DWIVEDI - (1.) IT the defendant's appeal. The plaintiff Digamber Jain Praband Karini Sabha, Panagar, instituted a suit against the defendant Shikharchand Jain for recovery of possession over certain agricultural lands situate in mauza Imlai, Smt. Rajrani, fifth defendant (now dead) was the proprietor of a Patti in mauza Imalai. The land in dispute fell in that Patti. IT was her sir. The area of the land is 12.86 acres. Smt. Rajrani became malik maqbooza of the land on the abolition of the proprietary rights in the State in 195 1/01/1954, she gifted the land by a registered gift deed in favour of the plaintiff (which is registered under the Madhya Pradesh Public Trust Act, 1951). Ram Das and Ballu, the third and fourth defendants were cultivating the land. The plaintiff instituted a suit against them on 15/07/1954. In the said suit they pleaded that Shikharchand had sub-let the land to them. The suit was decreed. Their appeals were dismissed on 4/05/1957, Shikharchand and also instituted a suit on 3/11/1955 against the plaintiff and Smt. Rajrani for a declaration that the gift made by her would be void after her death. We are told that the suit has been dismissed in default. As the aforesaid defendants are disputing the plaintiff's title, the suit was instituted. All the defendants except. Smt. Rajrani filed a joint written statement. They denied the plaintiff's title to the land. Smt. Rajrani held a limited estate in the land and the gift deed would be ineffective after her death. She could not gift the entire property. Shikharchand has been in possession over the land since 1937 as an owner thereof and has acquired rights of an owner by adverse possession for more than 12 years. Smt. Rajrani filed a separate written statement. She has supported the case of the plaintiff. The trial court framed a number of issues. Of them, only two now survive for consideration. They are issues Nos. 1 and 4. Issue No. 1 is: "1 (a) Whether the defendant No. 5 (Smt Rajrani) was the owner of the suit fields till 18-1-1954? (b) whether she was also in possession of the suit fields till 18-1-1954? 4. (a) whether defendant No. 1 (Shikharchand) has been in exclusive, continuous and uninterrupted possession of the suit fields since 1937 adversely to the defendant No. 5 and the plaintiff? (b) whether, therefore, the defendant No. 1 has perfected his title by adverse possession?''
(2.) ISSUE No. 1 was answered in favour of the plaintiff. ISSUE No. 4 was answered against Shikharchand. The trial Court held that he was in possession for and on behalf of Smt. Rajrani and not in his own right. The trial court granted a decree for possession to the plaintiff. Defendants Nos. 1 to 4 went in appeal. The first appellant court allowed the appeal and set aside the decree of the trial court and dismissed the suit. The plaintiff then filed a second appeal in the High Court of Madhya Pradesh. The High Court has reversed the decree of the first appellate court and restored that of the trial court. Hence this appeal by Shikharchand. The first appellate court has held that Shikharchand was in possession over the disputed land since 1937 and has become the owner thereof by adverse possession before Smt. Rajrani transferred the land to the plaintiff. Sri Tarkunde, counsel for Shikharchnd, says that it is a finding of fact and that accordingly the High Court could not interfere with it in second appeal. It appear that the High Court was aware that it was interfering with a finding of fact in a second appeal. So the High Court has explained. "Defendants ( to 4) clearly failed to establish by positive evidence the adverse possession of (Shikharchand) for more than twelve years at any point of time so as to rebut the statutory presumption of possession arising in favour of the appellant and its predecessor-in-title Smt. Rajrani. Therefore, with due respect to the learned appellate Judge, I might say that the question has been absolutely misconceived by him and he has not approached the question in a proper and legal manner with a view to apply the law to the facts found established from the record. In this view, the decree passed by the first appellate court cannot be sustained either on facts of law.'' So according to the High Court the finding recorded by the first appellate court was arrived at by overlooking the statutory presumption of possession in favour of the plaintiff and Smt. Rajrani and his approach to the issues before him was not proper and legal. In other words, the High Court intervened under Cl. (c) of Section 100 (1) of the Code of Civil Procedure According to the High Court, the finding of the first appellant court suffered from a "substantial error or defect in the procedure provided....by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits.''
(3.) IT is now to be seen whether the first appellate court's finding really falls within the grip of Section 100 (1) (c) of the Code of Civil Procedure. In his written statement Shikharchand has admitted Smt. Rajrani's ownership of the land. but he has pleaded that he has become the owner of the land on account of adverse possession for more than 12 years from 1937. The burden of proving the acquisition of ownership by adverse possession lay on him. The Khasra entries from 1937-38 to 1941-42 and 1943-44 to 1951-52 are all in favour of Smt. Rajrani. They show that she was in possession over the land during those years. Khasra is a record of right according to Section 45 (2) of the Central Provinces Land Revenue Act, 1917. Section 80 (3) of that Act provides that entries in a record of rights shall be presumed to be correct unless the contrary is shown. This provision raises a presumption of correctness of the aforesaid Khasra entries. The burden of proving adverse possession accordingly was a heavy one. The judgment of the first appellate court shows that it has not kept in mind this aspect while examining the evidence. In the first step, it has proceeded to assess the evidence adduced by Shikharchand. After discussing that evidence, it has recorded a finding that he was in possession. Thereafter, in the second step, it has proceeded to take the view that no reliance can be placed on Khasra entries. IT has summed up the discussion thus: "All these witnesses (of Shikharchand) have stated that the possession of the fields was with Shikharchand. Their statements are further supported by documentary evidence and, therefore, there is no room for any doubt that the possession was not with Shikharchand. IT is true that in Patwari papers Mst. Rajrani's name appear and that the dues were deposited on behalf of Mst. Rajrani. But in my opinion the entries in Khasra and the fact that the receipts were issued in the name of Mst. Rajrani would not by themselves establish the fact of possession. IT is settled law that entries in Khasra have only presumptive value, and it is difficult to conclude from these entries that the possession was with Mst. Rajrani. The falsity of the entries in Khasra is clear from the fact that from 1937 to 1947 the name of Mst. Rajrani appeared in the Khasra Panchasala and yet Mst. Rajrani's admission in D/1 shows that she was not in possession. This fact, is enough to show that no reliance could be placed on the Khasra entries.'' As already pointed out, this passage shows that the first appellate court proceeded in the reverse order. Moreover, the Khasra entries have been discarded solely for the reason that Smt. Rajrani has admitted in Ex. D/1 that she was not in possession. But Ex. D/1 has been entirely misunderstood by the first appellate court. Exhibit D/1 is a copy of the plaint filed by Smt. Rajrani in a suit for profits against Shikharchand. Shikharchand was Lambardar of the mahal in which the patti belonging to Smt. Rajrani was situate. In the first paragraph of her plaint she has mentioned this fact. Thereafter she went on to say that she was entitled "to get her share of profits from the defendant.'' In paragraph 2 she has said: "That the defendant is in possession of all the sir and khudkasht land of her full ... patti of the village...that as the defendant did not render any account, nor paid anything in spite of repeated demands and a notice by the plaintiff, he is liable to pay interest by way of damages at the rate of -/8/- per cent per month'' and the amount detailed in the schedule of accounts attached to the plaint. In the schedule she has shown the amount of rent recovered by Shikharchand from the tenants. She has also shown the estimated income from sir and khudkasht land belonging to her. After making certain deductions, a total amount of Rs. 318/7.00 was claimed from Shikharchand. The suit was filed in July 1942. The suit was filed in July 1942. The suit for profits related to a period between 1938-39 and 1940-41. We do not think that paragraph 2 of the plaint can be read in the manner it has been read by the first appellate court. It was a suit for profits by a co-sharer against the Lambardar. It was not a suit for mesne profits which an owner of land may claim from a trespasser, It was really a suit for accounts from the Lambardar. So it is not possible to spell out from paragraph 2 an admission from Smt. Rajrani that Shikharchand was in adverse possession over her sir land. Further, Shikharchand did not file a copy of his own written statement, nor a copy of the judgment in the suit. If he had denied his possession over her sir land, the suit for profits from sir land would have been dismissed. If he had pleaded adverse possession, over her sir, then also her suit for profits from sir land would have been dismissed. If, on the other hand, the suit for profits of Sir land were decreed, it would follow that Shikharchand was held to be in permissive possession and not in adverse possession. In the result, we are of opinion that the first appellate court was wholly wrong in discarding the Khasra entries on the solitary statement in para. 2 of her plaint. The High Court could, therefore, interfere with its finding under Section 100 (1) (c). ;