Tanha Singh and Others vs Bandhu Singh and Others

Edward Chamier, C.J.—This appeal arises out of a suit brought by the plaintiffs for possession of about 18 bighas of land. Without going into fractions of a bigha, it may be said that the plaintiffs claim to be entitled to 6 bighas on the ground that 35 bighas mote or less belong to one Chulhan Singh, a distant relative of his; that Chulhan Singh died and his heirs were the plaintiff Tanha Singh and Lakhan Singh, the father of the defendants. According to law, Tanha Singh and Lakhan Singh were each entitled to half of the property of Chulhan, that is to say, to 18 bighas more or less, but Tanha Singh alleges that he defrayed two thirds of the cost of some litigation which took place between himself and Lakhan on the one side and a lady, who put herself forward as a daughter of Chulhan Singh, on the other and, therefore, he became by agreement with Lakhan Singh entitled to two-thirds of Chulhan''s property instead of one-half. He has obtained one half, that is; 18 bighas, and he claims with his sons to he entitled to 24. On this account, therefore, they claim 6 bighas. The other 12 bighas in suit were admittedly the property of one Hanuman Singh on whose death they passed into the possession of his widow Musammat Degnu Kuer. The plaintiffs'' case is that Musammat Degnu Kuer died in 1310 F., and that at that time, the plaintiff Tanha Singh was solely entitled as reversionary heir of Hanuman Singh. The plaintiffs allege that Lakhan Singh died in 1309 F., that is one year before the death of Musammat Degnu. The defendants, the sons of Lakhan, with reference, to the claim to the 6 bighas, deny that there was any such arrangement as was alleged by the plaintiffs. With regard to the claim to the 12 bighas they say that their father Lakhan Singh was alive when Musammat Degnu Kuer died and that the property which she had held devolved in equal shares upon the plaintiff Tanha Singh and Lakhan Singh. The Subordinate Judge decreed the claim in full. The defendants appealed. As the District Judge observes at the beginning of his judgment, the plaintiffs, in order to succeed, have to establish two propositions, namely, (1) that Lakhan predeseased Musammat Degnu Kuer, and (2) that the plaintiff Tanha Singh obtained two thirds of Chulhan''s property against one third taken by Lakhan Singh. With regard to the claim for the 6 bighas the District Judge describes the story told by the plaintiffs as a trumped up story and he gives solid reasons for arriving as the conclusion that the plaintiffs failed to make out the alleged arrangement with Lakhan. I can see no reason why we should not accept the District Judge''s finding upon this part of the case.

The learned Judge, when dealing with the plaintiffs'' claim for the 12 bighas, relied strongly upon a hissawari said to have been filed in the Collectorate in 1309 F. The Subordinate Judge rejected the hissawari. He refused to accept the statement of the Patwari to the effect that it had been signed by all the maliks and he seems to have accepted the statement of the plaintiff Ramdhan Singh that he did not sign the hissawari. The District Judge does not refer to the evidence adduced to prove the hissawari, but he says that and that is a reliable piece of evidence and that it must carry great weight as it came into existence before the dispute between the parties broke out. He refers to the fact that the Subordinate Judge had rejected the hissawari because it had not been signed by the maliks, and goes on to say that he is not concerned with deciding whether the hissawari is binding upon the plaintiff or any other persons but what he is concerned with is, the existence of a particular person in a particular year and that this is, established by the hissawari. In this Court it is contended that the hissawari was not admissible in evidence, first, because it was not proved and, secondly, because if not proved, it was not admissible as a public document Mr. Manuk, on behalf of the defendants respondents, contended that the document was admissible u/s 35 of the Evidence Act. It appears to me that we should be putting a great strain on that section if we were to hold that the hissawari was admissible under it. It seems to have come into existence, in consequence of a demand made by the Collector u/s 30 of the Land Registration Act, 1876. The hissawari does not appear to me to be a public or other official book, register or record. So far as it is admissible or useful in the present case, it is merely the record of information supplied by some of the sharers in an estate on the demand of the Collector. I would not admit this document u/s 35. It appears to me that it would certainly be admissible if it were proved to have been made by the person or persons by whom it is said to have been signed and I think that, before making use of the document, the District Judge should have examined the evidence to see whether the hissawari was proved. Mr. Hasan Imam maintains also that the District Judge has overlooked a number of receipts which were filed in the ease. Mr. Manuk, on the other hand, says that he relies strongly on the receipts himself. The receipts may not be of much value in the case but I think that they should have been discussed by the District Judge. Under the circumstances, I am of opinion that we ought not to accept the finding of the District Judge on the question whether Lakhan, the rather of the defendants, predeceased Musammat Degnu Kuer. I would direct that the record be returned to the Court of the District Judge in order that a fresh finding may be recorded by him on the question whether Lakhan predeceased Musammat Degnu Kuer. No further evidence should be taken. On return of the findings 10 days will be allowed for objections.

Sharfuddin, J.

I agree

JUDGMENT

In our order of March 15th last we directed that the record in this case should be returned to the Court of the District Judge in order that a fresh finding might be recorded on the question whether Lakhan predeceased Musammat Degnu Kher. The learned District Judge, on a consideration of the evidence, finds as a fact that Mussamat Degnu Kuer predeceased Lakhan Singh. The plaintiffs, in order to succeed, had to prove that Lakhan predeceased Degnu Kuer and that the plaintiff Tanba Singh obtained two-thirds of Chulan''s property against one-third taken by Lakhan Singh. The second question was disposed of by us in our previous order and the present finding of the District Judge is fatal to the claim of the plaintiff-appellant. No one appears to support the appeal to day. The appeal is dismissed with costs.