Durga Prasad Thakur and Others vs Basawan Pandey and Others

Das, J.—In this suit the plaintiffs claimed that 92 bighas 8 cottas 14 dhurs of land in Mouza Hasanpur Sangama, otherwise called Ohaita T. No. 1876, are the bakasht lands of the maliks and are liable to be partitioned as such. The suit was resisted by defendants Nos. 1-5 (the defendants first party) who claimed occupancy right in 103 bighas 19 cottas 17 dhurs of land. The plaintiffs have 11-annas share in the proprietary interest of the mouza, and on the 24th September, 1919, they instituted proceedings under the provisions of the Estates Partition Act for the allotment to them of a takhta comprising their interest in the mguza. The defendants 1st party entered appearance and insisted that their rights as kashtkars should be maintained and preserved in. the lands which are now claimed by them as their raiyati lands. On the 29th January, 1922, the Board of Revenue upheld the contention of the defendants and supplied the cause of action to the plaintiff for the present suit. The learned Subordinate Judge has found in. favour of the plaintiffs, hence this appeal to this Court by the defendants 1st party.

At all material dates prior to the acquisition of proprietary interest in the mouza by the principal contending parties in this suit, the mouza in question was owned by the following proprietors:

Musammat Jighri Begum 5 annas 6 gandas 2 cowris.

Umatul Mehdi and after her Syed Ali Nawab 5 annas 6 gandas 2 cowris.

James Wilson 4 annas.

Ram Bahadur and others 6 gandas 2 cowris 2 karants.

Kunja Lal and others (defendants No. 22-28) 6 gandas 2 cowris 2 karants.

Lal Gobind Sahay (defendant No. 29) and Lala Raabati Sahay (defendant No. 30), sons of Narsingh Sahay 6 gandas 2 cowris 2 karants each.

On the 27th November, 1913, defendants Nos. 6-14 (defendants 2nd party) purchased the 4-annas interest of Mr. Wilson. On the 1st April, 1914, the plaintiffs purchased the 5 annas 6 gandas 2 cowris share of Musammat Jighri Begum. On the 11th June, 1919, the plaintiffs purchased the 5 annas 6 gandas 2 cowris interest of Ali Nawab from Sriwar Narain who had purchased the share on the 4th July, 1913. On the 31st October, 1919, the plaintiffs purchased the 6 gandas 2 cowris 2 karants share of Ram Bahadur. It will be noticed that the plaintiffs have purchased the interest of Musammat Jighri Begum, Syed Ali Nawab and Ram Bahadur, whereas the defendants 32nd party have purchased the interest of Mr. Wilson. The learned Subordinate Judge has found that the contest is really between the plaintiffs and the defendants 2nd party, the defendants 1st party being the benamidars of the defendants 2nd party in regard to the raiyati interest claimed by the former in this litigation. 1 may mention that 71 bighas 3 cottas 12 3/4 dhurs of the raiyati lands are nominally in the possession of defendants Nos. 15-21. The learned Subordinate Judge has found that defendants Nos. 15-21 are the benamidars of the plaintiffs. On the finding of the learned Subordinate Judge, therefore, 103 bighas 19 cottas and 17 dhurs of these raiyati lauds are really in the possession of the defendants 2nd party who are the 4-annas proprietors of the mouza and 71 bighas 3 cottas and 12 dhurs of the raiyati lands are really in the possession of the plaintiffs who are the 11 annas proprietors of the mouza. It follows, therefore, that the plaintiffs are interested in destroying the raiyati character of these lands peace if they succeed, is their contention, an 11-annas share of these lands must come to them on partition.

The mouza was for many years in the possession of the Rawari Factory as ticcadars. At one time the entire 16-annas, namely, the interest of all the proprietors were the subject of the ticca in favour of the Rewari Factory but in course of time some of the proprietors determined their leases in favour of the factory. The last of the leases in favour of the factory expired at the end of the fasli year 1319 corresponding with the 26th September 1912. The factory, however, retained possession of 175 bighas 3 cottas and of dhurs of land claiming occupancy rights therein which they proceeded to sell to different persons by different documents. On the 26th April, 1914, they sold 29 bighas 15 cottas 12 dhurs to Ramanugrah Thakur father of defendants Nos. 1 and 2. On the 8th August, 1914, they sold another block of 37 bighas 12 cottas 13 dhurs to Ramanugrah Thakur. On the same day'' sold 36 bighas 11 cottas 12 dhurs to Ramnandan Pandey defendant No. 3 the father of defendants Nos. 4 and 5. It will be noticed that by these transactions 103 bighas 19 cottas and 17 dhurs passed by the defendants 1st party. As I have said, the learned Subordinate Judge has found that the defendants 1st party is the benamidars of the defendants 2nd party. On the 5th June, 1915, they executed three conveyances one in favour of defendants Nos. 15-17 in respect of 39 bighas 18 cottas 4� dhurs, one in favour of defendants Nos. 18-20 in respect of 23 bighas 8 cottas 9 dhurs and one in favour of defendant No. 21 in respect of 7 bighas 16 cottas 19 dhurs. The learned Subordinate Judge has found that in respect of the transactions of the 5th June, 1915, the defendants Nos. 15 21 were acting as the benamidars of the plaintiffs.

In the Record of Rights which was finally published in 1897, 108 bighas 17 cottas 18 dhurs were recorded as bakasht malik in the possession of the kothi Rewari as ticcadars, 18 bighas 5 cottas 2 dhurs as the kasht of Mr. Manners who was one of the proprietors of the Rewari Factory and 65 bighas 5 cottas 14 dhurs as tenancy land in the names of various parsons. The learned Subordinate Judge has assumed that the Record of Rights is in favour of the plaintiffs and he has come to the conclusion that the defendants have not been able to rebut the presumption of correctness attaching to the entry in the Record of Eights, but this is not entirely correct. 18 bighas 5 cottas and 2 dhurs were undoubtedly recorded as the kasht of Mr. Manners and it is the case of both sides that in that Survey entry Mr. Manners stands for the factory. The learned Subordinate Judge accepts the position, but he says when it, namely, the 18 bighas 5 cottas and 2 dhurs of land, "was in kothi''s possession during Cadastral Survey, it cannot but be held to "be malik''s lands unless any kashtkari right in the land is shown by the defendants." I am of opinion that this is not a correct way of stating the position. On the entry in the Record of Eights we must assume that 18 bighas 5 cottas 2 dhurs were the raiyati lands of the kothi until the contrary is established. In regard to the 65 bighas 5 cottas and 14 diners of land they are undoubtedly shown as tenancy lands. The learned Subordinate Judge says: These lands should also be taken to be malik''s lands unless any raiyati right therein is proved by the defendants. I regret to say that I am unable to follow the arguments. So far as 108 bighas are concerned, the Record of Eights may be taken to favour the case of the plaintiffs, but even here the position is not as easy as it looks. The Survey Authorities were only entitled to determine the question of possession. They found that this block of land comprising 108 bighas was in the possession of the kothi which was undoubtedly in the position of ticcadars. This being so, they recorded the lands as bakasht malik in the possession of ticcadars. The only question which is solved by the Survey Authorities is that these lands were in the cultivating possession of the ticcadars but as is well-known such an entry does not solve the question whether the land was held by the kothi as proprietors, tenure-holders, raiyats or under-raiyats. The term bakasht is the invention of the Survey Authorities and is used by them to denote the actual cultivating possession either of the proprietor or tenure-holders as the case may be. The term was deliberately invented to avoid the responsibility of deciding the character of the possession. I am willing, however, to assume that the entry in the Record of Eights is in favour of the plaintiffs.

I now proceed to deal with the question whether the defendants 1st party have been able to establish, their claim, The first document upon which they rely is Ex. P" which is a certificate of sale dated the 24th May, 1913, granted by Earn Bahadur in Execution Case No. 7 of 1912. Ram Bahadur obtained a money-decree against the kothi in 1907. In execution of that decree they put up to sale and purchased four occupancy holdings of the kothi, namely, those covered by khata No. 451 (comprising an area of 18 bighas 5 cottas and 2 dhurs recorded as the occupancy holding of Mr. Manners in the Record of Eights) khata No. 613, khata No. 494 and khata No. 446. The certificate of sale definitely asserts that the kothi had occupancy rights in the lands sold and certifies that Earn Bahadur has purchased those rights. This document established that (I) Mr. Manners'' holding was the holding'' of the factory and that the factory had occupancy rights in the land sold, (2) that khatas Nos. 451-M, 613M, 494 and 446 were the occupancy holdings of the factory. All these lands are the subject-matter of the suit and khatas Nos. 451 and 494 have been purchased by the defendants 1st party.

Now the plaintiffs are clearly bound by the statement of Ram Bahadur as contained in this document, for Earn Bahadur was one of the proprietors of the mouza at the date of the sale of the holdings in question and the plaintiffs have purchased the interest of Earn Bahadur in the mouza.

The next document upon which reliance is placed is Ex, 1(5) which is a rent receipt dated the 9th February, 1914, granted by Musammat Jighri Begum to the Eewari Factory in respect of 165 bighas 2 cottas and 17 dhurs of raiyatiland. I may mention that Musammat Jighri Begum gave a usufructuary mortgage of half of her proprietary interest in the mouza. The rent receipt upon which reliance is placed is a receipt for the rent of 1320 and 1321 in respect of the portion which was in her khas possession. Musammat Jighri Begum is the predecessor-in-title of the plaintiffs and the plaintiffs are clearly bound by the recognition of the kothi as raiyats by Musammat Jighri Begum. As I have said, the rent receipts were in respect of the rent due to Musammat Jighri Begum in 1320 and 1321, that is to say, for the period ending with September, 1914. The receipt was, however, granted on the 9th February, 1914. Mr. Sultan Ahmed contends that it is unlikely that the kothi would pay the rent seven months in advance but the answer is that the kothi sold some of these lands to the defendants 1st party on the 25th April, 1914, and they were called upon to discharge their obligations to their landlords before the conveyance in question Ex. I by which some of these lands were sold to the defendants 1st party on the 25th April, 1904, recites the fact that the rent to the landlord for 1321 has been paid by the kothi. Mr. Sultan Ahmed contends that the defendants should have called for counterfoil rent receipts and the account books from Musammat Jighri Begum''s office to show that the rent was in fact received by her and a receipt granted by her, but the plaintiffs have themselves purchased whatsoever interest Musammat Jighri Begum had in this mouza, and all these documents would be expected to be in the possession of the plaintiffs.

As I read the judgment of the learned Subordinate Judge, he does not reject Ex. I(5) as a fabricated document. He says the rent receipts purporting to have been given by the maliks are of a date subsequent to the Record of Rights. They are, therefore, not enough to establish any tenancy in the lands already recorded as proprietors'' land in the Record of Rights. The argument, in my opinion, is wholly inadmissible, The Record of Rights, no doubt; raises a presumption in favour of the plaintiffs, but I know of no authority which establishes that the presumption of the correctness of the Record of Rights cannot be rebutted by producing evidence of a data subsequent to the Record of Rights. I may point out that the Record f Rights was published in 1897 and there was nothing to prevent Musammat Jighri Begum from recognising the kothi as occupancy tenants on the 9th February, 1911, which is the date of the receipt in question. A tenancy arises by virtue of such recognition and it is irrelevant to argue that unless the entry in the Record of Rights is shown to be wrong, the defendants 1st party cannot succeed in this action. The learned Judge then complains that Ajodheya Lal the Patwari of Musammat Jighri Begum who granted the receipt was not examined, but in my opinion, this was not necessary since Sant Lal Misser proved these receipts. The learned Subordinate Judge then says that "this receipt appears to have been granted at a time when kothi''8 lease had already expired, Hence the receipt is useless and shows nothing in defendant''s favour. I regret to say that I do not follow this argument. Although the kothi lease as ticcadars had expired they were claiming to hold the land is question as their raiyati lands. Why the receipts should be useless in these circumstances it is impossible to understand. It has been properly proved and the documents which would disprove it are presumably is the possession of the plaintiffs as the successors-in-title of Musammat Jighri Begum. These documents have not been produced and I cannot have recourses to speculative arguments such as those which have been used in, the judgment of the learned Subordinate Judge for refusing to draw the necessary inference from this rent receipt. I hold that on the 9th February, 1914, Musammat Jighri Bagum recognised the kothi as raiyats in occupation of 165 bighas 2 courts 17 dhurs of land and that such recognition is binding upon the plaintiffs claiming title through Musammat Jighri Begum.

His Lordship then referred to the other documents and proceeded:

When all the evidence is examined the only piece of evidence in favour of the plaintiffs is the entry in the Record of Rights, and I have already suggested that it is not as favourable to the plaintiffs as it is claimed to be. But in favour of the defendants there is evidence of recognition, by Musammat Jighri Bagum by Ram Bahadur and last by the plaintiffs themselves. Why should we decline to give effect to such recognition merely because the entry in the Record of Rights is in favour of the plaintiffs? As I have said the entry may be perfectly right as it stood in 1897; and yet the defendants may have been recognised by the landlord as tenants many years after.

There is another point which must be considered in this connection. The defendants complain that they were precluded, by the learned Subordinate Judge from offering their evidence on this point for the purpose of establishing their kasht rights. Now the present suit was filed on the 1st May, 1922. The issues were settled on the 6th December, 1928. On the 7th December, 1922, the defendants filed certain documents with an unstamped petition. The order passed by the learned Subordinate Judge on this petition is as follows: Defendants file certain documents along with, an unstamped petition. No order can be passed as to its admissibility unless a petition duly stamped showing reasons of filing it late if filed. Stopping here for a moment, I may point out that the delay was only of one day, and under ordinary circumstances, it is quite possible for a party to have an idea as to what documents should be filed in the case until issues have been framed. The issues were actually framed on the 6th December, and, in my opinion, the learned Subordinate Judge should have exercised his discretion by accepting the documents on the 7th December. On the 21st December, 1922, the defendants filed those documents again with a petition stating reasons of delay. The learned Subordinate Judge passed the following order. Let them be kept with the record subject to admissibility at the time of hearing. Order XIII, Rule 1 provides that the parties or their Pleaders shall produce at the first hearing of the suit, all the documentary evidence of every description in their possession or power, on which they intend to rely, and Rule 2 provides that no documentary evidence in the possession or power of any party which should have been but has not been produced in accordance with the requirements of Rule 1 shall be received at any subsequent stage of the proceedings unless good cause is shown to the satisfaction of the Court for the non-production thereof and the Court receiving any such evidence shall record the reasons for so doing. As has been pointed out, Order XIII, Rule 1 does not exclude the discretion of the Court to receive any such documentary evidence at any subsequent stage. Now on the 21st December, 1922, the learned Subordinate Judge clearly accepted the reasons of the delay and directed that they should be kept with the record subject to admissibility at the time of hearing. In my opinion the learned Subordinate Judge clearly exercised his discretion in favour of the defendants on the 21st December and received the documents and the only point that was left open for further consideration was whether the documents were relevant. If he were not satisfied with the explanation given by the defendants he should have declined to receive the documents on the 21st December, 1922.

12 Now this was the position on the 21st December, 1922. The case was subsequently opened and on the 17th July the defendants tendered these documents in the course of the examination of Sant Lal. The learned Subordinate Judge rejected the documents as filed late without any reasons. Now as I have said, they were filed in the first instance on the 7th December, 1922, the issues having been settled on the 6th December, 1922. He himself directed that the documents should be kept in the record on the 21st December, and, in my opinion, it was not open to him to reject these documents on the 17th July, 1923, not on the ground that they were irrelevant, but on the ground that they were filed late without any reason. Now these documents are letters, rent receipts, jamabandies etc., which according to Mr. Sushil Madhab Malik constitute every important evidence in his favour. All these documents were rejected by the learned Subordinate Judge with the result that all the defendants had were some of the rent receipts and the road-cess return which had been filed by the plaintiffs. Mr. S.M. Mullick has tendered all these documents in evidence before us, and if the evidence already in the record did not satisfy me as to the claim of the defendants 1st party, I would inhasitatingly have remanded the case to the first Court with a direction that it should take evidence for the purpose of receiving the documents but as I am satisfied that the defendants 1st party have established their claim in this litigation, I do not think it necessary to make a direction in regard to these documents in favour of the defendants 1st party. In my opinion the defendants 1st party have established their claim and I would allow this appeal, set aside the judgment and the decree of the Court below and dismiss the suit with costs payable by the plaintiffs in both the Courts.

The appellants in the analogous appeal are the defendants 3rd party who rely upon the conveyances executed in their favour by the kothi on the 15th June, 1915. On the finding arrived at in the main appeal, they are clearly entitled to succeed The learned Subordinate Judge has found that they are the benamidars of the plaintiffs, but there was no issue on this point and no decision is called for so far as this question is concerned. The appeal must, therefore, be decreed.

Allanson, J.

I agree.