Case: Abdul Waheed Khan Vs. Bhawani And Ors

fit. * * * * (2) Such order, if passed with reference to any entry in the register of rights, shall not be subject to appeal, but no such order shall debar any person from establishing any right to land in a civil Court, and the civil Court may direct that the entry relating to the land shall be altered in accordance with its decision. (3) Any such order, if passed with reference to a record other than the register of rights shall be subject to appeal but shall not be called in question in a civil Court, except in so far as any private right is infringed and then only by a suit instituted within one year from the date on which the contents of the record were announced under S. 88 Section 95. Any entry in the register of rights shall be presumed to be correct until the contrary is proved, and all other entries in the record of rights, subject to any change which may be ordered in appeal, revision or review only or by a civil Court under subs. (3) of S. 93, shall be conclusive evidence of the facts to which they relate. On the basis of the said provisions it is argued that under the said provisions the right of a person to hold land shall be entered in the register of rights under S. 89 (2) of the Act and a dispute in respect thereof shall be decided by the Tahsildar under S. 93 (1) thereof and that thereafter such an entry shall be rectified only by filing a suit in a civil Court in the manner prescribed in S. 93 (2) of the Act and that, therefore, the Tahsildar, subject to the statutory suit, has the exclusive jurisdiction to determine or decide the question in regard to the said matter within the meaning of S. 200 of the Act. This argument appears to be plausible, but a deeper scrutiny reveals a fallacy. The scope of an entry in regard to the right to hold a land under S. 89 (2) of the Act and the decision under S. 93 thereof is disclosed by S. 95. When such an entry is made in the register of rights and is not corrected in the manner prescribed in S. 93, under S. 95 it shall be presumed to be correct until the contrary is proved. The effect of such an entry, therefore, is only to make it a presumptive piece of evidence in a collateral proceeding: that is to say, in a suit based on title when such an entry is relied upon by one or other of the parties, the Court shall presume it to be correct unless the other party rebuts the presumption. Not only S 95 does not by necessary implication bar a suit but also assumes that in such a suit the correctness of such an entry could be questioned subject to the said presumption. 11. Learned counsel for the appellant, in support of his contention, relied upon Gokhul Sahu v. Jodu Nundun Roy, (1890) ILR 17 Cal 721 and Jatindra Nath v. Azizur Rahaman, AIR 1923 Cal 433 . Those decisions turned upon provisions which are not in pari materia with those with which we are now concerned. They do not, therefore, throw any light on the construction of the relevant provisions of the Act. 12. It is, therefore, clear that S. 200 (1) of the Act, read with the said group of sections, does not exclude the jurisdiction of a civil court to entertain a suit based on title. 13. Learned counsel for the appellant then contended that though the patta was granted in favour of the ancestors of the respondents in the year 1929 it was revoked later on, that under the new settlement of 1935 the appellants name was recorded in the register of rights, that in subsequent khasras upto 1953 his name continued to be shown as the owner of the suit land and that, therefore, the Court below should have held that the presumption raised by the register of rights in his favour was not rebutted and the plaintiff had failed to prove his title. But a perusal of the judgments of the Courts below shows that all the Courts, after taking into consideration the entire oral and documentary evidence, came to the conclusion that the respondents had established their title. Indeed, though the High court rightly pointed out that the finding of fact given by the lower appellate Court was conclusive, in view of the insistence of the Advocate in the High Court, it considered the entire documentary and oral evidence over-again and came to the same conclusion. It also admitted the notifications in respect of the settlement as fresh evidence and, after considering them, held that they did not disclose that the patta issued in favour of the respondents ancestors was cancelled. In our view, the High Court should have accepted the finding of the first appellate Court and should not have reviewed the evidence over again. The Courts in effect held that the said presumption was rebutted by the oral and documentary evidence adduced by the respondents. We are not, therefore, justified in an appeal under Art. 136 of the Constitution to permit the appellant to canvass the correctness of the said concurrent findings of fact. 14. The last argument raises a question of limitation. If, as we have held, the suit is outside the scope of the Act, the question of limitation turns upon the provisions of the Indian Limitation Act. The suit was originally filed by the respondents for a declaration of their title to the suit property, but as they were dispossessed of the land on March 5, 1953, subsequent to the filing of the suit, the plaint was amended on July 24, 1954, praying for delivery of possession. To such a suit Art. 142 of the Limitation Act applies. The suit is, therefore, clearly not barred by limitation.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]This argument appears to be plausible, but a deeper scrutiny reveals a fallacy. The scope of an entry in regard to the right to hold a land under S. 89 (2) of the Act and the decision under S. 93 thereof is disclosed by S. 95. When such an entry is made in the register of rights and is not corrected in the manner prescribed in S. 93, under S. 95 it shall be presumed to be correct until the contrary is proved. The effect of such an entry, therefore, is only to make it a presumptive piece of evidence in a collateral proceeding: that is to say, in a suit based on title when such an entry is relied upon by one or other of the parties, the Court shall presume it to be correct unless the other party rebuts the presumption. Not only S 95 does not by necessary implication bar a suit but also assumes that in such a suit the correctness of such an entry could be questioned subject to the said presumption12. It is, therefore, clear that S. 200 (1) of the Act, read with the said group of sections, does not exclude the jurisdiction of a civil court to entertain a suit based on titleBut a perusal of the judgments of the Courts below shows that all the Courts, after taking into consideration the entire oral and documentary evidence, came to the conclusion that the respondents had established their title. Indeed, though the High court rightly pointed out that the finding of fact given by the lower appellate Court was conclusive, in view of the insistence of the Advocate in the High Court, it considered the entire documentary and oral evidence over-again and came to the same conclusion. It also admitted the notifications in respect of the settlement as fresh evidence and, after considering them, held that they did not disclose that the patta issued in favour of the respondents ancestors was cancelled. In our view, the High Court should have accepted the finding of the first appellate Court and should not have reviewed the evidence over again. The Courts in effect held that the said presumption was rebutted by the oral and documentary evidence adduced by the respondents. We are not, therefore, justified in an appeal under Art. 136 of the Constitution to permit the appellant to canvass the correctness of the said concurrent findings of fact14. The last argument raises a question of limitation. If, as we have held, the suit is outside the scope of the Act, the question of limitation turns upon the provisions of the Indian Limitation Act. The suit was originally filed by the respondents for a declaration of their title to the suit property, but as they were dispossessed of the land on March 5, 1953, subsequent to the filing of the suit, the plaint was amended on July 24, 1954, praying for delivery of possession. To such a suit Art. 142 of the Limitation Act applies. The suit is, therefore, clearly not barred by limitation.