Decided on March 24,1960

BAGHELIJI Respondents


Sarjoo Prosad, C. J. - (1.)THIS is an appeal under sec. 66 of the Ajmer Abolition of Intermediaries and Land Reforms Act (III of 1955 - hereinafter called the Act ). The appeal has been presented by the Collector of Ajmer against the order of the Compensation Commissioner, Ajmer, dated 29th June, 1956.
(2.)IT appears that Shrimati Bagheliji, widow of Thakur Banspradeep Singhji of Sawar, filed a claim petition under sec. 10 of the Act claiming as Guzaredar of villages Motolao, Gorda, Kusaitha, Udai Sagar, Surapura, a hamlet of village Piplia, and an area of 125 bighas comprised in Khasra No. 1152 in village Sawar. According to her these villages had been granted to her by way of maintenance by her husband Thakur Banspradeep Singh of Sawar. Under the terms of the Act, "guzara" means a fixed cash annuity or a specific area of land in an estate granted by an intermediary for the maintenance of the younger members of his family or other relatives and dependants. , and as such she was estate-holder. Her claim was resisted on behalf of the Collector with reference to villages Motolao, Gorda and Khasra No. 1152 in village Sawar on the ground that these lands did not form a part of her Guzara. The Compensation Commissioner allowed her claim in respect of the other areas except Gorda and Khasra No. 1152 of village Sawar, comprising an area of 125 bighas. In other words the objection of the Collector succeeded in regard to these two properties; but he failed to convince the Compensation Commissioner that village Motolao was not a part of the Guzara as claimed by Shrimati Bagheliji. IT is only in respect of this property that the dispute is now confined is this appeal.
The Compensation Commissioner held that the ground on which the claim was resisted by the Collector was that village Motolao as also the other two properties viz. , village Gorda and Khasra No. 1152, were not entered in the record-of-rights in the name of the Guzaredar, and, therefore, her claim was untenable. The Commissioner upheld the objections in respect of the other two properties, because he found no reason to think that the entry in the record-of rights was incorrect; but so far as village Motolao was concerned he was of opinion that the entry in the record-of-rights carried only a presumptive value, and that presumption had been amply rebutted by the fact that from 1947 to 1952 the estate of Sawar was in the possession of the Court of Wards, and the Court of Wards had not taken possession of village Motola because it was apparently given as Guzara to this lady.

In appeal it is contended by Shri R. A. Gupta for the Collector that the order of the Commissioner is erroneous. He points out that under sec. 65 of the Act, the entry in the record-of-rights should be held to be conclusive, and he lays stress upon the marginal note to the section. The section as given in the Act runs thus: - "65. Entries in record of rights conclusive - Every entry in the record of rights shall for purposes of this Act, be presumed to be correct. " In our opinion, the decision of the learned Commissioner is correct. It is important to remember that in the body of the section itself the word "conclusive" does not occur. All that the section says is that it shall be presumed to be correct; but it nowhere says that the entry should be conclusive, and the meaning of the section should not be controlled by the marginal note where the word "conclusive" has been used. In our opinion, this is the correct position in law. It is really the language of the section which has to be interpreted, and the marginal note does not necessarily control the meaning of the section. Here the section says that the entry in the record-of-rights shall for the purposes of the Act be presumed to be correct. It does not say that the entry shall be conclusive evidence of whatever is entered in the record-of-rights. It is true that the word "conclusive" occurs in the marginal note; but that does not carry us very far, when the section itself does not say so. If simply the entry in the record-of-rights were held to be conclusive, then any enquiry under sec. 20 of the Act would be fruitless and nugatory. Therefore, the section cannot be so interpreted as to defeat the other provisions of the Act or render them otiose. It must be held in the circumstances that the use of the expression "conclusive" in the marginal note appears to be erroneous. As pointed out by the Supreme Court in Nalinakhya Bysack vs. Shyam Sunder Haldar (1): - "apart from the question whether the marginal note can at all be referred to in construing the provisions of a section of an Act, it is quite clear, on the authorities, (that the marginal note cannot control the meaning of the body of the section if the language employed therein is clear and unambiguous. If the language of the section is clear then it may be that there is an accidental slip in the marginal note rather than that the marginal note is correct and the accidental slip is in the body of the section itself. "

The record-of-rights has been prepared under the Ajmer Tenancy and Land Records Act, 1950 (No. XLII of 1960 ). Section 132 of that Act requires, inter alia, that there shall be a record-of-rights for each village, or if a Mahal or other unit formed under sec. 125 consists of two or more villages or portions of villages, the record may be prepared for each such village or portion separately. It shall include a Khewat, which shall comprise, amongst others, a register of all the proprietors in the village, including the proprietors of specific areas, and in estates mentioned in the Second Schedule, maintenance-holders; find there will also be a Khatauni and a Wajib-ul-arz. Now the Second Schedule shows that Sawar is mentioned as one of the villages in respect of maintenance-holders. Under sec. 136 of the said Act, on which Shri R. A. Gupta relies, it is provided that every person, obtaining possession by succession or transfer of any proprietary or other right which is required by this Act or any rule made thereunder to be recorded in any register prescribed by clause (i) or clause (ii) or sub-sec. (2) of sec. 132 shall report such succession or transfer to the prescribed authority. Shri R. A. Gupta contends that it was the duty of the claimant to get this village recorded in the record-of-rights by furnishing the necessary information required by sec. 135, and since this was not done, the record prepared should be held to be final and binding. Now, this Act came into force on the 12th of May, 1950. We find that from 1947 to 1952, as held by the learned Commissioner, the estate was in the possession of the Court of Wards, and there is nothing to show in what manner the record-of-rights was prepared, or whether the claimant was ever called upon to furnish the necessary information. As a matter of fact even from before 1947, she was in possession of this property in lieu of her maintenance; and it is nobody's case that any transfer had been made to her after the said Tenancy Act came into operation. All that apart; even assuming that there was failure on the part of the person concerned to furnish the necessary information as required by sec, 136, that would not preclude her in any subsequent proceeding from questioning the correctness of the entry if actually there is ample evidence to support her claim of title to the property. This clearly follows from sec. 140 of the Tenancy Act itself, which provides for the value to be attached to the entries in the record-of-rights. This section very clearly says that an entry made in the Khewat or Khatauni under the order of the Sub-Divisional Officer or the Collector in a contested case shall be presumed to be correct until the contrary is proved. So the presumption is not conclusive presumption. Even when there has been a dispute, and the matter has been decided before the officer making the entry, it would be open to the party affected by the entry to show in a subsequent proceeding that the entry was incorrect, and rebut the presumption of correctness which otherwise attaches to the entry in question. This section, therefore, supports the view taken by the learned Commissioner that the entry cannot be held conclusive under sec. 65 of the Act.

Here we find that the Commissioner has relied upon the circumstance that the Court of Wards was not in possession of this village Motolao because it was in the Guzara of the claimant. The present successor to the Istimrardar has been examined in the case, and he also supports the position that village Motolao was in the Guzara of the claimant. Of course the learned Commissioner has not merely relied upon the statement of the Istimrardar, but has taken the additional fact into consideration that the Court of Wards did not have possession of this village as a part of the estate of the Istimrardar. We see no reason to interfere with the decision of the learned Compensation Commissioner.

The appeal is accordingly dismissed with costs. .


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