Sadhu Saran vs Ambika Lal and another

Adami, J.—In this suit the plaintiffs sought to redeem an usufructuary mortgage executed some 22 or 23 years before the suit, in favour of their landlords defendants Nos. 1 to 5.

According to the plaintiffs, one Bilati Ahir had an occupancy holding of 5 bighas 6 kathas 17 dhurs, his son, Sansar Ahir, and two others sold 3 bighas 1 gatha 3 dhurs of this land to the mother of the plaintiff No. 1 who in 1898 or 1897 mortgaged it to his landlord stipulating that they should remain in possession appropriating the profits till re-payment of the debt. The defendants Nos. 1 to 5, however, at the time of the Survey managed to get defendants Nos. 6 and 7, Thag Koeri and Ratan Koeri, recorded as the occupancy raiyats of the land which was measured in the survey as two plots Nos. 1069 and 1070, comprising 2 bighas, 18 kathas 5 dhurs. In 1324 F.S. the plaintiff No. 1 tendered the principal amount due under the bond but the defendants Nos. 1 to 5 refused to receive it. The plaintiffs then instituted the suit giving rise to this second appeal joining as defendants. Thag Koeri and Ratan Koeri and certain persons who claimed interest through purchase from them.

Defendants Nos. 1 to 5, the mortgagee, landlords, did not contest the suit, and though some of the other defendants filed written statements, it was defendant No. 15, the present appellant, who alone really resisted the claim. He denied that the plaintiff or his predecssors ever held the land under any title or ever mortgaged it, According to him the land was the bakasht land of defendants Nos. 1 to 5 who settled it with Bhagbat Keeri who was succeeded by his cousin Thag Koeri. In execution of a decree against Thag Koeri the land was sold and purchased by Paltan Koeri who in 1915 sold it to defendant No. 15, the present appellant.

The Munsif found that there was a sale of the land now in dispute to the, mother of the plaintiff, and that the land mentioned in the kabala Exhibit 4 was identical with plots Nos. 1069 and 1070. He relied on a batwara khasra Exhibit 1 and a map showing that Bilati Ahir was in 1866 acknowledged by the signature of the landlords to be a tenant of plots identifiable with those in dispute. He relied also on a Road Cess Return (Exhibit 5) of 1888 signed by the landlords showing the plaintiff as tenant, and on the landlords jamabandis of 1872. He found that the entry in the Record of Rights was merely based on the lease given by the landlords to defendants Nos. 6 and 7 and that the presumption of its correctness was rebutted by the evidence produced by the plaintiff. He disbelived the defence evidence as to possession, and found that the sale certificate granted to Paltan Koeri and receipts granted after the lease to Bhagbat Koeri could have no weight in the case and were not binding on the plaintiffs. He held that the plaintiff had proved the mortgage. He, therefore, granted a decree.

The learned District Judge on appeal has upheld the decree of the Munsif. He held that the batwara papers of 1866 proved that Bilati Ahir was then tenant of the plots now in suit, and that the plots in suit were the lands sold by the son of Bilati Ahir to the mother of the plaintiff. He found the sale deed to be genuine. He laid special stress on the Road Cess Return signed by the landlords showing a holding to the extent of the disputed plots in the plaintiff''s name. He disbelieved the oral evidence of the defence witnesses, and believed in the genuineness of the mortgage bond. He described the documents put forward by the defence as fictitious ones evidently executed with a view to the Survey proceedings without any title.

On the face of the Judgment the findings of fact by the learned District Judge would preclude success by the appellant in second appeal. It has been found that defendants Nos. 1 to 5 did in fact take the lands in suit in usufructuary mortgage. It is contended, however, that the appellant was a bona fide purchaser without notice and that the Record of Rights entitled him to assume that his vendor had a good title. It is urged too, that the courts were not entitled to rely on the batwara khasra and map or to use the Road Cess Return against the appellant.

The case of Perma Roy v. Kishen Roy (1898) 25 Cal. 90 is authority for the proposition that a batwara khasra is not a "record" within the meaning of section 35 of the Evidence Act, 1873, and that an entry made therein of the name of a tenant in possession is not admissible in evidence, and Nanda Lal Pathak v. Mohunt Chanurpat (1913) 17 C.W.N. 779; 17 C.L.J. 462: 18 I.C. 143 is to the same effect. However, in the present case the batwara khasra was used to show the past history of the plots long before the defendant''s predecessors-in-interest obtained a settlement and to show that in 1866 the land was raiyati land of Bilati. The above cited cases deal only with admissibility u/s 35 of the Evidence Act. There is no reason why section 13 of the Evidence Act should not apply. Relief was being claimed against the landlords who signed the batwara papers. A balwara entry made under the old Act would not be admissible against the tenant if made after the creation of the tenancy, but here the partition was in 1866 and the tenancy on which the appellant relies was not created till 1906.

The Road Cess Return being signed by the landlords would be admissible as against them, and it shows, as against them that the plaintiffs were their tenants, and lends support to the case that Thug Koeri was never a tenant in possession.

With regard to the contention that the appellant had no notice of the mortgage and was an innocent purchaser, the mortgagees have been found to have entered into a fictitious transaction with a view to the Survey proceedings; as mortgagees they had no power to take away any of the mortgagor''s rights; the mortgage still subsisted and any possession by the appellant must be subject to the mortgage, the appellant is merely representative of the mortgagee and is not entitled to the relief asked for.

The appeal is dismissed with costs.