Mon Mohan Pandey vs Hari Nath Chaudhury And Ors. on 5 August, 1927

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Calcutta High Court
Mon Mohan Pandey vs Hari Nath Chaudhury And Ors. on 5 August, 1927
Equivalent citations: 110 Ind Cas 338
Author: Page
Bench: Page, Graham


Page, J.

This is an appeal from a decision of the learned Special Judge of Jessore reversing a, decision of the Assistant Settlement Officer of Jeesore. The appeal arises out of an application by a landlord under Section 105 of the Bengal Tenancy 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 in the Record of Rights is an entry to the effect 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) of the Bengal Tenancy Act, and produced dahlias 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 the informun, 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) of the Evidence Act of 1872. The entries, in these books, therefore, were admissible1 in evidence without corroboration. 8e3 Rampyarabai v. Balaji Shridhar 28 B. 294; 6 Bom. L.R. 50, Dukha Mandal v. Grant 16 Ind. Cas. 467; 16 C.L.J. 24, Aktowli v. Tarak Nath Ghose 17 Ind. Cas. 266; 16 C.L.J. 328; 17 C.W.N. 774 and Umed Ali v. Habibulla 56 Ind. Cas. 38; 31 C.L.J. 68; 47 C. 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 dahlias produced by the tenants or not this Court would not interfere with the finding at which the lower Appellate Court arrived. 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 sheerest and “it is not fair to charge the tenants with liability on the strength of papers prepared in the zemindar’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. In this case, in my opinion, in considering the facts the learned Special Judge misdirected himself 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 josh other evidence is this cass are sufficient to establish that the tenants of this holding are liable to have the rate of rent that they are now paying re-adjusted, 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) of the 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.

This judgment will also govern the other seven analogous appeals.

Graham, J.

I agree.

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