Habil Mandal vs Kalo

Renupada Mukherjee, J.—The Plaintiff of the trial court is the Appellant of this appeal. He instituted a suit in the third court of the Munsif of Serampore, for declaration of his title to and confirmation of khas possession of about 6 bighas of land described in schedule Ga of the plaint. The allegation of the Plaintiff in brief was that this plot of land along with some other land belonged to one Yar Mahammad alias Bhulu Molla, appertaining to his jute of Rs. 17-8-0 under pro forma, Defendants Nos. 6 to 10 and it was purchased by the Plaintiff at a rent sale held at the instance of the landlords on November 13, 1935. The Plaintiff further alleged that soon after his purchase he obtained delivery of possession of the auction-purchased land including the disputed land and was in possession of the same. But the Defendants Nos. 1 and 2 of the trial court were threatening to dispossess him from the disputed land on the strength of an alleged purchase of the same from the heirs of Bhulu Molla, who were Defendants Nos. 3 and 4 of the trial court. The Plaintiff further pleaded that the disputed land was wrongly recorded in C.S. Khatian No. 745 of Mouza Dunkuni as appertaining to another jote of Rs. 9 of Bhulu Molla held under one Rajani Kanta Banerjee, deceased predecessor of pro forma Defendant No. 5 of the present suit.

The suit was contested in the trial court by Defendants Nos. 1 and 2 whose defence was that the land in suit really appertained to the jote of Rs. 9 of Bhulu Molla and not to the jote of Rs. 17-8 as alleged by the Plaintiff and that the said Defendants were in possession of the suit land on the strength of a purchase from the heirs of Bhulu Molla.

The Plaintiff''s suit was substantially decreed by the trial court but on appeal that decree was reversed by the lower appellate court and the suit of the Plaintiff was dismissed. So the Plaintiff has preferred this second appeal.

Two points arise for my determination in this appeal-the first point being whether the disputed land is covered, by the sale certificate obtained by the Plaintiff Appellant in Rent Execution Case No. 577 of 1&35 and secondly, whether the said land appertains to the jama of Rs. 17-8 of Bhulu Molla. I shall take up these two points one after another.

Admittedly the suit land has been recorded in two plots in Khatian No. 745 of Mouza Dunkuni, the numbers of plots being 310 and 78. The area of the first plot is 13 acre and the area of the second plot is 2.20 acres-the total area being 2.33 acres or 7 bighds.

In order to ascertain whether the above two settlement dags are comprised in the sale certificate of the Plaintiff, a commissioner was appointed for holding a local investigation and he was directed to find out whether these two dags are covered by Plaintiff''s sale certificate. The commissioner accordingly held a, local investigation and prepared a map and submitted a report to the Munsif. He located C.S. Plots Nos. 78 and 310 and relayed the boundaries of the said plots with reference to the sale certificate of the Plaintiff and after a comparison of the boundaries, he came to the conclusion that the said two plots are covered by plot No. 1 of the sale certificate of the Plaintiff. The trial court accepted this finding of the commissioner.

Mr. Sen Ghipta appearing on behalf of the contesting Respondents submitted that the finding of the first court of appeal on the question whether the disputed dags are covered by the Plaintiff''s sale certificate is a finding of fact and so it should not be disturbed in second appeal. I would have agreed with this contention if the learned court of first appeal had not seriously misdirected himself in reading and construing the sale certificate. A reading of the sale certificate would show that three boundaries, viz., eastern, western and southern boundaries have been described by the use of the Bengali, words in full. There is no mention of the Bengali word regarding the northern boundary. Instead, we find that after the description of the eastern boundary there is a Bengali letter after which the names of three boundary men have been mentioned. Both the commissioner and the trial court have come to the conclusion on a construction of the sale, certificate that this letter "is nothing but a slip for the Bengali word" indicative of the northern boundary. This, slip has been described by the court of first instance as the "writer''s, devil". The lower appellate court, has not accepted this reading of the sale certificate by the commissioner and the trial court and it has construed the above letter " " as a conjunction; indicating, three other boundary men to the east of the disputed land. After perusing the sale certificate carefully, I am unable to accept this reading of the sale certificate by the lower appellate Court. The boundaries of plot No. 1 of the sale certificate have been described in detail. There is absolutely no reason why there should be an omission in the description of the northern boundary. Then again, the description of the eastern boundary would show that there was the sali land of Hiru Poral and Korban Sheikh. Then, occurs the contentious letter " ". After that letter the names of three persons are mentioned, viz., Oul Fakir, Rahim Sk. and Inu Sk. After the name of Inu Sk. there is a statement that all the above mentioned three persons had sali land. If the letter "3" had really meant to be used as a conjunction, then one would expect that the mention of sali land would have been made not after the name of Korban Sk. but after the name of Inu Sk. This is one aspect of the matter. Then again, the commissioner had the advantage of seeing the position of the disputed land as also the lands of the boundary men in the locale. He compared the boundaries of the two disputed plots with the boundaries of plot No. 1 of the sale certificate after seeing all the lands in the locality. Thereafter he came to the conclusion that the disputed two plots are covered by plot No. 1 of the sale certificate. Such a finding of the commissioner based upon an inspection of the locality should not have been set aside by the lower appellate court with the scanty reasons given by him. There is also another important fact which has not been properly appreciated by the lower appellate court. It was admitted in the trial court that the Plaintiff was in possession of the disputed land from the time of taking delivery of possession through court until he was dispossessed by the Respondents after their purchase from the heirs of Bhulu Molla on April 10, 1946. The possession of the Plaintiff is referable only to the sale certificate and such possession lends a strong support to the case of the Plaintiff that the disputed lands are covered by his sale certificate. The lower appellate court has not appreciated this aspect of the case properly when it makes an observation that the possession of the disputed land by the Plaintiff appears to be immaterial. In my judgment, the finding of the lower appellate court that the disputed lands are not comprised in the Plaintiff''s sale certificate is vitiated by a wrong reading and construction of the sale certificate and so that finding must be set aside, and I agree with the learned Munsif that the disputed lands are covered by the Plaintiff''s sale certificate and the entry in the C. C. khatian is incorrect.

In the above connection Mr. Sen Gupta argued that it is not permissible to construe the sale certificate with reference to any extraneous document and in support of that contention he relies on the case of Promotha Noth Mazumdar v. Nagendra Nath Mazumdar (1929) 33 C.W.N. 1211. That case has no bearing on the facts of the present case. Here the sale certificate has been read and construed by the trial court not by reference to any estrinsic document but by simply considering and construing the sale certificate itself. The first point formulated by me is thus found in favour of the Plaintiff Appellant.

I now pass on to a consideration of the second point raised in this appeal, viz., whether the disputed land appertained to the jote of Bhulu Mulla bearing a rental of Rs. 17-8. Mr. Sen Gupta appearing on behalf of the Respondents, contended that as the Plaintiff is seeking to eject the Defendants, he is not entitled to get a decree merely on the basis of a sale certificate which is, at best, a statement of the landlords who put the holding up to sale, but the Plaintiff must furnish additional materials to prove that the land in question really appertains to the jote of Rs. 17-8. In this connection Mr. Sen Gupta argued that the sale certificate is not even admissible in evidence being an admission of the landlords only. In support of this contention, Mr. Sen Gupta cited two cases before me, one Joy Mangala Devi Misrani v. A.J. Shillingford (1915) 28 Ind. Cas. 173 and Anr. Ramani Pershad Narain Singh v. Mahanth Adiya Gossain ILR (1903) Cal, 380. After going through these cases I are of opinion that they are not applicable to the facts of the present case because in those cases the certificated purchaser was the decree-holder himself and therefore, it was held that the statement made by him in the sale certificate cannot be used as evidence on his behalf. In the present case, however, the auction-purchaser was a third party and it is significant that both parties are claiming through Bhulu Molla who was the owner of the two jotes, one bearing a rental of Rs. 17-8 under pro forma Defendants Nos. 6 to 10 and another bearing a rental of Rs. 9 under pro forma Defendant No. 5. When the jote of Rs. 17-8 was put up to sale and it was described that the disputed land appertains to that jote, Bhulu Molla did not raise any objection.

Mr. Banerjee on behalf of the Appellant contended that as Bhulu Molla did not raise any objection at that time, it was not open to the Respondents who are purchasers from the heirs of Bhulu Molla to raise this objection now. I think there is much substance in this contention and although the Plaintiff may not strictly invoke the aid of estoppel, he can very well say that in the circumstances of the case, the sale certificate should be regarded as his evidence of title and it should be made admissible in evidence against the contesting Respondents. That a sale certificate should be regarded as a document of title and ought not to be lightly regarded has been held in several cases. I may mention only one Privy Council case on this point which has been reported in Ramabhadra Naidu v. Kadiriyasami Naicker AIR (1922) P.C. 252. The sale certificate can also be admitted in evidence u/s 13 of the Indian Evidence Act as a transaction by which the right to possession of the Plaintiff of the disputed plot as appertaining to his jama of Rs. 17-8 was recognised (vide the case of Rani Basanta Kumari Dasi Singha and Others Vs. Jnanendra Nath Ghosh and Others, .)

Upon these facts and circumstances, I am of opinion that the title of the Plaintiff has been sufficiently established by the sale certificate coupled with the possession of the Plaintiff of the disputed land from the date of his taking delivery of possession through court and the contention of Mr. Sen Gupta that this title should be proved beyond doubt by the papers of the sherista of the landlords must be rejected. The appeal must, therefore, be allowed.

In the result, the appeal is allowed, the judgment and decree of the lower appellate court are hereby set aside and those of the trial court restored.

The Appellant will get costs of this appeal as also cost of the lower appellate court from the contesting Respondents.

Leave to appeal under Clause 15 of the Letters Patent is asked for and refused.