Posted On by &filed under Calcutta High Court, High Court.

Calcutta High Court
Sutu Howladar And Ors. vs Alep And Ors. on 2 December, 1926
Equivalent citations: AIR 1927 Cal 576, 101 Ind Cas 792


1. The plaintiffs have appealed against the decree of the District Judge of Bakargunj dismissing their suit for declaration of their title to the lands in suit and for confirmation of their possession. They succeeded in the first Court. The lower appellate Court has found against them on the question of title.

2. Three points have been argued before us on behalf of the appellants. The first is as regards the admissibility of certain chittahs. These chittahs were prepared some 50 years ago by the Government of its khas mahal within which admittedly the lands in dispute lay. It is contended that these chittahs were prepared by the Government not under its sovereign authority but as a private landlord and, therefore, are not admissible either under Section 36 or Section 83 of the Evidence Act. The point in dispute between the parties is as to whether the lands in suit appertain to a koli jote under jote Pitambar Mirdha which is subordinate to the taluk owned by the Defendants Nos. 4 to 10. In the Government chittahs the lands in suit are shown not within jote Petambar Mirdha but as is the khas possession of the Government let out in ijarah. It is contended on the authority of the case of Ram Chunder Sao v. Bunseedhur Naik [1883] 9 Cal. 741 that these chittahs are not admissible in evidence. In that case the question was-whether a certain land was lakheraj or rent paying. In the Government khas mahal papers they were recorded as rent paying. It was held that statement; could not be received in evidence as it was in favour of the party who wanted to use it and made by himself. The learned Chief Justice observed that the Government khas mahal papers could not be used in evidence under Section 36 of the Evidence Act but might be evidence under any other section which might be applicable. It has been decided by a series of authorities that zemindar’s papers prepared in the course of business; and in due management of the zeminidari may be evidence, if not under Section 36; or Section 83, under Section 13 of the Evidence Act : see the case of Upendra Naih Ghosh v. Chairman of the Calcutta Corporation [1911] 16 C.W.N. 116. In the present instance the Government landlord asserted that the lands in suit were not within the jote of Pitambar Mirdha but were in the khas possession of the landlord. That is an assertion or a claim which makes the entry admissible under Section 13 of the Evidence Act. These papers were prepared anti motam more than 50 years ago when there was no dispute or likelihood of a dispute with regard to these lands. We accordingly think that these papers have been rightly admitted in evidence. As to their probative value, it is for the Courts below to attach such importance to them as under the circumstances and in consideration of other evidence in the case they choose to do.

3. The next objection taken by the appellants relates to a sale certificate granted to Basanta Kumar Ghose on the purchase of Pitambar Mirdha jote in 1907. The rent dispute between the parties is with regard to the western boundary of the jote. According to the plaintiffs it was the Baleswar river and according to the defendants Pitambar Mirdha jote extended up to the chur in Baleswar river. The description in the sale-certificate supports the defendants’ case. It is arguei that the boundaries described in the sale-certificate are statements made by the defendants and, therefore, should not be admitted in evidence. But the fact is that the plaintiffs’ lessor obtained his title under that sale-certificate and it is difficult to say how a document, under which the person, from whom the plaintiffs derive their title, obtained his title, cannot be used in evidence where a question of title is raised with reference to the land covered by it or outside it as the case may be. Besides as the learned District Judge has observed the statement was made by the defendants, no doubt, but it was a statement made in the presence of the tenants who were the predecessors-in-title of Basanta Kumar Ghose and accepted by Basanta Kumar Ghose who took possession of the jote in question, We think that the sale-certificate has been rightly admitted.

4. The third ground is that the decision in the previous suit ought to have been treated as res judicata against the Defendant No. 3. It appears that there was a dispute with regard to the lands in suit during the settlement proceedings and that the Settlement Officer had decided it in favour of the defendants. The plaintiffs, therefore, instituted a title suit for declaration of their title to the disputed lands against Defendants Nos. 1 and 2 who were in possession of the lands by virtue of a settlement from Defendants Nos. 4 to 10. These defendants were not made parties to that suit. The Defendants No. 4 to 10 who are called sarkar defendants thereafter obtained a rent decree against Defendants Nos. 1 and 2 and put the holding, comprising the lands in suit, to sale and it was purchased by Defendant No. 3. The first Court found that Defendant No. 3 was a mere benamidar of Defendants Nos. 1 and 2. This finding has not been expressly reversed by the learned Judge and, therefore, it is argued that Defendant No. 2 being a benamidar is bound by the decree which was obtained against Defendants Nos. 1 and 2. In the first place, this argument is not of much value as it is not binding on the sarkar defendants. It does not, therefore, matter much whether it is binding on Defendant No. 3 or not. Besides, according to the learned Judge the lands in suit never belonged to the plaintiffs or their lessor. It belonged to the sarkar defendants and they had settled it with Defendants Nos. 1 and 2. They, as a matter of fact, brought a suit against the Defendants Nos. 1 and 2 for rent and obtained a decree and the holding was sold in execution of the decree and purchased by Defendant No. 3. This shows that the learned Judge was not satisfied that Defendant No. 3 was a benamidar. Besides we have seen the reasons assigned by the Munsif for holding that Defendant No. 3 was benamidar for Defendants Nos. 1 and 2. We are not convinced that the arguments advanced by him are legally sound. This, objection must, therefore, be overruled.

5. There are various other documents to which the learned Judge has referred for the conclusion he has arrived at. The learned Judge has not entered into the question of possession for according to him the lands in suit were not accretions to the jote as claimed by the plaintiffs and as the suit was brought only for declaration of title, possession being according to the plaintiffs with, them, and the suit for title having failed. We cannot say that the learned Judge was wrong in not entering into the question of possession in the special circumstances of the case. This appeal, is accordingly dismissed with costs.

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