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Calcutta High Court
Tara Prasonno Mukherjee vs Asutosh Chowdhury on 5 July, 1909
Equivalent citations: 2 Ind Cas 998
Author: Sharfuddin
Bench: Sharfuddin


Sharfuddin, J.

1. There is a Bil called Karmun Bil extending over an area of about two hundred bighas, the greater portion of which lies within the plaintiff’s mouzahs Eshebpur and Barapara. The present suit is for recovery of possession of fishery rights over this Bil.

2. The defendants’ chief contentions are that the claim is time-barred and that the Bil in question belongs to the defendants mouzah Haldipara.

3. Both the Courts below have dismissed the plaintiff’s suit and the plaintiff appealed to this Court. The points taken on his behalf at the hearing of the appeal are:

(1) That the Court of appeal below ought to have held that the kanungoe papers Exhibits A and A2 were not admissible in evidence in the absence of any evidence to show that the estate to which they referred was held khas or was under attachment at the time when they were prepared.

(2) That the lower appellate Court has not found that the Bil mentioned in the kanungoe papers is the Bil in dispute.

(3) That the alleged possession by the defendants for more than 30 years subsequent to the creation of the putni does not affect the plaintiff.

4. The defendants are admittedly in possession of the Bil in question by enjoyment of the fishery rights (vide para. 3 of the plaint). They are the proprietors of the neighbouring mouzah Haldipara and they allege that the Bil is included in their property.

5. The first point urged on behalf of the appellant is about the admissibility of Exhibits A to A 2. These papers are Jamawasil baki papers for mouzah Haldipara prepared in 1225, 1230, 1229; and it is contended that inasmuch as the putni was created in 1227, the papers relating to the subsequent years do not affect the plaintiff’s right. With regard to Jamawasil baki paper for the year 1225 it is contended that it is inadmissible as under Section VII of Regulation V of 1816, a kanaungoe has not any authority to prepare Jamawasil baki papers with reference to lands which are not held khas or which are not under attachment. This document bears the signature of Kali Prosad Ghose and Thakur Das Bhattacharjee. From Exhibit A2 it appears that the former is a kanungoe and from Exhibit A1 it appears that the latter is a patwari. Exhibit A mentions the name of Bil Karman as included in Haldipara. For the purposes of the present appeal the Court has to consider as to whether Exhibit A which was prepared two years before the creation of the present putni is admissible or not. It is contended that it would be admissible if the preparation of this document by the kanungoe Kali Prosad Ghose was in accordance with the provisions of Section VII of Regulation V of 1816.

6. The superior landlord of this putni is the Maharajah of Burdwan. A putni was created by the Raj in favour of Krishna Kishore Ghosal on the 27th Bhadra 1227. This putni included thirty mouzahs bearing a rent of Rs. 20,144. Krishna Kishore Ghosal executed a putni qabuliat and took possession of all the thirty mouzahs included in the qabuliat. Krishna Kishore Ghosal again executed another qabuliat on the 12th Aswin 1227 by which he gave up seventeen mouzahs and kept thirteen mouzahs as his putni with a proportionate reduction of rent which was reduced to Rs. 7,655-12-0. By this arrangement the putni of thirty mouzahs was split up into two, and the second qabuliat created a new and fresh tenure. On behalf of the plaintiff it is alleged that this putni was created long before 1227 as appears from the recitals in the second qabuliat and that even if Exhibit A is admissible the plaintiff is not affected thereby as it was prepared after the creation of the putni. A putni may have been created before 1227 in favour of other persons but when after purchase of the putni by Krishna Kishore Ghosal the old putni was split up into two putnis with a proportionate reduction of Jama in 1227, it cannot be said that Krishna Kishore Ghosal was in possession of the old putni. By his 2nd qabuliat he became a putnidar of a fresh putni.

7. Under Section IV Regulation I of 1819 kanungoes were required to be appointed throughout the provinces in the same manner and for the performances of the same duties as prescribed in Regulation V. Under Regulation XII of 1817, some improvements were introduced in the former Regulation regarding patwaris. It was deemed advisable to confine the operations of rules proposed to be enacted to those parts of the country in which kanungoes were all re-established. Under this Regulation the duties assigned to patwaris have been defined by Section XVI in which there is no condition that the patwaris should confine themselves only to such lands as are khas lands or under attachment. I am of opinion that these three Regulations mentioned above should be read together. I have already observed that the Jamawasil baki papers bear the signature of the patwari Thakur Das Bhattacharjee. It does not appear from these documents as to whether these papers were prepared by the patwari under Regulation XII of 1817, and counter-signed by the kanungoe or they were prepared by the kanungoe under Regulation V of 1816 coupled with Regulation I of 1819 and signed by the patwari. As Haldipara was neither a khas mahal nor was it under attachment in 1225, the papers of that year most probably were prepared by the patwari Thakur Das Bhattacharjee and countersigned by the kanungoe, and if that is so, the Jamawasil baki of 1225 would be admissible as having been prepared under a Regulation at a time prior to the creation of the putni of 13 mouzahs only.

8. On behalf of the appellant reliance is placed on the case of Kheero Monee Dossee v. Beejoy Gobind Bural 17 W.R. 533 and it is contended that under this authority the kanungoe papers are not admissible. From the facts of the reported case it appears that the papers in that case were not prepared consistently with the provisions of Regulations V of 1816, XII of 1817 and I of 1819 and Section 7 Clauses (1), (3), (4) and (5), Regulation IV of 1808 as introduced into Regulation V of 1816 Section 7. In the present case, as already observed the papers appear to have been prepared under Regulation XII of 1817 Section 16. That being so, I do not consider that the above authority supports the appellant’s contention.

9. The kanungoe papers Exhibits A to A2 were exhibited as evidence in the first Court. On behalf of the appellant instead of raising any objection as to admissibility of these papers as evidence an attempt was made to suggest that there was a Bil named Kalde Bil which was in possession of the defendants the respondents and that this Bil was also called Karman Bil and that Karman Bil mentioned in the kanungoe papers refers to Kalde Bil. From the above it is manifest that the appellant as plaintiff allowed the kanungoe papers to be admitted as evidence and in order to get rid of this piece of evidence, the above explanation was put forward.

10. For the first time that the kanungoe papers were objected to on the ground of inadmissibility was before the first appellate Court. The question, therefore, is as to whether or not appellant is entitled to question the admissibility of these papers as evidence, when he did not do so in the first Court. My attention has been drawn to the case Miller v. Babu Madho Das 23 I.A. 106 : 19 A. 76 where their Lordships of the Privy Council in that case while explaining the meaning of Section 21 of the Evidence Act made the following observation : ” The meaning of this section is very plainly illustrated by the Illustration (a) to the section. As to the evidence of the Baleswar, Prosadh therefore, the Judges of the High Court have given very great weight to what according to law was not relevant evidence and could not be proved on behalf of the respondent. The erroneous commission before the Commissioner and the District Court to object to its admission did not make it relevant.”

11. Section 21 of the Evidence Act refers to admission and it enacts that admissions are relevant and may be proved as against the person who makes them or his representative in interest but they cannot be proved by or on behalf of the person who makes them or by his representative in interest except in three cases mentioned in the section. The facts of the case before their Lordships did not bring it under any of the three exceptions. The admission of the statement was, therefore, out and out irrelevant and their Lordships, therefore, entirely disregarded it. In the present case, it has already been shown that Exhibit A was prepared in 1225 most probably by a patwari under Regulation XII of 1817 and that it was prepared as a record in a regular course. I do not think that the facts of the present case come within the purview of the above authority.

12. On behalf of the respondent the attention of the Court has been drawn to the case of Shahzadi Begum v. Secretary of State for India 34 C. 1059 : 6 C.L.J. 678 : 9 Bom. L.R. 1192 : 2 M.L.T. 439 where it was held that when once a document has been received without any objection at the trial as evidence, it is too late afterwards to object to it on the ground of inadmissibility. I have already shown that Exhibit A was not only received as evidence in the first Court without any objection but the plaintiff instead of raising any objection to its admissibility attempted to give an interpretation to the contents of that document most favourable to himself. But the decision of this appeal rests on a question of fact. As regards possession there is a finding of the first Court to the following effect: “By Exhibit Al to A2, Jamawasil bakis, Exhibits B. G. and G. registered qabuliats and other evidence both oral as well as documentary, defendants proved that they and their predecessors have been in possession of the Jalkar in Karman Bil as appertaining to their zemindary since 1225, and from before the creation of the putni in 1227.” The lower appellate Court has concurred in the view taken by the first Court and has held that the defendants have been in possession of the Karman Bil from before the creation of the plaintiff’s putni. The lower appellate Court has accepted the finding of the first Court as regards possession and has also accepted the reasons by which the first Court came to that conclusion. In the above circumstances I am of opinion that the judgment of the lower Court is unassailable and I dismiss the suit with costs.

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