ABDUL HAKEEM KHAN, C. J.-In this Civil Revision Petition, moved by the defendant-vendee, the question for determination was as to whether the plaintiff-respondent, namely, Khanpur has got a superior right of pre-emption with respect to the suit land. The crucial issue, regarding the superiority of the right had been decided by the two Courts below, in favour of the plaintiff- respondent, but the trial Court had not adverted to the plea of the defendant-petitioner that he was a tenant of Khasra No. 1059, as respects 1 kawl and 10 marlas, and to that extent paragraph 25 of the Martial Law Regulation No. 115, made him immune from pre-emption. The Appellate Court adverted - to the question in paragraph 9 of its judgment and came to the conclusion that the entries in the Jamabandi of 1971-72 (copy Exh. P. W. 1/1) in the column of cultivation and Lagan when read together indicated that the defendant-petitioner was not a tenant. She was holding as mortgagee: If this argument was to prevail, the plea of the defendant---petitioner will be untenable. The learned counsel for the defendant---petitioner, however, invited my attention to Shamsur Rehman v. Hukmat Khan etc. (PLD 1967 Pesh. 304), wherein a learned Single Judge of this Court has ruled that where the entries in the column of cultivation are irreconcilable in the sense that in the former, the person is entered as tenant-at-will while in the latter he is shown without payment of rent, the benefit of the same should go to the landlord i.e., the rightful owner and not to the person who claims adversely to him. A logical conclusion of upholding of such an argument would have been that I would have had no other alternative but to hold the defendant-petitioner as tenant-at-will, entries in the column of Lagan showing him to be a mortgagee notwithstanding.
2. Since it appeared to me that the proposition in Shamsur Rehman v. Hukmat Khan and others had been too widely stated and I happened to be of the view that a person in possession is to be shown in the column of cultivation and if the nature of his possession is not quite clear for that a reference shall have to be made to the entry of column of Lagan so to speak, a Court before arriving at a conclusion, regarding the nature of possession, shall have to refer to both the entries. In the circumstances to have an authoritative pronouncement, I referred the following question to a Full Bench :- "Whether entries in the column of cultivation are to prevail over the entries in the column of rent or both are to be read together where there is a conflict between the two entries ?
3. We have heard Mian Muhammad Yunis Shah, Advocate, on behalf of the defendant-petitioner and Mr. Inayat Ilahi Khan for the plaintiff respondent.
4. The main burden of arguments addressed on behalf of the defendant--petitioner was that Shamsur Rehman v. Hukmat Khan etc. Laid down correct proposition of law, unless of course, it could be shown by the other side that presumption of truth was also attached to the entries in the column of Lagan and this presumption could only be attached if it could also be shown that such an entry has been made in performance of the duty, enjoined upon the Revenue Staff by law. The learned counsel for the plaintiff-respondent, however, submitted that we should fallow Mst. Bhag Bhari v. Mst. Bhagan and another (P LD 1954 Lah. 356) wherein B. Z. Kaikaus, J., considered entries both in the column of cultivation and Lagan and which view has also been approved by the Supreme Court in Lala and another v. Mst. Janie (1968 SCMR 131). The learned counsel further added that if no entry in the column of Lagan, was to be made then the entries in the column of cultivation will become meaningless. In support of his contention he invited our attention to section. 2(5) of the Tenancy Act and section 4(6) of the Land Revenue Act. He concluded by saying that law has to be interpreted in a way that it is condusive to administration of justice and does not confuse its other part.
5. Before we proceed further, we should like to notice authorities which will guide and help us in resolving the crucial question, referred to this Bench.
6. In Hansa and others v. Ramlok and others (AIR 1928 Lah. 147) the land in dispute had been mortgaged by a mutation in 1884 and the mortgagee was actually put in possession. In 1891 one Nandu Sadh got into possession and built a Dharamsala over it. In the Jamabandi of that year in the cultivation column, the land was shown in possession of Sandu Sadh, sub-occupancy tenant, and in the Kaifiat column it had been stated that no rent was charged as the land was Dharamsala. This entry continued till 1907-08. In the settlement of 1911-12 the disputed land became a part of abadi deh and in 1905 descendants of the original mortgagors brought the suit, The title of Nandu Sadh was held to be hostile to the mortgagors and mortgages both but that which we consider instructive are the observations of Tek Chand, J., which read :- "Mr. Fakir Chand has relied upon the entry in the jamabandi of 1891-92 where Nandu is entered in the cultivation column as non-occupancy tenant. But it is well known that persons who take possession without any title are shown in the cultivation column as non-occupancy tenants so long as changes in the proprietary columns are not made by mutation. Entries in the cultivation column are always to be read along with those in Kaifiat column, and reading the two together no doubt is left that Nandu did not hold the land under the mortgages in 1891 or subsequent years."
In Nur Khan arid others v. Fakir Abdullah and another (1071 C 779), is a case where in the jamcbandi of 1911-12 the plaintiffs were shown in cultivating possession of the land allotted to them in petition in the year 1910. They were, however, dispossessed by the defendants in Rabi, 1913. In the jamabandi of that year the defendants were entered as tenants under the plaintiffs but it was no body's case that the defendants occupied the land with the permission of the plaintiffs. Mr. Justice Zafar Ali observed :- "In a jamabandi a person who is not the owner of the land but is in cultivating possession thereof is shown as tenant-at-will because there is no column therein for describing him as a trespasser.
There are column for owners and tenants only."
And taking into consideration that from Rabi, 1913 the defendants have been all along in possession for more than 12 years and suit had not been brought within 12 years of dispossession the appeal was accepted and the judgment of the trial Court, dismissing the suit of the plaintiff was restored.
Jn Ghulam Murtaza v. Nagina and others (A 1 R 1930 Lah. 991) the plaintiffs were Malikan qabza and as such had no right to any share in the shamilat deb. They, however, managed to take possession of certain parcels of the shamilat before 1880 and despite partition of shamilat the plaintiffs remained in possession and were not dispossessed by the allottees. In the Revenue papers the land in dispute had been shown to be owned by the defendants and in the tenancy column the plaintiffs were entered as being in possession as non-occupancy tenants. In the column of rent, however, the entry was either 'basharah malikan bila malikana' or ---barue parta---. It was found that the plaintiffs had never cultivated as tenants and that their possession bad never been permissive. As far as the entries in the Revenue papers were concerned, it was observed that the entries showing the plaintiffs as tenants-at-will had been made in accordance with the usual practice that every person in possession, whose title as owner, has not been recognized by the Revenue authorities is shown as such. This possession of the plaintiffs, for over 40 years, was held as adverse right from the beginning. In Showa Singh v. Kisar Singh and others (AIR 1932 Lah. 586), the land in dispute was shown in the Revenue records of 1965 as owned and cultivated by the grandfather of the defendant-appellant. 1n 1891-92 father of the defendant-appellant was shown as owner while in the column of cultivation Rattan Singh predecessor in interest of the plaintiff- respondents appeared as Ghair Dakhilkar. In the revenue column the said tenant was shown as only paying land-revenue and cesses. In 1911-12 Record of Rights the defendant-appellant was shown as owner and Amir Singh son of Rattan Singh in the column of cultivation. In the rent Column the entry was "no rent because of assertion of ownership". In 1916-17, 1920-21 and 1924-25 similar entries occurred. Amar Singh and others sons of Rattan Singh being shown as in possession of the land either personally or through. Sub-tenants. In November 1923, the owner issued ejectment notice to the defendant-appellant. Plaintiff-respondents filed suit in 1925 claiming ownership by adverse possession.' The defendant-appellant, however, maintained that they were tenants under him. It was contended that the Revenue Record would show that the defendant-appellant was landlord while the plaintiff-respondents were tenants, and that mere non--payment of rent will not be sufficient ground for holding that the tenancy stood determined and the possession of the tenants was adverse. This argument was repelled for it was on the basis of Transfer of Property Act which was not in force in Punjab but after referring to sections 36 and 42 of the Punjab Tenancy Act, 1887, Currie,.J. Observed :- "A tenant has the right to continue in possession if he wishes until his landlord serves him with notice of ejectment. There is no question, therefore, of the tenancy being determined by the lapse of time. His tenancy would normally be heritable. Assuming therefore as we must in view of the entry in the Revenue Records of 1891-92 which stands unrebutted that Rattan Singh was a tenant of Jagat Singh there is no ground for holding that on his death the possession of his son Amar Singh changed to that of a trespasser and hence adverse."
His Lordship proceeded on to consider as to whether the assertion of ownership in 1911-12 by Amar Singh as it will appear from the column of rent "no rent because of assertion of ownership" will suffice to afford a starting point for adverse possession. Taking into consideration that the assertion was not accompanied by any change in the money payment, which is the case were "Revenue and cesses" alone his Lordship came to the conclusion that no question of adverse possession arose in that case. But more important in our view are the observations of his Lordship, regarding record of rights of 1911-12 and in that context his Lordship observed :- "No general rule as regards a. Presumption to be drawn from such entries in the jamabandis can be laid down. Each case must be considered on its own particular facts. Thus if it were simply a case of whether one man or the other was in possession it might be presumed that the entry in the Jamabandi showed in the absence of evidence to the contrary that the man shown in possession had been in possession from the commencement of that agricultural year. In a case, such as the present, the words "owing to assertion of ownership" (bawaja tasawar malkiayat khud), merely represent an assertion made by the man who was already in possession as an explanation of the fact that be merely paid revenue and cesses."
Another observation of Currie, J., which will be instructive is as follows :- "In ordinary cases where the party was a resident in a village it might be presumed that he had notice of the assertion made against his title from the date on which the final attestation certificates on the jamabandi was recorded by the Revenue Officer unless it has been shown definitely that that particular entry had been attested publicly at some earlier date."
The observations of Bhride, J., the second Member of the Division Bench, which clarify the matter further and beyond any doubt even though we do not entirely agree may also be quoted with advantage. His Lordship observed:- "In the above discussion I have assumed that the entry in the Record of Rights to the effect that the tenant claimed an adverse title was sufficient proof of that fact and also of notice of such a claim to the landlord. It is true that the Punjab Land Revenue Act or the Rules thereunder do not require any reason for non-payment of rent or adverse title set up by the tenants to be recorded in the Record of Rights. But though the presumption under section 44, Punjab Land Revenue Act may not, strictly speaking, apply to such an entry there is no good reason why an entry of this kind in a public record made by a public servant should not be held to be relevant under section 35, Evidence Act. The record of rights is publicly attested in the presence of the people of the village and this fact should, I think be sufficient to raise a presumption that the landlord had notice of the adverse claim at least from the date of such attestation. If, for any special reasons, the landlord does not come to know of the adverse claim even by the date it would be I think for him to establish the fact."
In Amjad Ali v. Ghafoor Muhammad Khan (AIR) 1935 All. 76) case decided by Naimatullah, J., predecessor-in-interest of the defendant was recorded as tenant of 11 years standing in one Khasra and of 33 years standing in another Khasra. The learned Additional District Judge, inferred from the entries that the defendant was a tenant. His Lordship observed as follows :- "In my opinion this inference is wholly unjustified in view of the plaintiffs' admission that the defendant, or his. Predecessor, never paid any rent and of the previous history of the case showing that the original occupier, Ram Parsad, was in possession of the lands in dispute as occupier of factories and houses. A person who is in adverse possession of a specific plots of land in a mahal and has obtained no mutation of names has to be entered in the Khasra as a. Tenant or occupier.
There is no other column for persons in averse possession against the record proprietor. In the absence of other evidence, the entry in the Khasra would have been taken to be prima facie., evidence of the fact that such occupier is a tenant, as he is recorded ; but where the evidence shows all the circumstances in which he entered into possession, the entry cannot be accepted as proof of tenancy in the teeth of admitted facts and circumstances showing the contrary."It will be seen that in the record of rights maintained under Agra Tenancy Act, as well, there is no other column for persons in adverse possession and that even though the person was entered as tenant on the consideration of evidence to the contrary the plea of adverse possession prevailed.
In Mst. Bhani and another v. Ujagar Singh and others (A 1 R 1936 Lah. 741) the plaintiff brought a suit to establish that he had acquired proprietary title by adverse possession inasmuch as they had been in possession since 1911-12. The suit was dismissed by the trial Court but appeal was successful. The settlement record of 1912-13 showed the plaintiffs to be in possession of the land in the column of cultivation while the predecessor of the contesting defendants were shown as proprietors in the jamabandi of 1917-18, as a result of partition proceedings. In this jamabandi also the plaintiffs were shown as non-occupancy tenants in equal shares and the entries did not show any payment of rent on the part of the tenants. These entries were repeated in 1921-22 and also in 1925-26. In the jamabandi of 1929-30 in the column of cultivation one Kanya Singh was shown as tenant cultivating through two of the plaintiffs under the proprietors (defendants in the case). Agha Haidar, J. Observed as follows and reversed the decision of the Appellate Court :- "Under the provisions of section 44, Punjab Land Revenue Act, these entries shall be presumed to be true until the contrary is proved. Thus the entries show that Sham Singh and his predecessor Lal Singh were the proprietors and the plaintiffs were entered as their tenants. The lower Appellate Court has decreed the suit solely on the ground, inasmuch as the plaintiffs had not paid any rent, at any rate, between the year 1917-18 and 3rd June 1934, their possession, which must be taken be adverse, has matured into proprietary title.
In my judgment the question of adverse possession, as has been pointed out by their Lordships of the Privy Council in 42 All. 152 is a mixed question of law and fact and the Court has to draw its inference from the proved facts in the case. Now, acting on this principle, on the one side we have the entry of the defendants as proprietors and on the other the fact that the plaintiffs are entered as tenants who have not paid any rent to the landlords. Now the possession of a tenant is permissive, and, unless the tenant can prove that he had disclaimed the title of his landlord openly and to his knowledge more than twelve years before institution of the suit, he cannot claim adverse possession against his landlord. Mere non-payment of the rent by the tenant cannot be treated as adverse possession on the part of the tenant. Their Lordships of the Privy Council in 1922 P C 272 had been pleased to observe that mere non-- payment of rent or discontinuance of payment of rent has not, by itself, been held in India to create adverse possession.
Their Lordships quoted with approval the observations of Muker Jee, J., in 40 Cal.
173. In fact long ago as 7 Bom. 40, Sargeant, C. J., sitting in a Division Bench, held that mere non-payment of rent was not sufficient to constitute adverse possession against the landlord. I am, therefore, satisfied on the established facts and the authorities quoted above that the decision of the lower appellate Court is erroneous."
It is noteworthy that the entries in the Revenue Record in this case did not show payment of rent on the part of the plaintiffs. So to speak there was no assertion in the Revenue Record itself that rent was not being paid by the plaintiffs.
Muhammad Hayat v. Bati and others (PLD 1952 FC 138) through an authority for the proposition that a 'tenant cannot acquire title by adverse possession solely on the ground that he has for a period, exceeding 12 years, paid nothing more than land-revenue and cesses, as consideration for the occupation of the land, further supports the view that entries in the column of cultivation and rent are to be read together their apparent inconsistency notwithstanding. Had it not been the case their Lordships would not have referred to the entries in the column of rent and quoted from the Punjab Settlement Manual para. 206 in support of their observation that it was not necessary that the person who was not paying anything besides land revenue and cesses was not in permissive possession of the land. The quotation relied upon, being instructive, is reproduced below :-
(1) The Chief fact in connection with the history of rent in the Punjab is that it owes its origin mainly to fiscal arrangements, and not directly -to economic cases. This is obvious in the case of the rents consisting of the land revenue and cases with or without a small additional payment on account of malkana which are still commonly paid by tenants-at-will in some parts of the country.
(2) Where the land was abundant and the proprietary body small outsiders might be voluntarily admitted as cultivators or forced upon the community by the action of the State Officials. In the latter case the landowners were fortunate if they could secure some small grain fee at harvest as an acknowledgment of the superior title (Punjab Settlement Manual, para. 130).
(3) About 43 per cent. Of the land in the Province is tilled by the land--owners themselves, 9 per cent. By occupancy tenants and 49 per cent by tenants-at-wilt, a few of whom pay no rent.
(Punjab Land Administration Manual, para. 54)."
Mst. Bagh Bhari and others v. Mst. Bhagan and another (PLD 1954 Lah. 356) is a case where both the plaintiffs claimed that they were owners of the land which had been allotted to them on partition in 1938 and that before that land was Shamilat and that the defendants were in unlawful possession. The defendants, however, pleaded adverse 'possession. The ownership of the plaintiffs was held proved by unrebutted entries in record of rights and that finding was not challenged before the High Court. The all important question was the nature of the defendant's possession.
Entries in the Revenue Record showed that upto 1922-23 the land was in possession of the owners of Shamilat. From 1926-27 the defendants or their predecessors-in-- interest were shown in cultivating possession of the land. The entries in the column of cultivation was Ghair Mauroosi while the column of Lagan showed ' Naqdi basarah malikan bila malikana'. These entries continued from 1926 upto the date of the suit. In support of the argument that the words Ghair Mauroosi entered in the column of cultivation, raised a presumption that the defendants were the tenants. The learned counsel for the appellant cited 1932 Lah. 586, 1936 Lah. 741, 1936 Lab. 461 and 1930 Lab. 991. On the other hand for the proposition that the entry Ghair Mauroosi in the column of cultivation does not necessarily refer to a tenant 107 I C 789 and AIR 1936 Pat. 804 had been cited. Kaikaus, J., observed :- .
"In my opinion, the entries, as they stand, are consistent. With the position of the plaintiffs as well as that of the defendants. It cannot be denied that by itself the entry Ghair Maurusi does not necessarily imply that the person so described is a tenant. The patwari uses these words for every person who is in possession without any right or title. The entries in the cultivation column are always to be read along with the entries in the rent column as pointed out in 1928 Lab.
147. Here the entry in the lagan column is nakdi basarah malikan bila malikana. The difficulty in interpretation in the present case arises out of the fact that the patwari would be using this expression in a case where a tenant is paying only land revenue as well as in a case where a person's possession is without any right or title. There is no doubt that generally when a person is in possession on an assertion of hostile, title or unlawfully the patwari will use some such expression as batasawar malkiat khud--- bawajah qabza etc. But the use of such expressions is not necessary and it does sometimes happen that even in the case of a person in adverse possession the patwari uses only the words which have been used in the present case."
In Laid and another v. Mst. Jante, Mst. Jante had instituted a case for possession of 174 kanals 3 marlas of land in the area of Dafar. She claimed possession on the allegations that the defendants-appellants were in unlawful possession and were denying her title. The case of the defendants-appellants on the other hand was that they had acquired title by adverse possession for more than 12 years. The evidence disclosed that the land originally formed part of the 'Shamilat' but subsequently there was a partition and at some time in 1938 Ali and Karma predecessors-in- interest of the defendants --appellants, who were then in possession of the land, refused to make over the possession to Qutab, father of Mst. Jante, plaintiff-respondent. The defence evidence showed that Ali and Karma remained in possession of the land, considering it to be their own and since their death the defendants --appellants were in possession. In support of their claim they filed the jama--bandis. The jamabandi of 1915-16 disclosed that Ali and Karma were tenants paying batai at the rate of 1/3rd of the produce in respect of some Khata and paying cash ren: in respect of the others. In the jamabandi for the year 1939-40, Ghulam the son of Karma, was, however, shown as non-occupancy tenant, paying rent at "proprietor's rate due to possession". The jamabandis of 1943-44 and 1953-54 also showed that the appellants non-occupancy tenants were paying rent at Proprietor's rate on account of possession. In appeal before the Supreme Court it was contended that since entries in the jamabandis from 1939-40 onwards showed the defendants as occupancy tenants on payment of rent Basharah Malikan, this was indicative of their adverse possession but this contention was repelled for the entries in the jamabandi of 1915-16 showed that their possession at its inception was as tenants. Their Lordships also referred to AIR 1932 Lah. 586 PLD 1955 Lah. 483 and PLD 1954 Lah. 356 the view in the first taken as early as in 1932 having been followed in the two last mentioned. Their Lordships further expressed their agreement with the views expressed in PLD 1954 Lah. 356 and held that an entry as in that case was not unequivocal assertion of hostile title and one had to interpret in the light of the facts and circumstances of that case. But one thing is clear from this pronouncement of the Supreme Court that for the determination of the crucial question before their Lordships both the entries in the column of cultivation and rent were taken together.
There is only one case of Mohan Jha and others v. Shivdayat Parsad and others (AIR 1950 Pat. 293) in which the entry in the remarks column, regarding ownership was excluded but the following quotation will illustrate the point:- Thirdly it is contended that with regard to the sale deed of 16th January 1892, the learned Subordinate Judge has committed an error of record, and has further misdirected himself with regard to the presumption arising out of an entry made in the record of rights. In the record of rights with regard to Plot, 10630 and 6661, these is a note in the remarks column to the effect that a suit, numbered 172/160, dated 3rd April 1903 was brought in respect of these two plots by a plaintiff on the strength of a kebala, and the suit was dismissed. The name of the plaintiff is not mentioned.
The date of the sale deed is not given. The learned Subordinate Judge thought that this entry in the record of rights had a statutory presumption of correctness under section 103-B(3), Tenancy Act.
He further held that the plaintiff referred to in the entry meant Biseswar Jahan, the transferee under the sale deed of 16th January 1892. In my opinion, the learned Subordinate Judge was wrong in thinking that there was any statutory presumption of accuracy attaching to that particular entry in the remarks column. The entry about a suit in the civil Court is not one of the particulars required to be entered under section 102, Bihar Tenancy Act. In my opinion, the entry was not an authorised entry, and does not carry with it any statutory presumption of accuracy under section 103-B, Tenancy Act, nor was it an entry made under section 107(2) of the said Act."
7. It will be seen that the aforementioned citations lay down the following Rules of guidance:- "First.---It is the practice of the Revenue authorities to show a non-proprietor, including a trespasser, if in possession, in the column cultivation, either as Mauroosi or as Ghair Mauroosi/tenant-at-will 10. r C 789.
Second.---In all cases, except AIR 1950 Pat. 293, entries in the rent/remarks column were read together Observations of Tek Chand, J., to AIR 1928 Lah. 47 are pertinent.
Third.----If a person's possession is permissive in its inception, ha cannot plead adverse possession, unless proves ouster to the knowledge o proprietor.
Fourth.---Entries like parta basharah malikan or pays only land-revenue cesses, would not show adverse possession, for in the Punjab a large number of proprietors wanted that the lands should be cultivated and land-revenue and cesses paid to the Government, which was obviously to the advantage of the Government, as well.
Fifth.----Entries, in the rent column will explain the nature of possession of the person mentioned as tenant-at-will in the column of cultivation.
Sixth.---The jamabandis carry presumption of truth and in any case entries were relevant under section 35 of the Evidence Act.
Seventh.---The knowledge of the proprietors and village-folk as regards the contents of the jamabandis could be reasonably assumed as those were certified in public; and Eight.---Entries "tenant-at-will" and Bila Lagan Bawaja Qabza etc. In the column of rent were not inconsistent and were, as a matter of fact, expressions of art."
8. It was urged on behalf of the defendant-petitioner very strenuously that presumption of truth could not be attached to the entries in the Lagan column of a jamabandi and that presumption of truth was restricted to the entries in the column of ownership, and cultivation alone, but this argument, as we shall presently notice, overlook, the contents of sections 39, 41 and 52 of the West Pakistan Land Revenue Act, 1967 (hereinafter to be called the Act). Section 39 of the Act reads:- "39.---(1) Save as otherwise provided by this Chapter there shall be a record of rights for each estate.
(2) The record of rights for an estate shall include the following documents, namely :-
(a) statements showing, so far as may be practicable,-
(i) the persons who are land-owners tenants or who are entitled to receive any of the rents, profits or produce of the estate or to occupy land therein ;
(ii) the nature and extent of the interests of those persons, and the conditions and liabilities attaching thereto ; and
(iii) the rent, land-revenue, rates, cesses or other payments due from and to each of those persons and to Government ;
(b) a statement of customs respecting rights and liabilities in the estate ; (c) a map of the estate ; and
(d) such other documents as the Board of Revenue, may with the previous approval of Government, prescribe."
It will be seen that section 39 of the Act provides for the preparation of the record of rights and the documents that it shall contain. Section 41 of the Act provides for periodical records, which expression includes jamabandis and lays down further that a jamabandi shall comprise statements mentioned in clause (a) of subsection (2) of section 39. A second look at the aforesaid provision will show that the statements to be incorporated in the jamabandi as far as practicable inter alia must show, the persons who are the land--owners, tenants or who are entitled to receive any of the rents, profits or produce of the estate or to occupy the land. Furthermore it must indicate the nature and extent of the interest of the aforesaid persons and the conditions and liabilities attaching thereto. Finally it shall incorporate the rent, land revenue, rates, cesses or other payments due from and to each of those persons and to the Government. It will follow that the practice to mention the names of even proprietors in the column of cultivation as holders of an occupancy or as tenants-at-will and the added entry in the rent column, regarding amount of rent paid to the proprietor or to the person mentioned in the column of cultivation or non-payment of rent and in such cases the reason therefore, are requirements which directly flow from the provision of law. To illustrate, an entry "Bila lagan batasawar malkiat" will fall in all the three sub- clauses of clause (a) of subsection (2) of section 39 of the Act, inasmuch as it will show that landowner will not be receiving rent, the nature of possession of the person mentioned in column of cultivation is hostile and adverse, and no rent is due from the person mentioned in the column of cultivation. As to the probative value of such entries since these, too, exist in the jamabandi, a mere reference to section 52 of the Act which provides that an entry made in the periodical record in accordance with the provisions of the Chapter and the Rules made thereunder shall be presumed to be true until contrary is proved or a new entry is lawfully substituted therefore, shall be conclusive.
9. But assuming, without admitting, that the entries of the type that usually occur in the column of rent are not made to meet the requirement of the law, such entries shall nevertheless be, relevant under section 35 of the Evidence Act, which provides as follows:- "An entry in any public or other, official book, register or record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register or record is kept, is itself a relevant fact."
We cannot overlook that the entries in the jamabandis are made by officials incharge of the record and in the course of their official duty to prepare that record. These entries have nexus with the requirements of the column in which those are made and, as has been already pointed out, more often than not, explain the elusion entry "tenant-at-will" which expression the Revenue Officers use for all persons who are not proprietors and includes the case of a person who is a trespasser. Out of the several Rulings noticed by us earlier, there is only one Ruling, namely, Mohan Jan and others v. Shivadayat Parsad and others (1968 SC M R131) where there was an entry in the remarks column that a Suit No. 172/160 dated 3rd April 1903, was brought in respect of two plots by a plaintiff on the strength of a kebala, and the suit was dismissed. That entry was as their Lordships have observed was not one of the particulars required to be entered under section 102 of the Tenancy Act. The citation will not show as to whether it was relevant to a specified column of the particulars required but it appears that in all probability it was not. The name of the plaintiff was not indicated and it was, therefore, not shown he was concerned. Again it was in the column of remarks and by some one who was not obliged by law or practice to make it.
10. The only case in which an entry in the Revenue Record will be taken out from the purview of section 35 of the Evidence Act will be when it is in excess of the official duty. Bishanath Persad and another v. Emperor (AIR 1948 Oudh 1) lays down that it is not necessary that before the entries in an official record become admissible there should be a duty prescribed by enactment. It was held that it would be enough if such duty was prescribed by the Rules made under the enactment. In the circumstances entries of the register of birth made by a constable in performance of the duty was held valid under section 35 of the Evidence Act. Dirgaj Deo Bahadur v. Benu Matho and others (AIR 1917 P C 197) will, however, concluded the matter. The register in 'that case was found to be an official document and their Lordships observed that it would be admissible in evidence under section 35 of the Evidence Act. True it was observed by their Lordships of the Privy Council that if it could be shown that any particular part was in excess of the official duty by reason of which it came into existence, that part might not be admissible; but we are clear in our mind that entries of the type that usually occur in the column of Lagan cannot be said to be in excess of the official duty, for it is the duty of a Revenue Officer, under section 39 of the Land Revenue Act to indicate the liabilities of the persons in) possession and to indicate not only the rent due from this or that person bull to each of those persons and to the Government.
11. Before we answer the question, referred to us. We should like to clarify that the word "conflict" in the question referred to us is not to be taken in the sense that entries are mutually destructive of each other but in the sense that the entries ex facie or on first impression are conflicting. With this explanation, our answer to the question referred is that whenever on the first impression the entries in the column of cultivation and Lagan appear to be in conflict, both the entries will be read together and an endeavour has got to be made to determine the nature of possession, taking into consideration both the entries. There can be no inflexible rule that entries in the column of cultivation must prevail over the entries in the column of rent. Importance to be attached to this or that entry will be different in the case of different expressions and shall depend upon the facts of each case.
S. A. H.