Mohamad Noor, J.These two appeals arise out of two suits instituted by the same plaintiffs against two sets of defendants for recovery of possession of certain lands on the ground that the defendants were in their wrongful possession and that their names were wrongly recorded in the Survey Records of Rights in respect of them.

2. The plaintiffs of the suits are the landlords of the villages where the suit lands are situated. The defendant of one of the suits, Kumar Bhupendra Narayan Singh (who is respondent in Second Appeal No. 821 of 1933) has been recorded in the settlement records as a rent free tenure holder in respect of 125.08 acres of land in village Achra, situated in the area known as Kosi Diara in the District of Purnea. In the other case the defendants (who are respondents in Second Appeal No. 1116 of 1933) have been recorded as milikdar in respect of 14.03 acres of land in village Kusmaul also within Kosi Diara. The plaintiffs instituted these two suits for recovery of possession of these lands on the declaration of their title to them and on a finding that the defendants have not got the status given to them in the Record of Rights. The first suit was instituted before the Subordinate Judge and the second before the Munsif. Both of them were dismissed by the respective trial Courts. The appeal of the plaintiffs in the first suit has been dismissed by the learned District Judge of Purnea and that in the second suit by the learned Subordinate Judge of the same place. The plaintiffs have, therefore preferred these two second appeals. As the appellants are the same and the points of law raised on their behalf are common to both the appeals they have been heard together.

3. Strictly speaking, on the findings of the lower Courts, no question of law arises in either of the two appeals. In Second Appeal No. 821 of 1933, the plaintiffs case was that the suit lands were their mal lands and not rent free. They further urged that, assuming that they were rent free tenure of the defendant he lost it by the adverse possession of the plaintiffs. It was alleged by them that the lands were submerged under the Kosi river and that since they came out of the river they had been in their possession through their own tenants. There is a clear finding of the lower appellate Court which is in agreement with that of the trial Court, that the lands are the rent free tenure of the defendant and that the entry in the Record of Rights is correct. It has also been found that after their emerson from the river the lands were for a considerable time unfit for being taken possession of and therefore on the basis of his title the defendant must be held to have continued in possession. Both the Courts have disbelieved that the plaintiffs were in possession of the lands after they came out of the Kosi. Similar is the case in respect of the lands involved in Second Appeal No. 1116 of 1933. The defendant of this suit claimed, as I have said, to be the milikdar of the suit land and was recorded as such in the Record of Rights. The lower appellate Court has found that at least since 1909 he had been holding it as milikdar having in that year purchased it under a sale deed in which it was described as milik. It was also held that the entry in the Record of Rights was not proved to be incorrect by the plaintiffs. The learned advocate for the appellant has contended that the statement in the deed that the land was milik was not admissible in evidence. It is true that the statement is not admissible to prove that the land is the milik of the defendant, but it is admissible to prove that when the defendant came in possession of the land he did so with an assertion that he was holding it as a milikdar, and since then, he began to prescribe against the plaintiffs as milikdar. The suit having been instituted after 12 years of the commencement of that possession, is obviously barred. The only other point urged in this case is that the entry in the Record of Rights is based upon no evidence. No material has been placed before us to support this contention.

4. The main contention of the learned advocates for the appellants in both the appeals has been that the onus to rebut the presumption of the correctness of the entries in the Record of Rights was wrongly placed upon the plaintiffs. It was contended that the entries stood rebutted as soon as it was admitted that the lands were within the ambit of the permanently settled villages of the plaintiffs and were assessed to revenue. After that it was incumbent on the defendants of the two suits to prove that they acquired from the zamindar either rent free tenure or milik as the case may be. Now, the question of onus does not really arise in these cases. As the learned District Judge in his judgment (appealed against in Second Appeal No. 821 of 1933) has pointed out, both the parties adduced evidence and the cases were decided on the balance of evidence. However, as the learned advocates of the appellants have very elaborately argued the question of onus and placed a number of authorities before us, I think I should give my decision especially as I find myself with all respect in disagreement with the view taken in this connexion by a Division Bench of this Court.

5. Now, the contention of the learned advocates, as I have said, has been that the lower Courts were wrong in relying upon the entries in the Record of Rights as they were proved to be incorrect by the fact that it was established that the lands were assessed to revenue and were within the permanently settled villages of the plaintiffs. In support of this contention reliance was placed upon the observations of their Lordships of the Judicial Committee in the well known case, Jagdeo Narain Singh v. Baldeo Singh AIR 1922 PC 272. It was contended that their Lordships have laid down that the presumption of the correctness of an entry in the Record of Rights about a certain land being rent free is rebutted if the landlord proves that the land was included within the ambit of his village which was permanently settled with him. If the facts of the case which was before their Lordships are not kept in view, the argument of the learned advocates at first sight may appear to have some force and one may think that there is a conflict between the view taken in that case and the clear words of Section 103-B, Bihar Tenancy Act. The observations relied upon are at p. 48 of the report and are these:

Considerable stress has been laid on the assumption (i.e., the assumption u/s 103-B, Tenancy Act). Once, however, the landlord has proved that the land which is sought to be held rent free lies within his regularly assessed estate or mahal the onus is shifted. In the present case the lands in dispute lie within the ambit of the estate which admittedly belongs to the plaintiffs and the pro forma defendants for which they pay the revenue assessed on the mouza. In these circumstances it lies upon those who claim to hold the lands free of the obligation to pay rent to show by satisfactory evidence that they have been relieved of that obligation either by some contract or by some old grant recognized by Government.

6. As I shall presently show this, observation is in connexion with the particular rent free tenure which was before their Lordships, i.e., malikana, and cannot be applied to ordinary rent free tenures or holdings which are before us. The correctness of an entry in a record of rights can only be rebutted by proof of facts which are inconsistent with the entry. Assessment of land revenue on any land is not inconsistent with its having been made rent free after the assessment of land revenue. It is certainly inconsistent with its being malikana which, as I shall show, originated at the time of the Permanent Settlement. I am absolutely certain that their Lordships have not laid down as a general proposition of law that the presumption of the correctness of the entries in the record of rights about a particular land being rent free is in every case rebutted by the proof that the land is within the permanently settled village of the landlord and was assessed to revenue. Obviously, whether the presumption of the correctness of an entry has been proved to be incorrect is a question of fact and has to be decided on the facts of a particular case. Section 103-B which was being considered by their Lordships runs thus (see p. 48 of the report):

Every entry in a record of rights so published (i.e., Oh. 10 of the Act) shall be presumed to be correct until the contrary is proved.

7. The sub-section now runs thus:

Every entry in a record of rights so published shall be evidence of the matter referred to in such entry and shall be presumed to be correct until it is proved by evidence to be incorrect.

8. Though the amendment was made in 1907 it does not seem to have been brought to the notice of their Lordships. As was pointed out by Ross, J. in Lachman Lal Pathak v. Kumar Kamakshya Narayan Singh AIR 1931 Pat 224 , the presumption of the correctness of the record of rights cannot now be rebutted by another presumption under the general law in favour of the landlord as laid down by Sir James Colvile in Rajah Sahib Perhlad Sein v. Doorga Persaud Tewaree (1867) 12 MIA 286. In a large number of cases the very record which shows that a particular tenancy is rent-free shows that a particular person is the landlord of the village and that the tenancy is held under him and is not revenue free, that is to say, it is assessed to revenue. Under the Bihar Tenancy Act the word landlord is defined as a man immediately under whom a tenant holds, and tenant is one who, holds land from another person and is, but for a special contract, liable to pay rent for that land to that person. A rent free holder is in most cases a tenant. Therefore, if the contention of the learned advocates be accepted that their Lordships have held that the proof that a particular person is the landlord of a land holding it under the Permanent settlement rebuts the presumption of the record of rights that the land is held rent free by another person, then it will follow that in most cases we shall have to hold that the entry of rent free tenancy is rebutted by another entry that it is under the landlord. This will lead us to a vicious circle and we shall have to hold that their Lordships decision is in conflict with the clear provisions of Section 103-B, Bihar Tenancy Act, which says that every entry in the record of rights shall be evidence of the matter referred to in such entry, and shall be presumed to be correct until it is proved by evidence to be incorrect. We will have to insert into this section an exception that an entry about the land being held rent free shall not be presumed to be correct in cases where the land is held under a landlord of a village which has been assessed to revenue.

9. In Sri Jagarnath Kishore Lal Singh Deo v. Prasana Kumar Misra (Second Appeals Nos. 1584 to 1590, decided by me singly, on 26th April 1933), I explained that the observations of their Lordships have to be read as referring to the entry in the particular case where the claim of the defendants who were appellants before them was independently of the landlord. I quote the following passage from the judgment which I then delivered:

The defendants in that suit claimed to be malikanadars of certain lands in a village and they were recorded as such in the record of rights published under the Bengal Tenancy Act. I may note that the provision about the presumption of the correctness of the record of rights and the entry therein under the Bengal Tenancy Act is similar to the one under the Chota Nagpur Tenancy Act. Now, the plaintiff instituted that suit for a declaration that the defendants were not malikanadars and were liable to pay rent. The two Courts below upheld the plaintiffs contention and held that the defendants were not malikanadars of the lands. This Court in second appeal reversed those decisions, and relying among other things upon the record of rights held in favour of the defendants. The matter went up to the Privy Council and their Lordships examined the evidence for themselves and held that there was no malikana in the village when it was assessed to revenue in 1839. Now according to the glossary of the terms given by the Settlement Authorities in the Settlement Report of the Patna District from where that case came, malikana means the allowance of a dispossessed malik. In some cases the right to malikana has been compounded for a certain area of land thus known as malikana land. The word is also used in Bihar to describe the land retained by the ex-proprietors for their subsistence when parting with the estate. When at the time of Settlement Land Revenue a proprietor refused to take settlement of an estate, or the Revenue Authorities for some reason or other did not consider it proper to settle the estate with him and consequently settled it with somebody else, the ex-proprietor was allowed some compensation. This compensation was either a perpetual annual payment of money known as the malikana money or some land in the village itself and was known as malikana land. The land was given by an arrangement between the Revenue Authorities, the new proprietor and the old proprietor. Now their Lordships of the Judicial Committee, as I have said, examined the history of the settlement of the village which had taken place by the year 1839 and came to the conclusion that the entire village was included in this settlement with the then proprietor Mt. Umatul Zohra. The passage quoted above comes after the finding and should be read in the light of the finding and referring to it. It is clear to me that what their Lordships meant was that the plaintiff having proved that the land which was claimed by the defendants to be the malikana land was included in the land which was settled with the predecessor of the plaintiff and pro forma defendants and assessed with revenue, they sufficiently rebutted the presumption of the record of rights. I do not read the passage as meaning that once the plaintiff has proved that he is the landlord of the village the presumption about the record of rights in favour of the tenancy being rent free is at once rebutted.

10. Further I said:

The important words in the judgment of their Lordships of the Judicial Committee in the case of Jagdeo Narain, Jagdeo Narain Singh v. Baldeo Singh AIR 1922 PC 272 are "the land which is sought to be rent free lies within his regularly assessed estate or mahal," "the land in dispute lies within the ambit of the estate," and "for which they pay revenue assessed in the mauza." These facts rebutted the presumption in favour of the malikana.

11. It is obvious that a malikanadar claims a title independent of the landlord, as the malikana had its origin at the time of the Permanent Settlement. Either he claims that the land was excluded from the Permanent Settlement or that by an arrangement between the Government and the man with whom the Permanent Settlement was made a certain land was set apart for the ex-proprietor as malikana. It is obvious that in such cases the production of evidence to show that the land was in fact included in the Permanent Settlement will obviously rebut the entry of malikana in the record of rights. But in other cases where the assessment of land revenue has no connection with a land being rent free the facts found by the Settlement Authorities to have existed at the time of the cadastral survey cannot possibly be rebutted by proof of facts which existed at the time of the Permanent Settlement, and, if the facts of the case in which these observations were made were kept in view, there is no conflict between the law and the observations of their Lordships. The case of Jagdeo Narain Jagdeo Narain Singh v. Baldeo Singh AIR 1922 PC 272 was considered in several cases. They are A.J. Stonewigg v. Kameshwar Narayan Singh AIR 1923 Pat 340 , Nibaran Chandra Mukerjee Vs. Rai Harendra Lal Bahadur and Others, , Jodha Sahu v. Tirbena Sahu AIR 1929 Pat 248 , Lachman Lal Pathak v. Kumar Kamakshya Narayan Singh AIR 1931 Pat 224 already referred to, and Jyoti Prasad Singh Deo v. Bharat Shah Babu AIR 1936 Pat 543 . In none of these cases the observations of their Lordships of the Judicial Committee have been held to mean what the learned advocate for the appellants has contended for. The learned advocate has referred us to an unreported decision of a Bench of this Court in Kameshwar Singh v. Sakhawat Ali (F.A. No. 86 of 1933, decided on 4th September 1936). This case no doubt supports the contention of the learned advocate. It seems, however, that the change in Section 103-B, Bihar Tenancy Act, was not brought to the notice of their Lordships. However, as in the present case, in view of the fact that it has been decided on the balance of evidence, the question does not arise, it is not necessary to refer it to a Full Bench. I would dismiss the two appeals with costs in favour of those respondents who have appeared. There will be one set of costs in each case.

Madan, J.

12. I agree.