Ram Nandan Prasad and Another vs Tilakdhari Lal

Dhavle, J.—This appeal arises out of a suit for the recovery of possession of 8 cothas 10 dhurs from the eastern portion of plot 632 in Mouza Bhagwanpur Guddi, touzi No. 4650. The plaintiff''s case was that the land had been settled with him in 1320 Fasli by the then landlord on payment of a nazrana of Rs. 100 and on a rent of Rs. 8 a year. Defendant 1''s party, who are the appellants, admittedly represent the proprietary interest at present and their defence was that plaintiff''s story of settlement was false, that the land was the proprietor''s kamat and remained in khas possession or in the possession of a thikadar who held, a lease from 1329 to 1333 Fasli and that on the expiry of the thika they had settled the land by a kabuliyat of 1926 with the defendant second party.

The trial Court disbelieved the rent receipts and other evidence adduced on behalf of the plaintiff and dismissed the suit. On appeal, the learned Subordinate Judge believed the plaintiff''s papers and other evidence, and disbelieved the defendants'' papers and other evidence, and accordingly decreed the appeal and the suit. The learned advocate for the appellants has contended that the findings of the lower appellate Court are vitiated by the improper rejection of Ex. B and the improper admission of Ex. 2. To take the latter first, Ex. 2 is a rent receipt for 1320 in favour of the plaintiff. It has been contended on behalf of the appellants that having regard to para, 4 of the plaint and to the writing of the landlord himself on the piper, the document is a deed of perpetual settlement and ought to have been registered and that as it is not registered, it is inadmissible in evidence.

The landlord does appear to have written on the receipt that he had made a perpetual settlement on receipt of Rs. 100 and hid settled the rent at Rs. 8. Apart from this, the document is a mere rent receipt granted by the then patwari and is followed by a series of rent receipts ranging from the years 1321 to 1328 Fasli. The lower Court has referred to the plaintiff''s contention that in evidence of the settlement made with him in 1320 he got a rent receipt in that year in the pen of the patwari and signed by the proprietor himself. But he has also referred to the receipts for succeeding years and other documentary and oral evidence in coming to the conclusion that the settlement alleged by the plaintiff was established.

It is established by a series of rulings which can be traced back from Ameer Ali v. Yakub Ali Khan AIR 1915 Cal 39 that a tenancy right under the Bengal Tenancy Act can be proved without proving the lease, if there be one, which is inadmissible for want of registration; and the judgment of the lower appellate Court seems to me to rest not so much on Ex. 2 as a deed of settlement us on that and other receipts and other evidence as proof of the tenancy. It has bean contended on behalf of the respondents that assuming that the settlement as such required registration, Ex. 2 would still be not wholly inadmissible and that that part of it which purports to be a rent receipt pure and simple would still be admissible.

The finding of tenancy in favour of the plaintiff arrived at by the lower Court is so clearly tenable on the admissible evidence, assuming that the deed of settlement so called ought to be excluded, that I do not think any useful purpose will be served by remanding the case on that footing for a fresh finding.

I now come to the other document, Ex. B, which is a compromise petition between the plaintiff''s brother and the appellants, in which the eastern boundary of the piece of land (then in dispute) lying immediately to the portion now in dispute was given not as the plaintiff''s land but as zerait. This compromise is dated 1923, and the appellants'' argument was that it showed that the settlement of 1320 alleged by the plaintiff was a myth.

The lower appellate Court held that the recital of the boundary in the petition of compromise had no evidentiary value as against the plaintiff, and cited Pramatha Nath Choudhuri and Others Vs. Krishna Chandra Bhattacharjee and Another, in support. It has been contended on behalf of the appellant that the document is admissible in evidence under both clauses of 8. 13, Evidence Act on the authority of Sabran Sheikh v. Odoy Mahto AIR 1922 Pat 488. The case last cited however dealt with an ekranama in favour of one of the parties to the suit, and the document was apparently in the nature of a title deed regarding the disputed land itself.

It seems to me that such a document stands on an entirely different footing from documents executed between strangers to the suit and relating to adjoining lands in which the land in suit is referred to as a boundary in the possession of one of the parties to the suit. The ruling relied on by the lower Court has been followed in a number of reported decisions of the Calcutta High Court where the point has been repeatedly dealt with. The latest decision to which my attention has been drawn is Ambica Charan Kundu and Others Vs. Kumud Mohun Chaudhury and Others, , and I may perhaps in this connexion refer to Brojo Mohan Das v. Gaya Prosad AIR 1926 Cal 948 and Brojendra Kishore Roy Chaudhuri Vs. Mohim Chandra Bhattacharji and Others, as cases where Section 13 and other sections of the Evidence Act were dealt with along with several other cases in detail

There has undoubtedly been some divergence of opinion in the Calcutta High Court regarding the admissibility of recitals of boundaries in documents relating to adjacent lands executed between strangers, but the latest arguments in favour of admissibility that I have been able to find are contained in Sheik Ketabuddin and Others Vs. Nafar Chandra Pattok and Others, which was referred to shortly afterwards in Pramatha Nath Roy Chowdhury and Others Vs. Rajah Bejoy Singh Dhudhuria and Another, . These arguments show that a recital of this kind is not admissible u/s 13, Evidence Act, but may be admissible if the executant is called and deposes to the boundary, to corroborate him u/s 157 or if he is dead, u/s 32.

It was apparently not attempted to make the document in the present case admissible in the circumstances laid down by B.B. Ghosh, J., in the cases from Sheik Ketabuddin and Others Vs. Nafar Chandra Pattok and Others, and Pramatha Nath Roy Chowdhury and Others Vs. Rajah Bejoy Singh Dhudhuria and Another, . Plaintiff''s brother is still alive and was not called and I see from the record that Mahabir Prasad, D.W. 1, father of the appellants, who attempted to prove the document, spoke of the petition of compromise but did not speak of the boundaries given in that paper.

That the document was at once objected to appears from his deposition, but the judgment of the learned Munsif does not state why the objection was overruled, nor do I find anything about it in the order sheet. In any case it seems clear that Sabran Sheikh v. Odoy Mahto AIR 1922 Pat 488 is not an authority for admitting the petition of compromise, and that the learned Subordinate Judge did not err in law in taking the same view as in Pramatha Nath Choudhuri and Others Vs. Krishna Chandra Bhattacharjee and Another, . The appeal fails and is dismissed with costs.