Nandji Singh v. Shea Prasad Mahto — 1977 DIGILAW 197 (PAT)

Judgment D. P. Sinha, J. 1. This appeal arises out of the judgment and decree passed in Title Suit No.31/4 of 1960/64 by the second Additional Subordinate Judge of Arrah on 23.1.1965, dismissing the suit in which the plaintiffs had prayed for declaration of their title and recovery of possession of the lands mentioned in Schedule II of the plaint and for mesne profits as also payment to them of a sum of Rs.1150/- which had been kept in deposit in a proceeding under section 145 of the Code of Criminal Procedure (hereinafter referred to as the code) between the parties in which, by an order dated 25.9 52, Sheo Prasad mahto, respondent no.1 had been declared to be in possession of the disputed lands. 2. The case of the plaintiffs who have come up in appeal, as laid in the plaint, is as follows. The lands in dispute which appertain to khata no.43 are situate in Mauza Bhatauli, within the jurisdiction of Nawanagar police station, in the district of Bhojpur. They belonged to Dukhit Mahto. Dukhit Mahto had three brothers, namely, Shalig Mahto, Jpdhan Mahto and sukhlal Mahto but he was separated from them. Dukhit died issueless in 1327 leaving him behind his widow named Mossomat Runia who came in possession of the lands in dispute. Shalig, Jodhan and Sukhlal predeceased mossomat Runia. After the death of Mossomat Runia, Ramsewak, son of shalig inherited the lands of Dukhit as his heir and came in possession thereof. Ramsewak died leaving him surviving only a daughter named Mossomat barti who came in possession of the lands. She was defendant no.2 in the suit and respondent no.2 in this appeal. She has since deceased. 3. Sometime in about 1920, the landlord of the lands, namely, Madho prasad Singh of Majhwari had planned to grab the disputed lands and to that and he began to interfere with the possession of the same and thereupon a proceeding under section 144 of the Ciminal Procedure Code (hereinafter referred to as the Code) between him and Suchit Mahto, a grand son of dukhits brother Sukhlal, was started and later on, it was converted into a proceeding under section 145 of the Code. In that proceeding the lauds were attached under section 146 of the Code on 20.7.1920 and the parties were referred to the Civil Court. In that proceeding the lauds were attached under section 146 of the Code on 20.7.1920 and the parties were referred to the Civil Court. Thereupon Mossomat Barti (the deceased respondent no.2) instituted Title Suit No.56 of 1937 against Madho Prasad singh and others which was decided on contest in favour of Mossomat Barti on 28.7.1938 and her title over the disputed lands was declared and, accordingly she came in possession of the suit lands. 4. For the sake of convenience Mossomat Barti settled the lands with lakshmi Singh, Bhoja Rai and Radhamohan Ahir for a period of four years by executing registered Pattas in their favour on 7.7.1950 (Ext.8) and on the same day the above named settlees executed a registered Kabuliat (Ext.9)in favour of Mossomat Barti and the Pattadars came in possession of the said lands. 5. Then there arose a dispute relating to the disputed land between sheo Prasad Mahto, respondent no.1 (defendant no.1) on the one side and mossomat Barti and Lakshmi Singh, the Pattadir, on the other and a proceeding under section 144 of the Code was started and it was decided in favour of Mossomat Barti and Lakshmi Singh. 6. After the expity of the term of the Patta, the disputed land came in possession of Mossomat Barti and on 26.12.1957, she sold the lands to the plaintiffs by executing sale deeds in their favour. The entire disputed lands are mentioned in Schedule I and the lands sold to the different plaintiffs are described in Schedule II to the plaint. After the execution of the sale deeds the plaintiffs came in possession of the lands sold to them but respondent no.1 began to interfere with their possession and a proceeding under section 144 of the Code between plaintiff Nos.1, 2, 5 to 9 and 11 to 15 on one side and respondent no.1 on the other was started and later on it was converted into a proceeding under section 145 of the Code. That proceeding was decided against the plaintiffs on 20.9.1959 and afcer a month of that decision, respondent no.1 dispossessed the plaintiffs from the disputed lands on 20.10.1959. They preferred a revision which was also decided against them on 9.2.1960. That proceeding was decided against the plaintiffs on 20.9.1959 and afcer a month of that decision, respondent no.1 dispossessed the plaintiffs from the disputed lands on 20.10.1959. They preferred a revision which was also decided against them on 9.2.1960. During the course of that proceeding respondent no.1 gave out that there had arisen a dispute between Barti and Banwari Mahto, father of the respondent no.1 and a deed of agreement to refer the dispute to certain Punches had been executed by Barti and it was also alleged that the Punches had given an award. It is said that Mossomat Barti never executed any such agreement and never was any award given. It was alleged that Banwari Mahto (the father of respondent no.1) was the Pairvikar of Mossomat Barti in Title Suit No.59 of 1937 and he had also deposed as a witness in that case, as such, Mossomat barti placed great reliance on him and respondent no.1. It was further stated that Barti herself was a Pardanashin woman as such, if respondent no.1 had practised fraud on her and got an agreement dated 18.7.1939 executed and registered in favour of his own men that could not confer any title on respondent no.1. 7. Mossomat Barti filed a written statement and also gave evidence in support of the plaintiffs case. 8. The suit was contested by respondent no.1 (hereinafter referred to as the respondent) who filed a written statement saying that after the death of Bartis father, Ramsewak, a dispute in respect of the lands of Dukhit arose between the landlords of Majhawari and Suchit Mahto, the grand-son of sukhlal who was a brother of Dukhit and a proceeding under section 145 of the Code was started and ultimately all the lands were attached under section 146 of the Code. Thereupon Suchit instituted a title suit, being Title Suit no.53 of l930, in respect of the said lands and when the matter came up on appeal before the High Court it was held that Mossomat Barti was a necessary party to the suit and thereupon she herself instituted Title Suit No.59 of 1937 against the landlords. The suit was decreed in her favour and she was declared to be emitled to the said lands. The suit was decreed in her favour and she was declared to be emitled to the said lands. Respondent No.1s father, Banwari, had spent money from his own pocket in fighting out the above litigations as such, after Title Suit No.59 of 1937 was decreed in favour of Mossomat barti, a dispute arose between Banwari on the one hand and Mossomat Barti and Suchit on the other in respect of the amounts incurred by Banwari over the litigations on their behalf and ultimately Suchit, Barti and Banwari executed a registered agreement referring the dispute for decision to certain punches named therein. The Punches received evidence on their behalf, heard them and thereafter made an award on 1.9.1937 giving the disputed lands along with certain trees recorded under Khata No.168 to Banwari, in lieu of the expenses incurred by him over the said litigations, and, accordingly, Banwari came in possession and Mossomat Birti gave up her rights in the disputed lands. This enraged the landlords and they refused to accept rent from respondent no.1 and ultimately they incited Mossomat Barti to act against him and a criminal case and disputes in the Canal Department also arose and the said disputes were decided in favour of respondent no.1. The Patta (Ext.8)said to have been executed by Mossomat Barti in favour of Lakshmi Singh and others was alleged to have been brought into existence at the instance of the landlords. The Pattadars never came in possession. The allegation that mossomat Barti was a Pardanashin lady had also been denied. 9. The following issues were framed and decided : "issues 1. Have the plaintiffs any valid cause of action ? 2. Is the suit as framed maintainable ? 3. Is the suit barred by limitation ? 4. Has the suit been properly valued and is the court-fee paid sufficient ? 5. Are the plaintiffs entitled to any declaration of their title and for recovery of possession ? 6. To what reliefs, if any, are the plaintiffs entitled ?" 10. Issue nos.2 and 4 have been decided in favour of the plaintiffs but the remaining issues have all been decided against them. 11. The following facts established by the evidence are not in dispute. The disputed lands belonged to Dukhit who died issue less leaving him surviving his widow, Mossomat Runia. Issue nos.2 and 4 have been decided in favour of the plaintiffs but the remaining issues have all been decided against them. 11. The following facts established by the evidence are not in dispute. The disputed lands belonged to Dukhit who died issue less leaving him surviving his widow, Mossomat Runia. After the death of Runia, Ramsewak son of shalig full brother of Dukhit came in possession of the disputed lands. After ramsewaks death there arose a dispute between Madho Singh and others of majhwari, the landlords, who wanted to resume the lands on the plea that there was no surviving heir of Dukhit as such they, as landlords of the lands, had entered into possession. A proceeding under section 145 of the Code cropped up and by an order dated 27.7.1920 (Ext. O/3-I) the lands were attached and the parties were directed to get the matter decided by a civil court,, thereafter Suchit, grand-son of Sukhlal, another brother of Dukhit, instituted title suit no.53 of 1930 for declaration of his title in respect of the disputed lands and certain other lands against the landlords. The suit was fought up to the High Court and it was ultimately dismissed on the ground that it was barti, daughter of Ramsewak and not Suchit, who was entitled to the said properties. Thereupon Barti instituted Title Suit No.59 of 1937against the landlords and obtained a decree in her favour in 1938. After the decree the attachment was released in her favour and she came in possession in that very year. 12. Both the parties claimed to have derived title from Barti. , The plaintiffs based their claims on the 11 registered sale deeds (Ext.10 series)executed in their favour by Barti on 26.12.1957 vide details given in Schedule II of the plaint and the respondent Sheo Prasad claimed that his title originated on 1.9.1939 when his father (Banwari) took possession of the lands as a result of an award in his favour given by the punches to whom the dispute between him and Barti and Suchit with regard to the expenses incurred by him on their behalf over the litigations with regard to the disputed lands which had continued for about 18 years, had been referred by them. 13. 13. Since the plaintiffs had instituted the suit on the allegation that they had come in possession after the execution of the sale deeds (Ext.10 Series) in their favour on 26.12.1957 and that after the proceeding under section 145 of the Code was decided in favour of the respondent on 25.9.1959 they were dispossessed by the respondent on 20.10.1959, it was for them to prove that they had a subsisting title on the date of the institution of the suit and that they were or their vendor was in possession of the disputed lands at any time within 12 years of 14.5.1960 on which the suit had been instituted. The trial court has found that neither they nor Barti was in possession at any time within twelve years and that the respondents version of the origin and continuance of their possession and perfection of their title was correct. He has, accordingly, dismissed the suit. 14. Mr. K. D. Chatterjee, learned counsel appearing on behalf of the plaintiffs-appellants, has contended that the learned trial Judge had relied upon certain canal papers for coming to the conclusion that the respondents were in possession although the said papers are no evidence of possession. He has further contended that on the evidence adduced it should have been held that barti never lost possession and that the story of possession set up by the respondent was neither true nor believable. On the other hand, Mr. Krishna prakash Sinha, learned counsel appearing on behalf of the respondent, supported the judgment and decree of the trial court. 15. Since the defendants case is that their possession started as early as 1.9.1939 when the award was given it would be convenient to start with a discussion of the evidence adduced by them in this behalf. Mr. K. D. Ghatterjee had started with the following arguments while making comment on that evidence, According to the respondent, his father, Banwari, was piloting the litigations with regard to the lands, which were fought with the landlords from 1920 to 1938 (the decree in Title Suit No.59 of 1937 had been passed in favour of Barti in 1938) and he had himself met the expenses of the litigations and, therefore, after the decree in favour of Mossomat Barti was passed, he demanded the money spent by him from Barti and Suchit and a dispute arose between them about it. To resolve that dispute a registered argeement (Ext. K-I) was executed by them on 17.7.1939 referring the dispute to certain Punches named therein. It is alleged by the respondent that the Punches, after holding sittings and hearing the disputants, declared that Banwari should get the lands in dispute in lieu of the expenses incurred by him. They also made a record of the award dated 1.9.1939 on a piece of paper (Ext. X-I ). It is alleged that Banwari came in possession of the disputed lands with effect from the same date without any objection on the part of Barti. 16. The execution of the agreement (Ext. K-I) had been seriously challenged in the plaint as also in the evidence of Barti who not only filed a written statement but also deposed in support of the appellants case. According to her, Banwari used to look after the litigations but he did not spend any money of his own over the same. After the decree in title suit had been passed in her favour he pursuaded her to execute a Mokhtarnama in his favour so that he might look after on her bahalf, the litigations which the landlords were contemplating to start afresh. She was cross-examined very closely on this point and ultimately she had to admit that she had affixed her thumb mark on the document. She had no doubt made that admission first in a vague manner in answer to an interrogatory served on her. Apart from the fact that the execution of the agreement has been duly proved by the respondent D. W.21) in his deposition, the execution appears to have been expressly admitted by Barti in a sessions case relating to the murder of Ramdayal, the brother of Gangadayal singh who was claiming to be a Sikmidar from Lakshmi Singh, one of the alleged Pattadars of Barti, in respect of the disputed lands. She had admitted the execution of the agreement (Ext. K-I) not only before the court of session but also before the Magistrate who had held the usual preliminary inquiry under chapter XVIII of the Code. Her deposition before the committing Magistrate is Ext. S (8)-I dated 30.5.1951 and that before the court of session is Ext. S (9)-I dated 3.8.1951. In the circumstances the denial with regard to the execution of the agreement (Ext. Her deposition before the committing Magistrate is Ext. S (8)-I dated 30.5.1951 and that before the court of session is Ext. S (9)-I dated 3.8.1951. In the circumstances the denial with regard to the execution of the agreement (Ext. K-I) and reference of the dispute to the Punches named therein is certainly not true. 17. Barti had further denied that Banwari had incurred expenses on account of the litigations which he was looking after on her behalf from his own pocket. But the statements contained in the agreement (Ext. K-I) clearly indicate that in order to secure the right and title of Suchit and Barti, Banwari had been incurring expenses over criminal and civil cases for the past 18 years from his own pocket and that he had also filed the title suit (No.59 of 1937) on behalf of Barti and obtained a decree in her favour by meeting the expenses thereof and that after the said decree, he made demands on them (Barti and suchit) as a result of which dispute had arisen between them and that, therefore, it was considered necessary that some responsible persons be appointed Punches for resolving the dispute. 18. It is understandable as to why Banwari had been entrusted with the task of fighting out the litigations on behalf of Mossomat Barti and Suchit. While Dukhit had continued to live in Bhatauli where the disputed lands are situate, the branches of his two brothers had left the village and migrated to barawn and subsequently, the branch of Shalig, (grand-father of Suchit) had moved to village Bakra, with the result that no member of the Branch of bartis father and Suchits lived in Bhatauli at the relevant time when the litigations commenced. Banwari was a close agnate of theirs and be lived in bhataull as such Barti and Suchit had both confidence in him, and, therefore, he was entrusted to look after the litigations and the admissions in the agreement (Ext. K-I) made by Suchit and Barti leave no doubt that Banwari had been meeting the expenses of the litigations from his own pocket. In the circumstances, it was quite natural for him to demand the money spent by him from Suchit and Barti. K-I) made by Suchit and Barti leave no doubt that Banwari had been meeting the expenses of the litigations from his own pocket. In the circumstances, it was quite natural for him to demand the money spent by him from Suchit and Barti. The fact that Panchaiti had taken place, the parties concerne d had been heard by the Punches and thereafter the Punches had first, orally announced their award and then recorded the same on paper had also been proved by the respondent (D. W.21) whose evidence has been corroborated by (D. W.16), a close relation of Suchits and Bartis father (D. W.16) is undoubtedly a competent witness and there is nothing in his cross examination on the basis of which any, th e least, suspicion can be raised against his evidence. 19. The written award is (Ext. X-I) dated 1.9.1939. It had neither been registered nor stamped. It had not been made a rule of the court under the arbitration Act. In the circumstances, the court below declined to accept the award as a document of title but it has relied upon the same for the collateral purpose of understanding and his father. The document when it was placed before this court was impounded and the respondent was called upon to pay the stamp duty together with the penalty payable on the document which he has paid. It was argued that one of the Punches though alive was not called on behalf of the respondent to prove that it had been written in due course but respondent (D. W.21) has given evidence that the said Panch, namely, Sbeo-dayal is aged about 85 to 90 years and that on account of the age he is not in a fit state of health to give evidence. There is no reliable evidence to the contrary. 20. Moreover, there is further cogent evidence to show that (Ext. X-I)had been written in due courss. This is indicated by the evidence and the circumstances which show that the decision given by the Punches in favour of banwari had been acted upon and that ever since the award was given. Banwari had been taking steps with regard to the lands in assertion of his right and possession on the basis thereof. 21. It has already been pointed out that the denial by the appellants and barti with regard to the execution of the agreement (Ext. Banwari had been taking steps with regard to the lands in assertion of his right and possession on the basis thereof. 21. It has already been pointed out that the denial by the appellants and barti with regard to the execution of the agreement (Ext. K-I), the holding of the Panchaiti and giving of award by the panches is not correct. There is no explanation anywhere in the plaint or in the evidence as to what became of the claim of Banwari with regard to the expenses admitted in the agreement (Ext. K-I) to have been made by him over the litigations. There is no allegation that the dispute was resolved in any manner other than the manner alleged by the respondent. It is quite plain chat his dues were not paid by the respondent. 22. It is quite plain that his dues were not paid by Barti or Suchit. Jt is hardly believable that Banwari had abandoned his claim to the money. On the other hand, there is evidence to show that since after the award was pronounced by the Punches Banwari started taking action in respect of the disputed lands in his favour. Two of the plots in dispute used to be irrigated by water taken from the Government penal. The award was pronounced on 1.9.1939 and soon thereafter Banwari applied before the Canal Deputy Collector for mutation of his name in the papers of the Canal Department by getting a parcha issued-by the Sattadar in his own name. Thereupon the Canal Department served a notice dated 5.1. l940 (Ext. E-I) calling upon him to apper in the canal Office with all relevant papers for proving his title and possession over the lands of khata no.43 (the disputed lands appertain to khata no.43 ). Ultymatety his name was mutated in place of the name of Suchit, by order of the deputy Collector, dated 6.3.1940 (Ext. F-I ). It appears that it was Suchit who stood recorded in the Canal Department and not Barti. Jn this connection it may be remembered that it was Suchit who was fighting the litigations prior to the institution of Title Suit No.59 of 1937. In the circumstances, it is not surprising that it was his name which found place in the canal papers and not that of Barti. Jn this connection it may be remembered that it was Suchit who was fighting the litigations prior to the institution of Title Suit No.59 of 1937. In the circumstances, it is not surprising that it was his name which found place in the canal papers and not that of Barti. It further appears that the canal parcha and water-vate recupts had been issued by the Canal Department in the name of Banwari on the basis of the mutation of his name in respect of the plots in dispute which used to be irrigated by the canal. There are Parchas ranging from the year 1939-40 to 1961-62 (Ext. E series) issued in the name of Banwari and after his death in the name of the respondent. There are (Ext. G series) which are the corresponding water rate receipts alleged to have been granted to Banwari and the respondent, after realisation of the rates for water supplied to them in respect to two of the disputed plots and other lands of theirs. 23. In order to explain those documents, it had been alleged on behalf of the appellants that Barti used to pay the water rates to Banwari and after his death to the respondent and that they had dishonestly retained the Parchas and the water rate receipt with them. There is hardly anything to support this belated allegation. On the other hand, this allegation which is contained in the deposition of Barti is an indirect admission of the fact that those parchas and water rate receipts are genuine documents and they had been issued in due course. It further appears that during the years in which the said documents had been issued Barti had neither been granted any Parcha nor had she paid any water rate with respect to the said two disputed plots. Mr. Chatterjee pointed out that although the alteration order by which the name of Banwari was mutated had been passed by the Deputy Collector on 6.3.1940 (vide Ext. F-I) the parcha ( Ext, D/20-I) had been granted in advance on 10.9.1939 and that this indicated that the entire proceeding with regard to the mutation was a fraudulent affair. I do not think this inference is correct. F-I) the parcha ( Ext, D/20-I) had been granted in advance on 10.9.1939 and that this indicated that the entire proceeding with regard to the mutation was a fraudulent affair. I do not think this inference is correct. It was admitted at the time of argument by the learned counsel on either side that Parchas are issued by the Sattadars who are the local agents of the canal Department on commission basis. They are required to visit the land and issue parchas to persons in possession of plots within the command area of irrigation. It is on the basis of the Purchas that water is supplied from the canal and rates are levioed. In the circumstances, it is not surprising that the purchas (Ext. D-I)was issued by the Pattadar in the name of Banwari on 10.9.1939 whereas the mustation of name of Bunwari in place of the name of Suchit was ordered on 6.3.1940 vide Ext. F-I. It would appear that when the Sattadar issued a parcha in the name of Banwari (Ext. D.20-I) dated 10.9.1939, a notice dated 5.1.1940 (Ext. E-I) was served by the competent revenue authority on Banwari, calling upon him to produce documents in support of his claim for mutation of his name. It appears that after he had done so an order was passed by the said authority on 6.3.1940 (Vide Ext. F-I) directing that the name of Banwari be recorded in place of the name of Suchit. In the circumstances it is quite obvious that the notice dated 5.1.1940 (Ext. E-I) had been issued because of the tact that the Sattadar concerned had issued the Purcha (Ext. D/20-I) in the name of Banwari on 10.9.1939, although in the records of the canal office the name of Suchit stood in respsct of two of the disputed plots which used to be irrigated from the canal. Mr. Chatterjees argument had proceeded on the assumption that the parcha (Ext. D/20-I) should have been issued after the alteration order had been passed by the Canal Diputy Collector on 6.3.1940 which is not correct. 23-A. It appears that quite a long time after the name of Banwari was entered in the Canal papers on the basis of the alteration order dated 6.3.1940 (Ext. F. I), Barti made an application for mutation of her name in the canal papers in about 1950-51. 23-A. It appears that quite a long time after the name of Banwari was entered in the Canal papers on the basis of the alteration order dated 6.3.1940 (Ext. F. I), Barti made an application for mutation of her name in the canal papers in about 1950-51. The respondent appeared and objected to the alteration claimad by Barti on the ground that he had alredy acquired title and possission by virtue of the award given by the arbitrators on 1.9.1939 and that he was in physical possession of the land. The objection of Banwari prevailed and the Canal Deputy Collector dismissed the application of Barti by his order dated 3.2.1951 (vide Ext. P (3)-I) Barti preferred an appeal against that order before the Collector of the District who, after hearing the parties, upheld the order of the Canal Deputy Collector and dismissed the appeal on 1.5.1951 (vide Ext- P. (2)-I) About three years thereafter, Barti selected another route to achieve the same purpose. She filed an application before the Engineering department and the Executive Engineer (Irrigation) by his order dated 12.5.1954 [vide Ext. P (1)-1] advised the Sub-divisional Officer (Irrigation) to maintain the status quo without prejudice to the claim of any one with regard to title which could be decided by proper court of law. Apparently, this order weni against Barti as the order directing the maintenance of status quo meant that the name of Banwari which had been altered on the basis of (Ext. . F-I)dated 6.3.1940 should be allowed to stand. Not being satisfied with that decision Barti filed a petition dated 12.6.1954 before the Superintending engineer, Sone Circle and Tube-wells The Superintending Engineer, by his order dated 23.11.1956 (Ext. P-I) directed the Executive Engineer to maintain status quo in favour of the applicant. This direction in effect, meant that status quo should be maintained in favour of Barti. There is nothing in the order to indicate that notice of the application had been issued to the respondent (Banwari was said to have died in about 1950) or that he had been heard in the matter. It is quite patent that the Superintending Engineer had somehow got the erroneous impression that Bartis name was already there and that, therefore, the status quo should be maintained in her favour. It is quite patent that the Superintending Engineer had somehow got the erroneous impression that Bartis name was already there and that, therefore, the status quo should be maintained in her favour. The respondent took the matter before the Additional Collector and thereafter to the Commissioner of the Division, both the home decided the matter against him vide Ext.18 (a) dated 22.11.1957 and Ext.16 (a) dated 29.3.1958. He then approached the Board of Revenue under section 91 of Bengal irrigation Act, 1876 against the order dated 29.3.1958 passed by the commissioner The Board by its resolution dated 11.12.1259 (Ext.0 (1-I)held that the proceeding before the Executive Engineer and the Superintending Engineer were without jurisdiction inasmuch as it was the Canal Deputy Collector who was the competent authority under rule 58 (1)of the Statutory Rules made under the Bengal Irrigation Act, 1876 . If further held that the superintending Engineer was in error on fact in directing that status quo was to be mainlained in favour of Barti. Accordingly, The Board set aside the orders passed by the Executive Engineer, Superintendi g, Engineer, Additional Collector and commissioner and directed that mutation be made in favour of the repondent. The canal papers (parcha, Ext.4 series and the water rates receipts. Ext.11 series) standing in the name of Barti filed by the plaintiffs must, therefore, be considered in the light of the above order of the Board of revenue which had upheld the previous order dated 3.2.1951 of the Canal deputy Collector and the appellate order dated 1.5.1951 of the Collector of the District by which Bards claim had been rejected. 24. Mr. Chatterji laid great stress on Exts.4 and 4 (a) which are parchas in the name of Barti. Ext.4 is dated 4.4.1951 and Ext.4 (a) is dated 20.3.1953. The respondent has given an explanation which apparently appears to be not only plausible but also true. After the proceeding under section 144 of the Code was disposed of in favour of Lakshman Singh and others on 20.11.1950, Gangadayal Singh and his men including his brother, Ramdayal Singh attempted to take possession of the land on 16.3.1951 and in that attempt ramdayal Singh was killed and the respondent and others were arrested and prosecuted on the allegation that they were responsible for the murder though they were ultimately acquitted. The respondent has given evidence that it was during the period he was behind the bars in that case that the parchas were brought into existence by collusuion with the Sattadars and others. This explanation appears to be true particularly because there was no reason why the parchas should have been issued in the name of Barti when the name of banwari stood recorded in the canal office. The other parachas and Ext.11 series which are water rates receipts have also to be considered in the background of the above facts and the temporary success of Bard before the superintending Engineer, Additional Collector and the Commissioner and the order of the Board of Revenue. 25. On the other hand, the canal parchas (Ext. D series) and the water rate receipts (Ext. G series) of the respondent would appear to be thoroughly consistent with the order of the Canal Dupty Collector dated 6.3.1940 (Ext. F-I) and there is no reason why they should not be accepted as representing the true state of affairs. 26. Mr. Chatterji submitted that Banwari had got his name entered in the canal papers by virtue of the fact that he was a sattadar of the Canal department. This allegation has been firmly denied by the respondent and there is hardly any reliable evidence in support of the allegation. On the other hand, the parcha Ext. B which stands in the name of the respondent had been issued by Gangadayal Singh who was one of the Sattadars. The document bears his signature which appears to have gone unchallenged. 27. Mr. Chatterji next argued that the canal papers, namely the parchas and water rate receipts are not relevant evidence of possession. The canal papers are prepared in accordance with the statutory Rules made under the Bengal Irrigation Act, 1876 in the ordinary course of businees, as such they are admissible under section 35 of the Evidence Act as public records and they are certainly relevant evidance of possession. What weight should be attached to them, must, however, depend upon the facts and circumstances of each particular case. In this behalf the decision of a division Bench of this court in the case of Isar Nonia and others V/s. Kariman pandey and others (AIR 1958 Patna 583), which fully supports the view that I have taken, may be seen. 28. In this behalf the decision of a division Bench of this court in the case of Isar Nonia and others V/s. Kariman pandey and others (AIR 1958 Patna 583), which fully supports the view that I have taken, may be seen. 28. It would appear that the case of Barti before the Additional collector who had passed the order dated 22.11.1957 (Ext.18/a) that she had been coming in possession of disputed plots since 1950.51 whereas the case of the respondent there too was that he had been coming in possession since 1939. It was not her case there that she had been coming in possession all the time since the decree passed in her favour in Title Suit no.59 of 1937. It is understandable as to why she had taken this stand. There was the proceeding under section 141 of the Code between Banwari on the one side and Lakshmi Siagh and others, who were said to be Pattadars and Barti on th3 other side, as mentioned earlier. The order in that proceeding was made absolute against Banwari and it was vacated in favour of Lakshmi Singh and other on 20.11.1950. It was the success in that proceeding that had induced Barti to say in her case before the Additional collector (vide Ext.18/a) that she had been coming in possession from 1950-51. This also explains why she, for the first time, approached the canal Deputy Collector for mutation of her name in place of Banwari in 1950-51. It has already been stated that the Canal Dupty Collector rejected her prayer on 3.2.1951 (Ext. P (3)-I ). 29. It is said that Barti leased the disputed lands to Lakshmi Singh and others for a period of four years by executing a registered Patta (Ext.8) on 7.7.1950 and the lessees had executed contemporaneously a registered Kabuliat (Ext.9) in her favour and there upon the pattadars had come in possession. It would appear that it was th3 execution of the Patta on 7.7.1950 which had given rise to a dispute between the respondent and the Pattadars. It is alleged that the Pattadars, were really the farzidars of the landlord, namely, Madho prasad Singh and his brother. I shall presently consider whether there is anything to indicate this but before I do so I should discuss the question as to whether the pattadars had actually come in possession. None of them has been examined. It is alleged that the Pattadars, were really the farzidars of the landlord, namely, Madho prasad Singh and his brother. I shall presently consider whether there is anything to indicate this but before I do so I should discuss the question as to whether the pattadars had actually come in possession. None of them has been examined. On the other hand, the evidence shows that Lakshmi Singh claimed to have given the lands on Shikmi to Gangadayal Singh, the grandfather of Lalanji Singh, Plaintiff No.10. The evidence shows that an occurrence took place with regard to some of the plots claimed by Gangadayal Singh in his capacity as Shikmidar and Ramdayal Singh brother of Gangadayal Singh was killed allegedly by the respondent and his men as stated earlier. A murder case was instituted in which the respondents and some others were accused. They were, however, acquitted by the court of session. It was in that case that barti had made admission with regard to the execution of the agreement referring the dispute with Banwari to arbitration of the panches. 30. It may be mentioned that the case of the appellants at the trial was that for one year the Pattadars had themselves remained in possession and that they had given the lands to Gangadayal Singh on Sikmi thereafter for one year. The question is whether the circumstances and the evidence indicate that the pattadars had actaully came in possession. So far as the alleged Sikmidar (Ganga Dayal) is concerned, he has not come forward to give evidence. The murder took place in the very year in which he calimed to have been given the land in Sikmi by the pattadars. In the circumstances it is hardly likely that he could have just walked into possession in spite of the murder. So far as the pattadars were concerned they belonged to three villages, namely, dullahpur, Gopalpur and Majhwari. Majhwari is the village in which the landlord, namely, Madho Prasad Singh lived. The evidence shows (vide P. W.3) that Majhwari is 16 to 18 miles from Bhatuli where the disputed lands are situate and Dullahpur and Gopalpur are adjacent to Majhwari. In fact, majhwari and Gopalpur have a common siwana. It is not the case of the appellants that the Pattadars maintained any bullocks and ploughs at Bhatauli for the cultivation of the disputed lands. In fact, majhwari and Gopalpur have a common siwana. It is not the case of the appellants that the Pattadars maintained any bullocks and ploughs at Bhatauli for the cultivation of the disputed lands. On the other hand, when Jutti Singh appellants Nos.5, (P. W.17) was asked about it, he stated that the plought and bullocks of the Pattadars used to come from village Dullahpur. He made it clear that the Pattadars had no property in Bhatauli except the disputed land. It is Hardly believable that bullocks and ploughs could have been brought for the purpose of cultivation of the land from a distance of about 16 to 18 miles. 31. Moreover, there is another circumstance which indicates that the case of the appellants with regard to the possession of the Pattadars is not correct. The plaint says that Barti continued in possession till the execution of patta in favour Lakshmi Singh and others on 7.7.1950 (Ext.8 ). At the trial a new case was introduced in the evidence of D. W.3 (examined on behalf of barti who was supporting the plaintiff case) according to whom even before the execution of the Pattas on 7.7.1950, Barti had given the lands on Sikmi to the Pattadars for a period of two years on the basis of an oral agreement. The material deviation in the case of the plaintiffs as laid in the plaint should not have been allowed by the trial court. It is, however, easy to understand as to why this change was considered necessary. In the murder case Barti had taken the stand that she had given the disputed lands on oral settlement to Lakshmi and others for a period of two years prior to the execution of the Patta on 7.7.50. In the circumstances it must be held that in the belated development did not represent the correct state of things and that it had been introduced merely to make the plaintiffs case consistent with the documents relating to the murder case filed on behalf of the respondent. It has already been pointed out that before Additional Collector the case of Barti was that she had come in possession in 1950-51. All these inconsistencies completely negative the assertion made in the plaint that Barti had herself continued in possession till she executed the Patta in 1950. 32. It has already been pointed out that before Additional Collector the case of Barti was that she had come in possession in 1950-51. All these inconsistencies completely negative the assertion made in the plaint that Barti had herself continued in possession till she executed the Patta in 1950. 32. The allegation that it was really Madho Singhs family which was all the time attempting to grab the lands through its own men, appears to be substantially borne out by the fact that Gunjeshwar Prasad Singh, son of madho Prasad Singh, had acted as the identifier of Barti at the time of the admission of the execution of the Patta by her before the Sub-Registrar on the patta (Ext.8) Barti was asked about it and she slated that she did not know gunjeshwar Prasad Singh and that she had not even seen him. In the circumstances, the argument that she was merely a figure head under the clutches of the landlord, appears to have sufficient force. The facts that one of the Pattadars, namely, Radha Mohan Ahir was a resident of Manjwari where the landlords lived and of the other two Lakshmi Singh was of Dullahpur and Bhoja Rai was of Gopalpur, which are adjacent to Manjhwari and Manjhwari is at a distance of about 16 to 18 miles from Bhatauli, land ample support to the allegation of the respondent that they were men of the landlord. Lakshmi singh is alive but he has not been called to give evidence in support of the appellant case. 33. There is yet another circumstance which throws light on the point. In spite of the execution of the Patta (Ext.8) on 7.7.1950 a deed of Rehan was executed by Barti in respect of the disputed lands in favour of Brahmadeo Singh, brother of Dharamdeo Singh, appellant No.6. In terms of the Patta (Ext.8)the Pattadars were only to pay annually Rs.300/- and odd to Barti. It is alleged that Brahmadao Singh came in possession of the disputed lands after the expiry of the term of the Pattai 1954 and remained in possession till redemption of the Rehan by the plaintiffs on 20.1.1958 after the execution of the sale deeds (Ext.10 series) in their favour on 26.12.1957. It is alleged that Brahmadao Singh came in possession of the disputed lands after the expiry of the term of the Pattai 1954 and remained in possession till redemption of the Rehan by the plaintiffs on 20.1.1958 after the execution of the sale deeds (Ext.10 series) in their favour on 26.12.1957. This again is wholly inconsistent with the case of the plaintiffs in the plaint, in paragraph 10 of which it had been clearly stated that after the exiry of the term of the Patta the disputed lands described in schedule I of the plaint came in possession of Barti and that thereafter she executed the sale deeds in favour of the plaintiffs on 26.12.1957. There is not a word in the plaint either about the execution of the Rehan or with regard to the allegation that the Rehandar came in possession. This again indicates that Barti was not in possession at any time ; no other reasonable inference may be drawn from the numerous inconsistencies between the pleadings and the evidence discussed above. 34. It was argued that the landlord had instituted rent suits against Barti for realisation of rent, being Rent suits Nos.1475 of 1943 and 391 of 1947, because it was Barti who was in possession and not Banwari. In the first place, it has to be kept in mind that the landlord, Madho Prasad Singh and his son were all the time entertaining an ill will against Banwari who had been fighting the litigations on behalf of Suchit and Barti and thwarting their attempts. According to the respondent, the said landlords refused to accept rent from banwari and that rent was remitted and paid by money order to Kameshwari prasad Singh who was a co-sharer landlord (Vide Ext. H/3 ). As to the two rent suits mentioned above a certified copy of the suit register relating to Rent Suit no.1475 of 1943 (Ext.19) has been produced. It does not, however, show how the suit ended though it does mention Barti as defendant in the suit. In the other rent suit Banwari had intervened and under orders of the court (Ext.18 (b) he had been allowed to deposit the claim in the suit, which he did vide chalan (Ext. U-I ). Of course, there was no adjudication of his right in that suit. In the other rent suit Banwari had intervened and under orders of the court (Ext.18 (b) he had been allowed to deposit the claim in the suit, which he did vide chalan (Ext. U-I ). Of course, there was no adjudication of his right in that suit. Learned counsel pointed out that Kameshwari Prasad Singh had granted a receipt to barti (Ext.1 h) for the year 1954 and for that very year he had also accepted rent from the respondent also (vide Ext. H 3-I ). It was, however, not alleged that Ext. H (3)-I which was for the years 1359-62 (1952 to 1955) or Ext. H-I which was for the year 1963 (1956) showing remittance of rent by the respondent to Kameshwari Prasad Singh, was not genuine. It appears that the said co-sharer landlord was accepting rent from the respondent and also from Barti, to his Advantage. In the circumstance, no particular significance can be attached to the rent receipt (Ext.1 series), on the other hand, the payment by money order by the respondent to Kameshwar Prasad Singh being consistant with the evidence and the circumstances discussed above, indicate that the was remitting the rent in assertion of his own right Exts.1 (a) to 1 (d) purported 6 have been granted on behalf of Madho Prasad Singh for the years 1359 to 1361. The attitude adopted by Madho Prasad Singh and his son Gunjeshwar Prasad singh in this matter has already been indicated above as such it is not surprising that the said receipts had been issued in the name of Barti on their behalf for the said years. 35. It appears that after the order of the Additional Collector was passed in favour of Barti on 22.11.1957 (Ext.18 (a)), an attempt was again made to take possession of the lands and a proceeding under section 144 of the Code was started on 5.12.1957 and there was an allegation made subsequently that the respondent had violated the prohibitory order issued in that proceeding and a case under section 188 of the Indian Penal Code had been started against him. The respondent was, however, acquitted of the charge under section 188 of the indian Penal Code on 18.12.1958 (Vide Ext.4 (7-I ). The proceeding under section 144 of the Code which had been started on 5-12-1957 was ultimately dropped on 17.12.1957 (Vide Ext. P (6)-I ). The respondent was, however, acquitted of the charge under section 188 of the indian Penal Code on 18.12.1958 (Vide Ext.4 (7-I ). The proceeding under section 144 of the Code which had been started on 5-12-1957 was ultimately dropped on 17.12.1957 (Vide Ext. P (6)-I ). It was after the acquittal of the respondent in the case that the proceeding under section 145 of the Code was started in 1959 and decided in favour of the respondent on 25.9.1959 (Vide Ext. (5)-I ). The appellants preferred a revision against that order. That was also dismissed and then the present suit was filed on 14.5.1960. 36. The oral evidence adduced on behalf of the appellants is no better. Although 25 witnesses were examined on behalf of the appellants only five have given evidence on the question of possession. They are P. Ws.3, 7, 8, 10 and 17 P. W.17 is one of the plaintiffs. He stated that the Pattadars (Lakshmi singh and others) used to bring ploughs and bullocks from Dullahpur. I have already commented upon this evidence. It is not necessary to consider further the evidence of P. W.17 who being one of the appellants is vitally interested in the matter. 37. P. W.3 is Ram Prakash Singh, who is a first cousin of Jai Prakash singh, appellant no.13 and lives in village Bhatauli. In the circumstances he is undoubtedly a competent person on the question of possession. He has, however, stated in the second paragraph of his cross-examination that barti was never in khas possession and that she ,used to settle the land on mani with tenants. This completely destroys the case of Bards khas possession. On the question being further pusued he said that she had possessed the lands khas for two years during which she had her own labourers and arrangements for cultivation. He was, however, not able to name the labourers who worked for her. The said statement of Ram Prakash Singh (P. W.3)aged about 70 years leaves no doubt in the mind that Barti was never in possession at any time after 1.9.1939 and, on the other hand, those statements are indicative of the fact that the case of the respondent that Banwari and the respondent had been coming in possession on the strength of the award, is true. 38. P. W.7 does not appear to have any connection with the cultivation of the lands. 38. P. W.7 does not appear to have any connection with the cultivation of the lands. He does not hold any land on the boundary of any of the lands in dispute. In cross-examination he stated that so long as Barti was in possession she used to get the lands cultivated in khas with her own ploughs and bullocks. This is wholly contradictory to the evidence of P. W.17. 39. P. W.8, no doubt, claims to hold lands on the boundary of two of the plots. It was suggested to him that he had deposed against the respondent in the proceeding under section 188 of the Indian Penal Code and he denied the suggestion but Ext. S-I which is a certified copy of his deposition in that case shows that he had figured and deposed as a prosecution witness in that case against the respondent. 40. P. W.10 admitted that he had no land in any of the Badhars in which the suit lands lie. 41. Two witnesses were examined on behalf of the Barti besides Barti herself in support of the appellants case of possession. They are D. Ws.2 and 3. D. W.2, however, did not state in his examination in-chief that gangadayal was in possession for one year as Sikmidar of Lakshmi Singh as is the case of the appellants. It was only when the cross-examiner asked him about it then he said so. D. W.2, is a priest by profession. His evidence does not show how he is competent to speak about the cultivation of the lands. He stated that Barti used to cultivate the lands with her own ploughs and bullocks. This statement is again contrary to what P. W.17 had said about it. 42. D. W.3 is Sudama Singh who claims to hold land at some distance from the disputed lands. He has stated that prior to the execution of the patta, the Pattadars were in possession for two years as Sikmidars. It has already been pointed out that this is contrary to the case in the plaint. He has further stated that Barti was in khas possession throughout by cultivating the lands with her own ploughs and bullocks which has been falsified by the statement of P. W.17. 43. Mossomat Barti was examined on commission. It has already been pointed out that this is contrary to the case in the plaint. He has further stated that Barti was in khas possession throughout by cultivating the lands with her own ploughs and bullocks which has been falsified by the statement of P. W.17. 43. Mossomat Barti was examined on commission. She too had stated in paragraph 10 of her deposition that prior to the execution of the Patta she had settled the lands in Sikmi with Bhoja Rai, Radhamohan and Lakshmi singh, for a period of two years. It has already been pointed out that there is no such case in the plaint which on the contrary shows that she herself had continued in possession till the execution of the Patta in 1950. I have already commented upon her evidence denying the execution of the agreement to refer the dispute between her and Suchit on one hand and Banwari on the other to the arbitration of Panches. She had come prepared not to tell the truth. She stated that she did not know Suchit. When pressed further she said that she had heard the name of Suchit but she did not know him. Then again she stated that she did not know him. But, she had instituted Title Suit No.59 of 1937 jointly with Suchit and also executed the agreement (Ext. K-I) referring the dispute to arbitration, jointly with him. Her evidence is, therefore, not worthy of reliance. On the other hand, all the witnesses examined on behalf the respondent D. Ws.8, 10, 11, 15 and 18 have supported the case of the respondent that he had been coming in possession all the time as alleged by him. Some of these witnesses have got lands on the boundary of some of the disputed plots while others have got their lands in the close vicinity of the disputed plots. Their evidence is fully supported by the documents and the circumstances discussed above. 44. Some of these witnesses have got lands on the boundary of some of the disputed plots while others have got their lands in the close vicinity of the disputed plots. Their evidence is fully supported by the documents and the circumstances discussed above. 44. Thus on re-appraisal of all the relevant documentary and oral evidence adduced in the case in the light of the probabilities, I have not the least hesitation in holding that the decision of the Additional Subordinate judge that Barti or her Pattadars were not in possession of disputed lands at any time within 12 years of the institution of the suit and that the respondent had perfected his title by continuous adverse possession for more than 12 years in consequence whereof the title of Barti had been extinguished, is correct and that he had rightly dismissed the suit. 45. The appeal already stands abated against appellant no.7 Sipahi singh and respondent no.2 Mossomat Barti. Kashi Nath Singh, appellant no.9 died on 28.10.1972 and no substitution was made in his place. It has been alleged on behalf of the respondent that he has been survived by a widow named Mossomat Sukhiya who is his sole heir and that in view of the fact that she was not substituted in his place, the appeal had abated after the expiry of the period of ninety days of 28.10.1972. On the other hand, it was contended on behalf of the appellants that Sukhiya died about 20 to 22 years ago and that the nearest heir of Kashi Nath Singh was appellant no.6 and that since he was already on record as an appellant it was not necessary for him to be formally substituted in his place, within the period of limitation. Since a dispute had arisen as to who was the legal representative of Kashi Nath Singh, deceased appellant no.9 the court below was directed to determine that fact afer giving opportunity to the parties to adduce evidence on the point. Accordingly, the parties examined witnesses and some documents were also filed. The learned Subordinate Judge to whom the matter had been referred has after a consideration of the evidence came to the conclusion that Sukhiya had died 20 to 22 years ago and that the nearest heir of Kashi nath Singh is his cousin, appellant no.6. Accordingly, the parties examined witnesses and some documents were also filed. The learned Subordinate Judge to whom the matter had been referred has after a consideration of the evidence came to the conclusion that Sukhiya had died 20 to 22 years ago and that the nearest heir of Kashi nath Singh is his cousin, appellant no.6. This finding has been seriously challenged on behalf of the respondent as such it neecessary to appraise the evidence and determine the point. It is not in dispute that Kashi Nath singh had a wife named Sukhiya. All that has been alleged is that she died about 20 to 22 years ago. It is also not in dispute that if that allegation be correct then the nearest heir of Kashi Nath Singh would be appellant no.6. 46. Six witnesses had been examined on behalf of the appellants in support of their contention. The first witness (A. W.1), namely, Awadh Bihari Singh is of Bhatauli. He gave evidence that Sumitra died about 20 to 21 years ago but he does not appear to be a reliable witness, as can be noticed from the statement made by him in paragraph 5 of his cross-examination. It would appear that there was an allegation on behalf of the respondent that Kashi nath Singh had taken out an Insurance policy and that after his death it had been paid to his widow Sumitra which is an alias name of Sukhiya. In order to refute this allegation he went to the extent of saying that Kashi nath Singh who had been insured was a different person and that his fathers name too was Durga Singh as was the name of the father of Kashi Nath Singh, the deceased appellant. He was cross-examined further on this point as to the location of that Kashinaths house with reference to boundaries and he said that he did not know the boundaries. He was not able to say as to when that Kashi Nath Singh had died. Mr. Chatterji frankly contended that he would not urge that evidence showed or proved that there was another kashi Nath Singh son of another Durga Singh. All these indicate that the evidence given by this witness with regard to death of Sukhiya is not true. He was not able to say as to when that Kashi Nath Singh had died. Mr. Chatterji frankly contended that he would not urge that evidence showed or proved that there was another kashi Nath Singh son of another Durga Singh. All these indicate that the evidence given by this witness with regard to death of Sukhiya is not true. So far as the evidence of Ramdeo Pandey (A. W.2) is concerned the learned subordinate Judge has not relied upon it and the comment which I have made with regard to the evidence of this witness also. A. W.3 is Sidh Nath singh not of Bhatauli where Kashi Nath Singh lived but of Kukurbhuka which is about one mile off from Bhatauli. He has been examined merely because he is the Sarpanch of Bhatauli Gram Panchyat. He had also given a certificate Ext. A in this behalf. His cross-examination further reveals that he has no personal knowledge about this matter and that he had given the certificate on the basis of some document which has not been produced. 47. The learned Subordinate Judge had placed considerable reliance on the evidence of Kailash Singh (A. W.4) by reason of the fact that he had given evidence as the brother of Sukhiya. It, however, appears from the statement made by his in his cross examination that he does not know the details about the family of Kashinath Singh although he claims to have attended the Sradh of Kashinath Singh. He was not able to state as to from what other places relations of Kashinath Singh had come on the occassion of sradh of Sukhiya. A. W.5 is a co-villager of A. W.4. His cross-examination also tends to show that he had no personal knowledge about the family of kashi Nath Singh and he admitted that he had not attended the Sradh. of kashinath Singh He went to the extent of stating that invitation had been sent to a. W.4 on the occasion of Sradh of Sukhiya although there is hardly any reason for the witnesses having any personal knowledge about it. He is a Pathak whereas A. W.4 is of a different caste. A. W.5 is one of plaintiffs, namely, Lalan singh. Apart from the fact that his cross-examination indicates that he is not telling the truth, he is a person interested in the matter. He is a Pathak whereas A. W.4 is of a different caste. A. W.5 is one of plaintiffs, namely, Lalan singh. Apart from the fact that his cross-examination indicates that he is not telling the truth, he is a person interested in the matter. It is remarkable that appellant no.6 who is said to be the nearest heir of Kashinath Singh has not ventured to examine himself in support of the allegation that Sukhiya died about 20-22 years ago or that she is not alive. There is hardly any explanation as to why appellant no.6 would have refained from examining himself and laying a claim by pleadging his oath that Sukhiya had predeceased Kashinath Singh and is not alive. On the other hand, the respondent had examined, besides himself, Shyama Dusadh (R, W.1), Hari Kishun singh (R. W.2) Khaderan (R. W.4) of Bhataull in support of his contention that Sukhiya is alive. The evidence of these witnesses appears to receive support from the voters list (Ext. B series ). Ext. B is a voters list of village bhatauli for 1960. Kashinath Singh is mentioned therein at serial no.703 and Shukiya who is mentioned at serial no.710 is mentioned as the wife of kashinath Singh. It may also be mentioned that serial no.702 to 711 are all shown to be residing in house no.204 and amongst them is Dharamdeo Singh, appeliant no.6 at serial no.707 Ext. B (2) is a voters list of Bhatauli for 1971. In that list Kashinath Singh is at serial no.534 and Sukhiya who is described as his wife is at serial no.541 and they had some others including appellant no.6 from serial nos.533 to 545 are shown therein to be living in house no.82. Ext. B-I is a certified copy of the voters list of the said village for 1975. Since Kashinath Singh was already dead his name does not find place in this voters list but Sukhiya is at serial no.543 described as the wife of Kashinath Singh living in the same house no.82 along with appellant no.6 and others. These voters lists clearly show that Sukhiya had survived Kashinath Singh and the evidence of the witnesses for the respondent that she is still alive is corroborated by them. 48. Mr. Chatterjee contended on behalf of the appellants that the voters list had no evidentiary value. I do not think this contention is correct. These voters lists clearly show that Sukhiya had survived Kashinath Singh and the evidence of the witnesses for the respondent that she is still alive is corroborated by them. 48. Mr. Chatterjee contended on behalf of the appellants that the voters list had no evidentiary value. I do not think this contention is correct. He cited the decisions in the cases of Kewal Chand V/s. Samiramal, (AIR 1953 nag.146) ; and Shivram V/s. Shivcharan Singh, (AIR 1964 Raj.126) in support of his contention. There can be little doubt that the voters lists which are public records prepared in accordance with the provisions of the representation of People Act (Act 43 of 1950) and the Rules made thereunder are admissible under section 35 and section 74 (1) (iii) of the Evidence Act as such by virtue of the provisions of section 81 read with section 4 of the Evidence act, the court shall regard the fact entered in the electoral roll as proved unless and until it is disproved. There is hardly anything in the evidence adduced on behalf of the appellants to disprove the facts mentioned above. 49. As to the two decisions cited by Mr. Chatterjee they have been fully considered and distinguished in the case of Kirtan Sahu V/s. Thakur Sahu and others, (AIR 1972 Orissa 158) by a Full Bench of the Orissa High Court which has held that the voters list prepared under the Representation of the People act and the Rules made thereunder are admissible under section 35 and 74 (1) (iii) of the Evidence Act. Thus the said decision fully supports my view.1 have not gone into the detail as to the provisions of the representation of People Act and the Rules made thereunder for demonstrating as to how the voters list has to be considered to be a public record within the meaning of section 35 and public document under section 74 (1) (iii) of the evidence Act, because in that Full Bench case an elaborate analysis of the provisions of the Representation of People Act and the Rules have been made thereunder, as such, if considered necessary, reference may be made to that case. 50. 50. It is, therefore, established that although Sukhiya, the widow of kashinath Singh, is alive she had not been substituted in place of her husband within the period of limitation as such the appeal preferred by Kashinath singh appellant no.2 had abated. The question whether the entire appeal had abated does not arise for consideration as his claim was separate from that of the other plaintiffs covered by his own sale deed as described in schedule II of the plaint. 51. Thus the appeal stands abated against appellants nos.7 and 9 and respondent no.2 and it is dismissed with respect to the other appellants with costs. Appeal dismissed.