JUDGMENT These two analogous appeals, against a judgment of confirmation passed by the Additional District Judge, Alipore raise a legal controversy over the interpretation of a Kabuliyat for the purpose of ascertaining the extent of land settled to the plaintiff appellant on its basis. The case of the parties, shorn of all unnecessary details, are as follows:- 2. The plaintiff appellant and the predecessor of the respondents took settlement of two adjacent pieces of land from the common Zaminder in the year 1936 on the basis of two registered Kabuliyats. The lands settled were the khas land of the Zaminder and the appellant's settlement was earlier. The area of the land mentioned in the appellant's Kabuliyat was three Kathas or more or less 05 acres. On the other hand the area of the land mentioned in the Kabuliyat of the respondent's predecessor was four Kathas or more or less .06 acres. Both the settlees possessed their respective lands and made constructions thereon. The appellant's case is that she made construction on her land leaving a strip of land, 3' x 46' in area, to the Westernmost portion of her land for scaffolding purpose. This strip of land is the disputed land. Her further case is that the respondents started construction on the contiguous west of the disputed land obstructing the natural now of light and air into her house. Thereafter, the respondents trespassed on the disputed land and began to construct a wall there. The action of the respondents made the appellant file two suits––one for declaration of title, recovery of possession and permanent injunction and the other for declaration of easement right and permanent and mandatory injunction. 3. The contention of the respondents is that the disputed strip of land was actually within their Kabuliyat land. In this connection they have asserted that the appellant was claiming more laud than what was settled to her by the Kabuliyat. According to them the area of the land recorded in the R.S. Khatian in the name of the appellant is erroneous as .06 acre of land has been recorded therein instead of .05 acres as mentioned in the Kabuliyat. Consequentially the dispute has converged to the point whether the appellant owns, .05 or .06 acre of land. According to them the area of the land recorded in the R.S. Khatian in the name of the appellant is erroneous as .06 acre of land has been recorded therein instead of .05 acres as mentioned in the Kabuliyat. Consequentially the dispute has converged to the point whether the appellant owns, .05 or .06 acre of land. Both the trial court and the first appellate court have held that the area mentioned in the Kabuliyat should prevail here and the recording of the R.S. Khatian should be ignored. Both the courts have, therefore, dismissed both the suits. The present appeal is against the said decrees of dismissal. 4. On behalf of the appellant Mr. Subrata Roy Chowdhury attacks the judgments of the two lower courts on several grounds. His first ground of attack is that both the trial court and the first appellate court committed error in not considering the recitals of the appellant's Kabuliyat and also the evidence adduced in this regard which raised a substantial question of law. His second ground of attack is that the courts below failed to appreciate the presumption of law attached to a record of rights and. illegally rejected the recording of the relevant record of rights insofar as it related to the area of plot no. 559/1972. His third ground of attack is that both the trial court and the first appellate court failed to consider the legal implication of the local investigation commissioner's report and illegally rejected his finding. 5. As regards the first ground, Mr. Roy Chowdhury argues that both the courts below committed a grave error in taking the stand that the area of the settled land could not be more than 3 Kathas or .05 acre although in the Kabuliyat itself there are clear recitals that the area was given approximately, being more or less .05 acre. He draws the attention of the court to the following recitals in the Kabuliyat :- 6. Ordinarily the above statement connotes that the area mentioned may be more or less depending on actual measurement. It is argued on behalf of the appellant that no measurement was actually made after the settlement in pursuance of the above undertaking given in the Kabuliyat and that as such the actual extent of land of which possession was given was not finally ascertained by measurement. It is argued on behalf of the appellant that no measurement was actually made after the settlement in pursuance of the above undertaking given in the Kabuliyat and that as such the actual extent of land of which possession was given was not finally ascertained by measurement. The trial court dealt with the matter with the following observations:- "P.W.2 Sudhir Chatterjee appears to be a competent man to say about the actual extent of land given to the plaintiff although the P.W.1 has failed to say exactly as to what extent of land was given in settlement to the plaintiff. We should rely solely on the ext. 1 the Kabuliyat in the context of evidence of P.W.1 to arrive at a conclusion about the actual land given to the plaintiff by this settlement. We have already seen that only 3 Kathas or 5 Decimals of land was taken settlement by the plaintiff as per Kabuliyat ext. 1. The plaintiff has not produced any dakhila from the Zaminders to show the extent of land. In the circumstances I have no alternative but to bold that only 3 Kathas or 5 Decimals of land was given in bandobast to the plaintiff.": 7. The lower appellate court has by the large supported the reasoning of the trial court. It has also relied on the area mentioned in Kabuliyat and has held that any other finding to the contrary was not acceptable. As regards the recording in the R. S. Record of Rights showing the area of plot no. 559/1972 as .06 acre, it has opined that this recording must be an erroneous one as the Kabuliyat which is the basis of the entry regarding the area shows only 3 kathas or roughly .05 acre of land was settled. As regards the Pleader Commissioner's report the opinion of the court is that the finding of the report is by no means enough to solve the disputes between the parties as it presupposes the correctness of the r. s. record which has been challenged by the defendants. Thus the entire reasoning of the lower appellate court emanates from an a priori proposition that the area mentioned in the kabuliyat is correct. Thus the entire reasoning of the lower appellate court emanates from an a priori proposition that the area mentioned in the kabuliyat is correct. When the correctness of the area mentioned in the Kabuliyat is itself a matter in issue, the process of reasoning adopted by the 1st appellate court can hardly be said to be a suitable one. 8. That the area mentioned in the Kabuliyat may not be accepted as correct and is capable of variation is explicit from the relevant terms quoted hereinbefore. So the argument that the area cannot be more or less is not a correct one. The question is if from the evidence adduced in the suit it can be held that the plaintiff has been able to prove that the area of the land is actually what she claims i.e. .06 acre. 9. About the oral evidence in regard to the area of the land settled on the basis of the Kabuliyat the most important witness in this regard is P.W.2 Sudhir Kumar Chatterjee. He was present when the land was settled and possession was given to the appellant. He says that three Kathas of land were settled at a jama of Rs.4/- per katha. But he qualifies his statement by saying that the actual land in possession of the different tenants often varied. He gave an explanation for this variation. According to him as the settled land was jungle land exact measurement was not possible. He, however, positively says that the appellant Nani Bala possessed some excess land in addition to the area mentioned in the Kabuliyat. From his entire evidence, however, it is difficult to follow what the basis of his knowledge about this excess land. His evidence at the most proves that the area of the land settled to different tenants varied in spite of specific mention of a particular area in their respective deeds. 10. It is argued by Mr. S. P. Roy Chowdhury on behalf of the respondents that the rent payable by the appellant for her settled land did not vary which tends to prove that the land was actually not in excess. Admittedly the rent payable by the appellant was not enhanced in spite of her claim of possession of some excess land. S. P. Roy Chowdhury on behalf of the respondents that the rent payable by the appellant for her settled land did not vary which tends to prove that the land was actually not in excess. Admittedly the rent payable by the appellant was not enhanced in spite of her claim of possession of some excess land. But it should be considered that the question of enhancement of rent would have cropped up if the land was subsequently measured with a view to fixation of exact rent. There is no evidence that such a measurement was ever made subsequently, though in fact the condition relating to the proportionate enhancement of rent was inserted in all Kabuliyats. Even in the respondent's Kabuliyat (marked ext. A) such a condition was included. The non-enhancement of rent, therefore, is not any conclusive proof that the area mentioned in the Kabuliyat could not vary. This will also be evident from the fact that although in the r. s. khatian the area of the plot in the appellant's possession was found to be .06 acre, the rent was nevertheless left in tact. 11. It appears that a local investigation was held in this case. The commissioner concerned was directed to relay C. S. Plots nos. 559/1972 and 559/1971 to measure the suit land and to ascertain if the suit land was included within c. s. plot no. 559/1972. The commissioner of relayment of the plot has found that the whole of the suit land including the defendant's newly constructed wall is comprised within c. s. plot no. 559/1972. The Commissioner was also directed separately to measure the plaintiff's Kabuliyat land. The Commissioner's report is that the length and breadth of the land being not mentioned as the khas land of the zaminders (now the land settled to the defendants which is in dispute) it was not possible to demarcate the three Kathas of land mentioned into Kabuliyat. He has, however, opined that the land admittedly in possession of the plaintiff is 5.8 decimals and this along with, the disputed 138 sq. feet makes the plaintiffs land as 6.1 decimals which is the Kabuliyat land. The lower appellate court has, however, not accepted this opinion and I have already quoted its observations in regard to the Commissioner's report. 12. feet makes the plaintiffs land as 6.1 decimals which is the Kabuliyat land. The lower appellate court has, however, not accepted this opinion and I have already quoted its observations in regard to the Commissioner's report. 12. The provisions of a local investigation commission have been made in Order 26 Rules 9 & 10 of the Civil Procedure Code. Such a Commission may be issued inter alia for the purpose of elucidating any matter in dispute when the court deems that the issue of such a Commission is necessary for the disposal of any issue local investigation commission differs from other commissions mentioned in Order 26. Such a commission is necessary when oral evidence in respect of an issue is not useful. Thus when the issue is if a disputed land appertains to a particular plot, no amount of oral evidence can decide the point. It can be ascertained only by relying on the relevant map of the plot and showing the position of the disputed land therein. Of course, if the map is not correctly drawn, the entire procedure would be futile. So in order to have a correct and dependable result it must be ensured at the first instance that the map has been drawn up correctly on the basis or an acceptable fixed point and following the correct procedure of survey. Once this is ensured the map cannot be discarded on the basis of collateral oral evidence. The purpose of a local investigation is to show the correct position of a disputed area with reference to an accepted map which is already in existence. 13. In the instant case no ground has been shown to discard the Commissioner's map on technical ground. So the correctness of the map cannot be challenged. The first appellate court has, however, not accepted the evidentiary value of the Commissioner's report as according to it the plan annexed to the report has been prepared on the basis of an official map where the area of plot no. 559/1972 has been shown as .06 acre. According to the lower appellate court the area of the plot has been wrongly recorded as it does not tally with the area mentioned in the Kabuliyat. If this view is accepted, there was really no point in issuing a local investigation Commission. 559/1972 has been shown as .06 acre. According to the lower appellate court the area of the plot has been wrongly recorded as it does not tally with the area mentioned in the Kabuliyat. If this view is accepted, there was really no point in issuing a local investigation Commission. The appellant's case on the other hand is, that the area mentioned in the record-of-rights is correct notwithstanding the recitals in the Kabuliyat. 14. I have already discussed the evidence of P.W.1 who has supported the appellant. His evidence proves that the area of the land in possession of a tenant could vary from that written in the Kabuliyat in possible cases. Mr. Roy Chowdhury arguing for the appellant forcefully points that the learned Additional District Judge committed an error of law by not relying on the R.S. Khatian which was prepared after following the procedure provided in the West Bengal Estates Acquisition Act, 1953 and carried a presumption of correctness. 14A. Sub-section (4) of s. 44 of the said Act provides that every entry in the record of rights finally published under sub-s. (2) including an entry revised under sub-s. (2a), made under s. 42A or corrected under s. 45 or s. 45A shall, subject to any modification by an order on appeal under sub-s. (3) be presumed to be correct. It is certainly not a document of title, nevertheless the title and possession recorded in it shall be presumed to be correct unless proved to be incorrect. It is not for the party relying on the record-of-rights to prove the foundation or basis of the entry, vide Namdev Molla vs. Abdul Gherami (1985) 1 Calcutta High Court Notes 394. It is a legal presumption with all its effects and can be relied on unless it is rebutted by the party who asserts that the presumption is not correct. In that context the question that arises next is, if the respondents have been able to rebut the presumption. 15. The learned Additional District Judge in this Judgment has observed as follows: "It is true that in the r. s. record an area of .06 acres has been recorded in possession of the plaintiff but this appears to be erroneous as the Kabuliyat, which is undoubtedly the basis for the entry regarding the area, shows that only 3 khatas or roughly .05 acre of land was settled. Therefore the entry in the r. s. record regarding the same is found to be without any basis and consequently it cannot be said that the disputed strip of land appertains to the land settled with the plaintiff." 16. From the above observations it appears that the learned Additional District Judge shifted the onus of proving the correctness of the entry in the record of rights on the appellant-plaintiff which actually is against the law. Again in the process of appraising the evidence of the plaintiff in this regard he started from a fixed notion that anything recorded contrary to the area of land mentioned in the Kabuliyat was wrong. When the dispute between the parties is if the area of the settled land mentioned in the Kabuliyat is correct or not such a fixed notion does not evidently help to come to a correct decision. 17. Mr. Subrata Roy Chowdhury cites AIR 1980 SC 1754 (Madan Lal vs. Mst. Gopi & Another) in support of his argument that even a concurrent finding of fact may be assailed in a second appeal if the courts below ignore the weight of prepondering circumstances on the record and allow their judgments to be influenced by inconsequential matters. He also refers to AIR 1988 SC 1858 (Dilbagrai Punjabi vs. Sarad Chandra) wherein the Supreme Court held that the court had a duty to examine the entire relevant evidence on record and that if it refuses to consider important evidence having direct bearing on the disputed issue and the error which arises is of a magnitude that it gives birth to a substantial question of law, the High Court is fully authorised to set aside the finding. 18. Here both the courts below came to the finding that the plaintiff had failed to prove her title to the disputed land. But as analysed above they failed to consider if the area mentioned in the Kabuliyat could be a bit more or less in the circumstances mentioned in the evidence. They failed to consider the presumption of the r. s. record of rights. They also did not consider the implications of the local investigation commissioner's report in the context of the pleadings of the parties. Here both the parties took settlement of two contiguous plots of land from the same landlord on the basis of similar Kabuliyats executed at two different times. They also did not consider the implications of the local investigation commissioner's report in the context of the pleadings of the parties. Here both the parties took settlement of two contiguous plots of land from the same landlord on the basis of similar Kabuliyats executed at two different times. As both the parties had a common boundary which is not in dispute, naturally the Kabuliyat lands could not be relayed. The defendant's Kabuliyat land was not relayed. But even if it was done, the result would have been the same as the said land has also boundaries with reference to neighbouring owner's houses and the khas lands of the Zamindars. In such circumstances the lands recorded to be in possession of the different parties in the revisional settlement have a statutory presumption of correctness which presumption has not been rebutted by the party claiming that the entry in the record of rights is wrong. It is not enough to say that the presumption has been rebutted by the Kabuliyat itself. Since several plots were created out of the original plot the area of each plot as recorded has an important bearing. 19. Mr. S. P. Roychowdhury on behalf of the respondents submits that there being no enhancement of rent it shall be presumed that the area of land mentioned in the Kabuliyat was actually given to the appellant. I have already discussed this aspect of the question. The amount of rent would have been a decisive factor if the land was actually measured subsequently. If possession was given of a bit excess land, there would be no occasion of revision of rent, unless it was subsequently measured again by the landlord. It may be noted that even after vesting when the area was recorded a bit in excess than that mentioned in the Kabuliyat, then also the amount of jama was not enhanced in the Khatian. So the argument of Mr. S. P. Roy Choudhury in this regard cannot be accepted. 20. The next argument of Mr. S. P. Roy Choudhury is that there is no claim of prescription in respect of the, disputed land from the appellant's side. The appellant in this case has claimed title in plot no. 559/1972 which has been recorded in her name. It has been proved that the disputed land appertains to this plot. 20. The next argument of Mr. S. P. Roy Choudhury is that there is no claim of prescription in respect of the, disputed land from the appellant's side. The appellant in this case has claimed title in plot no. 559/1972 which has been recorded in her name. It has been proved that the disputed land appertains to this plot. It is also the appellant's case that the entire plot as recorded belongs to her. In that context claiming of right by prescription does not arise. When the bata plots were created for the first time, it was on the basis of possession of the different owners within the original plot and the relevant plots were demarcated by actual survey. So far as the respondent's plot no. 559/1971 is concerned its area was at first recorded as .04 acre and on an objection being filed it was rectified, as .06 acre (vide Exts. E and F). If the respondent's claim of title over the disputed land be accepted, the said land ought to have been included within their bata plot. As the local investigation Commissioner's report shows that the said land included in plot no. 559/1972 it is evident that the same was not included in the respondent's plot no. 559/1971. How can the revised entry of the said plot be explained? If this revised entry be accepted as correct, it must be held that the respondent's .06 acre of land was outside the appellant's plot. As the respondent's plot has not been relayed, it is difficult to say how the land shown in the said plot was adjusted against the areas of the surrounding plots. Unless it is proved by measuring areas of the respective plots of the parties that the areas shown in the settlement map contrast against each other, it cannot be said that the entry in the appellant's record of right is wrong. 21. Judging the entire facts as analysed above it must be said that the two lower courts did not consider the evidence from the true perspective and committed error on point of law of such a magnitude that this court should in all fairness reverse their findings. 22. In the result S.A. no. 414 of 1980 against Title Suit no. 359 of 1963 succeeds. 23. So far as S.A. no. 415 of 1980 against T.S. no. 22. In the result S.A. no. 414 of 1980 against Title Suit no. 359 of 1963 succeeds. 23. So far as S.A. no. 415 of 1980 against T.S. no. 472 of 1970 is concerned, the appellant plaintiff prayed for declaration of easement right and permanent injunction in respect of the suit land. I find that this appeal was correctly dismissed by the lower appellate court and as a matter of fact no argument was advanced from the appellant's side against this appeal. So this appeal is dismissed. 24. Thus S.A. no. 414 of 1980 is allowed. The judgment and decree of the first appellate court are set aside. Title Suit no. 359/80 is decreed on contest. The plaintiff's title, right and interest as described in the Schedule to the plaint be declared and the respondents are permanently injuncted to raise any constructions thereon. S.A. no. 415 of 1980 is dismissed. Having regard to the facts of the case the parties are directed to bear their own costs in all the proceeding. On oral prayer operation of the Judgments is stayed for two months. S.A. no. 414 of 1990 allowed; S.T. no 415 of 1990, dismissed.