The admissibility of draft record of rights as evidence and the relevance of entries in the revenue and settlement records under Section 35, Evidence Act.

( 1 ) THIS is a plffs'. appeal in a suit for assessment of rent in respect of certain lands which are recorded in the finally published record of rights as being held by the deft, under the plffs. and liable to be assessed with rent. The plffs. had claimed that the rent to be assessed should be at Rs. 25/3/- per year; damages had also been claimed at the same rate for use and occupation for a period of three years before the date of the institution: of the suit. The defence was that the deft, had lakheraj title to the lands and that the entries in the record of rights were wrong. The deft, also pleaded limitation and acquisition of lakheraj title by adverse possession.

( 2 ) THE learned Munsif did not accept the principal contention as raised by the deft. and decreed the suit in part assessing the rent at Rs. 13/8 per year. The claim for back rent was disallowed. The deft, preferred an appeal to the Court of the Subordinate Judge, Burdwan, and the plffs. also filed a cross-objection for having the rent fixed at Rs. 25/3/- per year as claimed in the plaint. The learned Subordinate Judge allowed the appeal and directed the case to go back to the Munsif for a fresh trial allowing the deft. an. opportunity to adduce in evidence a copy of the draft record of rights which had been rejected by the learned Munsif, both parties, in terms of the remand order would be at liberty to adduce further evidence, if they so desired. The present appeal has been preferred by the plffs. and a memorandum of cross-objection has been filed on behalf of the defendant respondent.

( 3 ) MR. Chakravarti appearing on behalf of the appellants contends, in the first place, that the learned subordinate Judge was not right in holding that the draft record of rights was admissible in evidence, and that in any view, the case ought not to have been remitted to the trial Court, but the learned Subordinate Judge should have disposed of the appeal on the merits after taking into consideration the copy of the draft, record of rights, even if such draft record be found to be admissible in evidence.

( 4 ) UNDER Sub-sectrion (5) of Section 103 (b), Bengal Tenancy Act, the entries in the record of rights, after final publication thereof are presumed to be correct, unless it is proved on evidence to be incorrect. The entries in the draft record of rights do not carry any presumption of correctness as in the case of those in the finally published record of rights. The question we have to consider is, not about the presumption of correctness of an entry in the draft record of rights, but whether the draft record is at all admissible in evidence.

( 5 ) REFERENCE is made on behalf of the appellants to 'gulab Kuer v. Ramratan', 18 C W N 896 in support of the proposition that the entries in the draft record of rights are not admissible in evidence. It appears, however, that in this case the claim, as to the amount of rent and cesses payable by the deft, was based on certain entries to the draft record of rights before the proceedings had been completed and the records finally published. The learned Subordinate Judge had thought erroneously that a presumption of the correctness of the entries in the record of right would arise even in the case of the draft record of rights. This Court overruled that view and held that until the record of rights was finally published the presumption of its correctness could not arise, and the decision as given on the draft record of rights could not be supported. The facts of this case are, therefore clearly distinguishable. Reliance is next placed by Mr. Chakravarty on 'ambar Ali v. Lutfe Ali' 21 C W N 996 where the substantial point in controversy was whether, as alleged by the plff. a particular tank was known by the name Laskargazi. Besides oral testimony the plff. had relied upon two pieces of documentary evidence including an entry in the draft record of rights. This Court held that no reference should have been ma