Hargobind Singh vs Kishandeyal Gope

Adami, J.—The plaintiff in the suit is appellant here. He sued for recovery of arrears of produce rent for the years 1325 to 1328 he being the landlord of the 16 annas share. He claimed a half share of the paddy crop for the years in suit, 1325 to 1328, at the rate of 18 to 22 maunds per bigha and in respect of khesari at the rate of 8 to 12 maunds per bigha. The defendant pleaded payment and asserted that the produce of the paddy lands was only 2� to 4 maunds per bigha and that there was no khesari grown on the lands. The plea of payment was disbelieved by both the Courts to prove the produce. The plaintiff produced some appraisement khesras said to have been drawn up by his own man, also the report of a crop-cutting experiment made by a Deputy Collector, who made the crop-cutting experiment in the course of a case u/s 40 of the Bengal Tenancy Act respecting this same land. He held that a copy of the report was a copy of a public document and was admissible in evidence. The Munsif also found that both paddy and khesari were grown on the land, and he gave reasons for finding that khesari was grown. The defendant admitted that where the lands are irrigated by a canal, rabi crops are grown, and he found that the lands in suit are irrigated by a canal. The learned Munsif refused to place any reliance on the appraisement khesras produced by the plaintiff as he doubted their genuineness. He gave the plaintiff a decree for two-thirds of the amount claimed for the paddy and khesari.

On appeal the learned Subordinate Judge, while agreeing that the payment by the defendant was not proved, held that there was no good evidence to support the plaintiff''s claim as to the amount of paddy grown. He held that the crop cutting report was not admissible in evidence not being a copy of a public document, and he found that the witness brought to prove the plaintiff''s appraisement khesras was altogether unreliable. He held therefore that the plaintiff having failed to produce any satisfactory evidence to prove the am out of his claim, the suit would have to be decreed at the amount of paddy per bigha admitted by the defendant. He disallowed the plaintiff''s claim for khesari altogether on the ground. I suppose, that the plaintiff had no sufficient evidence and the defendant denied that khesari was grown. It is true that where a plaintiff claims a certain amount of rent in cash and the defendant admits a lesser amount, unless the plaintiff can give good proof of the larger amount being payable, the suit will be decreed on the defendant''s admission. But a different situation arises in the case of a claim for bhauli rent. If tenants cut and take away crop before it can be appraised or do not attend at the appraisement, it is impossible for the landlord to give any certainty of the amount of crop produced on the land, and even if he sends his own man to make an appraisement, the khesra drawn up by his own man is given little credence by the Court because it is a document drawn up by the plaintiff himself.

In the case of Balak Mohan v. Mathura Ram Dubey AIR 1919 Pat 531, Sub-section 4 of Section 71 of the Bengal Tenancy Act was referred to. That Sub-section runs as follows:

If the tenant removes any portion of the produce at such a time or in such a manner as to prevent the due appraisement or division thereof at the proper time, that produce shall be deemed to have been as full as the fullest crop of the same description appraised in the neighbourhood on similar land for that harvest.

And the learned Judges in the case I have mentioned remarked that this Sub-section seems to contemplate that where tenants do remove a crop without having the same properly appraised the presumption arises against them and the landlord is entitled to the full measure of the crop as of the best crop in the neighbourhood of a similar character to that harvest.

In the present case the tenant defendant had taken away the crop and gave no opportunity for an appraisement and I do not think that he can be allowed to derive profit from the fact that the landlord had no opportunity of finding out what the produce really was. The landlord did produce a crop-cutting report of lands close to the lands in suit and that report was drawn by a Deputy Collector acting in his official duty u/s 40 of the Bengal Tenancy Act. A question has been raised in the case whether that report is a public document which would be admissible in this case. According to the case of Taru Patur v. Abinash Chander Dutt (1879) 4 Cal 79, the report would seem to be a public document. In that case it was held that a Jamabandi prepared by a Deputy Collector while engaged in the settlement of land under Regulation VII of 1882, is a public document within the meaning of Section 74 of the Evidence Act. That case has been considered in several cases since, but where the finding has been differed from, it has been differed from on the ground that in the cases where it was differed from, the document had been prepared by a Government Official performing the duties for Government as landlord.

In my mind the report of the Deputy Collector made in the case u/s 40 should be considered a public document and the evidence of the amount produced by the land should be admitted, and the decision of the suit with regard to the paddy produce should be based on that crop-cutting report as it was by the learned Munsif.

As to khesari, the learned Subordinate Judge gives no reason why he disallows the claim. The learned Munsif found definitely that khesari was produced and if the Subordinate Judge wished to reverse that finding he was bound to give reasons. The reasons given by the learned Munsif are good and cogent reasons, and in this point too, the learned Subordinate Judge was mistaken.

I set aside the decree of the lower appellate Court and restore the decree passed by the Munsif.

The appellant will get his costs in both Courts.