P L D 1971 Dacca 10 (PLP)

The case for the plaintiffs is that 9.43 acres of land in Khatian No. 287 of Mouza Khada, P. S. Saronkhola originally belonged to Ukiluddin Howlader, predecessor of plaintiffs Nos. 3 to 17 and pro forma‑defendants Nos. 6 to

12. An area of 10.86 acres of land in Plots Nos. 806, 807, WS, 809 and 812 in C. S. Khatian No. 262 of Mouza Khada, P. S. Saronkhola belonged to defendant No. 1 Abdul Gani Bepari and his brother late Abdul Wahed Bepari (predecessor of defendants Nos. 2 to 5) in equal shares. By an oral Ewaz (exchange) defendant No. 1 Abdul Gani Bepari and his brother late Abdul Wahed Bepari got possession of 9.43 acres of land in the said Khatian No. 287 and Ukiluddin, predecessor of plaintiffs Nos. 3 to 17 and pro forma‑defendants Nos. 6 to 12, got 9.43 acres of land in the said Khatian No.

262. Thus late Ukiluddin possessed 1.08 acres in C. S. Plot No. 807, 5.46 acres in C. S. Plot No. 809, 2.56 acres in C. S. Plot No. 808 and eastern .33 acre in C. S. Plot No. 806 of Khatian No. 262 by way of exchange. In the C. S. Khatian No. 262 the fact of possession of the predecessor of the plaintiffs in C. S. Plot No. 807 and C. S. Plot No. 809 by way of exchange is recorded. The fact of possession by way of exchange of an area of 9.43 acres in Khatian No. 287 is also recorded m favour of defendant No. 1 Abdul Gani Bepari and his brother late Abdul Wahed Bepari by way of exchange. But by mistake the fact of possession of the predecessor, of the plaintiffs by way of exchange was not recorded against 2.56 acres of land in C. S. Plot No. 808 and eastern .33 acre of land in C. S. Plot No. 806 of Khatian No.

262. In the recent settlement records which have been finally published on 25‑1‑1954, 2.56 acres of land in C. S. Plot No, 808 and 33 acre of land in C. S. Plot No. 806 of Khatian No. 287 again has been wrongly recorded in favour of the defendants. The exchange took place before the C. S. operation and since then the plaintiffs are in possession of the suit land. The plaintiffs, therefore, claim that they are entitled to a decree declaring their title and confirming their possession in 2.89 acres of land in C. S. Plot No. 808 and Plot No. 806 of Khatian No.

262. Defendant No. 3 Azhar Bepari, son of late Abdul Wahed Bepari alone contested the suit by filing a written statement. His case is that 9.43 acres of land in Khatian No. 287 of Mouza Khada was exchanged with 6.54 acres of land in C. S. Plots Nos. 807 and 809 of Khatian No. 262 of Mouza Khada on account of differences in the quality of land and other advantages and accordingly such fact was duly recorded in the settlement Khatian. The entire land in C. S. Plots Nos, 806, 808'and 812 of Khatian No. 262 remained under the possession of late Abdul Wahed Bepari and defendant No. 1 Abdul Gani Bepari. Defendant No. 3 Azhar Ali Bepari is now in possession of the suit land (i.e., 2.89 acres of land in C. S. Plot Nos. 808 and 806 of Khatian No. 262) by way of inheritance. The plaintiffs never possessed the suit land. Mr. Ishtiaq Ahmed, the learned Advocate, for the appellant contends that the learned lower appellate Court having found that the plaintiffs had failed to prove the story of exchange and possession erred in law in shifting the burden of proof of such facts to the defendants. He further contends that the learned lower appellate Court also illegally took the view that an exchange of equal quantity of land is to be presumed. On a discussion of the evidence adduced on behalf of the plaintiffs the learned Subordinate Judge found that the plaintiffs hopelessly failed to prove the terms of the exchange. This view the learned Subordinate Judge had to take as P. W. 1 Abdul Majid and P. W. 3 Nesaruddin admitted that they had no personal know ledge of the terms of the exchange and as P. W. 2 Yousuf Ali Bepari also admitted at one stage in his cross‑examination that he had merely heard of the exchange. The learned Subordinate Judge also could not accept the evidence of the witnesses for the plaintiff regarding possession of the suit land as satisfactory. Not being able to rely on the evidence adduced by the plaintiffs the learned Subordinate Judge shifted to the contesting defendants the burden of proving the exclusion of the suit land from the exchange in the following terms :‑ "Normally, in a case of an Ewaz we expect an equal quantity of land to be given to and by each party unless contrary is proved by the party asserting a departure from the normal rule. In the instant case admittedly, the Howladars gave up 9.43 acres in favour of the Beparis. The Beparis now turn to say that they gave only 6.54 acres in view of the better quality of their lands. The burden of proving this is certainly upon the Beparis who have given no evidence to prove it except relying on the settlement Khatian . . . . . . . . We cannot presume difference in quality merely because the land recorded in the names of the Howladars as Ewaz Dakhal is less than what they gave. There must be positive evidence in regard to this and unless that is discharged, the Bi:paris must make good the loss and make up the deficiency in quantity." On the law relating to the burden of proof it will be enough in this case to quote the following observations of their Lordships of the Privy Council in the case of Kumbhan Lakshmanna and others v. Tangirala Ven‑Kateswarl (2 D L R 83): "When the entire evidence on both sides is once before the Court, the debate as to onus is purely academical. When a question was raised as to the party upon whom the onus in respect of the matter vested, it is not necessary to enter upon a discussion of the question of onus, because the whole of the evidence in the case is before the Court and it has L o difficulty in arriving at a conclusion in respect thereof . . . . .What is called the burden of proof on pleadings should not be confused with the burden of adducing evidence which is described as `shifting'. The burden of proof on the pleadings never shifts, it always ,remains constant. The section 102, Evidence Act shows that the initial burden of proving a prima facie case in his favour rest on the plaintiff ; when he gives such evidence as will support a prima facie case, the onus shifts on to the defendant to adduce rebutting evidence to meet the case made out by the plaintiff . . . . . .When after the entire evidence is adduced, the tribunal feels it can not make up its mind as to which of the version is true, it will hold that the party on whom the burden lies has not discharged the burden ; but if it has on the evidence no difficulty in arriving at a definite conclusion, then the burden of proof on the pleadings recedes into the background." In this case from the entries in the record‑of‑rights it has been shown by th8 contesting defendants that the plots of land exchanged between the parties were recorded in the' C. S. Khatians Nos. 287 and 262, That the suit plots were excluded from the exchange will appear from the facts that the possession of the suit plots, i e., C. S. Plots Nos. 806 and 808 of Khatian No. 262 is recorded in favour of the defendants. D. W. 1 Azahar Ali Bepari deposed, "The suit land belongs to me. I am in possession of it. This land was never exchanged . .Myself, defendant No. 1 (Abdul Gani Bepari) and Motahar.Ali Bepari (defendant No. 2) cultivate the suit land for the last 25 years". Thus the contesting defendant denied the claim of the plaintiffs and asserted his possession and title in the suit land. The plaintiffs, therefore, are to prove that they are entitled to the property they claim. If they fail to do so, their suit must be dismissed. In this case the burden of proving the facts that the predecessor of the plaintiffs got the possession of the suit land by way of exchange from the defendants and that the fact of possession of the suit land has been wrongly recorded in the C. S. Khatian is on the plaintiffs. The view that the correctness of the C. S. Record is to be rebutted by the person who alleges against it is supported by a decision of this Court in the case of Aminuddin Biswas v. Miajan Biswas and others (12 D L R 103) wherein it was held "One who alleges against the correctness of the entries in the record of‑rights has got to prove that the relevant entries are wrong. The presumption of correctness, as available on the strength of section 103‑B(5) of the Bengal Tenancy Act, has got to be rebutted by the person who alleges against it." Further the learned Subordinate Judge erroneously took the view that there is a presumption in this case that equal quantity of land was exchanged for an equal quantity of land. Admittedly the C. S. Khatian shows that 6.54 acres of land in C. S. Plots Nos. 807 and 809 of Khatian No. 262 was exchanged with 9.43 acres of land in Khatian No.

287. Under these circum stances the burden is on the plaintiffs to prove that 2.89 acres of land in C. S. Plots Nos. 808 and 806 of Khatian No. 262 was also exchanged and its possession was given to the predecessors of the plaintiffs. The learned Advocate for the appellant further contended that in view of the entries in the C. S. record‑of‑rights the learned Subordinate Judge erred in law in presuming possession and title in favour of the plaintiffs in the suit land merely, on the ground that C. S. Plots Nos. 806 and 808 of Khatian No. 262 are mentioned in the schedules of some of the recent deeds of sale, such as Exh. 1 dated 13‑4‑56, Exh. 1(a) dated 18‑2‑53, Exh. 1(d) dated 31‑7‑1948 and Exh. 2 dated 16‑9‑53 executed by some of the heirs of the predecessor of the plaintiffs in favour of plaintiffs Nos. 1 and

2. The learned Advocate for the appellant argues that the learned Subordinate Judge ought not to have made any such presumption on the same grounds on which he rejected the contesting defendant's Mead! Patta, Exh. A(1) as evidence of title and possession. While rejecting the Mead! Patta Exh. A(1) as evidence of title and possession the learned Subordinate Judge observed "The Howladars are not parties to it. It is indeed a registered document, but that does not mean that it is a bona fide document. Who knows if it was created as a shield against all attacks on the Khatian." In the aforesaid documents filed by the plaintiffs which are all of recent origin the defendants are not parties. It is true that a document is admissible under section 13 of the Evidence Act as an instance of assertion of a right even though it is not 8 inter partes but. the recitals in it are not binding on the person who was not a party to it. In the case of Harendra Nath MukherjI and others v. Hari Pada Mukherji and others (A I R 1939 Cal. 387) while delivering the judgment of the Division Bench following the decision of their Lordships of the Privy Council in the case of Banga Chandra Dhur Biswas and another v. Jagat Kishore Achariya Chowdhuri and others (A I R 1916 PC 110), Nasim Ali, J. observed: "Recitals in a deed of transfer cannot by themselves be relied upon for the purpose of proving the facts contained therein." Although in the absence of independent evidence weight is given to the recitals in old documents though not inter partes, but recitals in documents of recent origin per se cannot be accepted as adequate evidence to prove the facts recited. In this case as the plaintiffs have failed to substantiate by evidence aliunde that their vendors had any right, title or possession in the suit land, it must be held that no right or title in the suit land passed to them under the said deeds of transfer. As the plaintiffs have failed to prove the exchange and possession of the suit land in their favour, they are not entitled to the reliefs prayed for. The result, therefore, is that this appeal is allowed, the judgment and decree of lower appellate Court are set ,aside arid those of the trial Court restored. There shall be no order as to costs. The prayer for Leave to Appeal under Clause 15 of the Letters Patent is refused. S. Q. Appeal allowed.