Decided on February 28,1955

CHAMPA LAL Appellant


- (1.) THIS is the defendants' second appeal against an order of the Divisional, Commissioner, Kotah, dated 23. 9. 53 a suit for division of a holding.
(2.) ONE Bharmal was recorded as a khatedar of certain lands in villages Kishendas and Vinayka, Tehsil Itava. On the death of Bharmal, his land in village Vinayka measuring 49 bighas 12 biswas was mutated in the name of his son Champa Lal, and his grand sons Baijnath and Gopal, one-third each on 14. 3. 44 through Intkal No. 748. On 5. 7. 52 an application was filed by Baijnath the grand son of Bharmal for the division of the holding in village Vinayka amongst the co-sharers. This was resisted by the appellant Champa Lal, ONE of the objections raised by Champa Lal was that all the lands held by Bharmal had already been partitioned by him in his life time and that the land in dispute which was situated in village Vinayka had been (exclusively allotted to him and that he had been in continuous possession thereof for about the last 15 years, to the exclusion of the other co-shares, It was, therefore, urged that the claim of the respondent for division was not tenable. The trial court framed a number of issues including the one touching this point and after recording evidence of the parties ultimately held that Baijnath was entitled to one-third share of the land in dispute and that the remaining two-third should be equally distributed between Champa Lal and Gopal. On appeal this decision was affirmed by the Divisional Commissioner, Kotah. Hence this second appeal before us. We have heard the counsel for the parties and have also examined the record of the case. Shri Govind Prasad argued before us that Intkal No. 748 whereby the names of both parties were mutated in place of Bharmal in respect of the holding in dispute was attested at the back of his client which contravened Rule 39 of the Kotah State Revenue Circular No. 2 and as such it was inoperative against him. We have examined this intkal. It is clear from the report of patwari dated 5. 1. 54 that the intkal proceedings started at the request of Champa Lal, Baijnath and Gopal and it was stated in the report of the patwari that all these three persons were entitled to equal shares in the holding. The Tehsildar. after going through the usual procedure ordered entries in the name of all the three persons and necessary entries were made in the Revenue Records thereafter during the past 9 or 10 years. Since in the annual Record the names of all these parties have been entered in respect of land in dispute and the same have never been contested before, it raises a strong presumption in favour of Baijnath and it should not now be open to the appellant to question these entries at this late stage. If however, the appellant thought that he was entitled to the land in dispute to the exclusion of others it was open to him to obtain a declaration in his favour from a competent court,. While arguing before us, Shri Govind Prasad raised another point, namely that the possession of his client having been older than 12 years, it would be considered as adverse to than of the respondents and as such the plaintiff respondents' suit for division of holding should fail on that ground. We are afraid there is no substance in this contention. This point was never raised specifically by the appellant either in his written statement or at any stage before the lower courts. As observed in A. I. R. 1954, Supreme Court 758 (Sheodhari Rai vs. Suraj Prasad Singh) "the court cannot on failure of the defendant to prove his case, make out a new case for him which is not only not made in the written statement but which is wholly inconsistent with the title set up by the defendant". In the result, we see no reason to inter-fere with the concurrent finding of the lower courts. The appeal is, hereby rejected. .;

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