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1952 Supreme(Cal) 203
HIGH COURT OF CALCUTTA
K. C. DAS GUPTA, SARMA SARKAR
SUBODH GOPAL BOSE - Appellant
Versus
BROJENDRA KISHORE ROY - Respondent
A. F. A. D. 1563 Of 1941
Decided On : SEPTEMBER 11, 1952
ATUL CHANDRA GUPTA, JATISH CHANDRA GUHA, Jitendra Kumar Sen Gupta, Joy Gopal Ghosh, N.C.SEN GUPTA, RAMENDRA MOHAN CHATTERJI
The presumption of correctness of the settlement record as regards the entry that the land appertained to Touzi No. 6 was not rebutted by the commissioner's report and the combined map prepared by him on superimposition of the Thak map on the c. s. map, as there was no local investigation and the superposition showed marked and vivid divergence and disagreement in the mouza boundaries.
Headnote:
LAND REVENUE SALES ACT - SECTION 37 - PRESUMPTION OF CORRECTNESS OF SETTLEMENT RECORD - REBUTTAL - SUPERIMPOSITION OF THAK MAP ON C. S. MAP - ERROR OF LAW OR PROCEDURE - CONSTRUCTION OF DOCUMENT OF TITLE - RETROSPECTIVE OPERATION OF AMENDMENT ACT - RES JUDICATA.
Fact of the Case:
The plaintiff purchased Touzi No. 6 at a sale for arrears of revenue and brought a suit for declaration of his title and recovery of possession of 52 acres of land in mouza Chandpur, which was included in Touzi No. 6. The defendant claimed that the land was not included in Touzi No. 6 and that his interest was protected under Section 37 of the Land Revenue Sales Act, 1859.
Finding of the Court:
The trial court held that the plaintiff had failed to prove that the land lay within Touzi No. 6. On appeal, the High Court held that there was a presumption of correctness attaching to the entry in the settlement khatian that the land appertained to Touzi No. 6, but this presumption was rebutted by the errors discovered in the boundaries given in the patta mentioned in the remarks column. The Supreme Court, on appeal, held that the High Court's conclusion that the presumption of correctness of the entry had been rebutted was reached without a full consideration of the evidence and remanded the case back to the High Court for a proper finding on the question whether the land is within Touzi No. 6.
Issues: 1. Whether the land in dispute is included in Touzi No. 6? 2. Whether the defendant's interest is protected under Section 37 of the Land Revenue Sales Act, 1859?
Ratio Decidendi: 1. The presumption of correctness of the settlement record as regards the entry that the land appertained to Touzi No. 6 was not rebutted by the commissioner's report and the combined map prepared by him on superimposition of the Thak map on the c. s. map, as there was no local investigation and the superposition showed marked and vivid divergence and disagreement in the mouza boundaries. 2. The document Ex. H, which was a certified copy of a kobala executed by the then tenant in favour of Jatindra Kumar Ghose, did not rebut the presumption of correctness of the settlement record, as the learned Judge carefully compared the boundaries and came to a right conclusion. 3. The construction of a document of title is not involved in the present case, as the question is whether out of the land which passed by the document, land A of the document is say Black acre, or land B of the document is White acre, or whether it is vice versa. 4. The change in Section 37, Land Revenue Sales Act by the West Bengal Act 7 of 1950 does not affect the present litigation, as the Supreme Court has, in passing the order that it did, decided by necessary implication that Section 4, West Bengal Act 7 of 1950 does not affect the present litigation.
Final Decision: The appeal was allowed, the decree passed by the Courts below was set aside, and the plaintiff's suit was decreed with costs throughout.
( 1 ) THE. 52 acre of land for which the present litigation was started by the respondent more than 15 years ago lies in mouza Chandpur in the suburbs of Calcutta. While the greater portion of this mouza is included in a revenue paying estate, touzi No. 56 of the 24 Parganas Collaborate, lands included in several other touzis including touzi No. 6 of the 24 Parganas Collectorate also lie in this mouza. The lands of Touzi No. 6 that are included in this mouza are, according to the Thak Survey Map of the mouza, shown in seven chaks numbered therein as 5, 11, 19, 20, 22, 24 and 25.
( 2 ) THE question that still remains for decision in the litigation is whether the land in dispute shown in C. S. map as plot No. 901 of mouza Chandpur is included in Touzi No. 6. The appellant before us having purchased Touzi No. 6 at a sale for arrears of revenue issued notice to annul the defendant's tenancy in this land on the averment that this land lay within that Touzi and brought the suit for declaration of his title and for recovery of possession.
( 3 ) THE defendant set up a two-fold defence: (i) that the land in dispute was not included within Touzi No. 6; and (ii) that his interest was protected under the provisions of Section 37 of Act 11 of 1859, as it then stood.
( 4 ) THE trial Court rejected the defence that the land was protected under Section 37, Land Revenue Sales Act but held that the plaintiff had failed to prove that the land; lay within Touzi No. 6. It is necessary to mention here that the c. s. khatian contained an entry showing that this land c. s. plot No. 901 of mouza Chandpur was within touzi No. 6. In the remarks column of the khatian there was mention of a potta, registered on 27-2-1922. The plaintiff relied on the statutory presumption of correctness of the settlement entry in so far as it recorded that the land was included within Touzi No. 6. The trial Judge, however, held that there was no such presumption of correctness of the entry in the settlement khatian as regards the land appertaining to Touzi No. 6, and on a consideration of the other evidence he held, as indicated above, that the plaintiff had failed to prove that the land lay within Touzi No. 6.
( 5 ) MENTION may also be made here of the fact that, as prayed for by the defendant, the trial Court appointed a commissioner to superpose the thak map of mouza Chandpur on the C. S. map to ascertain whether the land lay within any of the chaks. When, however, the commissioner asked for permission of the Court to go to the locality for local investigation this was opposed by both the plaintiff and the defendant and no local investigation did take place. The learned trial Judge was accordingly of opinion that"this relaying of plot No. 901 by superposing the thak map on the c. s. map is no correct relaying on which the defendant can rely and that the dag No. 901 falls outside the Touzi No. 6. "
( 6 ) ON appeal by the plaintiff, the learned Additional District Judge held that there was a presumption of correctness attaching to the entry in the settlement khatian that the land appertained to Touzi No. 6, but the potta mentioned in the remarks column was with regard to some other land and did not cover the land in dispute and in view of this conclusion the learned Additional District Judge held that the presumption of correctness of the settlement record had been rebutted. On consideration of other evidence oh the record he came to the conclusion that the plaintiff had failed to prove that the land was within Touzi No. 6. In this view he dismissed the appeal, affirming the order of dismissal of the suit by the trial Court.
( 7 ) THE other defence, namely, that the defendant's interest was protected under the provisions of Section 37, Land Revenue Sales Act, as it then stood, was not raised before him.
( 8 ) THE present appeal which was preferred by the plaintiff against the decree passed in appeal by the learned Additional District Judge came
