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Calcutta High Court
Man Mohan Pandey vs Hari Nath Chaudhury And Ors. on 5 August, 1927
Equivalent citations: AIR 1928 Cal 408
Author: Page


Page, J.

1. This is an appeal from a decision of the learned Special Judge of Jessore reversing a decision of the Assistant Settlement Officer of Jessore. The appeal arises out of an application “by a landlord under Section 105, Ben. Ten. Act, for settlement of fair and equitable rent. A large number of holdings were under consideration, but this appeal relates only to eight of them. The record-of-rights is in favour of the landlord, and an the record-of rights is an entry to the affect that the holdings under dispute are those of settled raiyats, and, therefore, prima facie the rent was liable to enhancement under certain circumstances. The tenants who are now respondents pray in aid Section 50, Sub-section (2), Ben. Ten. Act, and produced dakhilas which proved to the satisfaction of both Courts that these eight holdings had been held at a uniform rate of rent for more than 20 years. In order to rebut the presumption which under such circumstances will arise in favour of the tenants the landlords, who are now appellants, tendered in evidence certain account books from their sherista, namely jama wasil baki jamabandi, sheha and karcha papers. These papers relate to the year 1872 and onwards, and both the lower Courts have considered these account-books upon the footing that they were admissible in evidence under Section 32. Sub-section (2), Evidence Act, 1872. The entries in these books, therefore, were admissible, in evidence without corroboration: see Rampyarabai v. Balaji Shridhar [1904] 28 Bom. 294; Dukha Mandal v. W.N. Grant (1912) 16 C.L.J. 24; Aktowli v. Tarak Nath Ghose [1912] 16 C.L.J. 328; Umed Ali v. Khaje Habibulla [1919] 47 Cal. 266. The entries in these account-books were also admissible in evidence notwithstanding that they were made in the absence of and without the assent of the tenants. But the weight to be attached to the entries in these account-books was a matter to be determined by the tribunal whose duty it was to take them into consideration, and in second appeal, if it is clear that the lower appellate Court, under a proper appreciation of the law material to the matter in hand, had come to a finding of fact upon the issue as to whether the entries in these account books outweighed the evidence of the dakhilas produced by the tenants or not, this Court would not interfere with the finding at which the lower appellate Court arrived.

2. In the present case, however, it is apparent from the judgment of the learned Special Judge that he has not considered the relative weight to be attached to the entries in these account-books and the rent receipts produced by the tenants upon the merits of the documents at all. In my opinion, the learned Special Judge approached the consideration of this matter from the wrong standpoint, for, as I understand his judgment, the ground upon which he refused to attach any value to the entries in these account books, whatever they might have been and however genuine they were, was that these books were prepared in the landlord’s sherista and
it is not fair to charge the tenants with liability on the strength of papers prepared in the zamindar’s office in the absence of the tenant,

and that no value is to be attached to such paper in the absence of legal corroboration by other sufficient evidence. Now, as we have said, merely because papers such as those in question are not corroborated or merely because they were prepared in the landlord’s office in the absence of the tenants, is not a sufficient ground for refusing to attach any value to the entries in those books as evidence.

3. In this case, in my opinion, in considering the facts the learned Special Judge misdirected himself as to the law, and the case must be remanded to the lower appellate Court in order that the appeal should be determined according to law. It is not to be understood that because this case is remanded for re-hearing this Court has expressed or formed any opinion whatever as to whether the entries in these documents taken together with the other evidence in this case are sufficient to establish that the tenants of this holding are liable to have the rate of rent, that they are now paying, readjusted. It may be that after considering these documents and the other evidence the learned Special Judge will come to the conclusion that the entry in the record of rights is correct. On the other hand, he may take an opposite view. But inasmuch as the entries in these account books have been held by both the lower Courts to be admissible under Section 32, Sub-section (2), Evidence Act, the learned Special Judge is not entitled to summarily dismiss them from consideration together with the other evidence in deciding the issues which fall to be determined upon the appeal. The result is that the decree of the lower appellate Court is set aside, and the case is sent back to that Court to be dealt with in accordance with law. Costs of and incidental to this appeal abide the result. We assess the hearing-fee in this appeal at two gold mohurs.

4. This judgment will also govern the other seven analogous appeals.

Graham, J.

5. I agree.

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