R. DAYAL, J. ( 1 ) JUDGMENT :- This is an appeal against the judgment and decree dt. 10th April, 1985 of the learned Additional District Judge, decreeing the suit brought in the year 1977 by the respondent Shri Rinchen Dorjee for declaration as the owner of plot No. 698 measuring 5. 23 acres under Khatian No. 17 situated at Lingdam, East Sikkim and also for its possession. ( 2 ) THE land in question belonged to late Enchey Kazi. Both the parties claim title to it through his heirs. However, the land remained recorded in the record of rights, in the name of Enchey Kazi for many years even after his death and subsequently was recorded in the name of Tshering Gyamtso, the second son of Enchey Kazi until the respondent got the mutation effected in his name, on an application filed for that purpose in January, 1968 before the District Officer, East. Thereafter, by means of an application dt. 16th May, 1977, appellant 1 challenged the mutation effected in the name of the respondent which resulted in the change of mutation in her name vide order dt. 7th July, 1977 of the District Magistrate, Sikkim passed in Miscellaneous case No. 122 of 1977. The respondent claims title on the plea that the land had been gifted to his grandfather late Dugay Bhutia by late Enchey Kazi and later it passed to him through his father Shri Dorjee Bhutia. He has pleaded peaceful cultivatory possession of his and his family since the year 1938 until 1969 when the appellants started encroaching on about 0. 20 acre of the land. Subsequently, he amended the plaint, with the leave of the Court, so as to claim possession in respect of the entire plot. ( 3 ) ON the other hand, the appellants have pleaded in their written statement filed on 3-9-77, that Saila Kazi, the third son of Enchey Kazi who was looking after the land in question, amongst others, on behalf of the children of his deceased brother Tshering Gyamtso permitted them 26 years back to enjoy the land and to construct thereon a house, and also promised that in due course of time, the land would be mutated in their names and since then they have been in possession of the land. They have alleged that immediately after getting the land, they constructed a temporary dwelling house and two years later a pucca house with corrugated iron sheets thereon. ( 4 ) THE learned Additional District Judge held the respondent to be the absolute owner of the land and also believed the respondent's case about peaceful continuous possession since 1938 and so decreed the suit but without an order as to costs. Findings on both these points have been challenged by the learned counsel for the appellants. ( 5 ) IT may be pointed out at the very outset, that whatever documentary evidence is on record, is of little probative value. The main document produced on behalf of the respondent is the copy from the record of rights (Ex. P-1) showing his title to the land; but this document is also of no value, as shall be pointed out in the later part of the judgment. Therefore, decision of the case rests mainly on the oral evidence adduced by the parties. ( 6 ) THE respondent, in order to prove his case, examined himself as P. W. 1 and two other witnesses. He deposed, in order to prove his title, that the land in question had been gifted to his grandfather Dugay Bhutia by late Enchey Kazi in the year 1938 and after the death of his grandfather, his father Dorjee Bhutia inherited the same and from his father he got it vide gift deed (Ex. P-3) in the year 1945. Though the gift deed (Ex. P-3) would not be of much help to decide the controversy whether it was the respondent's grandfather or the appellants who got the land from Enchey Kazi or his heirs, but it could be of some help to prove the respondent's case, if this document could be shown to relate to the land in question, in as much as it would then show that as far back as 1945 the father of the respondent had treated the land as his own. As admitted by the respondent himself in his cross-examination there is no mention of any plot number in Exhibit P-3. But according to him, the land is covered by item No. 3, which is detailed as under :-"3. Dry Cowshed area seed 22 pathi e :- Jhora w :- Jhora n :- Main path s :- Wet land of Dhanbir. As admitted by the respondent himself in his cross-examination there is no mention of any plot number in Exhibit P-3. But according to him, the land is covered by item No. 3, which is detailed as under :-"3. Dry Cowshed area seed 22 pathi e :- Jhora w :- Jhora n :- Main path s :- Wet land of Dhanbir. "as against this, the boundaries of the land in question as given in the schedule to the plaint are as under :-"east: Foot path and plot No. 697/1069 belonging to the plaintiff but now in the illegal possession of the defendants for which the plaintiff craves leave of the Court to file a separate suit. North : Dry field of Enchey Kazi. South : Land belonging to Enchey Kazi and now being occupied by some Kamis. West: Kulo and Paddy field of Samcheo Bhutia. "it was not disputed at the time of arguments that Jhora is a rivulet. Thus, according to the gift deed two of the boundaries, that is, East and West were natural and are totally, inconsistent with those given in the schedule to the plaint. The respondent did not produce any evidence to reconcile the apparent inconsistencies in the boundaries as given in this document (Ex. P-3) and as given in the schedule to the plaint. Besides, it is recited in the opening portion of the gift deed that all the properties were entered in the records in the name of the executant of the gift deed, that is, the father of the respondent. It was not disputed at the time of arguments that the land in question was never entered in the record of rights at any time in the name of the executant. So this document (Ex. P-3) is not shown to relate to the land in question and, accordingly, is of no consequence. ( 7 ) THOUGH the respondent stated in his statement on oath that the land had been given by Enchey Kazi to his grandfather in the year 1938 by way of oral gift, it is not in dispute that it was never entered in the name of either his grandfather Shri Dugay Bhutia or his father Shri Dorjee Bhutia or even in his own name until the year 1972. Even in the year 1972, it was so recorded on an application having been made by him in the year 1968 and the entry is of little probative value as will be discussed later. It is not understandable that if the land had been gifted to the grandfather of the respondent as far back as 1938 why the same was not mutated in the name of the grandfather or subsequently in the name of the father within a reasonably short period after the making of the gift. This omission about mutation becomes even more significant in view of the admission made by Shri P. Wangyal, (PW 3) the youngest son of Enchey Kazi, in his cross-examination that during those days his father being landlord of the area had himself the power to grant mutation of any land of any person falling within his jurisdiction. It is thus evident that if the land had been gifted to the grandfather of the respondent in the year 1938, it would have been natural that the land had been mutated immediately thereafter in the name of the grandfather. For this departure from this natural sequence, there is no explanation on record. ( 8 ) THE respondent also stated in his examination-in-Chief that he had paid rent in respect of the land in question until the date of his evidence. He also filed certain receipts in support of his statement. But none of these receipts contains any particulars to relate them to the land in question and so they are of no value and the oral testimony about the payment is not credible. ( 9 ) REGARDING possession, the respondent deposed that the land remained in his possession or in the possession of his father and grandfather from the year 1938 till 1969 when the appellate forcibly occupied 0. 20 acre of the land and so he claimed possession only in respect of that much area, that is 0. 20 acre. This statement was made by him on 10th May, 1979. However in his cross-examination on 19th Dec. 1980, he admitted that the entire area of 5. 20 acres was in possession of the respondent. There is nothing on record to explain the wide variance between the statement made by him in the Chief and that in the cross-examination. It was on 14th April, 1981 that an application for amendment of plaint dt. 24th Dec. 1980, he admitted that the entire area of 5. 20 acres was in possession of the respondent. There is nothing on record to explain the wide variance between the statement made by him in the Chief and that in the cross-examination. It was on 14th April, 1981 that an application for amendment of plaint dt. 24th Dec. 1980 was filed by him to claim possession in respect of the entire plot in place of the area of 0. 20 acre claimed initially. To give reason for the amendment, he stated that after the recording of the evidence of the three witnesses produced by him, it transpired that he was out of possession of the entire land. The reason amounts to saying that if the witnesses had not admitted in evidence that the respondent was out of possession in respect of the entire area, he would have continued to restrict the relief of possession only to 0. 20 acre area. It casts a serious doubt on his case that he was ever in possession in respect of any area. Then his case is that he has been in cultivatory possession throughout. If he and his ancestors had been in cultivatory possession since the year 1938 and if he had been dispossessed of the entire area at any time, he would have certainly come to know of the dispossession immediately after the event. Apart from this, the case made out by the respondent in his evidence that the appellants forcibly dispossessed him of 0. 20 acre in the year 1969 is at variance from what was pleaded in the plaint where he said that the appellants "started encroaching upon about 0. 20 acre of the said plot of land. " The allegation that the appellants started encroaching upon about 0. 20 acre of land is inconsistent with the statement made on oath in two respects; first, according to the plaint, the encroachment of 0. 20 acre was not complete in the year 1969 since according to the allegation, the encroachment only started in that year in respect of that area, whereas, according to the deposition, it was complete and, secondly, the allegation about starting of encroachment is different from saying that the respondent forcibly occupied that area. 20 acre was not complete in the year 1969 since according to the allegation, the encroachment only started in that year in respect of that area, whereas, according to the deposition, it was complete and, secondly, the allegation about starting of encroachment is different from saying that the respondent forcibly occupied that area. Furthermore, admittedly no steps were taken by the respondent to get cleared the alleged encroachment; and this conduct of passivity is not certainly consistent with the case either set up in the plaint or made in evidence that the appellants started encroachment on or forcibly occupied 0. 20 acre of land in the year 1969. ( 10 ) IN the cross-examination, the respondent admitted that there are two houses on the land in question. He further admitted that one of the houses was constructed by the appellants and it is a pucca two storeyed structure. The existence of this structure without an action having been brought by the respondent to get it removed is further a silent testimony of the fact that the appellants were in possession of the land in question in their own right and goes a long way to demolish the case of the respondent about his possession. Regarding the other house, the respondent has stated that he himself had constructed it in the year 1967. In the plaint, the respondent did not plead that any house had been constructed by him. In the replication he stated in para 2 that his grandfather had constructed a cowshed in the year 1938 and later his father constructed a pucca house there in the year 1941, which dwelling house was still on the land in question. The respondent did not plead anywhere that he constructed any house on the land in question in the year 1967 as stated by him on oath and he did not state on oath about the construction of any dwelling house in the year 1941 as stated by him in the replication. Moreover, the respondent did not deny in his cross-examination that all the children of the appellants had been born and brought up on the land in question and some of them had even been married from there. Moreover, the respondent did not deny in his cross-examination that all the children of the appellants had been born and brought up on the land in question and some of them had even been married from there. Had the appellants not been in possession in their own right or had the respondent been in possession as alleged by him, the answer would have been in the negative and not of ignorance as given by him. ( 11 ) THE respondent deposed that his grandfather Dugay Bhutia cultivated maize on the land in question and had also planted some pine trees over it. Further he deposed that from the year 1972 he began to cultivate cardamom on the said land and for planting cardamom seedling he engaged one Kunzang Bhutia. But at the same time, he admitted that he could not enjoy cardamom fruits since the appellants began to collect the cardamom fruits forcibly. His statement that he could not enjoy the cardamom fruits further demolishes his case. Had the appellants collected the cardamom fruits of the respondent forcibly, it would have been natural for him to bring an appropriate action for it. The fact that no action was brought goes only to suggest that all this story of cultivation of cardamom is a vain attempt to somehow establish possession. ( 12 ) ONE witness produced by the respondent is P. Wangyal (PW-3) the youngest son of Enchey Kazi who deposed regarding the title and possession of the respondent that the land in dispute had been given to the respondent's grandfather by his father about 40 years back and the same was enjoyed by the respondent's grandfather and later by his father. But in the cross-examination he clearly admitted that he did not know exactly as to which lands were involved in dispute. This robs his statement of its value. Another witness is Kharga Bahadur Rai (PW 2) who was aged 72 years on the date of his evidence and he deposed that when he was 12 or 13 years old, he used to see the grandfather of the respondent enjoying the land in question and also that the respondent planted cardamom seedlings about 8 years back. Another witness is Kharga Bahadur Rai (PW 2) who was aged 72 years on the date of his evidence and he deposed that when he was 12 or 13 years old, he used to see the grandfather of the respondent enjoying the land in question and also that the respondent planted cardamom seedlings about 8 years back. He admitted in the cross-examination that the appellants had their house on the land in question; but could not give any reason for this and so chose to feign ignorance as to how they were in occupation. Evidence of this witness is also not credible. ( 13 ) AS regards the evidence produced by the appellants, appellant 1 Pern Choden bhutiani (DW 3) deposed that she and her husband Tenzing Gyatso used to work in the house of Tshering Gyamtso Kazi, the second son of Enchey Kazi, and her husband once expressed a desire to Tshering Gyamtso Kazi to live separately so that he could look after his family, whereupon the latter suggested that they, that is, the deponent and her husband could live separately near their house so as to be able to keep contact with one another, and for that purpose he gave them the land in question located near their residence. Further, she deposed that the land in question was at that time like a forest and Tshering Gyamtso asked them to improve and cultivate the same as their own and told them that he would get the land recorded in their names in the record of rights. Thereafter, she says, they began to live separately and constructed a house thereon with the help of Tshering Gyamtso Kazi himself who gave them planks etc. , and two years thereafter, they constructed another house there. Further, she deposed that four sons and two daughters were born to her and were brought up on the land in question and two of her daughters and one son got married from there. To give reasons why the mutation could not be effected in her name, she stated that before she could complete the construction of the new house, Tshering Gyamtso Kazi expired following illness. To give reasons why the mutation could not be effected in her name, she stated that before she could complete the construction of the new house, Tshering Gyamtso Kazi expired following illness. Further she stated that after the death of Tshering Gyamtso Kazi, his younger brother Saila Kazi used to come to Lingdam when she used to tell him that though the land in question had been given to her and her husband by Tshering Gyamtso Kazi, yet the same could not be mutated in their names due to the premature death of Tshering Gyamtso Kazi and requested him to get the land mutated in their names but the Kazi told them that since the land was not recorded in his own name, he was not competent to transfer the same in their names and suggested that they should wait till the sons and daughters of Tshering Gyamtso Kazi became major to be able to transfer the land into their names. Another witness produced by the appellants is Shri Bahadur Rai (D. W. 1) who was aged 76 years on the date of evidence. He corroborated the testimony of Pern Choden Bhutiani by stating that he used to see her working in the house of Tshering Gyamtso Kazi as a baby sitter and doing other house-hold work and in lieu of the services rendered by her, Tshering Gyamtso Kazi gave the land in question to the appellants. Further he deposed that Tshering Gyamtso Kazi had himself told him about all this about 30 years back. He also stated that after getting the land in question from the Kazim the appellants constructed their house thereon and that both the houses, a kitchen and cowsheds which exist on the disputed land belong to the appellants and that the respondent or his father, or grandfather was never in possession of the land or of any part thereof. He also stated that there are no pine trees and the respondent never planted any trees. He also corroborated the testimony of the appellants that all her children were born on the said land. Another witness produced by the appellant is Lobsang Bhutia (DW 2) who also corroborated the testimony of the appellant. But he was admittedly not an independent witness having had one or other dispute with the respondent for a long time and, therefore, his testimony need not be referred to in detail. Another witness produced by the appellant is Lobsang Bhutia (DW 2) who also corroborated the testimony of the appellant. But he was admittedly not an independent witness having had one or other dispute with the respondent for a long time and, therefore, his testimony need not be referred to in detail. ( 14 ) AS regards the entry in the record of rights, an application dt. 25-1-1968 (Ex. P-10) was made by the respondent to the District Officer, East District, Gangtok stating that the land in question "was somehow put in the name of Enchey Kazi (Tshering Gyatso Kazi) by the amins at the time of survey" though the land was being cultivated by him and his village dwelling house also stood on that land, and making a prayer for mutation in his name. In this application, he did not state any facts to show how he became the owner. The mention that the land was somehow recorded in the name of Enchey Kazi (Tshering Gyamtso Kazi) did not reflect the true state. Instead of using the expression "somehow", if the case of the respondent was true, he should have stated clearly that the land continued to be in the name of Enchey Kazi since he was the owner of (sic) initially was placed in the name of Tshering Gyamtso Kazi who was the son of Enchey Kazi and the entry reflected the old state of affairs even though the situation had changed on account of the gift having been made by Enchey Kazi in favour of his grandfather in 1938. The respondent was asked vide memo dt. 18th June, 1963 of the District Officer (Ex. P-7), to produce documentary evidence to show that it belonged to him or a no objection letter from Tshering Gyamtso Kazi to say that it could be recorded in his name. Ex. P-5 is the no objection certificate dt. 8th Aug. 1968 by P. Wangyal (PW-3) who is the youngest son of Enchey Kazi to the effect that he had no objection for the transfer of the plot in question and also another plot bearing No. 697 in the name of the respondent, since both the plots had been given by his father Enchey Kazi to the father of the respondent many years back and that both these plots had been by mistake put by the amins in the name of his father. The mention that the land had been given to the father of the respondent is contrary to the case set up by the respondent himself, according to whom the land had been given to his grandfather. Further, this document states that the plots had been put by mistake by the amins in the name of his late father namely Enchey Kazi. If the land in question was standing in the name of Gyamtso Kazi, as was admittedly the true position, the expression that the plot in question was put in the name of his father is certainly incorrect, since Gyamtso Kazi was his brother and not father. Besides, the use of the expression 'put' in the words "these plots were put by mistake by the amins in my late father's name" was inappropriate since at best the mistake consisted in the continuance of the father's name even when the factual position had changed and not in putting the name; for the word 'put' signified as if the name was put for the first time, which was not the factual state according to the case of any of the parties. Perhaps, he was conscious that as brother, his certificate would be of no avail, and so he tried to pass off the certificate as respecting the land recorded in his late father's name. This also explains the reason for the respondent making in his application Ex. P10 the misleading statement that the land was somehow put in the name of Enchey Kazi (Tshering Gyamtso Kazi) by the Amins. When the land was in the name of Gyamtso Kazi the use of the expression that it was in the name of Enchey Kazi was factually incorrect. The fact that the name of the brother Gyamtso Kazi was also placed in brackets was designed to convey that the same individual bore two names, and instead-of explaining the correct position, it was calculated to mislead. All this shows that both these persons were working in collusion to somehow achieve the settled goal. Ex. P-8 is the report dt. 21st Oct. All this shows that both these persons were working in collusion to somehow achieve the settled goal. Ex. P-8 is the report dt. 21st Oct. 1968 of Shri Ganden Bhutia, Mondal, Lingdam block to the effect that while surveying the two plots they had previously been surveyed in the name of the respondent but afterwards the surveyor had put the name of Enchey Kazi whereas the respondent was in fact in possession of the land in question and since there was no dispute, the land might be recorded in the name of the respondent in the "dhadda". The report that this land had previously been surveyed in the name of the respondent is not corroborated by any evidence and is in fact against the case of both the parties according to whom the land had never before been entered in the name of the respondent. The expression that there was no dispute was inappropriate because admittedly no notice had been issued to the appellants. Order sheet of 20-11-71 (Ex. P-12) states as under :-"puc below with notes is (in?) prepages may kindly be perused. The Mondal says that this land belongs to Rinchen Dorjee it is under his possession it may be recorded in his name. Shri P. Wangyal Kazi in whose name it is recorded has also given a no objection letter vide flag 'a' below. If approved, it may be recorded in the name of the applicant after all the khazana is paid in full. Sd/- D. P. Pradhan 20. 11 as proposed Sd/-T. P. Sharma"20. 11 order sheets (Ex. P-12) of 22nd April 1972 and 6th Sept. 1972 are as under :-"since the person in whose name the lands are recorded has no objection in this connection in the name of applicant, it will be allowed only after up-to-date clearance of Khazana of these lands. Hence ask applicant to produce the report from B. L. Mondal of the up-to-date Khazana. Sd/- P. K. Pradhan"22. 4. For perusal pl. Kindly see the report of the Mondal at 'a' below that both the parties have paid the Khazana up to 1970. So he requests for its correction. Submitted for order pl. Sd/- R. Kumari Pradhan 6. 9. Sd/- N. B. Singh 6. 9 Correction be done. Sd/- P. K. Pradhan"22. 4. For perusal pl. Kindly see the report of the Mondal at 'a' below that both the parties have paid the Khazana up to 1970. So he requests for its correction. Submitted for order pl. Sd/- R. Kumari Pradhan 6. 9. Sd/- N. B. Singh 6. 9 Correction be done. Sd/- P. K. Pradhan 6/9" ( 15 ) THOUGH there is a presumption about the correctness of an official act, yet no such presumption is available in the present case regarding the report of the Mondal. The presumption arises because government officials are supposed to act independently without any bias in favour of or against any person, having no personal interest in the matter before them. As admitted by the respondent himself in his cross-examination, the Mondal, Genden Bhutia is his cousin, being the son of the elder brother of his father. In fact, he was not supposed to give a report in whom his cousin was interested. Besides, the order sheets of 20th Nov. 1971 and 22nd April, 1972 (reproduced above) wrongly stated that the land in question was recorded in the name of P. Wangyal Kazi (PW 3) from whom no objection certificate had been obtained, whereas, admittedly the plot was never recorded in his name. It was urged at the time of argument that since Gyamtso Kazi was already dead, the certificate from his brother P. Wangyal could be the basis of the mutation in the Record of Rights. Whether this could be the basis or not is not a question falling for decision by this Court. The question is that there was a misrepresentation of fact that the person who gave the certificate was the same person in whose name the entry was there in the record of rights. This mis-statement averted an inquiry which could otherwise be made whether the certificate given by P. Wangyal Kazi could be acted upon. There is evidence on record that Tshering Gyamtso Kazi had left children who were alive at that time. Appellant No. 1 had deposed that Saila Kazi had told her that the land could not be recorded in the name of the appellants until the children of Tshering Gyamtso became major. She even stated that to her knowledge P. Wangyal never lived at Lingdam and did not even come there at the time of the death of Tshering Gyamtso Kazi. She even stated that to her knowledge P. Wangyal never lived at Lingdam and did not even come there at the time of the death of Tshering Gyamtso Kazi. Even the respondent could not deny in his cross-examination that P. Wangyal Kazi had strained relations with Samten the son of Tshering Gyamtso. Thus the mutation effected in the name of the respondent in the year 1972 was based on the application made by him in the year 1968 containing factually misleading statements, the report of the Mondal who could not be said to be an independent government functionary being the respondent's cousin, the no objection certificate from P. Wangyal again containing factually incorrect statements and the proceedings which also did not lack in misstating facts. To these mutation proceedings, the appellants were no party. Appellant No. 1 Pern Choden Bhutiani stated that in the year 1977 there was a rumour in the village that the respondent had surreptitiously got the land recorded in his name, whereupon she came to Gangtok to inquire about the matter from the Amin and then after getting a copy of the order of mutation she came to know that the respondent had got the land transferred in his name by foul means. Thereafter she moved an application dt. 16th May, 1977 (Ex. P-13) complaining against the mutation in favour of the respondent and praying for the mutation in the name of the applicant, Shri Tenzing Gyatso, her husband, on whose behalf she moved the application stating that the land belonged to the applicant who was in its possession but the respondent had got it surveyed in his name fraudulently and in collusion with P. Wangyal Kazi. Thereafter, the District Magistrate, East Sikkim vide his Order dt. 7th April, 1977 (Ex. P-11) ordered the mutation in the name of appellant 1 Pem Choden Bhutiani. ( 16 ) IT is contended on behalf of the respondent that the order dt. 7th April, 1977 in favour of appellant 1 was passed without affording to the respondent any opportunity to produce evidence. The learned Additional District Judge observed that the District Magistrate who passed the order on 7th April, 1977 did not have the jurisdiction to revise the order passed by his predecessor in favour of the respondent. Nor arguments were advanced in this Court on this question. The learned Additional District Judge observed that the District Magistrate who passed the order on 7th April, 1977 did not have the jurisdiction to revise the order passed by his predecessor in favour of the respondent. Nor arguments were advanced in this Court on this question. But there does not appear to be anything wrong in the successor ordering the correction in the record of rights, on being convinced that the previous order regarding the mutation in favour of the respondent required to be revised. As regards the contention that the order dt. 7th April, 1977 was passed without affording to the respondent any opportunity to produce evidence, it should not be forgotten that before passing the earlier order in favour of the respondent in the year 1972 even, no opportunity had been given to the appellants to produce evidence. Neither the order passed in the year 1972 in favour of the respondent nor the order passed in the year 1977 in favour of the appellants, decided any right of any party. These orders only purported to correct the record of rights. It is contended that the record of rights is evidence to prove the title of the person in whose favour the entry is made and since the entry was made in favour of the respondent in the year 1972, the respondent should be held entitled to the land in question. I do not see any merit in this argument; for there is no logic in preferring the superseded entry to the superseding one. This is even more so when the entire proceedings have been found to be vitiated by misleading statements and report of a biased official functionary. ( 17 ) AN entry in the record of rights is admissible in evidence under S. 35 of the Evidence Act. The principle on which S. 35 is based is that the law reposes such confidence in public officers entrusted with public duties that it is presumed that they will discharge their duties with accuracy and fidelity. As pointed out by the Privy Council in Kesho Prasad v. Mt. Bhagjogna Kuer, AIR 1937 PC 69 at page 76, entries in such Government records are evidence of title mainly because they are good evidence of possession, but if contrary to the facts as to possession at the time they were made they carry little, if any, weight. As pointed out by the Privy Council in Kesho Prasad v. Mt. Bhagjogna Kuer, AIR 1937 PC 69 at page 76, entries in such Government records are evidence of title mainly because they are good evidence of possession, but if contrary to the facts as to possession at the time they were made they carry little, if any, weight. Dealing with the presumption regarding the correctness of such entries, the Supreme Court pointed out in Sita Ram v. Ramchandra, AIR 1977 SC 1712 in para 20 that there is no abstract principle that whatever will appear in the record of rights will be presumed to be correct when it is shown by evidence that the entries are not correct. The decision rendered by the District Officer in the year 1972 ordering the entry in the record of rights in favour of the respondent did not have any relation to the true state of facts. Oral evidence adduced in the case nullifies the entry in the record of rights as showing the state of affairs opposite to the real state of affairs. The respondent himself admitted on 19-12-80 that the appellants were in possession of the whole of the plot though in the examination-in-chief he had stated the possession of the appellants only in respect of 0. 20 acre. The presumption of future continuance is noticed in illustration (d) to S. 114 of the Evidence Act. As pointed out by the Supreme Court in Ambika Prasad v. Ram Ekbal, AIR 1966 SC 605 "in appropriate cases, an inference of the continuity of a thing or state of things backwards may be drawn under this section though on this point the section does not give a separate illustration. " Since there are no facts on record to show that the appellants came into possession of the plot otherwise than as shown by them in evidence, the presumption arises that they were in possession even prior to the year 1969, and the respondent or his father or his grandfather was never in possession. Moreover no notice had been given to the appellants with regard to the mutation proceedings before the entry was made in favour of the respondent. Then this entry was superseded by the entry in favour of the appellants. For all these reasons, the entry in record in favour of the respondent is of no evidentiary value. Moreover no notice had been given to the appellants with regard to the mutation proceedings before the entry was made in favour of the respondent. Then this entry was superseded by the entry in favour of the appellants. For all these reasons, the entry in record in favour of the respondent is of no evidentiary value. ( 18 ) IT would thus appear from the evidence adduced by the parties on record that about 26 years prior to the year 1977, when the appellants filed their written statement, the land in question had been given to them by Gyamtso Kazi and thereafter they constructed two houses thereon where their four sons and two daughters were born and some of them were even married. On the other hand, evidence adduced by the respondent that the land had been given to his grandfather by Enchey Kazi and that he, his father and grandfather continued to be in possession in respect of the whole land since the year 1934 till the year 1969 when the appellants started encroaching on 0. 20 acre of the land is utterly unreliable. ( 19 ) IT was contended on behalf of the respondent that the appellants are not entitled to succeed on evidence produced by them, the same being at variance with their case as pleaded in the written statement and also with that taken before the District Collector, Gangtok in their application (Ex. P-13) moved for the cancellation of the mutation in favour of the respondent and reference was made in this connection to A. Gangadhara Rao v. G. Gangarao, AIR 1968 Andh Pra 291, Ramsurat Devi v. Satraji Kuer, AIR 1975 Pat 168 and State of West Bengal v. Mir Fakir Mohd, AIR 1977 Cal 29. Reference was also made to Om Prabha v. Abnash Chand, AIR 1968 SC 1083 where it was observed that the ordinary rule of law is that evidence is to be given only on a plea properly raised and not in contradiction of the plea. Reference was also made to Om Prabha v. Abnash Chand, AIR 1968 SC 1083 where it was observed that the ordinary rule of law is that evidence is to be given only on a plea properly raised and not in contradiction of the plea. It is true that in the written statement the appellants did not take the plea that the land had been given to them by Tshering Gyamtso Kazi and instead pleaded that Saila Kazi who was looking after the land in question amongst others on behalf of the children of his deceased brother Tshering Gyamtso Kazi had permitted them to enjoy the land and to construct a house on it, with the promise that in due course of time he would get the land mutated in their names. But even according to her evidence, Saila Kazi was not said to be unconnected with the land, because she deposed that though the land had been given by Tshering Gyamtso Kazi himself, the appellants used to tell Saila Kazi when he happened to come to Lingdam once or twice in a year to see the house and children of his late brother Tshering Gyamtso Kazi that the land had not been mutated in their names because of his premature death and make a request to him to get the mutation effected in their names, whereupon Saila Kazi told them that they should wait for the mutation until the sons and daughters of Tshering Gyamtso Kazi became major. She also gave evidence that Saila Kazi had told the appellants that they should continue to look after the children of Tshering Gyamtso Kazi and also to look after their properties. According to her evidence, in one of his visits he had given the appellants some lands of Tshering Gyamtso Kazi to be cultivated by them on adhya basis. It would appear from the evidence that though the land had been given by Tshering Gyamtso Kazi, yet the appellants had to make a request for the mutation to his brother Saila Kazi. The proper plea would have been to say about all these things in detail, but if the plea was drafted with too much of brevity and if it was only pleaded that the land was given by Saila Kazi, who was looking after the children of Tshering Gyamtso Kazi, it was more a matter of ill-drafting rather than of variance. The proper plea would have been to say about all these things in detail, but if the plea was drafted with too much of brevity and if it was only pleaded that the land was given by Saila Kazi, who was looking after the children of Tshering Gyamtso Kazi, it was more a matter of ill-drafting rather than of variance. The matter might have been confused by the person who drafted the written statement by the fact that, as stated in evidence, some other land belonging to Tshering Gyamtso Kazi had been given to the appellants by Saila Kazi himself to be cultivated on adhya basis. It was not in dispute at the time of arguments that the appellants are almost illiterate. Both the appellants were doing house-hold work in the house of others. It appears that they did not have the benefit of expert legal assistance at the time of the drafting of the written statement and whatever was drafted, might not have been read over or explained to them. The reason for the general rule that a party is bound by his pleadings is that if he is allowed to substantiate a case different from that pleaded, his opponent will be seriously prejudiced. But the Court may depart from the strict enforcement of the general rule, if it is satisfied that rigid compliance of the rule will lead to injustice. It was emphasised in Hazi Umar v. Gustadji, (1915) 20 Cal WN 297 that the principle of variance between pleading and proof should not be applied in an abstract way; the whole of the circumstances must be taken into account and carefully scrutinised, as the question is, in the ultimate analysis, one of circumstances and not of law. The essential requirement is that the opposite party must have fair notice of the matter and must have adequate opportunity of meeting it and must not be taken by surprise. It has often been said that pleadings in this country should not be strictly construed. As observed by the Supreme Court in Manjushri v. B. L. Gupta, AIR 1977 SC 1158 pleadings have to be interpreted not with formalistic rigour but with latitude or awareness of low legal literacy of poor people. It has often been said that pleadings in this country should not be strictly construed. As observed by the Supreme Court in Manjushri v. B. L. Gupta, AIR 1977 SC 1158 pleadings have to be interpreted not with formalistic rigour but with latitude or awareness of low legal literacy of poor people. Again it was pointed out in K. C. Dora v. G. Annamanaidu, AIR 1974 SC 1069 that in construing a pleading in this country, the Court should not look merely to its form or pick out from it isolated words or sentences; it must read the petition as a whole, gather the real intention of the party and reach at the substance of the matter. The pleading should be construed liberally. As observed in Chandan Lal v. Amin Chand Mohan Lal, AIR 1960 Pandh 500 every variance between pleadings and proof is not necessarily fatal; and in the absence of any element of surprise or prejudice to the opposite party, the rule of secundum allegata et probata will not be enforced with rigour. In the instant case no prejudice was caused by the variation between the pleading and the proof to the respondent. Even no objection was raised about it when evidence was being led and the variance is, in the circumstances, not fatal to the defence of the appellants. ( 20 ) IN the application (Ext. P-13) dt. 16th May, 1977 moved by appellant No. 1 on behalf of appellant 2 before the District Collector, Gangtok, the plea taken on behalf of the appellants was that late Samcho Bhutia had sold the disputed land to the appellants for a consideration of Rs. 1,000/- through an unregistered sale deed dt. 19-2-1965. This plea is entirely inconsistent with that taken in the written statement and in evidence and this inconsistency was sought to be explained by the appellants in their written statement by saying that the petition writer who drafted the application either deliberately or inadvertently had missed the relevant facts of their claims as pleaded in the written statement and had distorted the fact of the appellants having been cheated by the aforesaid Samcho "into presenting him with customary presents and cash to the value of Rupees one hundred in such manner as if the defendants had bought the land from Samcho. " In her statement on oath appellant No. 1 deposed as DW 3 that this application had been prepared by one Pema Chuten Babu and the contents thereof had not been read over to her by the petition writer before obtaining her signature. Further she deposed that Samcho who is the son of the respondent's father's elder brother and who is related to her as uncle was working as a peon in the Chief Court at Gangtok, and he came to her house one day and told her that he was purchasing the land in question from Saila Kazi whom she told that since she was already in possession of the land, having been given by Tshering Gyamtso Kazi, he could not purchase the same and then Samcho agreed to help her in getting the land mutated in her name if she offered him some gifts and thereafter gifts consisting of one fowl, 5 bottles of liquor, rice etc. worth about Rs. 100/- were given to him. This evidence clearly points out the possibility of mis-statement in the application either by design or inadvertence. At the trial, it was not the case of any party that Samcho was at any time the owner of the land. In view of the evidence produced at the trial, allegations made in the application are of no significance. ( 21 ) LEARNED counsel for the respondent also contends that the finding of the trial Court being based on oral evidence should not be disturbed by the appellate Court and has referred in this regard to Madhusudan Das v. Narayani Bai, AIR 1983 SC 114 where it was observed that when the appellate Court considers an issue turning on oral evidence it must bear in mind that it does not enjoy the advantage which the trial Court had in having the witnesses before it and of observing the manner in which they gave their testimony. It was pointed out that when there is a conflict of oral evidence on any matter in issue and its resolution turns upon the credibility of the witnesses, the general rule is that the appellate Court should permit the findings of fact rendered by the trial Court to prevail unless it clearly appears that some special feature about the evidence of a particular witness has escaped the notice of the trial Court or there is a sufficient balance of improbability to displace its opinion as to where the credibility lies. In Surinder Singh v. Hardial Singh, AIR 1985 SC 89 the Supreme Court pointed out that ordinarily a finding reached on assessment of the evidence particularly when it is oral would not be interfered with but where the Court is satisfied that on account of a wrong approach to a matter, injustice has been done to one of the parties before it, it would not only be within the powers of the Court but it would be its obligation to rectify the mistake and do justice to the party. The view of the trial Court is entitled to weight for the reason that the trial Court had the advantage of seeing the witnesses give evidence and marking their demeanour and as such, if the decision of the case is to depend upon the credibility of the witnesses, the trial Court is in a better position than the appellate Court to make the assessment. In the instant case, the finding of the trial Court was not based on its observation of the manner in which the witnesses deposed but on an erroneous approach as to the element of probability. In support of the finding that the respondent's grandfather got the land in question from Enchey Kazi, the trial Court observed that if it had not been acquired by the respondent through his predecessors-in-interest, then the legal heirs of late Enchey Kazi would have come forward to claim the land from the respondent and that the fact that P. Wangyal the youngest son and the other grown up sons of Enchey Kazi did not come forward to make claim to the land, supported the case of the respondent. But these persons could not make claim to the land even if the land did not belong to the respondent, if the land belonged to the appellants. But these persons could not make claim to the land even if the land did not belong to the respondent, if the land belonged to the appellants. Then the trial Court gave undue weight to the mutation effected in the name of the respondent in support of his title and possession without considering the important features which have been discussed in the earlier part of this judgment, which show that the mutation is not entitled to any weight. The trial Court also found fault with the word used 'permitted' in the written statement and observed in order to negative the case of the appellants that if grant had been given, the word out-right grant or sale could have been used. This observation also points to a wrong approach. It is true that in para 2 of the written statement, the appellants stated that Saila Kazi had permitted the appellants to enjoy the land but at the same time they added that the permission was also granted to construct a house on it and that promise had also been made that in due course of time, land would be got mutated in their names, and also that two years later they constructed a pucca house with corrugated iron sheets thereon. In para 3, they pointed out that the respondents had never been in possession of the land and that the land had been in their unbroken possession for the last 26 years. Reading the written statement as a whole, the inference is irresistible that the appellants meant to say that the land had been given to them as a grant and not on licence. In any case, the land was not claimed by the heirs of Enchey Kazi and so for considering the case of the appellants as against the claim of the respondent, it would not make any difference even if the land had been given to the appellants on licence. Moreover, the judgment of the trial Court does not indicate either expressly or by implication that its finding was based on the demeanour of the witnesses. Rather, the way evidence was recorded piece-meal over several years would negative the possibility of the judgment having been influenced by the trial Court's observations of the manner in which the witnesses deposed. Moreover, the judgment of the trial Court does not indicate either expressly or by implication that its finding was based on the demeanour of the witnesses. Rather, the way evidence was recorded piece-meal over several years would negative the possibility of the judgment having been influenced by the trial Court's observations of the manner in which the witnesses deposed. Evidence commenced on 10th May, 1979 before the Civil Judge, but he could not complete even the examination-in-chief of one witness until 8th April 1980 when the case was transferred to the learned Additional District Judge who completed the statement of that witness on 19-12-80 and also recorded the evidence of one more witness on that date. Thereafter, there was a long gap and the statement of PW 3 was recorded on 29th April, 1983. Thereafter the evidence of the witnesses produced by the appellants was recorded on 10th Aug. 1983, 15th May, 1984 and 5th Sept. 1984. Thereafter the parties were required to submit written arguments and on their submission, oral arguments were heard on 14-2-85 and judgment was delivered on 10-4-1985. Though the judgment was delivered beyond thirty days from the date on which hearing was concluded, no reasons as required by the second proviso to R. 1 of O. XX of the Civil P. C. were given. Besides, the trial did not proceed from day to day or even expeditiously. Though under law, the litigants are entitled to good quality and speedy justice by the active application of judicial mind as to the credibility of witnesses right (sic) as the depositions proceed, and to judgment on points of fact and law either immediately on conclusion of hearing or as soon thereafter as may be practicable when the facts and impressions formed are still fresh in the mind of the judge, yet the parties were deprived of what was their due, for no valid reason, and they got treatment just as raw material for the judicial machine rather than as consumers of justice. In such a situation the trial Court was in no way in any better position in assessing the evidence than this Court even as regards credibility of the witnesses. ( 22 ) IN the result, the appeal is allowed. The judgment and decree of the Trial Court is reversed and the suit is dismissed. The appellants shall get their costs throughout. ( 22 ) IN the result, the appeal is allowed. The judgment and decree of the Trial Court is reversed and the suit is dismissed. The appellants shall get their costs throughout. Counsel fee is assessed at Rs. 1,000/- in each Court. Appeal allowed. 1985 --- *** ---