and they would therefore be precluded from acquiring occupancy rights by virtue of that demise
But it is argued that the tenants continued in possession of 1 2 12 the holdings even after the expiry of the term under Exhibit 2a paid the rent to the mortgagees who recognised them as tenants and that their status therefore was not that of tenants holding under a lease for a term or from year to year and that accordingly there was no impediment to their acquiring occupancy rights under Chapter V
The point has not been argued whether as Exhibit 2a is an agricultural lease the tenants who held over after the expiry of the period fixed therein should not be con sidered to hold as tenants from year to year on the principle enacted in sections 106 and 116 of the Transfer of Property Act
We shall proceed on the footing that on the findings of the High Court that the tenants were riot the creatures or servants of the mortgagees and that they had been in continuous possession paying rent to them section 116 did not debar them from acquiring rights under Chapter V
But the question is whether they acquired such rights under that Chapter
Section 21 provides that every person who is a settled raiyat in a village shall have a right of occupancy in all land for the time being held by him as a raiyat in that village
Section 20 defines a settled raiyat as a person who holds continuously land for a period of 12 years in any village
Section 52 defines raiyat  as a person who has acquired a right to bold land for the purpose of cultivating it by himself or members of his family or servants or partners and section 5 3 provides that a person shall not be deemed to be a raiyat unless he holds land either immediately under a proprietor or immediately under a tenure bolder
The position therefore is that before a person can claim occupancy rights under section 21 he must establish that he is a raiyat as defined in sections 52 and 53 and as the defendants of the second party acquired the right to hold the lands for the purpose of cultivation from the first party mortgagees and not under the mortgagors they are not raiyats as defided in section 53 and can claim no rights under section 21
On behalf of the tenants it was contended that as under section 58 of the Transfer of Property Act a 13 mortgage is a transfer of interest in land the mortgagee is the owner of that interest and therefore a proprietor for the purpose of section 53
Section 32 defines a proprietor as meaning a person owning whether in trust or for his own benefit an estate or part of an estate
A mortgagee is no doubt the transferee of an interest in immovable property and may in a loose sense be said to be the owner of that interest
But the definition of a proprietor requires that he should own the estate or part thereof and not merely an interest therein
It would be a contradiction in terms to say of a mortgagee that he owns the estate over which he owns an interest
As observed in Ghose on the Law of Mortgage in India Volume I page 77 Interest which passes to the mortgagee is not the ownership or dominion which notwithstanding the mortgage resides in the mortgagor
The question whether for purposes of section 21 of the Act a tenant from a mortgagee can be held to be a raiyat as defined in section 53 was considered by this Court in Mahabir Gope and others vs Harban8 Narain Singh and others1 and it was held that a mortgagee is neither a proprietor nor a tenure holder and a tenant inducted by him on the lands is not a raiyat within the definition of those terms under the Act
That decision governs this case
The contention of the respondents that the mortgagees could be considered as tenure holders within section 53 is equally untenable
Section 51 defines a tenure holder as meaning a person who has acquired a right to hold lands for collecting rents or for bringing them into cultivation by establishing tenants thereon
In the present case the lands were under the personal cultivation of the mortgagors at the time when they were mortgaged under Exhibits 2 and 3
There were then no raiyats on the land and no question of transferring the right to collect rent from them
The respondents relied on the terms in Exhibits 2 and 3 that the mortgagees might cultivate the lands or cause them to be cultivated at their pleasure as authorising the establishment of tenants
But that 1  781
14 clause would apply only if the lands had to be brought afresh under cultivation and that was not the position here
As the mortgagees are neither proprietors nor tenure holders as defined in the Act the tenants holding under them could not claim to be raiyats as defined in sections52 and 53 and no occupancy rights could therefore be acquired by them under section 21 of the Act
It was next contended that the mortgagees had the power under section 76 of the Transfer of Property Act to induct tenants on the land for purposes of cultivation that such a transaction
would be binding on the mortgagors and that its effect would be to confer on the tenants the status of raiyats and that they would get occupancy rights under section 21 of the Act
The decisions in Manjhil Lal Biswa Nath Sah Deo vs Mahiuddin1 Rajendra Nath vs Dinu Prodhan2 and Pramatha Nath vs Sashi Bhu8an3 were relied on in support of this contention
This argument proceeds on a confusion of two wholly independent concepts distinct in their origin and different in their legal incidents
The law is that a person cannot confer on another any right higher than what he himself possesses and therefore a lease created by a usufructuary mortgagee would normally terminate on the redemption of the mortgage
Section 76a enacts an exception to this rule
If the lease is one which could have been made by the owner in the course of prudent management it would be binding on the mortgagors notwithstanding that the mortgage has been redeemed
Even in such a case the operation of the lease cannot extend beyond the period for which it was granted
In the present case assuming that the mortgagees bad the power under section 76a of the Transfer of Property Act to continue the lessees under Exhibit 2a as tenants on the lands after the termination of the period fixed therein that would confer on them at best the status of tenants from year to year and not give them the right to continue in possession after the termination of the agricultural year during which the redemption 1 2 AIR 1930 Cal
3AIR 15 takes place
In this view the power of the mortgagee under section 76a of the Transfer of Property Act to induct tenants in the usual course of management would not avail the respondents to claim occupancy rights over the lands
Turning next to the provisions of the Bihar Tenancy Act section 21 confers on settled raiyats a permanent right of occupancy provided the conditions mentioned in that section are satisfied
But this right is a creature of the statute and cannot be claimed apart from its provisions
A mortgagee is as already stated neither a proprietor nor a tenure holder and a person settled by him on the land does not enjoy the status of a raiyat under sections 52 and 53
He is therefore not a person entitled under the terms of the statute to any occupancy rights
Thus if the respondents cannot resist the suit for ejectment either by reason of section 76a of the Transfer of Property Act or section 21 of the Bihar Tenancy Act it is difficult to see how they could get such a right as the result of the interaction of both those sections
In Manjhil Lal Biswa Nath Sah Deo vs Mahiuddin1 the suit was by a mortgagor after redemption to recover possession of lands which had been leased by the mortgagee
The proprietor claimed that the lands were zirait but the finding however was that they were raiyat lands and that the mortgagee had inducted tenants into possession in the usual course of management
It was held that the tenants could not be ejected
The decision was expressly based on the fact that the lands were raiyati lands and the learned Judges distinguished the cases in Mahadeo Prasad Sahu vs Gajadhar Prasad Sahu2  and Jogeshwar Mazumdar vs Abed Mahomed Sirkar 3 on the ground that the lands which were the subject of mortgage therein were zerait lands
This decision does not support the broad proposition for which the respondents contend and is really against them as the mortgage in the present case is of kamat  lands
In Rajendra Nath vs Dinu Prodhan4 the facts were 1 2 3 4 AIR 1930 Cal
16 similar to those in Manjhil Lal Biswa Nath Sah Deo vs Mahiuddin1 except that the lands do not appear to have been raiyati lands
In holding that the mortgagor was not entitled to possession Guha J observed that the mortgage deed did not stand in the way of the tenants being settled by the mortgagee and that when they were so settled they had well defined rights under the Act and could not be ejected
If section 53 of the Act did not apply and it would not unless the letting was by the proprietor or tenureholder it is not stated what other provision of law operated to confer occupancy rights on the tenant
The learned Judge then referred to Binad Lal Pakrashi vs Kalu Pramanik2  as furnishing the principle on which the decision should rest
There a tenant was put into possession by a person who claimed to be the proprietor and though it subsequently turned out that he was not it was held that the letting by him conferred on the tenant the status of a raiyat
As pointed out in Peary Mohun Mondal vs Radhika Mohun Hazra3 and Krishna Nath Chakrabarty vs Mahomed Wafiz4 the basis of the decision in Binad Lal Pakrashi vs Kalu Pramanik2 was that the word proprietor in section 53 would include a defacto as well as a de jure proprietor and a tenant who is bona fide inducted into possession by him would have the status of a raiyat
This decision makes an inroad on the general principle that no one can confer a better right than what he has got and later decisions have generally shown a disposition to confine its application within narrow limits
But even on its own ground it can have no application when the person who admits a tenant is not as required by section 5 3 a proprietor de facto or de jure but a mortgagee
The principle of the decision in Binad Lal Pakraski vs Kalu Pramanik2 does not therefore support the conclusion in Rajendra Nath vs Dinu Prodhan5 that a tenant admitted by a mortgagee into possession acquires the status of a raiyat
1  2 Cal
3 4 5AIR 17 In Pramtha Nath vs Sashi Bhusan1 a permanent lease was granted by a mortgagee after he had obtained a decree for foreclosure
Subsequently that decree was recalled in a suit by the Official Receiver  representing one of the mortgagors and a fresh decree for redemption was passed
After redemption the Official Receiver received rent from the lessee treating him as a tenant on the land
A transferee from the Official Receiver having subsequently instituted a suit in ejectment against the tenant it was held that the latter bad acquired a right of occupancy under section 21 of the Act and that the relief for khas possession could not be granted as against him
Notwithstanding that some of the observations in the judgment are widely expressed the ground of the decision really is that when the Official Receiver accepted rent from the tenant that amounted to an affirmance of the lease by him and that would have the effect of bringing section 53 directly into play and conferring on the tenant the status of a raiyat
The decisions discussed above do not lay down any acceptable principle that a lease by a mortgagee which is protected by section 76a of the Transfer of Property Act operates by itself to confer a right of occupancy on the tenant under section 21 of the Act
Some argument was founded by the respondents on the clause in Exhibits 2 and 3 that the mortgagee could get the lands cultivated
It was contended that this clause conferred authority on the mortgagee to settle raiyats on the lands and that the tenants admitted in pursuance of this authority would be in the same position as if they had been admitted by the proprietor and the conditions of section 53 would be satisfied
But then the lands are private lands and the clause in question is followed by the provision that on redemption the mortgagors would be entitled to resume sir and khas possession and that would be rendered nugatory if the deed is construed as authorising the mortgagees to settle tenants on the lands with the status of raiyats
The authority to get lands cultivated can only mean 1 AIR 1937 Cal 763
3 18 getting them cultivated through hired labour as contemplated in the definition of private lands 
We are clearly of opinion that the mortgage deed conferred no authority on the mortgagees to admit tenants so as to confer on them rights of occupancy
In the result we must old that the defendants of the second party have failed to establish that they have any rights of occupancy over the suit lands and that the plaintiffs are accordingly entitled to a decree in ejectment with future mesne profits as claimed in the plaint
This appeal is allowed the decree of the lower court is set aside and that of the Subordinate Judge of Monghyr restored as against 2nd party defendants with costs throughout
The suit as against the first party defendants is dismissed but in the circumstances there will be no order as to costs


Summary:
The appellants were the purchasers of the mortgagors  interests in the agricultural lands in suit and deposited the amounts due on the mortgages in court under section 83 of the Transfer of Property Act which were withdrawn by the representatives of the mortgagees and the mortgages were redeemed
They were obstructed in taking khas possession of the lands by tenants who were recorded as settledraiyats in the finally published record of rights and brought the suit for recovery of possession from the tenants and alternatively for damages against the representatives of the mortgagees
The subordinate Judge found that the lands were the private lands of the proprietors and the tenants were inducted not by them but by the mortgagees in possession by a lease for a term which was neither bona fide nor binding on the appellants and passed a decree in ejectment
On appeal the High Court held that the lands were not the private lands of the mortgagors the lease was bona fide and the recognition of the lessees as tenants by the mortgagees conferred on them rights of occupancy in the suit lands and dismissed the suit
The respondents relied on the presumptions under sections 103 B and 1202 of the Bihar Tenancy Act and contended that the recognition by the mort gagees of their tenancy right had the effect of conferring on them the rights of occupancy under the Act
Held that an entry in the record of rights published under section 103 A of the Bihar Tenancy Act does not create rights but merely raises a presumption under section 103 B of the Act that such Tights exist which can be rebutted if it can be shown that the materials on which it was based do not justify it
Bogha Mower vs Ram Lakhan 1917 and Bakub Ali vs Muhammad Ali 1928  referred to
That where as in the present case no evidence was produced before the authority who made the record one has only to produce 2 such evidence as satisfies the court in order to rebut the presumption
This is equally true with regard to the presumption enacted by section 1202 of the Act with regard to the proprietor s private land
That section 120 of the Bihar Tenancy Act merely enacts certain rules of evidence for determining whether a disputed land is the proprietor s private land
It does not preclude the proprietor even if he cannot prove that he cultivated the land as such for 12 years prior to the date of the Act from adducing other evidence to show that the land is his private land
Kisho Prashad Singh vs Parmeshri Prasad Singh 1923 ILR 2 Pat 414 and Bindeshwari Prasad Singh vs Kisho Prasad Singh 1926 LR 53 IA 164 relied on
That as the mortgagees were neither proprietors nor tenure holders as defined by the Bihar Tenancy Act persons inducted by them could not be raiyats within the meaning of section 53 of the Act so as to acquire any rights of occupancy under section 21 of the Act
Mahabir Gope vs Harbans Narain Singh 1952 SCR 775 applied
Nor could the provisions of section 76 a of the Transfer of Property Act be of any avail
Assuming that the lease granted by the mortgagees continued even after termination of the period fixed therein that could confer on the lessees no more than the status of tenants from year to year in which case their possession would cease with the termination of the agricultural year during which the mortgages were redeemed
Rajendra Nath vs Dinu Prodhan AIR  disap proved
Binod Lal Pakrashi vs Kalu Pramanik 1893 ILR 20 Cal
708 doubted and held inapplicable
Pramatha Noth vs Sashi Bhusan AIR  distinguished
Case law discussed
Held further that there is no presumption of genuineness in favour of certified copies of documents under section 90 of the Evidence Act nor does that section authorise the raising of a presumption as to the existence of authority of an agent to act for another
Basant vs Brijraj 1935 LR 62 IA 180 referred to