Nittyanund Roy vs Abdar Raheem And Anr. on 1 March, 1881

Calcutta High Court
Nittyanund Roy vs Abdar Raheem And Anr. on 1 March, 1881
Equivalent citations: (1881) ILR 7 Cal 77
Author: Morris
Bench: Morris, Tottenham


Morris, J.

1. The only point at issue in this case is, whether the etmami tenure of the defendants existed at the time of the Permanent Settlement. The lower Appellate Court, reversing the decision of the first Court, has decided in favour of the defendants. It relies entirely upon certain papers of the year 1126-27 Mughi, corresponding with the English year 1764, which purport to be abstracts from, or copies of, chittas made apparently in that year. The Judge says: “I am inclined to admit them,” and he does so, because, to use his own words, “they are public documents compiled by, used by, and guarded by public officers, and their certified copies are admissible as evidence of the contents of the original.” Now, in the first place, these documents are not copies of the originals, but they are copies of copies. No reason is assigned why the originals or their copies are not produced. Then, again, there is nothing to show, beyond the fact that they came from the Collectorate, that they are the record of measurements made by any Government officer. 80 far as we can judge, they are only abstracts of measurement chittas of the year 1126-27. Whether they correctly represent the khutian, or abstract of those chittas, it is impossible to say, for there is no evidence whatever on this point; nor is it apparent in what year they were made, or in what respect they were of public use. Therefore, we find ourselves unable to hold that these documents are “public documents” within the meaning of Section 74 of the Evidence Act. Independently of these documents, there is no evidence which throws back the tenure of the defendants to a later date than 1200 Mughi, which corresponds with the year 1839. In that year this tenure was measured with other tenures of the turuff of the plaintiff under the name of Elmam Allal Eoshan. No doubt, in the measurement record of certain plots of this tenure, other tenures, such as Inas, Rofi, Razak, Aziz, and Razak Aziz Kutab, are referred to as apparently connected with [78] it. But whether Inas, Eofi, Aziz, and Kutab were relations of the ancestors of Allal and Roshan, grandfathers of the present defendants, is unknown. Even assuming that the etmams bearing those names have some connection with the original etmams of Allal and Roshan, there is no evidence to show how long they existed,-that is to say, whether they were created before or after the Permanent Settlement. It seems to us, therefore, that there is no evidence to support the finding of the Judge in favour of the defendants that the etmam in suit was in existence at the time of the Permanent Settlement. We, therefore, set aside his judgment and restore that of the first Court, with costs of this Court and of the Court below.

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