Rangu Mandal vs Chatternath Chowdhury

Das, J.—These two appeals arise out of suits brought by the respondents against the appellant for recovery of rent due by the appellant to the respondents for the years 1319 to 1322.

The plaintiffs'' case is that the defendant is in possession of two holdings for one of which he pays Rs. 17-3-3 as rent and for the other of which he pays Rs. 19-9-6. The defendant says that before the survey operations he was in possession of three holdings for which he paid Rs. 3, Rs. 9-3-3 and 15 annas 6 pies as annual rent respectively, but that at the time of the survey the first and the second Jamas of Rs. 8 and Rs. 9-3-3 were amalgamated into one Jama of Rs. 17-3-3 and the third Jama of 15 annas 6 pies was allowed to remain separate. It will be noticed that the defendant admits that he is now in possession of a holding for which Rs. 17-3-3 is payable as rent but that he denies that he is in possession of any holding for which Rs. 19-9-6 is payable as rent. The substantial question which I have to determine is, is the defendant in possession of a holding for which Rs. 19-9-6 is payable as rent?

It is clear to me that the case has not been disposed of in a satisfactory manner by either of the Courts below. Indeed the judgment of the lower Appellate Court, which is the judgment of the final Court of facts, shows that it never understood the case made by the defendant. It says: "The defence was that there was only one single Jama of Rs. 19-9-6 and that the Jama of Rs. 17-3-3 is included in the Jama of Rs. 19-9-6." That was not the defence at all. The defence was that there were two Jamas one of Rs. 17-3-3 and the other of 15 annas 6 pies, as paragraph 2 of the written statement filed in Rent Suit No. 1500 of 1915 clearly shows. The defendant never made the case that he was in possession of a single Jama and I am of opinion that his inability to appreciate the defendant''s case has in this instance led to a failure of justice.

It appears on a reference to the Record of Rights Exhibit B that the two Jamas of Rs. 9-3-3 and Rs. 8 were first of all amalgamated into one Jama of Rs. 17-3-3 and then the three jamas of Rs. 9-3-3, Rs. 8 and 15 annas 6 pies were again amalgamated into a Jama of Rs. 18-2-9, which again is shown in the Record of Rights itself as enhanced to Rs. 19-9-6 as per order of Court in Suit No. 11 of 1890-91. The defendant says that there is an obvious mistake in the preparation of the Record of Rights because he was only in possession of three Jamas and they could not be amalgamated twice. It seems to me that the defendant''s contention must prevail unless it can be shown that the defendant was in possession of two Jamas of Rs. 8, two Jamas of Rs. 9-3-3 and one Jama of 15 annas 6 pies. The onus is undoubtedly on the defendant to show that he was in possession of three Jamas and not of five Jamas, but he claims to have proved conclusively that he was in fact in possession of three Jamas and not of five Jamas.

Now the defendant''s case may be true or false, but at any rate he was entitled to ask the Court to consider his case. It seems to me that the lower Appellate Court never applied its mind to the evidence on the record. It does indeed say that there are no sufficient materials to rebut the presumption of the correctness of the Record of Rights, but as Mullick and Atkinson, JJ., said in the case of Mubarak Hussain v. Syed Shah Hamid Hussain 38 Ind. Cas. 509 : 2 P.L.J. 8 : 1 P.L.W. 188 : (1917) Pat. 308:--"A mere general statement that on a perusal of all the evidence in the case the Court is satisfied as to a certain state of facts, is not a sufficient judgment within the meaning of the law, and we are bound to interfere if we feel that there may have been a miscarriage of justice by the Court''s failure to weigh all the evidence before it." A bare perusal of the Record of Rights throws grave suspicion on the case made by the plaintiff and in my opinion the lower Appellate Court should have dealt with the matter. I may appropriate the words of Jenkins, C.J., in the case of Partap Narain Vs. Maigh Lall Singh and cited by Mr. Justice Mullick in the case to which I have just referred and say that the matter was deserving of a far fuller discussion than the learned District Judge has bestowed upon it. In my opinion there has been an error of procedure by the failure of the lower Appellate Court to weigh all the evidence and to come to a satisfactory conclusion on the evidence before it. I would, therefore, remand the cases to the lower Appellate Court in order that there may be a proper trial of the issues raised.

It is necessary to mention another matter which has been brought to my notice by Mr. Ram Lal Dutt. It appears that the appellant asked the lower Appellate Court to take in evidence certain papers which according to the appellant were in fact produced by the plaintiffs-respondents before the Court of first instance. The learned District Judge does not seem to have dealt with that application. In dealing with this case on remand, I direct that the lower Appellate Court do dispose of that application according to law. It must be distinctly understood that the discretion of the lower Appellate Court in the disposal of that application remains wholly unlettered. All that I say and direct is that it should exercise his discretion in the matter.

In the result I allow the appeals and set aside the decrees of the lower Appellate Court and remand both the oases to the lower Appellate Court for disposal according to law. Costs will abide the result.