Record-of-rights; What is and methods for its maintenance and correction

- Md. Mukhlasur Rahman

Dolil2

Published On - January 14, 2017 [Vol. 6, Jan - Jun, 2017]

Introduction:
The terms Record-of-rights, Khatian, Holding, Tenancy, Jote, and Joma may seem to have some distinguished meanings; but in practical use, all these terms has almost same meaning and connotation. We are going to touch on these terminologies and discuss in detail throughout the article.

Record-of-rights:
No where in the statutory land laws of the State, i.e. either in present State Acquisition and Tenancy Act, 1950 or in previous Bengal Tenancy Act, 1885, the term ‘record-of-rights’ has been defined in literal meaning.
Sec. 17 of the SAT Act provides provisions for preparation of record-of-rights and sec. 144 of the said Act provides provisions for revision of the record-of-rights. The SAT Act in its various sections used this term record-of-rights in short as ‘record’ only.
Sec. 52A of the Registration Act termed the word record-of-rights as ‘Khatian’.
C.S. record-of-rights: Earlier sec. 101 of the B.T. Act provided that the provincial Government may, in any case if it thinks fit, make an order directing that a survey be made and a record-of-rights be prepared by a Revenue-officer, in respect of all lands in any local area, estate or tenure or part thereof. That is to say this section provided provisions for power to order survey and preparation of record-of-rights. Under said sec. 101 of B.T. Act a survey was held and record-of-rights was finally published which was named C.S. Khatian. Such record was held during 1888-1940.
R.S. record-of-rights: Thereafter, during British period other surveys, e.g. R.S. survey, diara surveys or in the name of charcha survey, etc. were held too under said sec. 101 of B.T. Act.
S.A. record-of-rights: Then after coming into force of the present land law, i.e. the SAT Act, 1950, rent-receiving interests were acquisitioned by the Government u/s. 3 of the SAT Act and thereby the ex-landlord system had been abolished; therefore for the purposes of abolishing acquisition of rent-receiving interest and for ascertaining rents amongst the tenants (rent roll) an over-all survey-operation being named State Acquisition settlement was held all over the country u/ss. 17-19 of SAT Act during 1956-63 which is generally named S.A. record-of-rights. It is also known as ROR record (record-of-rights), MROR record (modified record-of-rights), Rent Roll record and also it is most commonly known as record of the year 1962. This S.A. Khatian is also called as P.S. Khatian; ref. 9 ADC 760 para 3.
U/s. 82(8) of SAT Act the said S.A. recorded tenants have been upgraded into the class of owners of the lands recorded in their names.
Mentionable that the S.A. record was not made in practical field survey like the C.S. and R.S. record; it was made by the then officials on their home-desk, basing upon the papers of zamindary dakhilas and zamindary records supplied by the then zamindars. Also mentionable that from a combined reading of sec. 3 and 17 of the SAT Act it manifestly come to light that under those sections the legislature did not want to make the C.S. tenants or their successors-in-interest to be directly tenant under the government; rather the intent of those sections is those who were tenants or sub-tenants under the rent-receivers by payment of rents were to be made tenants directly under the Government and their names were to be included in S.A. record and the said S.A. recorded tenants were made ‘maliks’ of the recorded lands u/s. 82(8) of SAT Act. Therefore, the prime base of S.A. record was the zamindary dakhilas as to prove actually who were tenants under the then zamindars at that concerned time. To prove the dakhilas the zamindary original registers were the only one base. The S.A. survey was held upon basing both of these two papers. Therefore, for mere non-practical filed survey, it cannot be said that the S.A. record is no record in the eye of law; rather under the present land law of the Land, i.e. SAT Act, the S.A. record is the certificate of ownership.

B.S./BRS/RS record-of-rights: The last provision respecting record-of-rights is the revision of the record-of-rights as provided in sec. 144 of the SAT Act; which provides that the Government may make an order directing that a record-of-rights in respect of any district or local area be prepared or revised by a Revenue-officer in accordance with such rules made in this behalf.
Needless to mention that there were lots of wrongs in the S.A. record-of-rights. Therefore, immediately after publication of the said S.A. record, under the power of sec. 144 SAT Act the Government of the then East Pakistan took initiative for holding a new revisional survey in the country. Accordingly it started its work first in Rajshahi zone in the year of 1965-66. Thereafter, such survey works were expanded to other zones of the whole country step by step, e.g. in Dhaka zone in 1966-1967, in Chittagong in 1970-1971, in Kustia in 1975-1976, in Pabna in 1975-1976 and in Mymensingh-Jamalpur zone in 1978-1979. Lastly, such works were started in the Noakhali, Khulna, Rangpur and Tangail zones in 1986-87 and in Sylhet and Barisal zones in 1987-88. The survey works were completed in Rajshahi zone in 1983. Throughout the country the revisional records were draftly published in between 1980-90. Meanwhile almost all over the country, except in few areas, the survey works had been completed and also the survey records of final publication already were handed over to the concerned Deputy Commissioners. This last revisional record-of-rights is commonly known as R.S. or BS or BRS record or BRS Khatian.

Methods for maintenance and correction of record-of-rights:
We know that after final publication of the record-of-rights it can be corrected by the land management authority u/secs. 143, 143B, 143C and 149(4) of SAT Act and by the civil courts u/s. 54 of SAT Act. However, if there is any actual wrong in a finally published record-of-rights that can only be corrected by civil courts. The power of the management authority is only for sub-division or maintenance by upgradation and modification, or revision of the record; which are not correction of wrongs in the record in true sense; rather making the record up-to-date or modified in the changed situations. We may speak about those below:-
(i) Sub-division of the holdings; secs. 116, 117:
Sec. 116 SAT Act provides for “amalgamation of holdings of a tenant in the same village’ and sec. 117 of SAT Act provides for “subdivision of holding and restriction thereon”. However, these provisions for amalgamation, sub-division and consolidation of holdings, as contained in secs. 116-117 under chapter XV of the SAT are not for correction of the record. Rather under these provisions the record can be sub-divided or some records can be amalgamated which have been prepared or finally published u/s. 144 of SAT Act; and which is done supposing the original record to be correct.
ii) Maintenance and correction of record-of-rights; secs. 143, 143B and 143C:
The provisions for maintenance and correction of the record-of-rights, as contained in secs. 143, 143B and 143C SAT Act under chapter XVII of the Act, are not actually provisions for correction of the wrong record. Under these sections correction can be allowed only for clerical mistakes e.g. correction of spelling of one’s name, or correction of any apparent oddness in the Khatian, etc; not to correct the wrong of the Khatian, i.e. to correct the share of the owners or to insert into or deleting one’s name from the Khatian. However, under this section changes can also only be brought by transfer or inheritance; or by sub-division or amalgamation of holdings, etc.
In other words, under provisions of these secs. 116, 117, 143, 143B and 143C of SAT Act a khatian prepared or finally published u/s. 144 can be sub-divided or upgraded by modification or by opening mutation khatians taking that khatian into consideration to be correct.
Judicial pronouncements in this respect may also be placed here that –
Sec. 143 of SAT Act provides that record-of-rights prepared or revised shall be maintained up-to-date in the prescribed manner under Part IV, or under Chapter XVII by correcting clerical mistakes and by incorporating the charges on account of the mutation of names as a result of transfer or inheritance, 38 DLR 270 = 6 BLD 7. The revenue officer is empowered u/s. 143 of SAT Act read with rule 23(4) of the SAT Rules to maintain upto-date record of rights upon correction where necessary. He can well cancel mutation on the basis of valid materials wrongly obtained earlier, 12 MLR (AD) 137. Finding of Revenue authority carries much weight so far as possession is concerned, 45 DLR 349.
The suit was for declaration that the order of mutation passed in M. case no. 193/68-69 mutating the suit lands in defendants’ names and in case no. 32/83-84 rejecting plaintiffs’ prayer for cancellation of the said mutation is illegal and not binding upon plaintiffs alleging that the plaintiffs are heirs of S.A. recorded tenants and are in possession in the suit land. Defendants alleged that they auction-purchased the suit lands in 1951 out of a mortgage decree in T.S. no. 102/49 and accordingly obtained mutation in their names in 1969. Held: Sec. 143 of SAT Act is attracted only when clerical mistakes of khatians are required to be corrected or a mutation of names is to be made as a result of transfer or inheritance. It is not attracted when the record of right is to be corrected after a finding to be given as to the title of holders or challengers. The examination of title deeds for the purpose of determining title to the holder of record of rights is not permissible u/s. 143 of SAT Act. The word ‘transfer’ in clause A of sec. 143 of the Act is limited to transfer by the recorded tenants and not by other persons. In the present case, the mutation was sought for by the defendants not because of transfer by the plaintiffs (being S.A. recorded owner) but on account of auction-purchase caused early to publication of S.A. record, therefore, the impugned mutation order in favour of defendants was without jurisdiction, 5 MLR 164 = 4 BLC 178.
The word “transfer” accruing in sec. 143(a) is limited to transfer by the recorded tenant, not by other persons. Sec. 143 is not attracted when the record of rights is to be corrected after a finding to be given as to the title of the holders or challengers, 41 DLR 364. The revenue-officer, in the light of the provision of sec. 143 of the Act and r. 23(4) of the Tenancy Rules is quite competent to make necessary entry in the record of right like the one as done in the instant case, 59 DLR (AD) 119.
The revenue-officer disposing of an application seeking mutation cannot be considered a court, 13 BLC 24. The revenue-officer holding mutation proceeding does not act as a Court within the meaning of sec. 195(1) CrPC. There is no bar for the Magistrate in taking cognizance of the case in the absence of any complaint from him, 6 BLD 7 = 38 DLR 270, AIR 1950 (SC) 188, PLD 1957 (SC) 9.
(iii) Revision of record-of-rights; sec. 144 SAT Act:
The ultimate provision respecting correction of the record-of-rights is the revision of the record-of-rights u/s. 144 of the SAT Act; which provides that the Government may make an order directing to prepare or revise a record-of-rights in an area.
This sec. 144 provides for preparation or revision of record-of-rights in a specific area. But the words, so far our study, ‘preparation’ and ‘revision’ used in this section has not been defined any where in the SAT Act or in any other statute. However, from reading sec. 17 of SAT Act we can construe that where no record-of-rights is made either under the then Bengal Tenancy Act or under the present State Acquisition and Tenancy Act, making a newly record-of-rights there shall be termed in the category of ‘prepared’. And where a record-of-rights already exists, such as where C.S. and/or S.A. records are present, making an overall new survey is to be called as ‘revised’ record-of-rights. In other words ‘revising’ a record-of-rights means a record which is modified and adjusted from the earlier finally published record-of-rights.
(iv) Correction of bonafide mistake by the Board of Land Administration; sec. 149(4) SAT Act: The last provision for correction of the record-of-rights by the Management Authority is sec. 149(4) of the SAT Act; which provides that the Board of Land Administration may at any time order for correction of any entry in the record-of-rights which has been made owing to a bona fide mistake.

Correction of record-of-rights by the civil courts:
By the civil courts the record-of-rights can be corrected in two ways under two provisions of the State Acquisition and Tenancy Act; such as:-
(i) Suit for direct correction of the record u/s. 145A(8) of SAT Act by a decree for correction of the record passed by the Land Survey Tribunal; or,
(ii) U/s. 54 of the SAT Act read with sec. 42 of S.R. Act by a decree for declaration of title or declaration of possession passed by a civil court and then correction of the record-of-rights u/s. 54 of SAT Act under said decree.

Concluding view:
Under this position of statutory laws as discussed above, we find that when a record-of-rights is prepared under the authority of sec. 144 of SAT Act and under the prescribed rules thereunder (that is to say following the procedures mentioned in rules 26 to 44 of the Tenancy Rules, 1955) and be finally published accordingly which is the last step of revising a record-of-rights, it becomes final as being sealed. Then no other way is left to correct the finally published revisional record except via the above two methods, i.e. the universal method of declaring one’s title or possession by the civil courts as articulated in sec. 54 of SAT and the newly created method of an order for correction of the record by the Land Survey Tribunal as introduced in sec. 145A of the said Act.

About The Writer

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Md. Mukhlasur Rahman

Senior Assistant Judge,

Iswargonj Chowki Court, Mymensingh

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