Ramsarup Raut and Others vs Ramnarain Tewary

Mullick, Ag. C.J.

This appeal from the judgment of Kulwant Sahay, J. arises out of a suit for rent in respect of plot 42 khata 80, of the survey and settlement record. In this khata the plaintiff has been recorded as the landlord, but there is no entry in the rent column against plot 42; and it is stated against khata 12, the plots of which are recorded as the property of another Landlord, that the rent of plot 42 ''is included in the rent of of khata 12 and is payable to the landlord of that khata who is one Peku, the son of Ramprasad Tewari.

It appears that in the Court of the Munsif, the plaintiff did not take any steps to identify plot 42 with the corresponding plot in a partition proceeding held under Act 8 (B.C.) of 1876 and the Munsif found upon the survey and settlement record and the other evidence in the case that the plaintiff was the landlord of plot 42 and that he was entitled to rent from the defendants in respect of it. As the survey record did not state what the rent was, the Munsif found upon the collection papers and oral evidence produced by the plaintiff that the rent was Rs. 2-13-0 per annum and at this rate he decreed the claim.

The defendants then went on appeal and the Subordinate Judge held that Feku and not the plaintiff was the landlord of the defendants and that there was no relationship of landlord and tenant and he dismissed the suit. In order to determine whether the plaintiff was the landlord, the learned Subordinate Judge issued a commission for local investigation and it was found that plot 42 corresponded with plot 28 which was allotted in the batwara proceedings to Ramprasad Tewari.

A second appeal was then taken to this Court and Kulwant Sahay, J., has held that the batwara papers were not evidence at all in the case and should not be referred to and that if the batwara papers are discarded, then there remains only the survey and settlement record which has not been rebutted, He, therefore, held that the Munsif was right and he remanded the case to the Subordinate Judge for the purpose of ascertaining what is the rent payable for the land a. point which the learned Subordinate Judge has left undecided as he found the title against the plaintiff. The present appeal has been referred to us under, the Letters Patent.

Now, it appears to have been conceded by the learned advocate who appeared for the respondent before Kulwant bahay J., that the case of Nand Lal Pathak v. Chanurput Das [1913] 17 C.W.N. 779, was conclusive against him and that the batwara-papers were not admissible in evidence in the case. But the papers in question included not only the batwara khasraj which was prepared by an amin and not signed by any gazetted officer but also barwarda which was signed by the partition Deputy Collector and contains an enumeration of the various plots assigned" to each proprietor.

So far as we have been able to discover, this document was made under the provisions of Ch 7 of Act 8 (B.C.) of 1876 and in the course of official duty. The Deputy Collector is required by Section 77 of the Act to prepare such a document and to sign it The Act requires him to determine amongst other things the boundaries and to draw up a paper of partition specifying in detail the villages and lands which he has included in each of the separate estates, the rental thereof, with any other assets of each separate estate, the name or names of the recorded proprietor or proprietors of each separate estate, any stipulations which may have been made regarding places of worship, tanks or other matters as mentioned in part 8 and the amount, of land revenue to be assessed on each separate estate. The proceeding was of course liable to revisionin appeal or otherwise, but it was nevertheless a record made in the course of official duty within the purview of Section 35, Evidence Act.

The learned Judge of this Court was evidently under the impression that only the batwara khesra was before him which certainly, according to the authorities and according to the terms the Evidence Act itself cannot be held to be a public document within the meaning of Section 35, Evidence Act.

In the circumstances it is not necessary to consider whether batwara khesras after proper proof are evidence, but it may be observed in passing that the authorities show that batwara khesras, if properly proved, might be evidence either u/s 18 or 13, Evidence Act.

In the present case the batwara would also be evidence against the proprietors under both these sections because they were made in their presence.

Therefore, there was legal evidence before the Subordinate Judge to support the finding that the plot in dispute fell not within the "patti" of the plaintiff but within the "patti" of Feku. The finding of fact is, therefore, final and cannot be reversed in second, appeal.

The authority of the decision in Nand Lal v. Chanurput Das [1917] 38 I.C. 205, cannot be questioned, but in that case it was sought to have the batwara khesra admitted u/s 35 and the Court held that Section 35 had no application.

With regard to the question of the proof of the batwara khesras filed in the present case, it appears that they were admitted in the trial Court, without any objection by the plaintiff and no formal proof was given. If it had been necessary to use these papers we should have expressed our opinion on the argument that proof was waived but we do not do so as the matter does not arise.

It was urged that there was some kind of admission made before Kulwant Sahay, J. with regard to the applicability of Nand Lal Pathuh''s case [1913] 17 C.W.N. 779, which estops the appellant from taking the ground that the batwara has been wrongly excluded by the learned Judge of this Court; but the point is one of pure law and does not depend on any facts and there is no estoppel in the matter. The appeal succeeds and is decreed with costs throughout. The judgment of the learned ''judge of this Court is set aside and that of the Subordinate Judge restored.

Jwala Prasad, J.

I agree. I would only refer to my decision in the case of Ano Das v. Jagat Pat Loll [1917] 38 I.C. 205, upon the question of the admissibility of the batwara burwada prepared by the Deputy Collector under the former Estates Partition Act 8 of 1876 (B.C.) as evidence against the landlord.