P L D 1965 (W (PLP)

MUHAMMAD AKRAM, J.‑This is a Second Appeal by the plaintiffs whose suit was dismissed by the two Courts below. Ali, the father of the appellants owned 108 kanals 12 marlas of agricultural land situated in Chak No. 261‑GB, Tehsil Toba Tek Singh, District Lyallpur which was in the cultivating possession of the respondent as a tenant‑at‑will under him. On 1st of February 1954 the village Patwari entered mutation No. 74 (Exh. P. 4) of the sale of the land by Ali to the respondent. This was sanctioned by the Assistant Collector, II Grade a week later on 8th of February 1954. According to the proceedings, it was attested by the Revenue Officer publicly in the presence of Ali, who was identified before him by Sardara, the Lambardar of the village. Ali is said to have admitted before the Revenue Officer that he had received Rs. 12,500 as the price of the land from the respondent and delivered its possession to him. Sometimes later Ali applied for a review of that mutation. He altogether denied the sale and alleged that the attestation of the mutation was fictitiously procured by the respondent without his knowledge behind his back in collusion with the Lambardar. According to him he neither sold the land nor received any price for it from the respondent. After some enquiry the Revenue Officer declined to interfere and referred Ali to the civil Court for a declaration of his title if he was really aggrieved by the impugned mutation. Ali then filed his suit on 6th of October 1955 on these allegations. The respondent in his written statement controverted all these allegations and pleaded that he had orally purchased the land in suit from Ali on payment of Rs. 12,500 in cash and that the mutation was duly attested by the Revenue Officer in the presence of Ali, who admitted the sale and acknowledged the consideration received by him. The learned Senior Civil Judge, in whose Court the suit was pending, framed the following issues arising out of the pleadings of the parties:‑ (1) What is the value of the suit for the purpose of Court -fee and jurisdiction? (2) Did not Ali sell the land in suit in favour of the defendant for consideration of Rs. 12,500? (3) Have not the heirs of Ali a right to continue this action after the death of Ali? (4) Relief? Ali died during the suit before any evidence could be led and the appellants were brought on the record as his legal representatives.

2. The trial Court decided Issues 1 and 3 in favour of the appellants, but dismissed their suit on Issue No. 2 on the ground that mutation being an official record carries with it the presumption of truth under section 114 of the Evidence Act, because of this the onus of Issue No. 2 was rightly placed on the appellants who failed to discharge the burden. The Court has held that it was Ali who made the report to the Patwari about the sale and also appeared before the Revenue Officer and got the mutation attested on his admissions. Dissatisfied with this decree the plaintiffs preferred an appeal which was dismissed by the Additional District Judge, Lyallpur on 24th of September 1957 on the findings that Ali was bound by his admissions contained in the mutation in question and that the onus of Issue No. 2 was correctly placed on the plaintiffs who have failed to discharge it.

3. In this Court at the outset the learned counsel for the appellants has vehemently contended before us that the onus of Issue No. 2 was wrongly placed on the plaintiffs as the impugned mutation carries no presumption of truth especially as in this case it was challenged soon afterwards by Ali himself in his life time. This is the only issue which has been agitated before us by the parties.

4. The entries in the mutation in dispute were ‑not incorporated in the Record of Rights and, therefore, they carry no statutory presumption under section 44 of the Punjab Land Revenue Act (XVI1 of 1887). According to this section the entries in a record of rights prepared in accordance with the law for the time being in force or in an annual record made in due course are presumed to be true" until' the contrary is proved or a new entry is lawfully substituted thereafter. It is beyond doubt that mutation does not form part of the Record of Rights or the Annual Record maintained under the Land Revenue Act and the rules made thereunder. Therefore, it follows that not only there is no statutory presumption in favour of the mutation, a contrary presumption attaches under section 44 of the Act to the existing entries in the latest jamabandi, in which the name of Ali continues to be recorded in the column of ownership in spite of the mutation in dispute.

5. But the position is not so simple as the case does not rest there. Section 35 of the Evidence Act provides that an entry in any public or other official record stating the fact in issue or relevant fact made by any public servant in the discharge of his public duty, is itself a relevant fact. The law reposes confidence in the public officers that they will discharge their duties regularly and faithfully. This evidence is treated as relevant even though the person, who made the entries in the public record had no personal knowledge about the facts stated. Under section 34 of the Punjab Land Revenue Act, a Revenue Officer is duty bound to maintain the register of mutation. He is to enquire into the correctness of the entries made in it relating to the acquisition of any right in any estate and pass appropriate orders on them. The Revenue Officer is a public servant to whom these duties are entrusted under law. Therefore, the entries in a duly sanctioned mutation are relevant under section 35 of the Evidence Act. The proceedings before a Revenue Officer are not undertaken for the final settlement of the rights of the parties. The enquiry before him in cases of mutation is not as full as it ought to be in a judicial case. In fact it is an error to suppose that pro ceedings for mutation of names are judicial proceedings in which the title to and proprietary rights in immovable property are determined. In Nirman Singh v. Thakur Lal Rudra Partab (AIR 1926 P C 100), their Lordships of the Privy Council have alluded to the "mischievous but persistent error" to treat the proceedings for mutation of names as judicial proceeding. It was observed by their Lordships that: "They are nothing o the kind as has been pointed out times innumerable by the Judicial Committee. They are much more to the nature of the fiscal enquiries instituted in the interest of the State for the purpose of ascertaining which of the several claimants for the occupation of certain denominations of immovable property may be put into occupation of it with greater confidence that the revenue for it will be paid. It is little less than a travesty of judicial proceeding to regard the two orders of the Extra Commissioner of Bahraich and Mr. M. L. Ferrar, Deputy Commissioner, as judicial deter minations expelling proprio vigore any individual from any proprietary right or interest he claims in immovable property." The true nature of the revenue records in general and the importance to be attached to them was discussed in Nageshar Bakhsh Singh v. Mst. Ganesha (AIR 1920 P C46) by their Lordships of the Privy Council in which Lord Shaw said:‑ "Records of that character take their place as part of the evidence in the case. They do no more. Their importance may vary with circumstances, and it is not any part of law of India that they are by themselves conclusive evidence of the facts which they purport to record. It may turn out that they are in accord with the general bulk of evidence in the case; they may supply gaps in it; and they may, in short, form a not unimportant part of testimony as to fact which is available. But to give them any higher weight than that, might open the way for much injustice and afford temptation to the manipula tion of records or even of the materials in .the first entry. Birdword, J., in the Bombay case Bhagoji v. Bapuji (1888) 13 Bom. 75 said as follows:‑ `At the rehearing the lower appellate Court should have its attention directed to the ruling in Fatima v. Darya Sahib in which it was held that the Collector's Book is kept for the purposes of revenue, not for the purposes of title. The fact of a person's name being entered in the‑ Collector's Book as occupant of land does not necessarily of itself establish that person's title or defeat the title of any other person'." These weighty observations were made by their Lordships with reference to the entries contained in the wajab‑ul‑arz and in the khewat of the village under the revenue laws prevailing in Oudh (India), but they are applicable with no less force to the records maintained under the Land Revenue Act prevailing here. In the case from Bombay cited by the Privy Council with approval, it is mentioned that the value of these entries (which have frequently been admitted in other cases) must to some extent depend upon the circumstances. As evidence of ownership their value may be, and we think is, very small, but it is impossible to say that they are not evidence. The above remarks by Lord Shaw in the Privy Councils just mentioned have assumed classic importance. They were cited with approval. in Qangabal v. Fakirgowada (AIR 1930 PC 93) in which it was reiterated that the importance of these records varies with circumstances. Still later in Gurunatharadhaswami v. Bhimappa (AIR 1948 PC 210), the Privy Council has again relying on the case of Nageshar Bakhsh Singh held that the entries in the Khewat and the other Revenue papers can be regarded as "only a very slight indication of title". It is unnecessary to multiply these authorities. Generally speaking the entries in the Revenue records are admissible as evidence like any other piece of evidence in the case. They are by no means sacrosant and their evidentiary value depends on the circumstances of each case. The nature of these entries, their age and manner of preparation and verification are some of the factors to be taken into consideration. As regards the entries in a register, of mutations in particular, Akhlaque Hussain, J. in Mst. Aisha Bibi and others v. Muhammad and others (P L D 1957 Lah. 371) has held that though a Revenue Officer's order in mutation proceedings is admissible under section 35, Evidence Act, the order could not be treated as evidence of title in a suit filed to challenge its correctness. In another case, Hayat Muhammad v. Niaz Muhammad (A I R 1936 Posh. 149) the evidentiary value of attested mutation was examined and it was held that in spite of the order of the Revenue Officer the onus still lies on the person who claims under the mutation to establish the transfer evidenced by it. It was observed in this authority as under: "The proceedings relating to mutation are not covered by section 44, Punjab Land Revenue Act under which a presumption of truth may be drawn regarding entries in the Record of Rights. It is wrong to suppose that merely because there is a mention in the order of attesting officer that the vendor has consented to a sale, the onus of proof that he did not do so, lies originally on the person who disclaims the same. The onus lies on the person, who seeks so establish the genuineness of the transfer. In case he adduces enough evidence to shift the onus to the person disclaiming it, the latter would be under a duty to adduce evidence to rebut the case so made out." The facts of that case were similar to the present one. In that case also the plaintiff had alleged that the mutation of the sale of land attested in favour of the defendant by the Revenue Officer was, fictitious. The Court of the Judicial Commissioner in remanding the case to the trial Judge gave the specific direction that the issue with regard to the genuineness of the sale should be framed with its onus on the defendant. In a Privy Council case, Wall Muhammad v. Muhammad Bakhsh (AIR 1930 P C91), the question before the Court was whether the appellants have succeeded in proving the sale which was oral. According to the appellants on the sale there was a mutation but that the mutation records had been burnt during the Gujranwala riots in the Punjab in 1919. They, however, relied on a number of entries in the Record of Rights prepared under the Punjab Land Revenue Act (XVII of 1887) and contended that these entries recognised the appellants, or their predecessors as the owners of the properties and that such entries duly made under section 44 of the said Act are to be presumed to be correct as to the facts they record until the contrary is proved. Their Lordships of the Privy Council repelled that contention and concurred with the High Court in holding that the onus was on the appellants to prove their case. It was held: "The entries relied on by the appellants were not foundations of their title but were items of evidence adduced by them to prove the sale. The only question as regards the entries is their evidential value on the fact in issue, viz., the sale." It is to be remembered that these remarks were made by the Privy Council with reference to the entries in the Record of Rights which carry a presumption of truth under section 44 of the Punjab Land Revenue Act. On the first impression some of the observations in Gharib Khan v. Sikandar (AIR 1930 P C 91) appear to lend support to the contention of the respondent that in such a case the initial onus must rest on the person who disputes the mutation. But that ruling is clearly distinguishable. In that case the plaintiff, who bad professed to make over as sold before a Revenue Officer certain property which had been previously mortgaged to the defendant, in consequence of which action on his part mutation had been attested, subsequently filed a suit for a declaration of right disputing the genuineness of the mutation proceedings. It was held that as regards the onus, the plaintiff comes into the Court seeking special redress, and, in the event of his producing no evidence, the case might be given against him; the initial onus rests on him. However, the learned Judges of the Chief Court were careful to qualify these observations and had added:‑ "But the entry of the transaction of sale in the mutation register does not bring the case within the purview of section 44 of the Land Revenue Act unless the mutation register be regarded as constituting an annual record. We are disposed to adopt the view taken ‑ by the learned Divisional Judge that, as an entry made in the mutation register by the Tehsildar, may be made the subject of an appeal to the Collector, we should not give it the force of an entry in an annual record till it may have been incorporated in the jamabandi. As an entry in a public record made by a public servant in the discharge of his duty it is, of course, relevant under section 35 of the Act I of 1872." Ultimately that case was disposed of on the basis of the evidence led before the Court irrespective of the question of onus. There was abundant material on the record for the decision and there was excellent evidence on the file to show that the plaintiff did appear before the Naib‑Tehsildar and admit the sale. There was, therefore, no reason at all to think that the plaintiff was personated or could have been personated before the Revenue Officer. In that case the earlier remarks of the learned Judges about the initial onus of proof were qualified by the later observations reproduced above to the effect that the entries in a mutation are merely relevant under section 35, Evidence Act. Our attention has been drawn to Nizam‑ud‑Din and others v. Fateh Din and others (A I R 1940 Lah. 188), a case decided by Ram Lall, J. The head‑note of this report is misleading. There is nothing in the body of the judgment to suggest that the entries in a mutation before its incorporation in the Jamabandi carry any presumption of truth. In this judgment reliance was placed on the observations of Bhide, J. in Bhagwan Das v. Mungal Sain (A I R 1929 Lah. 93): in which the plaintiff produced certain copies of mutations which had been incorporated in the Jamabandi also. It was in that connection that the learned Judge had remarked that there was presumption of correctness of those entries under section 44, Punjab Land Revenue Act. There is no dispute that to entries in a mutation after they have been incorporated in the Records of Rights or Annual Record, a statutory presumption of correctness attaches under section 44 of the Land Revenue Act, but no such pre sumption arises in the case of the mutation entries which have not so far been incorporated in the Jamabandi. This is indeed the main distinguishing factor in such cases and it is hardly necessary for us to deal in any great length with cases of that category falling under section

44. Much reliance has been placed for the respondent on Illustration (e) of section 114 of the Evidence Act which lays down that the Court may presume that judicial and official acts have been regularly performed. It is argued that on this basis the entries in a mutation sanctioned in accordance with law should be presumed to be correct and the initial onus of proof should, therefore, rest on the party who challenges their correctness. We are not inclined to stretch the presumption that arises under this section to that extent. In the first place section 114 is permissive and not mandatory. It is entirely optional for the Court and in‑a proper case having regard to the circumstances, the Court may raise the presumption but it is not bound to do so. Secondly, the presumption under section 114 (e) attaches to the regularity in the form and the procedure adopted in the perfor mance of the official and judicial acts. It does not at the same time raise the presumption as to the correctness of the decision taken by the official apart from its regularity. In Jagdeo Narain Singh and others v. Bulaki Gope and others (63 I C 226) it was held that while a Court may presume that official acts were performed regularly, it cannot presume that they were performed correctly as well. It will be helpful to examine the facts of that case here is some greater detail. In the Batwara proceedings before the Deputy Collector the tenants had allegedly made certain admissions which were denied by them in the civil Court. The trial Court thought that the onus was upon the landlord to establish the identity of the tenants who were alleged to have made these admissions. It was argued in the High Court on behalf of the appellants that the lower Court should have presumed the correctness of the record and should have called upon the tenants to show that there was any error in the Batwara. Repelling this contention Das, J. remarked as follows:‑ "Now I do not think that the position taken up by the appellants is strictly right. I quite agree that under the Evidence Act `the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case' see section 114 of the Evidence Act. In other words we may presume that the official acts have been regularly performed but it was argued that we are further bound to presume that the Batwara Deputy Collector satisfied himself that the persons who made the admission before him were in fact the persons who he had summoned under the Estates Partition Act. Now I do not agree with this contention at all. "Regularly performed" means performed with due regard to the form and procedure. There is no further presumption that we are called upon to, make." The learned Judge has further observed: "A record is produced by the plaintiff 'which is alleged to contain the admission of the defendants. The defendants deny that they ever made any admissions which are recorded in the Batwara proceedings. The identity of the parties who made those admissions, must, in the first instance, be established by the plaintiff to the satisfaction of the Court, before the plaintiff can rely upon those admissions as against the tenants. In my opinion the regular performance of official acts does not imply that the representation made to them must be correct; that must be established by the plaintiff. If this point is decided against the plaintiff, then it is a question whether the Court which had to deal with the facts should‑have relied upon the Batwara proceedings or upon the Record of Rights." From this discussion it follows that entries in a duly sanctioned mutation not incorporated in a Record of Right or Annual Record have no presumption of the correctness of the facts mentioned in them. At best these are relevant under section 35 of the Evidence Act. They are admissible as evidence in the case and they do no more. They are entitled to weight depending upon the circumstances of each case. It may turn out that they are in accord with the general bulk of evidence on the record. But it would be incorrect to suppose that they are sufficient themselves to place the initial onus of proof on the party disputing their correctness. It is for the party who relies on any admission recorded in the order of the Revenue Office sanctioning the mutation to prove that admission is affirmatively against its maker both as regards the identity of the maker and the contents of the statement attributed to him. This admission has to be proved like any other fact in issue. The initial onus of proof of the sale in the present case must, therefore, rest on the defendant and for this reason we hold that issue No. 2 in the suit was incorrectly framed. Reverting now to the facts of the present appeal, the judgments of the two Courts below largely proceed on the consideration that the burden of proof of issue No. 2 pertaining to the sale in question was resting on the appellants and Ali was bound by his admissions contained in the order of the Revenue Officer who attested the mutation which should be presumed to be correct. This approach to the case by .the lower Courts is erroneous and their decrees are, therefore, vitiated. In the trial Court the appellants made an application on 23rd of August 1956 for permission to summon the file for the review of the mutation in question and the Naib‑Tehsildar who had made the enquiry on review. It is alleged in this applica tion that Ali had applied to the Deputy Commissioner, Lyallpur for a review of the mutation and on this the Naib‑Tehsildar, Toba Tek Singh after holding an enquiry, found that the mutation was fictitious and was liable to be reviewed. It is further alleged in the application that the Tehsildar, Toba Tek Singh had endorsed the report made by the Naib‑Tehsildar. It is also stated in the application that since long the appellants have applied for a certified copy of the report which has not been supplied to them because of the reason that the file had somehow got mixed up. They have explained that they could not summon the file and the witness earlier as in spite of their application" for the certified copy, it was not supplied to them. The learned Civil Judge, however, declined to allow any adjournment to the appellants because they bad failed to summon any witness for 23rd of August 1956 and so their case was closed on that date. The order of the Court is a brief one saying that no case for the adjournment was made out. It does not appear that the Court applied its mind fully to the facts detailed in the application of the appellants. They should not be penalized if, indeed, in spite of their application which was pending since long, the certified copy of the report was not supplied to them to enable them to summon the file, etc. in time. In the interest of justice it was necessary to summon the Naib‑Tehsildar and his report. We are, therefore, of the opinion that the learned Civil Judge acted arbitrarily in refusing to grant the adjournment to the appellants. We are conscious that we are called upon to take this decision in second appeal, but as already mentioned in view of the wrong allocation of the onus of issue No. 2 on the appellants in this case, there has been no proper trial of the suit. We are unable to pronounce any satisfactory judgment on the evidence on the record. We have, therefore, no alternative but to accept this appeal, set aside the decree passed by the Courts below and remand the case to the trial Court for fresh decision with the direction that issue No. 2 should be recast so as to place the initial burden of the proof of the sale in question on the res pondent. In the circumstances of the case we have left the parties to bear their own costs throughout. K. B. A. Appeal accepted.