Decided on January 27,1967

BHERUN LAL Appellant
NARBADA Respondents


- (1.)THIS second appeal under Sec. 224 (2) of the Rajasthan Tenancy Act. 1955. , against the decree and judgment of the Revenue Appellate Authority, Kota, dated 4. 12. 1963, has arisen under the following circumstances.
(2.)THE respondent-plaintiff Mst. Narbada brought a suit for division of holdings under Sec. 53 of the Rajasthan Tenancy Act, 1955, alleging that the land in dispute consisting of 13 fields and measuring 226 bighas, 5 biswas was in the joint khata of the appellant-defendant Bherun Lal and herself. She was the step-mother of the appellant-defendant and had been living with him since the death of her husband. THE appellant was however cultivating the entire land. About four years ago the plaintiff-respondent had been turned out and the appellant was not giving her any share. For these reasons, she wanted the division of the holding in question. THE suit was resisted by the appellant on the ground that his father was legally married to his mother Mst. Bhori, but after her death the respondent-plaian-
Tiff was only kept for managing the house-hold and there was no proper marriage. His father died in St. 2005 Kartik Badi 10, corresponding to 1948 A. D. , and that he was the sole surviving successor to his father. He was at that time only aged 15 and the respondent may have by taking undue advantage of his minority, appointed herself as his guardian, about which he had no knowledge, but under sec. 46 of the Circular No. 3 of the Kota Darbar he was the sole successor and that the respondent was not entitled to any share in the land in dispute. On the basis of these pleadings, the trial court framed four issues decreeing the suit vide his order dated 19. 10. 1960. An appeal was filed in the court of the Additional Commissioner, who accepted the appeal, set aside the decree of the lower court and remanded the case with the direction that the State as the landholder may be impleaded as the necessary party. The trial court, again, passed the order dividing the holding and issuing preliminary decree for possession on 29. 4. 1963. An appeal was filed by Bherunlal and the Revenue Appellate Authority held that from Ex. P. 1, the entry in the settlement record, it was amply proved that the land is entered in the cultivatory possession of both Bherunlal and his mother in half share. He refused to consider the plea that at the time of death of Bherunlal's father, he was a minor and the respondent got her name entered wrongly. He further held that when according to his own statement the appellant knew that the land in dispute was entered in the settlement record, both in his name and that of the respondent, it is not understood why he did not take any steps to get the record corrected. He further held that his objection now in respect of wrong entries has no meaning. For these reasons, the appeal was rejected. Aggrieved by this order of the Revenue Appellate Authority, the appellant has come in second appeal before us.

We have heard the counsel for the parties and have also gone through the record. The main contention raised by the learned counsel for the appellant before us was that both the courts below had not given any consideration to the plea taken up by him in his plaint that he was the sole successor of his deceased father in view of sec. 46 of the Kota Circular No. 3. The learned counsel for the respondent urged before us that the entries in the settlement record can only be challenged by a declaratory suit, and the appellant cannot, at this stage, challenge their correctness now, on any ground.

We have given careful consideration to these arguments. It is apparent from a mere perusal of sec. 140 of the Rajasthan Land Revenue Act, 1956, that all entries made in the record of rights shall be presumed to be true until the contrary is proved. These entries are of course not conclusive and if circumstances justify and if proper rebuttal is forth-coming either in law or in fact, the courts concerned can obviously correct them. Under the law one mode of correction is for the plaintiff to file a suit for declaration and correction of these entries but there is nothing in law to debar the defendant also to challenge the correctness of these entries. Any plea raised by a plaintiff in a suit can also be raised by a defendant in defence. The only bar in the way of the defendant for raising such a plea would be the same as would arise in the case of the plaintiff, that is, the period of limitation prescribed under the law. In a declaratory suit the Rajasthan Tenancy Act does not provide any period of limitation; so the plaintiff or the defendant, as in this case, can challenge the correctness of entries in the record of rights both in a suit for declaration and as a plea taken in defence.

In this case the appellant Bherun Lal was in possession. , and as held in Ramlal vs. Kaluram (1956 RLW 18), a mere wrong entry in the record of rights does not compel a person against whom it goes to file a suit within six years of the said entry, if he is in possession of the property. He would be prefectly entitled to base his cause of action on every threat to his possession which is advanced after the wrong entry has been made. This authority makes it clear that if any threat is made to the possession of a defendant he would be perfectly entitled to challenge the correctness of the entry on which the threat is made by taking the same as a plea in defence. We have, therefore, no hesitation in holding that the appellant could properly raise a plea in his defence that the entries in the record of rights were wrong as they had not taken into account the table of succession in the case of khatedar tenant given in the Kota Circular No. 3. We find that issue No. 3 was properly framed by the trial court to the effect whether the defendant on account of being the only son of the deceased Bala khatedar was the sole owner of the land in dispute, but unfortunately neither the trial court nor the appellate court have discussed this aspect of the matter which goes to the root of the case, and which, as we have stated above, the appellant-defendant was within his rights to take. We, therefore, accept this appeal, set aside the order of both the courts below, and remand the case to the trial court, with the direction that issue No. 3 should also be properly decided after giving hearing to the parties in accordance with the law.

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