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Calcutta High Court
Upendra Nath Chattopadhya And … vs Radha Govinda Bandopadhyay on 10 May, 1926
Equivalent citations: AIR 1927 Cal 189
Author: Greaves


Greaves, J.

1. These appeals arise out of a decision of the District Judge of Bankurah reversing the decision of the Assistant Settlement Officer of the same place. The appeals arise out of proceedings under Sections 105 and 105-A of the Bengal Tenancy Act. The entry in the Record of Eights was that the lands in question were not rent-free tenures, but were liable to pay rent. The defendants contended that the lands in fact were rent-free and the application was dismissed by the Judge in the first Court who held that the tenures were rent-free tenures.

2. Three points have been urged in this appeal on behalf of the appellants. Firstly, it is said that the District Judge was wrong in relying on certain evidence namely, a chitta and jamabandi prepared in connexion with the resumption proceedings in 1843, but prepared before such resumption proceedings; Secondly, it is said that the appellate Court has not considered the presumption which arises from the fact that there is no evidence that rent has ever been paid in respect of these lands. Thirdly, it is said that the question of onus has not been properly considered by the lower appellate Court.

3. Now, as I have already stated, the first point relates to the chitta and the jamabandi. The resumption proceedings are not in evidence and in my opinion that being so the chitta and jamabandi should not have been considered by the Court below. That is in accordance with the decision in Ram Chander Sao v. Bunsee dhur Naik [1883] 9 Cal. 741. The head-note is as follows:

Chittas made by Government for its own private use are nothing more than documents prepared for the information of the Collector and not evidence against private persons for the purpose of proving that the lands described therein are or are not of a particular character or tenure.

4. The learned Chief Justice Garth, in delivering the judgment of the Court states at page 743 that having regard to the object of the chitta and to the way in which it was prepared it cannot be made evidence under Section 83 of the Evidence Act. The chitta there was prepared by the then Collector with a view to resumption proceedings being taken. It seems to me that the facts there are on all fours with the facts of the present case. Towards the end of his judgment he states that if the resumption proceedings had been put in, and it had been shown that the defendants ancestors claimed the land as lakheraj and were defeated, I agree that the chitta coupled with the resumption proceedings, would have been admissible to prove that the land was not rent free.

5. I think that the chitta per se is not evidence in this suit. On behalf of the respondent various decisions were cited to us and it was urged that although the chitta may not have been admissible under Section 83 it was admissible under Section 13 of the Evidence Act. The case most relied on behalf of the respondent was the case of Upendra Nath Ghose v. Chairman of the Calcutta Corporation [1912] 16 C.W.N. 116. The document there that was in question was the map of Mr. Billon, and the learned Chief Justice, in delivering the judgment of the Court, states that in his opinion the map was admissible if not under Section 83 still under Section 13 of the Evidence Act. I do not know the circumstances under which Mr. Billon’s map was prepared and it may have been prepared under circumstances which would have made it admissible in evidence under Section 13 of the Evidence Act. But I do not think that this decision can be taken as an authority that the chitta in the case before us is admissible under the provisions of Section 13. The chitta was merely a document produced from the Collectorate. We do not know if it was acted on for the purpose of the resumption proceedings or if in fact reliance was placed upon it by Government for the purpose of resumption proceedings. In the absence of some such evidence I cannot see how it can be taken as an assertion of right by Government which would entitle it per se to be admissible under Section 13. I do not think for the reasons I have indicated that the chitta and jamabandi were admissible in evidence In the circumstances of this case or that they should have been relied on by the learned Judge in the Court below for the purpose of arriving at a decision as to whether the lands were lakheraj ornot.

6. So far as the other two questions are concerned no doubt the entry in the Record of Eights is in favour of the respondent, and this being so, although the initial onus lay on the plaintiff in the suit that onus has been removed by the entry in the Record of Eights. But so far as the entry in the Record of Eights is concerned there is this to be said against it, namely, the fact that there is no evidence whatever on the record that rent has ever been paid in respect of the lands in suit. This seems to me to be sufficient to rebut the presumption arising in the plaintiff’s favour by reason of the entry in the Record of Eights. The learned Judge, as already appears from my judgment, has been guided in his decision by evidence which we hold to be inadmissible.

7. I think the proper course will be that the matter should now go back to the Court below in order that the learned Judge should re-consider the question after excluding the evidence of the chitta and the jamabandi prepared in connexion with the resumption proceedings of 1843 and he will accordingly re-hear the appeal upon the evidence on the record excluding these documents and arrive at a decision and finally dispose of the matter.

8. This judgment will govern all the four appeals which are before us S.A. Nos. 1184 and 1185 of 1925 and M.A. Nos. 214 and 215 of 1925.

9. The costs of the appeals S.A. Nos. 1184 and 1185, to this Court will abide the result of the remand to the Court below. We assess the hearing-fee in each appeal at one gold mohur.

10. We allow no costs in M.A. Nos. 214 and 215 of 1925.

Mukerjee, J.

11. I agree.

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