- (1.) THIS appeal under sec. 75 (f) of the Rajasthan Land Revenue Act, 1956 has been filed against an order of the Sub Divisional Officer, Churu dated 29. 7. 58 in a case relating to correction of entries in annual registers.
(2.) WE have heard the learned counsel for the parties and have examined the record as well. The respondents sought correction of entry in Khasra girdawari of Svt. 2013 in respect of the land in dispute (Khasra No. 31 village Chalkoi. tehsil Churu) with the allegations that the respondents had been in exclusive possession of the entire area of the field in Svt. 2013 and that the appellants in collusion with the Patwari had succeeded in having an entry over 24 Bighas 16 Biswas in their name and hence the same needed correction. It was further alleged in the application that the respondents came to know of the wrong entry when they recently obtained a certified copy of the Gasht girdawari. The appellants denied the claim and pleaded that they had been in possession since long. Oral evidence was led by the parties. The trial court appointed a commissioner as well to inspect the site and on a consideration of the evidence and the commissioner's report the application of the respondents for correction was allowed. Hence this appeal. It is an admitted fact that the entry to which objection has been taken by the respondents and the correction of which was sought by them is to be found not in Svt. 2013 but in Svt 2012 as well. It is significant to note here that no correction was ever sought for in respect of the Svt. 2012 entry as the same is applied for in respect of Svt. 2013 alone. The only point involved for determination in the case is as to which party was in actual cultivation of the land in dispute as the entry must stand in favour of that party which actually was in possession during that year The judgment of trial court is mostly confined to examination of the evidence of the respondents. The evidence led by the appellants was dismissed with a brief observation to the effect that the appellants could give no satisfactory explanation for the origin of their possession and hence the evidence led by them was not worthy of credence. Evidently this line of reasoning is untenable. I he question before the trial court confined to the actual fact of possession in Svt. 2013 and nature of the same was not the subject matter of that controversy. The trial court therefore should have applied its mind to the question as to whether the appellants' evidence succeeded in showing their possession during Svt. 2013 or not. We therefore would examine the evidence of both the parties in this perspective. The respondent Rai Singh examined Chokha, Peru, Hemla and Bahadur Singh besides himself. Hemla has admitted in cross-examination that in the disputed field there is a "seenv" (boundary wall) and that one portion of the field is under the cultivation of the appellants. He has also admitted that in Svt. years 2012 and 2013 the entries in the Gasht girdawari were made by the Patwari on the spot in the presence of the tenants and 'mukhias' and that the entries were read out to all concerned. This statement is particularly significant in view of the fact that according to this witness Rai Singh came to know of the entry of Svt. 2012 and 2013 at the very time they were made and that his version regarding subsequent knowledge does not appear to be correct. This inference finds further support from the fact that the appellants instituted a complaint against the respondents for criminal trespass in a Criminal Court and it was after the commencement of this criminal prosecution against the respondents that they filed this application for correction of entries. In this application it has been stated that they came to know of the entry on obtaining a copy of the Gasht girdawari. It has been admitted before us that the criminal complaint was filed against them before this application and it does not stand to reason that the respondents' ignorance about the entry would continue even after that If Hemla is to be believed it would appear that the respondents came to know of these entries first in Svt. 2012 and then in Svt 2013 These facts raise a strong inference that the application for correction was evidently a product of after-thought and if there had been any genuine complaint against it the same would have been brought forth at the earliest possible opportunity. Some discrepancies were pointed out before us by the appellants' counsel with regard to the manner of cultivation deposed by Rai Singh and his witnesses. We do not consider them very material and would confine ourselves only to those circumstances which provide not a slender but a very strong basis for inference. The evidence of the appellants which was lightly brushed aside by the trial court reveals important circumstances. Yadav Prashad, Naib Tehsildar (D. W. 6) stated that in Svt. 2012 while he was engaged in checking the crop inspection work of the subordinate staff, complaints were made to him regarding non-entries of the names of the appellants in Gasht girdawari. He proceeded to the spot after informing the parties. Rai Singh did not care to attend Gharsi was present before him As a result of the enquiries he came to the conclusion that Gharsi and others were in possession over a portion of the disputed land and hence the entry that was made in that year with regard to this position was found to be in accordance with the factum of possession obtaining on the spot. We find no adequate grounds to reject this testimony. The Naib Tehsildar during the discharge of his official duties made a check up on the spot in the order prior to the year of dispute and after satisfying himself that the appellants were in possession in Svt. 2012 allowed the entry to stand in tact, Chunni Lal Patwari who is responsible for the disputed entry states that he made the entry on the spot after ascertaining the actual fact of possession. It is also clear from his statement that the entry was made in the presence of the Choudhries and the Mukhias and that Rai Singh was called but he did not care to attend. Shri Durga Prashad, Patwari has deposed about the entry for Svt. 2012. It has been argued by the respondent's counsel that the appellant's had not been able to produce any lease deed for their admission of receipts for payment of rent. It cannot be denied that it would have certainly helped the appellants if they had done so. But it is equally true that the absence of these documents cannot be held as fatal to the appellants' case if they are able by equally reliable evidence to establish that they had been in possession in Svt. 2012 and Svt. 2013. To our mind they have done so. The trial court appears to have been much influenced by the report of the commissioner in deciding the case. We may point out for the guidance of the subordinate courts that the commissioner cannot be delegated the duty of trying any material issue which the court itself is bound to try. In other words, a court cannot depute to the commissioner functions which he can and should discharge himself. All that a commissioner can be required to do is to inspect a dispute land, to prepare a map or to obtain information with regard to physical features of the property inspected. The object of local investigation is not so much to collect evidence which can be taken in court but to obtain evidence which from its peculiar nature can only be had on the spot and to elucidate any point which is left doubtful on the evidence taken before the court. The dispute before the trial court was as to which party actually cultivated the land in Svt. 2013 and this dispute appeared in the court after the expiry of that year. No inspection by the commissioner could have been helpful in determining as to which party was in actual possession as that could have been done only after weighing the evidence led by both of them on the point. Probably the commissioner also realised this difficulty and after examining a number of persons on the spot gave his opinion on that basis. Thus the report of the Commissioner can provide no legal basis for arriving at any conclusion. To conclude therefore we hold that the respondents were bound to show that the appellants were no in actual cultivation of the land as shown in the Svt. 2013 entry. They failed to do so and on the contrary the appellants have succeeded in showing that they were in actual possesion and that the entry should herfore be held to be correct. We, therefore, allow this appeal, set aside the order of the trial court and direct that the application presented by the respondents for correction of entry shall stand rejected. .;