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2006 DIGILAW 229 (ORI)

Dasarath Singh v. Manvoti Dei

2006-03-24

A.K.PARICHHA

body2006
JUDGMENT A. K. PARICHHA, J. — Aggrieved by the judgment and decree of the learned District Judge, Kalahandi in T.A. No.59 of 1982 con¬firming the judgment and decree passed by the Subordinate Judge, Bhawanipatna in T.S. No.13 of 1981, the appellants have filed this appeal. 2. Appellants 1 to 5 and Late Ghasiram Singh, father of appellant Nos.6 and 7 as plaintiffs, filed the aforesaid suit asking for partition of the suit property described in the sched¬ule of the plaint. The case of the plaintiffs in brief, was that one Ram Singh Beldar, the common ancestor of the parties, had acquired Ac. 38.07 dec. of land including the suit land. On the death of Ram Singh Beldar, his sons Soman Singh Beldar, Rain Singh Beldar and Anjan Singh Beldar remained in joint mess and properties and possessed all the lands of Ram Singh although in the settlement of 1922-23 the said lands were recorded in the names of Soman Singh Beldar and Rain Singh Beldar only as Anjan Singh Beldar was a minor at that time. However during the last settlement held in 1947, taking advantage of the death of Soman Singh Beldar and Rain Singh Beldar and the minor-hood of the plaintiffs, the youngest son Anjan Singh Beldar managed to get the suit land recorded in his name. In spite of such recording of the suit land in the name of Anjan Singh Beldar alone, the par¬ties continued to enjoy the suit property jointly as the property was still joint. On 16.12.1980, Anjan Singh Beldar died survived by his widow and three daughters (defendants 1 to 4 respectively). After the death of Anjan Singh Beldar, these de¬fendants 1 to 4 claimed the entire suit property as their own and refused to give any share in the same to the plaintiffs. The plaintiffs, therefore,filed the suit for partition asking for 2/3rd share in the same. 3. Defendants, who are the respondents in the present appeal filed their written statement denying the plaint allega¬tions, pleading, inter alia, that Ram Singh never acquired the suit land, rather, whatever lands he had left, were surrendered or sold by Soman Singh Beldar and Rain Singh Beldar. 3. Defendants, who are the respondents in the present appeal filed their written statement denying the plaint allega¬tions, pleading, inter alia, that Ram Singh never acquired the suit land, rather, whatever lands he had left, were surrendered or sold by Soman Singh Beldar and Rain Singh Beldar. They claimed that the suit land was acquired by Anjan Singh Beldar and he was the absolute owner in possession of that property and so on his death, they (defendants 1 to 4), as legal heirs of Anjan Singh Beldar, possessed and enjoyed the property as exclusive owner thereof and those lands were also mutated in their names by the Tahasildar, Dharamgarh in spite of objection of the plaintiffs. Defendants, thus, asserted that the suit land is never a joint family property and is not liable for partition and the plain¬tiffs have no share in the same. 4. Plaintiffs examined five witnesses and defendants examined one witness. The parties also filed documents in support of their respective claim. 5. Learned trial Court framed six issues and considering the oral and documentary evidence on record, decided all the issues in favour of the defendants and dismissed the suit on con¬test. The present appellants filed an appeal bearing T.A. No.59 of 1982 in the Court of learned District Judge, Kalahandi, basi¬cally assailing the findings of the trial Court on issue Nos.1 to 3. Learned District Judge after considering the submissions of the parties and reassessing the evidence on record, confirmed the judgment and decree passed by the trial Court. Aggrieved by those orders of the Courts below, the appellants have preferred the present appeal. 6. Taking note of the plea of the appellants that in the R.O.R., Ext.1, the disputed property has been recorded as joint family property and in Ext.2, the subsequent R.O.R., the same property has been indicated as property of the defendants to the exclusion of the plaintiff, the following substantial question of law was formulated for consideration in this appeal. “Whether the presumption available to the record-of-rights of 1922 would have no force in the face of the presumption to the record-of-rights of 1947 (Ext.2) ?" 7. Section 13 of the Orissa Survey and Settlement Act, 1985 speaks about presumption as to final publication and correc¬tion of R.O.R. Sub-section (3) of the said Section contemplates presumption attached to the entries of previous R.O.R. and the en¬tries of subsequent records of rights. Section 13 of the Orissa Survey and Settlement Act, 1985 speaks about presumption as to final publication and correc¬tion of R.O.R. Sub-section (3) of the said Section contemplates presumption attached to the entries of previous R.O.R. and the en¬tries of subsequent records of rights. Section 13 of the Orissa Survey and Settlement Act reads as follows : "13. Presumption as to final publication and correction of record of rights- (1) Any record-of-rights prepared and finally published under this Chapter or a certified copy thereof or extract therefrom shall be conclusive evidence of such publica¬tion. (2) The Government may by notification declare with regard to land in any local area or village that record-of-rights has been finally published and such notification shall be conclusive evidence of such publication. (3) Every entry in a record-of-rights so published shall be evidence of the matter referred to in such entry and shall be presumed to be correct until it is proved by evidence to be incorrect; Provided that, if any entry in a record-of-rights is altered in a subsequent record-of-rights, the later entry shall be pre¬sumed to be correct until it is proved by evidence to be incor¬rect, but the previous entry shall be admissible as evidence of the facts existing at the time such entry was made.” The provision in Sub-section (3), therefore, clearly says that the later entry shall be presumed to be correct until it is proved by evidence to be incorrect and the previous entry shall be admissible as evidence of facts existing at the time, such entry was made. Several decisions of this Court and the apex Court are also available in this regard. 8. Several decisions of this Court and the apex Court are also available in this regard. 8. In the case of Raja Brajasunder Dev v. Patit Paban Nath, Vol.15 1949 CLT 114, the following observation finds place regarding presumption available to the old and new R.O.R. “Where there was a conflict of entries made in the Provin¬cial and current Settlement, while it is to be presumed that the previous entry is a correct description of the facts existing at the time such entry was made, in case of conflict between the previous entry and a later entry the later shall be presumed to be correct.” Similarly in the case of Duryodhan Kar and another v. Braja¬sunder Deb, AIR (36) 1949 Orissa 31, on the self-same point, the fol¬lowing observation is noted : “The latest settlement entry will have the statutory pre¬sumption of correctness until the contrary is established or until it is shown to be incorrect. With regard to the previous survey entries,they shall be pieces of evidence of the facts as they existed at the time. The previous survey entry is no evi¬dence of the state of things that existed at the time of the later entry. The party challenging the correctness of the latest entry will have to establish that it is incorrect.” Similarly in the case of Shri Durga Singh of Solon v. Tholu and others, AIR 1963 Supreme Court, 361, the apex Court also made the following observation: “x x x Where the entries in the record-of-rights are relied on and there is a conflict between them, it is the later entry which must prevail. x x x” 9. From the above noted observation of the Courts and from the contents of Section 13(3) of the Orissa Survey and Settlement Act,it is clear that the presumption of correctness shall be attached to the later settlement entry till such presumption is dispelled or rebutted by convincing evidence and wherever there is conflict between the entries made in the previous settlement records and subsequent settlement records, the previous survey entry will not be evidence of the state of things that existed at the time of later entry and the party challenging the correctness of the latest entry will have to establish that it is incorrect. 10. In the present case, the suit lands admittedly stand recorded in the name of the defendant-respondents in the records of 1947-48 settlement. 10. In the present case, the suit lands admittedly stand recorded in the name of the defendant-respondents in the records of 1947-48 settlement. The plaintiff-appellants challenged the correctness of such entry in Ext.2 on the plea that taking advan¬tage of the death of Soman Singh Beldar and Rain Singh Beldar and the minor-hood of the appellants, Anjan Singh Beldar got the suit land recorded in his name. It was also claimed by the appellants that the lands recorded in Ext.2 stood recorded in the names of Soman Singh Beldar and Rain Singh Beldar in the previous settle¬ment of 1922-23, Under Ext.1. Since the appellants challenged the correctness of the later entry available on Ext.2, burden was on them to show that the lands noted on Exts. 1 and 2 are one and the same and that Anjan Singh Beldar got the lands recorded in his name in the later settlement by playing fraud. In this regard, the plaintiff-appellants examined P.W.3 to establish that the lands recorded in Exts.1 and 2 are the same lands, but the Courts below discarded the evidence of this witness on the ground that he is not a qualified and reliable witness. The very statement of P.W.3 shows that he could not establish his qualification as survey knowing person, could not say if the maps which he used were correct and authenticated ones and admitted that the khata number,maps etc. were supplied by the plaintiff-appellants and he did not examine the correctness of those information and maps.In fact, he admitted several mistakes in his own report.With such evidence and admission of P.W.3, the observation of the Courts below that P.W.1 is not a technically qualified and reliable wit¬ness, cannot be said to be unfair and perverse. A plain reading of the contents of Exts.1 and 2 would show that the total extent and descriptions of the lands are different. In absence of any clear evidence of expert, there was no scope for the Courts below to accept that lands mentioned in Exts.1 and 2 are one and the same. There was also no other credible evidence to establish that the suit lands were ever owned,possessed by the plaintiff-appellants or their predecessors in interest. In such a situation, the issue of presumption attached to the previous settlement records of 1922-23 becomes academic. There was also no other credible evidence to establish that the suit lands were ever owned,possessed by the plaintiff-appellants or their predecessors in interest. In such a situation, the issue of presumption attached to the previous settlement records of 1922-23 becomes academic. The later settlement records show that the suit lands stand recorded in the name of Anjan Singh Beldar and the same presumption having not been dispelled by any reli¬able evidence, the presumption of correctness of that entry will continue in favour of the respondents. 11. The factual findings on the issue by the Court below are concurrent and they have not been shown to be capricious, unfair or against the materials on record and so, the same cannot be reopened by this Court of second appeal. The legal questions raised about the presumption attached to the settlement entries of 1922-23 have already been answered against the appellants. So, there is hardly any scope of upsetting the findings of the Courts below. Consequently, this appeal is found to be without any sub¬stance and is dismissed on contest with cost. Appeal dismissed.