Decided on June 18,1960

MAKHAN Appellant


- (1.)THIS is an appeal against the order of the Sub-Divisional Officer, Nawalgarh dated 22. 6. 59 in a matter for correction of entries in the Khasra Girdawari for Smt. 2014 about Khasra No. 243 measuring 8 Bighas and 14 Biswas of village Kari, Tehsil Jhunjhunu.
(2.)WE have heard the learned counsel for the parties and examined the record also. The respondent applied for correction of entries with the allegation that he had been all along cultivating 2 Bighas and 18 Biswas out of the above Khasra Number and only 5 Bighas and 16 Biswas were being cultivated by the appellant but that the Patwari had wrongly entered only 2 Bighas and 4 Biswas of the land to be in his possession and 6 Bighas and 10 Biswas to be in possession of the appellants. This was denied by the appellant who contended that he had been holding and cultivating 6 Bighas and 10 Biswas of the land and it was only the remaining one which was being cultivated by the respondent. The learned Sub-Divisional Officer after recording the evidence of the parties passed an order that the entries be corrected as one third or 2 Bighas and 18 Biswas of land to be under cultivation of the respondent and two third i. e. 5 Bighas and 16 Biswas to be in cultivation of the appellant. And hence this appeal.
We have gone through the evidence produced by the parties ourselves as a court of fact in this appeal. We find that the respondent has himself produced a copy of Khasra Girdawari for Samvat 2009 to Samvat 2014 marked Ex. P/1. It contains in its previous eight columns the entries of Jamabandi, which is the basic record so far as the tenancies and subtenancies are concerned. In column 6 of this Ex. P/1, the appellant's father-has been entered as three fourth sharer and Bhanwar Singh the respondent only as one fourth sharer. These entries continued unchanged in Samvat 2009 and Samvats 2010 and 2011. It is for the first time in Samvat 2012 that the father of the appellant has been shown as two-third sharer and the respondent as one third. In Samvat 2013 this very entry continued and in Samvat 2014 the appellant was entered as stated above to be cultivating 6 Bighas and 10 Biswas of land and the respondent as 2 Bighas and 4 Biswas. Area 2 Bighas and 4 Biswas in one-fourth of the total area of the Meld i. e. 8 Bighas and 14 Biswas; and 6 Bighas and 10 Biswas is three-fourth. Thus the entry in Samvat 2014 is the same as it was in the Jamabandi. It would again mean that the very entry continued to exist except for the years Samvat 2012 and 2013 where it was shown to be two third in favour of the appellant and one third in favour of the respondent. How this change occurred against the continued entries in the previous years has been explained by the respondent with the production of a witness Raghubir Saran, who had remained a Patwari of this village in Samvat 2012 but who was under suspension at the time he appeared as witness. He has stated that he made the entries in Samvat 2012 in the presence of the parties but has, at the same time, stated that the 'chamars' i. e. the appellant bad stated that his land was more. He did not have the Khasra Girdawari before him while giving the statements and has deposed all what he has said from memory. He has also clearly stated that he did not know whether a Girdawari Slip had been given to the appellant or not for that year. In view of all these circumstances it would not be right to believe this Patwari that he made the entry for Samvat 2012 in presence of the parties. Even if he be taken to speak truth so far as this point is concerned, his deposition that the appellant had objected at/out the area and that he did not remember whether he had given a Girdawari Slip to the appellant or not would belie the statement that he had made all these entries with the consent of the parties or according to their changed position specially when he has also stated very clearly that he did hot make the entry after actually surveying the area. His statement that the Naib-Tehsildar had visited the site and having got the area surveyed, signed the entry made by him and that he had entered the same in his diary of events cannot also be believed because neither the diary of events has been produced nor the Naib-Tehsildar has been produced to support this deposition. As against it, there is the statement of Mehboob Khan Patwari employed in this village during Samvat 2014 who has stated that he made the entries in presence of both the parties as well as the Patels and Chaudhries of the village. It is also revealed by the statement of Ghisa that this Patwari had actually measured the area correctly at the protest of the appellant that his land was more. The other witnesses do not state specifically as to what was the area actually cultivated by the parties during the year under dispute. Column 6 of Khasra Girdawari is meant for entering the name of a tenant holding land and liable to pay rent therefor vide Rule 74 (1) of the Rajasthan Land Revenue (Land Records Rules) 19v7; and the entry therein is vide Rule 64 (iv) is to be copied from the last Jamabandi. By this very Rule 64 (5) as well as Rule 87, all changes occurring during the subsequent four years are to be entered in columns 16, 24, 32 and 40 of the Khasra Girdawari. And in case no change has occurred, the Patwari is required to right 'badastoor'. Whenever any such change occurs vide Rule 51 (iv) (13) the Patwari is required to record the same in the diary of events kept with him vide Rule 51 (i ). If any change has taken place in Samvat 2012 in the rights of the parties as tenants of the disputed land, it should have been so recorded in the diary of events by the Patwari Raghubir Saran making the entry for Samvat 2012. This Patwari has however nowhere stated that he made such a record in the diary of events. What he stated was only this that he recorded the visit of the Naib-Tehsildar in connection with the checking of the Khasra Girdawari of his circle, in his diary of events. A change made against the entries of Jamabandi in such circumstances cannot be taken to be a sure guide, as has been done by the learned Sub-Divisional Officer to decide a dispute of entry for Samvat 2014. A perusal of his judgment goes to show that he had arrived at the finding that as he has done mainly on the basis of the evidence given by Patwaris Raghubir Saran and Mehboob Khan and D. W. Ghisa read with the copies of Khasra Girdawari and Girdawari slips produced. He has observed that from the statement of Ghisa it appeared that it was not Mehboob Khan Patwari who had made the entries for Smt. 2014, after actually surveying the area shown by each party at the spot, because this witness has deposed that that Patwari had since been transferred. While coming to this conclusion, the learned Sub-Divisional Officer has failed to appreciate that both Ghisa and Mehboob Khan had been deposing before him not in Samvat 2014 itself but long after that. Mehboob Khan's statement has been recorded on 13. 5. 59, when he had himself stated that he was a Patwari in village Kari in Samvat 2014. Similarly Ghisa's statement has been recorded on 22. 4. 59 i. e. in Samvat 2016 when the event about which the evidence was being taken related to Samvat 2014. The Gasht Girdawari slips, excepting the one alleged to have been issued by Patwari Raghubir Saran (Ex. P/2) but the copy of which has not been proved to have been issued even to the appellant, do not contain the shares of the parties in the tenancy or the area actually cultivated by them in those particular years. The learned Sub-Divisional Officer has, therefore, not only failed to appreciate the law correctly in this behalf but has also mis-appreciated the whole evidence produced before him. An entry in the preceding years can raise presumption in favour of a party. But it cannot act as more than a presumption. It can always be rebutted by appropriate evidence. In this case, it is, in our opinion, clear from the discussion made above that the entries in Samvat 2012 did not appear to have been made in accordance with formal procedure prescribed by law, and when it is so, then it cannot be taken to be a sure guide for deciding the disputes in subsequent years. The claim of the respondent has been belied by the actual state of affairs found on the site in the course of preparation of Khasra Girdawari by the Patwari. Besides, it is also belied by the entries in Jamabandi as reproduced in column 6 of the Khasra Girdawari produced by himself (Ex. P/l ). Under the circumstances, the learned Sub-Divisional Officer should, instead of having been guided by the entries in the preceding years, have taken into consideration all the evidence produced by the parties as well as the circumstances attending thereon and then given his finding.

In view of what has been discussed above, we feel no hesitation in observing that the entries made in Smt. 2014 were quite correct and did not deserve to be amended as has been ordered by the learned Sub-Divisional Officer. We, therefore, accept this appeal, set aside the orders of the learned S. D. O. and Order that the application of the respondent for the correction of the entries for Samvat 2014 shall stand rejected. .


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