R.L. Narasimham, C.J.
1. This appeal is by the plaintiff against the appellate judgment of the additional District Judge of Berhampur reversing the judgment of the additional Munsif of Berhampur and dismissing with costs the plaintiffs' suit for declaration of their status as raiyats in respect of the suit lands and for other consequential reliefs,
2. The suit lands measure 3.15 acres and bear survey numbers 5/3, 6/7 and 9/2 in village Gumma Bira-Singpur which was formerly situated jn the zamindari of Bodokhimedi, prior to its being taken over by the Government of Orissa under the provisions of the Orissa Estates Abolition Act. It is admitted that in the finally published record of rights on 1942 (which was republished in 1950) the lands have been recorded in the names of the defendants as raiyats with rights of occupancy under the zamindar. The presumption of correctness attaching to the Settlement entry will prevail unless the contrary is proved by the plaintiffs as required by Sub-section (3) of Section 167 of the Madras Estates Land Act 1908.
3. The plaintiffs alleged that the lands were the raiyati lands of two persons, named Keshab Muli and Gangadhar Muli from whom their ancestor purchased the same by a registered sale deed dated 3-3-1909 Ext. 1. Since then the plaintiffs' family continued in possession of the property as raiyats and used to pay bhag rent to the Zamindar. A receipt for raj bhag of paddy (Ext. 2) of the year 1913 was also proved to establish their possession. They also relied on certain cess receipts (Exts. 2-b to 2-f) of the years 1922 to 1927 to show that they paid cess for the disputed lands to the village Munsif. On 26-8-27 a notice was issued to the plaintiffs (Ext. 2-a) by the Court of Wards which was then in management of the Bodokhimedi Zamindary, to pay Raj Bhagam to the Court of Wards and not to the zamindar (ancestor of the defendants) whose inam was alleged to have been resumed. The plaintiffs relied also on this document to prove their possession, on 26-3-27.
Thereafter there is no documentary evidence of possession on the side of the plaintiffs though it was alleged that they continued all along in possession as raiyats and that they used to pay rent to the Zamindar and obtained receipts. Though the plaintiffs claimed to be in possession of those receipts none of them was produced in Court. The Settlement entry in favour of the defendants was challenged as incorrect having been brought about by their machinations taking advantage of the illiteracy of the plaintiffs. Thus, the plaintiffs' claim was mainly based on the sale deed of 1909 which is their deed of title coupled with the evidence of actual possession of the disputed property all along.
4. The defendants however contended that the disputed lands were not the same as the lands which the plaintiffs had purchased by the sale deed of 1909. On the other hand, according to them, the lands were granted to their ancestor as physicians inam (Baidya inam) by the then Zamindar of Bodokhimedi though they were not able to state the exact date of the said inam grant. The inam was said to be of both varams though it is not deaied that from 1921 onwards, some members of the plaintiffs' family were allowed to cultivate the lands as Chassas without any rights. The payment of cess to the village Munsif, as evidenced by Exts. 2/b to 2/f was explained away on the ground that as persons in actual cultivation of the lands they were bound to pay a portion of the cess on behalf of the Inamdar.
The defendants however admitted that the mam was resumed by the Court of Wards when they were managing the estates sometimes towards the end of 1926 and the beginning of 1927, but that subsequently the lands were settled on a raiyati basis with the defendants' ancestor by a patta (Ext. E) dated 7-12-27, thereby recognising him as a raiyat. This settlement, by the Courts of Wards was confirmed when the Zamindar took over the management of the estate, by another patta Ext. E/1 dated 3-6-1933. The finally published record of rights was alleged to be, therefore, correct so far as the rights of the defendants were concerned. It was further alleged that the father of plaintiff No. 5 (Korada Raghunatho) named Korada Sinigi clearly admitted that he was only a bhag-chasi in respect of the disputed lands by executing a muchalika (Ext. B) in 1946, in favour of the defendants.
5. The trial Court held that the lands purchased by the plaintiffs' ancestor by the sale deed of 1909 were identical with the lands, of which settlement was made by the Court of Wards with the defendants in 1927 (Ext E) and confirmed by the zamindar in 1933 Ex. E/1 and observed that once the plaintiffs, in essence, became raiyats by virtue of the 'sale deed (Ext. 1) their raiyati interest cannot be taken away by any action on the part of the Zamindar in collusion with the defendants' ancestor. The lower appellate Court however held that the lands described in the sale deed of 1909 have not been proved to be the same lands, in respect of which the Court of Wards granted patta to the defendants' ancestor on 17-12-1927 (Ext. E). In coming to the conclusion he relied mainly on the fact that the plaintiffs led no evidence to show that the boundaries of the lands as described in Ext. 1 are identical with the boundaries of the lands as given in the patta (Ext. E/1) and in the notice (Ext. 2/a dated 26-3-27) given to the plaintiff's ancestor.
5A. Having come to this conclusion he further observed that as the plaintiffs relied mainly on the sale deed of 1909 and as the connecting link between that document and the disputed lands was not established, there was no reason to disbelieve the valid grant of a patta of the disputed lands to the defendants' ancestor in 1927 which was confirmed in 1933, and recognised in the finally published records of right in 1942. Hence he dismissed the suit, holding that the presumption of correctness attaching to a Settlement entry had not been rebutted by satisfactory evidence.
6. This being a second appeal, Mr. Ramdas for the appellant was faced with an initial hurdle, namely a finding or fact arrived at by the lower appellate Court which cannot be assailed. The limitations of the High Court in second appeal have been reiterated in several decisions of the Privy Council and also in a very recent (unreport-ed) decision of the Supreme Court in. Civil Appeal No. 284 of 1959 V. Ramchahdra Ayyar v. Ramlingam Chettiar D/- 10-8-1962 (Since Reported in AIR 1963 SC 302) where their Lordships reiterated the well known observations of the Privy Council in Mt. Durga Choudhrain v. Jawahir Singh Choudhri, 17 Ind App 122
'There is no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however gross or inexcusable the error may seem to be.' Their Lordships further pointed out:
'That is why even if the appreciation of evidence made by the lower appellate Court is patently erroneous and the finding of fact recorded in consequence is grossly erroneous, that cannot be said to introduce a substantial error or defect in procedure'. Mr. Panda for the respondents therefore urged that even if there might have been some errors in the reasoning of the lower appellate Court nevertheless his finding that the disputed lands were not the same lands which were purchased by the ancestor of the plaintiffs in 1909 was a simple finding of fact which cannot be disturbed by this Court in second appeal. As the success of the appeal depends mainly on the correctness or otherwise of this contention, I may briefly summarise the various reasons given by the lower appellate Court in support of his finding. It may be taken, as un-challenged, that the lands which were given on patta to the ancestor of the defendants, on 7-12-27 by the Courts of Wards (Ext. E) (which are the lands in dispute) are identical with lands in respect of which the plaintiffs' ancestor was given notice (Ext. 2/a) on 26-3-27 not to pay raja bhagam to the Inamdar. Hence if the plaintiffs had led evidence to show that the lands described in Ext. 2/a were identical with the lands described in their sale deed of 1909, (Ext. 1) which is their document of title, their success in this litigation would necessarily follow.
The plaintiffs were fully conscious of the importance of this aspect and in paragraph 8 of the plaint they alleged that the
'suit lands are the same lands purchased by the plaintiffs' ancestor under the registered sale deed dated 3-8-1909 and they can be identified by tracing the title of the neighbouring owners with those of their predecessors'. A specific issue (issue no. 2) was also raised on this point. Nevertheless there was practically no evidence adduced by the plaintiffs to establish the necessary connecting link between the boundaries of the lands mentioned in the sale deed Ext. 1 and the boundaries mentioned in Ext. 2/a. These two documents are separated by an interval of 18 years and if there was a change in the ownership of the adjacent lands either by inheritance or by purchase the plaintiffs ought to have led evidence on this question. Nevertheless, as pointed out by the trial Court no evidence was led. The lower appellate Court also attached considerable importance to this serious omission on the side of the plaintiffs and took it as one of the reasons to show that the identity of the two lands was not established. The importance of the boundary arises mainly because these lands were not surveyed then and there was no method of describing the lands except by their popular names in the locality, their area and their boundaries.
Having thus given due importance to the boundaries the lower appellate Court relied on the following further reasons in support of its conclusion :
(i) In the sale deed (Ext. 1) the lands were described as Bodo Sahu Chakko whereas the disputed lands are admittedly known as Lohara Billo.
(ii) There is no mention of the probable area of the lands conveyed by Ext. 1.
(iii) The Bhag receipt (Ext. 2 of 1913) has no importance because it has also not been proved to relate to the disputed lands.
(iv) The plaintiffs have admittedly other lands of their own close to the disputed lands and Ext. 1 might probably refer to those lands as they are all in one block known as Lohari Billo or Lohati Paharo Billo.
(v) The receipts (Ext. 2/b to Ext. 2/f) would show that the plaintiffs ancestor was paying cess on behalf of the inamdar as actual cultivators, but they do not show that they were raiyats.
(vi) The plaintiffs have not produced even a a single receipt to show that they paid bhag rent to the zamindar though they stated that they got rent receipts on payment of bhag rent (Rajabhagam).
(vii) There was hardly any evidence on the side of the plaintiffs to prove their possession of the disputed lands from 1927 to 1946.
(viii) The conduct of the father of the plaintiff No. 6 (Koroda Simigo) in executing a muchalika in favour of the defendants in 1946 admitting himself to be a bhag-chasi, is inconsistent with the plaintiffs' claim of possessing any raiyati right in respect of the disputed lands.
7-8. It is not denied by Mr. Panda that in respect of the aforesaid reasons, there was some evidence (except in respect of items (i) and (ii) ) to justify the Court of fact in coming to its conclusion, but he contended that the lower Court's observation that the lands were described in Ext. 1 as the Bodo Sahu Chakko was due to a mis-reading of the certified copy of the sale deed; whereas, on a careful scrutiny of the original it would be found that the Oriya words 'Sumar Battisa Bharanam Attaku' was misread as 'Bodo Sahu Chakko'. On the other hand the lands were described as 'Lohari Billo'. Thus the aforesaid reasons Nos. (i) and (ii) given by the lower appellate Court may be held to be based on a misreading of the document.
9. Then the question arises whether any point of law arises on account of this error committed by the lower appellate Court. It is true that Ext. 1 is a document of title and any misconstruction of such a vital document which is the foundation of the plaintiffs' claim may amount to an error of law. But here there Is no question of any misconstruction of the document, but only a mis-reading of a portion of the recital dealing with the name of the land and its area. The boundaries as given in the document were correctly read by the lower appellate Court and compared with the boundaries as given in Ext. 2/a.
10. Since the decision in Bukshee Booniadi Lall v. Bukshee Dewkee Nundun Lall, 19 Suth WR 223 of the year 1873 a distinction has always been made between the misconstruction of a document which is the foundation of a suit on the one hand, and a mistake as to the meaning of some portion of the evidence, which is in writing, on the other. The former has been held to be an error of law which would justify interference in second appeal but the latter would not by itself amount to an, error of. law if the finding of the final Court of fact is based not only on this mistake but also upon other circumstances. This decision was cited with approval Wali Mahomed v. Mahomed Baksh, in AIR 1930 PC 91 in the following terms:
'A second appeal would not lie because some portion of the evidence might be contained in a document or documents and the first appellate Court had made a mistake as to its meaning'.
To a similar effect is the observation of the Supreme Court in Narayan Bhagwantrao Gosavi v. Gopal Vinayak Gosavi, AIR 1960 SC 100 (paragraph 8).
'Mistaken inference from documents is no less a finding of fact if there is no misconstruction of the document'.
11. It is true that where the error relates to an important piece of evidence which is the basis of the finding of the lower appellate Court, an error of law may arise. Thus in Ganesh Lall v. Bisesar Pande, AIR 1926 Pat 49 a finding of fact based on a piece of documentary evidence which was completely misread by the Court (Subordinate Judge) was held not binding on the High Court in second appeal as the lower appellate court had strongly relied on that document as so misunderstood by him. In a recent unreported decision of the Supreme Court in Civil Appeal No, 323 of 1960, Nedunuri Rameswaramma v. Sampati Subba Rao, D/- 17-4-1962 (since reported in AIR 1963 SC 884) their Lordships observed :
'A construction of documents (unless they are documents of title) produced by the parties to prove a question of fact does not involve an issue of law, unless it can be shown that the material evidence contained in them was misunderstood by the Court of fact'.
12. Bearing these principles in mind can it be said that the error committed by the lower appellate Court as regards the name of the lands as given in Ext. I and its area is a material error which vitiates its finding? The identity of the two pieces of lands depends mainly on a comparison of the boundaries and that has been discussed at some length by the lower appellate Court and the boundaries as given in document Ex. 1 have been read correctly. He has also referred to some other pieces of evidence to show that the plaintiffs and their ancestor could not possibly have been raiyats in respect of the disputed property. Under such circumstances I think the principles laid down in 17 Suth WR 223 and reiterated in AIR 1930 PC 91 would apply and the error committed by the lower appellate Court will not be an error of law so as to justify reversal of his finding by this Court in and Appeal. I may in this connection further point out that it has always been held that the question whether a statutory presumption arising out of an entry in the Settlement record of rights is rebutted by the rest of the evidence is always a question of fact : See Midnapur Zemindary Co. Ltd. v. Secy. of State, AIR 1929 PC 286, reiterated in AIR 1930 PC 91.
13. Mr. Ramdas however contended relying on some observations in Dhirajlal v. Commr. of I.T. AIR 1955 SC 271 and Sree Meenakshi Mills Ltd. v. Commr. of Income-tax, Madras, AIR 1957 SC 49 that if several reasons are given by a Court of fact to justify its conclusions and some of them are found to be untenable an error of law would arise, as it is generally difficult to say to what extent the mind of the Court was affected by the reasons which are found to be untenable. In my opinion these observations which bear on the extent of the jurisdiction of the High Courts in Income-tax Matters (under Section 66 of the Indian income-tax Act) may not be applied too literally, in view of the decision of the Privy Council referred to above. The question ultimately depends on whether the error relates to a material piece of evidence and whether the Court of fact has strongly relied on that evidence. But from the summary of the evidence, on which the conclusion of the lower Court is based, it will be clear that this cannot be given so much importance as to vitiate the finding of the lower Court.
14. I must therefore hold that the finding of the lower appellate Court that the lands described in Ext. 2/a are not the same as the lands described in Ext. 1 is unassailable in second appeal being a pure finding of fact.
15. It was then contended, as an alternative argument, by Mr. Ramdas that Ext. 2/a itself contains an implied admission by the Court of Wards that the plaintiffs' ancestor was in possession of the lands and that they acquired ryoti interest by virtue of their possession, as recognised in the document. It is admitted by both sides that the Baidya inam in favour of defendants' ancestor was resumed just before the notice (Ext. 2/a) was issued to the plaintiffs' ancestor. The contents of the notice may be translated in English as follows:
'As the lands in your cultivation and more particularly described in Schedule given below and given to (Ga torn) Padhy resident of village Guma Birasingpur as Baidya (Kaviraj) inam have been resumed with effect from fasli 1336, you are hereby given notice to pay the rajabhagam on the said lands to the Estate from and including fasli 1336, until further notice. Should you disobey this order, steps will be taken to recover either the rajabhagam or its value from you'.
Here the Court of Wards took special care to inform the plaintiff's ancestor (Khoroda Chinnaya) that he was only a cultivator of the lands and that as the inam had been resumed he should pay rajabhagam to the Court of Wards until further orders. This is in consonance with the cess receipts Exts. 2/b to 2/f, commencing from 1921 which show that the very same persons were recognised as cultivators of the lands paying their share of the cess to the village Karji. But in this document the fact that there was an Inamdar under whom they were cultivating was clearly mentioned. Some reliance was placed on Ext. 2/f dated 2-1-1927 where, while granting the cess receipts to the plaintiffs' ancestor the village Karji referred to the right of the cultivator as Hak-Kinna (purchased right). An ingenious attempt was made to show that this must be taken to be a reference to the sale deed of 1909. But the lower appellate Court rightly refused to attach any importance to it as there is no evidence to connect the two. The plaintiffs have several other lands in the village and one cannot surmise that only the disputed lands were purchased by their ancestors. The expression 'Hukkinna' in Ext. 2/f, whatever it might mean, may refer to those other lands.
Moreover it is strange that in the cess receipts of the previous years viz., Exts. 2/b 2/c, and 2/d, from 1921, the word 'Huk kinna' was not found but it has been put forward for the first time in Ext. 2/f which was issued in Jan. 1927, by the village Munsif who has been examined as d. w. 4. The plaintiff did not venture to cross examine him with a view to ascertain what he meant by the word 'Huk kinna' Mr. Panda contended that as the Inam was resumed at about that time and the Court of Wards were making enquiries with a view to grant raiyati patta in respect of the land the plaintiffs' ancestor managed to get such a recital inserted in the cess receipt from the Village Munsif with a view to strengthen his claim. The defendant's ancestor was not a party to that receipt and hence no inference adverse to his right can be drawn merely because the word 'Huk Kinna' was found therein. All that can be reasonably inferred from Exts. 2/b to 2/f is that the plaintiffs' ancestors were cultivating the lands under the Inamdar till the resumption of the Inam by the end of 1926, and that on such resumption the Court of Wards issued notice on the plaintiffs' ancestor to pay rajabhagam to them until further orders. Ultimately however, in December 1927, the Court of Wards granted a Raiyati patta to the defendant's ancestor.
16. Even it be assumed that the plaintiffs' ancestor was in possession till the date of the settlement in 1927, on the basis of implied permission granted by Ext. 2/a, the question arises as to whether they can now claim to have acquired raiyati status. The land was service tenure land till the date of resumption i. e. till the end of 1926 and hence no raiyati right can accrue till that date. Soon after resumption the Court of Wards took time to make enquiries and until then they allowed the actual cultivator to continue in possession and pay Rajabhagam to them. But by December 1927 they finally made up their mind and granted patta to the ancestor of the defendants. Under these circumstances, it cannot be held that merely because the plaintiffs' ancestor was allowed to remain in possession of the lands from 26th March 1927 (Ext. 2/a) till 7th December 1927 (Ext. E) he becomes a raiyat.
17. The words 'admitted to possession as a raiyat' occurring in Section 6 (1) of the Madras Estates Land Act have been construed in several decisions of the Madras High Court some of which have been summarised in a Full Bench decision of that High Court in Navaneethaswaraswami Devasthanam v. P. Swaminatha Pillai (1958) 2 Mad LJ 281 : (AIR 1958 Mad 502) where, at p. 292 (of Mad LJ) : (at p. 505 of AIR), it was held that the 'admission' referred to in Section 6 (1) of that Act must be 'conscious and deliberate act' and not something which was not intended. They relied on an observation in Rajandramania Devi Garu v. Yellappa Ramu Naidu, 39 Mad L. J. 565 : (AIR 1920 Mad 517) to the effect that a person admitted to possession did not ordinarily mean a person in possession. Hence, the mere grant of permission, to the ancestor of the plaintiffs to continue such cultivation on behalf of the Court of Wards until they made up their mind about the person to whom raiyati patta should issue, would not constitute 'admission to possession' so as to confer raiyati right on the plaintiffs' ancestor in the year 1927.
18. An argument was advanced to the effect that the defendant's ancestor obtained the inam in 1918, that that grant was only of the melwaram interest, and that the person in possession of the land prior to the date of the inam must be held to be a raiyat whose rights were not, in any way, extinguished when the inam was resumed in 1927. This argument, though attractive, is based on a foundation of sand. Apart from the oral testimony of the plaintiffs' witnesses there is no evidence about the exact date of the Baidya Inam grant made to the defendants' ancestor by the then Zamindar of Bodokhimedi. The plaintiffs' attempt to show that the very land which they obained by the sale deed of 1909 was the land which was the subject matter of that inam grant has already been shown to have failed. It will therefore be idle to speculate that the inam must have been granted in 1918 to the Baidya, that some persons might have been in cultivation of the land prior to the date of grant, and that consequently the inamdar was granted only a melwaram interest.
The only authentic document in which there is mention of Baidya Inam is Ex. 2/b (which is a cess receipt of 1922) where the plaintiffs' ancestor was described as a Chasa by the village Karji while granting the cess receipt. If in fact only the melwaram interest had been granted to the inamdar by the Zamindar and there was a raiyat on the land prior to the date of the grant, it is inexplicable as to why, when the plaintiffs' ancestor paid cess to the village Karji and obtained a receipt (Ext. 2/b) he did not insist on his name being recorded as a raiyat in the receipt. It is true that the defendants also have not led any evidence to show the exact date of the inam grant made to their ancestor but their claim to the disputed land is not based on the inam grant but on the raiyati patta granted to their ancestor by the Court of Wards in 1927 (Ext.E) which was later confirmed by the zamindar in 1933 (Ext. E/1). Hence it will be academic to consider what must have been the date of inam grant and whether the grant was merely of the melwaram interest or both melwaram and kudivaram interest.
18a. In conclusion therefore I would hold that the lower appellate Court's finding that the presumption of correctness attaching to the Settlement entry has not been rebutted, is binding on this Court, and no error of law arises out of the judgment even though there may be some errors in some of his reasonings.
19. The appeal is dismissed with costs,
Barman, J.
20. I agree.