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1950 Supreme(Pat) 51
PATNA HIGH COURT
Reuben and B.P.Jamuar JJ.
Suba Dusadh
Versus
Shiva Prasad
Appeal From Appellate Decree No. 1904 of 1949 ;
Decided On : MARCH 10, 1950
In a suit for recovery of possession of land, the plaintiffs must prove their title to the land.
Headnote:
LAND TENURE - JAGIR OBKHARI - HEREDITARY RIGHT - PROOF OF TITLE - BURDEN OF PROOF - EVIDENCE - SURVEY KHATIAN ENTRY - INFERENCE - APPOINTMENT OF ROAD-CHAUKIDAR - ENTITLEMENT TO LAND - CUSTOM - TRANSFERABILITY OF JAGIR LAND - REHAN TRANSACTION - SINGLE INSTANCE - NO GENERAL INFERENCE.
Fact of the Case:
Plaintiffs sued for a declaration of their title and recovery of possession of certain kasht lands, claiming hereditary right as road-chaukidars. The lands were recorded in the survey khatian as "jagir obakrahi" in the name of their grandfather, Chaitu Dusadh, who died in 1918. Plaintiffs' father, Dharkheli Dusadh, worked as a road-chaukidar and held the lands until his death in 1928. Plaintiffs were minors at the time and their mother entered into arrangements with others to work as road-chaukidars and cultivate the lands on batai terms. In 1939, plaintiff 1 became physically fit to work as a road-chaukidar and demanded possession of the lands, but the defendant, who had been appointed as the road-chaukidar, refused.
Finding of the Court:
The court found that the plaintiffs failed to prove their title to the land. The entry in the survey khatian showing Chaitu Dusadh's name as the holder of the land did not prove an absolute grant in his favor, as the origin of the grant was unknown. The court also rejected the plaintiffs' reliance on the District Magistrate's observations in an order, holding that they were not evidence and could not be used to prove title. The court further found that the oral evidence adduced by the plaintiffs was inconclusive and that a single instance of a road-chaukidar transferring some of his land in rehan did not establish a custom of transferability of jagir land.
Issues: 1. Whether the plaintiffs had proved their title to the land in suit? 2. Whether the entry in the survey khatian showing Chaitu Dusadh's name as the holder of the land was sufficient to prove an absolute grant in his favor? 3. Whether the District Magistrate's observations in an order could be used as evidence to prove title? 4. Whether the oral evidence adduced by the plaintiffs was sufficient to establish their claim?
Ratio Decidendi: 1. The burden of proof lies on the plaintiffs to prove their title to the land in suit. 2. The entry in the survey khatian showing Chaitu Dusadh's name as the holder of the land does not prove an absolute grant in his favor, as the origin of the grant is unknown. 3. The District Magistrate's observations in an order are not evidence and cannot be used to prove title. 4. The oral evidence adduced by the plaintiffs is inconclusive and does not establish their claim.
Final Decision: The appeal was allowed, and the plaintiffs' suit was dismissed.
Jamuar, J.
1. This is a defendants appeal against the judgment and decree of the learned Additional Subordinate Judge, 4th Court, Patna, dated 16th September 1949, by which he affirmed a judgment and decree of the Munsif, 1st Court, Patna, dated 16th February 1949, decreeing the plaintiffs suit.
2. The plaintiffs are brothers and their suit was for a declaration of their title and for recovery of possession of certain kasht lands situated in villages Rampur Ismail, Nagwan and Bahpura having an area of 4.40 acres as described in the plaint. The plaintiffs also claimed mesne profits. There was a further relief sought by them, namely, for a declaration that they are entitled to perform the duty of a road-chaukidar, which office they alleged to be hereditary in their family, as the kasht lands, which are the subject-matter of the suit, were granted to their ancestor in lieu of his services as a road-chaukidar.
3. The lands have been recorded in the survey khatian as "jagir obakrahi" in the name of one Chaitu Dusadh who was the grandfather of the plaintiffs. Chaitu Dusadh died in Ashin 1326 Fasli and than, according to the plaintiffs Dharkheli Dusadh, the son of Chaitu Dusadh worked as a road-chaukidar and held the lands until his death in Chait 1336 Fasli The plaintiffs are the sons of Dhurkheli Dusadh and at the time of the death of Dharkheli Dusadh plaintiff 1 was a minor, aged about 5 years; plaintiff 2 was born six months after the death of Dhurkheli Dusadh. It is then the case of the plaintiffs that as plaintiff 1, being a small child at the time of the death of his father Dhurkheli Duaadh, could not succeed him on his death as the road chaukidar, one Feku Dusadh, a brother of Chaitu Dusadh, became the road-chaukidar and as such was in possession of the lands in suit. When Feku Dusadh died the plaintiffs were still minors. Hence the plaintiffs mother entered into an arrangement with one Falakdhari Dusadh to work as the road-chaukidar in place of the plaintiffs and to hold the lands in suit as a bataidar. Patakdhari Dueadh died in 1337 Fasli and then the plaintiffs mother entered into a similar arrangement with the defendant Suba Dusadh, a brother of Palakdbari Dusadh, to officiate as the road-chaukidar and cultivate the lauds on the same terms as a bataidar, and he divided the produce of the lands making over half to the plaintiffs mother.
4. In January 1939, plaintiff 1 became physically fit to work as a road-chaukidar and then, it is stated, he asked the defendant to relinquish possession of the lands and to allow him to work as a road-chaukidar, but the defendant refused to comply with this demand. The plaintiffs, therefore, filed an application before the Sub-divisional Officer of Dinapur to give them them (Sic) the relief which the defend ant had refused to give them, but the Sub-divisional Officer rejected their prayer. The plaintiffs then preferred an appeal to the District Magistrate of Patna, who, while affirming the order of the Sub-divisional Officer, directed the plaintiffs to establish their claim in the civil Court before any redress could be given to them, Hence the plaintiffs filed the suit out of which this appeal has arisen.
5. The defence was that the jagir land in suit is not hereditary in the family of the plain, tiffs but that, being attached to the office of the road-chaukidar, it is to be held by the person who is appointed as a road-chaukidar. The defendant claimed, in brief, that as he had been appointed to this office he was entitled to this land. The defendant furthermore denied to have entered into any arrangement with the plaintiffs mother to hold the land in batai. A further defence was that the suit was barred by the law of limitation.
6. In my view this appeal can be disposed of on the short point that the plaintiffs suit being in ejectment, the plaintiffs had to prove not only their possession within 12 years but also their title to the land and as they have failed to prove their titl
