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1949 DIGILAW 102 (PAT)

Parsadi Dusadh v. Md. Afaq

1949-12-20

AGARWALA

body1949
Judgment Agarwala, J. 1. This appeal is by the defendant against a decision of the Subordinate Judge of Patna, reversing a decision of the Munsif of Barh. The appeal arises out of a suit for recovery of khata No. 70 of tauzi no. 8588 of village Akbarpore, The plaintiffs alleged that this khata was granted to two brothers, Etwari and Tukan in coneideration of their rendering services of gorait to the plaintiffs. They farther that on Tukans death without issue, the grantor resumed his half of the tenure, but later made a regrant to Etwari. At a partition between the maliks in 1926, 74 acres of khata 70 fell to the pat(sic) of the plaintiffs. They alleged that Etwari stopped rendering services in 1352, and consequently they have come to resume possession. 2. The defence was that the land in question did not constitute a service tenure but was a grant made by the British Government to the defendant for past services. 3. The first Court dismissed the suit. On appeal the appellate Court held that although the plaintiffs had not been able to prove the original grant to Etwari and Tukan or the subsequent grant to Etwari, the evidence did establish that the land was granted to the two brothers in consideration of their rendering goraiti services. This conclusion was in the main based on the entry in the record of rights in 1910 in which this land was recorded as a jagir goraiti of Etwari and Tukan. Such an entry of course is not conclusive that this merely was a case of land being granted in consideration of rendition of services if the entry by itself might have been conatrued otherwise. But as was pointed out by Mukherjee J. in Narendra Chandra V/s. Rajen-dra Chandra, 46 C. W. N. 654 : (A. I. R. (28) 1941 Cal. 506), an inference as to the status of a tenant drawn from entries in the record of rights is an inference of fact and even if there be an error in interpreting a portion of the record, there is no error of law which makes the finding assailable in second appeal. The appellants contend that the onus in this case lay on the plaintiffs. The appellants contend that the onus in this case lay on the plaintiffs. That is not disputed, but the production of the record of rights discharged the onus to the extent of showing that this land constitutes a goraiti jagir, that is to say, it was a grant in connection with the rendering of the service of a gorait and not for services of a public nature, a gorait being a zamindars servant who acts as an intermediary between the zamindar and the tenants in certain matters. A reference was also made to the decision in Bhagi Malik V/s. Satyabadi, 17 pat. 316 : (A. I. R. (26) 1938 pat. 507). All that was held in this case was that a zamindar is not ordinarily entitled to resume chaukidari lands. It is quite obvious from the entry in the record of rights to which a presumption of correctness attaches that the land in question in this appeal is not the land g anted for rendering chaukidari service at all. That rule has, therefore, no application. 4. The strongest point raised by the appellant was a question of limitation. It appears that in the partition proceedings in 1926 the defendant put forward the contention that the land in question had been granted to him for past services by the British Government. It is, therefore, argued that this amounted to a denial of any claim which the plaintiffs might assert to be entitled to resume the land. If the question of limitation had to be decided only with reference to the position taken up by the defendant in 1926, there would be much to be said for the question of limitation which he now raises. But the plaintiffs asserted that up to 1352 the defendants had been rendering goraiti service to them. Their evidence has been accepted as true by the Court of appeal below, and it does receive considerable support from entries in receipts showing that Etwari and Tukau used to collect rent from the tenants on behalf of the landlord. But the plaintiffs asserted that up to 1352 the defendants had been rendering goraiti service to them. Their evidence has been accepted as true by the Court of appeal below, and it does receive considerable support from entries in receipts showing that Etwari and Tukau used to collect rent from the tenants on behalf of the landlord. One of those receipts is subsequent to the determination of the partition proceedings, Although, therefore, it does not carry the plaintiffs as far as 1352 up to which date they assert that the defendants rendered services as goraits it does show that even after they had claimed the whole of the land for past services under a grant made by the British Government, they were still rendering the ordinary normal services of gorait to the zamindar. In these circumstances, I am not prepared to differ from the Court of appeal below either on the question of limitation or with regard to the construction that has been put upon the entry in the record of rights. 5. The appeal is accordingly dismissed with costs.