Uttim Sahu and Others vs Sheik Arzani and Others

Dawson Miller, C.J.—The plaintiffs are the proprietors of Mouza Parsa including Chaur Chandauli. The principal defendants Nos. 1 to 15 are the tenants who until 1912 also held Zarpeshgi rights over the land in question which they acquired from the plaintiffs'' predecessors. In 1912 the plaintiffs purchased their interest and in the same year deposited in Court the amount due under the Zarpeshgi by way of redemption, and they now sue the defendants for the price of certain trees and bamboo clumps which they allege the defendants improperly out and appropriated. Incidentally they claim a declaration that the defendants Nos. 1 to 13 are not tenants of 46 bighas 1 cottah 4 dhurs at a fixed rate of rent and that defendants Nos. 14 and 15 are not tenants of 14 bighas 10 cottahs 15 dhurs at a fixed rate of rent as recorded in the survey Khatian, but that the nature of their tenancy is kaemi. The defence if, first, a denial that the defendants out any trees at all and secondly, that they are tenants at fixed rates with regard to a portion of the lands in question and are, therefore, entitled to out trees on that portion. The defendants further contend that the suit will not lie, as it asks for a declaration that the entries in the Record of Rights made more than 6 years ago are erroneous. If this were merely a suit asking for such a declaration it would, no doubt, be barred by limitation and even if it were essential to the plaintiff''s claim for damages that he should first have the entry declared erroneous, his suit, would probably fail. But it is now well established that a claim is not necessarily barred merely by reason of the fact that the Record of Rights contains entries which, if produced in evidence and unrebutted would be fatal to the relief claimed. As was remarked by Mullick, J., in Brij Behari Singh v. Sheo Sankar Jha 39 Ind. Cas. 85 : 2 P.L.J. 124 : 1 P.L.W. 434 : AIR (1917) Pat. 108: An entry in a Record of Rights neither creates nor extinguishes rights, it is merely a rebuttable piece of evidence." In the present case the plaintiffs are clearly not entitled to the declaration asked for as to the entry in question, but that does not preclude the Court from basing its judgment on a finding of fact at variance with the entry, if it is satisfied that the evidence in the case is sufficient to rebut the presumption created by the entry. In support of this part of their case rent receipts were produced by the defendants which show a uniform rate of rent from the year 1684 to about 1800, the date of the survey, but between the years 1872 and 1883 the rent is by no means uniform but varies on two occasions and there is nothing to show any alteration of area. If it were necessary to decide this question, it would be difficult to find that the land in question was held at a fixed rate, notwithstanding the presumption created by the Record of Rights which was made at a time when the tenants held a proprietary interest in the village as Zarpeshgidars and had, therefore, every opportunity of obtaining the insertion of entries in the Record of Rights without opposition from the Maliks. I have referred to this matter because by the judgment of the Court below there is a finding that the defendants are tenants at fixed rates and, in my opinion, this part of the judgment should be set aside. It is not, however, in my view necessary to decide the status of the tenants. The trees are alleged to have been out in seven different survey plots. In two only of these do the plaintiffs claim tenant rights and in one only, viz., plot No. 120 do they claim to be tenants at fixed rates. The trees alleged to have been out in this plot were 3 bamboo topes and according to the survey (at page 40 of the paper-book) these are recorded as being in the possession of the proprietors. This is one of the main items of the claim, the bamboos being valued by the plaintiffs at Rs. 500 to Rs. 600 out of a total claim of about Rs. 1,000.

The Subordinate Judge found that there was no sufficient evidence of the cutting of the trees, but on a careful review of the evidence I am unable to agree entirely with him in this finding. It may be that the plaintiff''s evidence is exaggerated and in so far as the Survey Khatian does not show any trees in 1900 on the plots where they are alleged to have been out, 1 am not inclined to differ from the finding of the learned Judge. This would dispose of the claim so far as plots other than Nos. 56, 379, 197 and 120 are concerned, and as the only tree alleged to have been out in plot No. 379 is one of two Babool trees which according to the survey were in the raiyats'' possession, it only remains to consider plots Nos. 56, 197 and 120. On these plots there were 1 mango tree, 1 Shishum tree and 3 bamboo topes belonging to the proprietors. I have considered the evidence on both sides and I cannot believe that that of the plaintiffs'' witnesses is entirely false and malicious. It consists of 3 witnesses, cultivators holding lands in the village, and they agree in the main features of their evidence. One of them Dhani Dushadh says that the reason given to him by Rahim the Tahsildar of the defendants for cutting the trees was that the village was going into the hands of others (that is the plaintiffs) and as the defendants'' Zarpeshgi rights were about to be redeemed, it is not difficult to understand that they thought the opportunity a good one for appropriating some of the trees. Rahim was not called as a witness by the defendants to deny this conversation. Two of the defendants were called. One denied cutting any trees at all; the other said he had out none for 6 or 7 years. A servant of one of the defendants was also called, who said the defendants out no trees within the last 6 or 7 years and added that even before that they never cut any trees. In April 1915 during the course of the proceedings in the Court below the defendants Nos. 1 to 4 and the defendants Nos. 14 and 15 respectively entered into a compromise with the plaintiffs which was reduced to writing, and in each case a petition was signed by them and filed in Court on behalf of those defendants. These petitions admitted the cutting of trees by these defendants and they agreed to pay in the one case Rs. 87-8-0 and in the other Rs. 175 by way of settlement of the claim and costs, the receipt of which was acknowledged by the plaintiffs. Some 2 months later on the 25th June 1915 on the second day of the trial the defendants Nos. 1 to 4 filed a petition praying that the compromise be rejected. The Subordinate Judge rejected both these compromises, on the ground that they were not willingly entered into by the defendants and that they were contrary to the provisions of Section 147A of the Bengal Tenancy Act. It was not disputed that the compromises were made and it was not until the trial had begun that it ever occurred to the defendants Nos. 1 to 4 to suggest that they were many way coerced or influenced in signing and filing the petition. The Pleader for the defendants Nos. 14 and 15 was engaged for the express purpose of drafting the compromise made by the defendants Nos. 1 to 4. He was called as a witness, and from his evidence which I accept it is abundantly clear that the defendants willingly agreed to the terms. Moreover, it is almost inconceivable that these defendants should have admitted cutting the trees two months before the trial if in fact they had never done so and whether the compromise be rejected or not on other grounds it forms strong corroborative evidence of the truth of the plaintiffs'' allegations as to the cultivating of the trees. The defendants Nos. 14 and 15 were not called and produced no evidence relating to their compromise. It must be assumed, therefore, that they did not dispute it, and they have not appeared at the trial or in this appeal. It is true the compromise includes matters outside the scope of the present action and so far as these matters are concerned the Court is not bound to record it. The only part of the compromise which the Court can record is that which deals with the liability to pay damages. I cannot accede to the proposition that once a lawful compromise is come to and filed by the parties, that one of the parties can afterwards turn round and repudiate the agreement at anytime before judgment is entered. This contention which was urged by the respondents is at variance with the decision of a Full Bench of the Calcutta High Court in Brojodurlabh Sinha v. Ramanath Ghose 24 C. 908 : 1 C.W.N. 597 : 12 Ind. Dec. 1274 (F.B.) where the wording of Section 375 of the CPC of 1882, similar to that of Section 147 A of the Bengal Tenancy Act, was considered, and there are many other decisions to the same effect. It is not necessary, however, to deal with this question further, as I have come to a clear decision on the facts that the defendants are liable.

On the question of damages I have no doubt that the amount claimed is exaggerated. I have already dealt with the number of trees that have teen improperly appropriated by the defendants but I cannot accept the value as stated by the plaintiffs. In my opinion the amounts already recovered from the defendants Nos. 1 to 4 and 14 and 15 are enough to satisfy the plaintiffs'' claim and these sums appear to have been paid to the plaintiffs. The plaintiffs, however, were obliged to bring this appeal to have the decree of the loner Court set aside. It will accordingly be decreed that the judgment and decree appealed from be set aside and judgment will be decreed for the plaintiffs for the sum of Us. 87-8-0 against defendants Nos. 1 to 4 and Rs. 175 against the defendants Nos. 14 and 15 in accordance with the terms of the compromise. If these sums have already been paid to the plaintiffs it is not intended that they should recover them twice. The costs here and in the Court below, except in so far as they are dealt with in the compromise, will be borne by each party.

Jwala Prasad, J.

The plaintiffs Nos. 1 to 5 acquired proprietary interest in respect of 14 annas share of Mouza Parsa, including Chaur Chandauli, Pargana Dangsi, bearing Touzi No. 2074, by means of two sale-deeds dated 15th May and 6th August 1912. The defendants Nos. 1 to 15 are tenants of the village. They were in possession of the entire village as mortgagees and thicadars. The mortgages were two Zarpeshgi deeds of 28th January 1885 executed by the predecessors-in-interest of the plaintiffs. On 23rd September 1912 after their purchase of the proprietary interest the plaintiffs redeemed the aforesaid mortgages of 1885 and deposited the amount due thereunder in Court. The case of the plaintiffs is that the defendants, taking advantage of their possession of the entire village, got their names fraudulently and falsely entered in the Survey Record of Bights as tenants at fixed rates in respect of the lands specified in Schedule I of the plaint, which were held by them merely as occupancy tenants, and that after the plaintiffs'' purchase the defendants cut and misappropriated several bamboo clumps, Shishum, mango and other big trees in the village which belonged to the plaintiffs as proprietors of the village and that the plaintiffs are entitled to the price of the said trees as damages. The plaintiffs, therefore, pray for (1) a declaration that the defendants Nos. 1 to 15 were only occupancy tenants and not tenants at fixed rates as entered in the survey and (2) for a decree for Rs. 1,075 as damages from defendants Nos. 1 to 13 in respect of the price of the trees said to have been cut and misappropriated by them, or from defendants Nos. 14 to 15, or from any other defendants who may be proved to have out the trees.

There is an intimation of the intention of the plaintiffs to institute separate suits in respect of the proprietors'' lands said to have been entered as a kasht of the defendants Nos. 1 to 15 in the survey and also in respect of a house said to have been built by defendant No. 1 on the plaintiffs'' land without any right. Defendants Nos. 16 to 22 were Zarpeshgidars in respect of some shares in the village. Their interest has since been purchased by plaintiffs Nos 6. and 7 and, therefore, they are pro forma defendants and no particular relief is claimed against them.

The defendants Nos. 1 to 15 resist the claim of the plaintiffs, on the ground that they are tenants at fixed rates in respect of the lands recorded in their name as such in the survey Record of Rights and that they have not cut the trees in question. The learned Subordinate Judge, who tried the suit, dismissed the plaintiffs'' claim in toto by his judgment dated the 9th April 1915. Hence this appeal by the plaintiffs.

During the pendency of the suit two compromise petitions were filed before the Subordinate Judge, one on the 7th April 1914 by the plaintiffs and the defendants Nos 14 and 15, and the other on 20th April 1915 by the plaintiffs and the defendants Nos. 1 to 4. These petitions were, however, not disposed of. After the hearing of the suit commenced, defendants Nos. 1 to 4 by their petition of the 20th June 1915 repudiated the compromise and alleged that the petition of the 20th April was filed under compulsion and without their consent and knowledge. The compromise petitions have been disposed of by the Subordinate Judge in his final judgment of the 9th April 1915. The learned Subordinate Judge has refused to give effect to the compromise on the ground that it was not willingly entered into by defendants Nos. 1 to 4 and that it was invalid u/s 147A of the Bengal Tenancy Act. It has been conclusively proved by the evidence of witness No. 5, Babu Girdhar Gopal Singh, Pleader, who filed the compromise, and witness No. 6, Hari Har Prasad, the plaintiffs'' karpardaz, that the terms of the compromise petition were fully considered by the defendants Nos. 1 to 4, and their allegation that they were ignorant of the terms or that the compromise was entered into under compulsion appears to be wholly without any foundation. Defendants Nos. 14 and 15, however, have not repudiated the compromise of the 7th April 1914. It must, therefore, be held that the compromise was duly entered into by defendants Nos. 1 to 4 and 14 and 15, and the learned Subordinate Judge is wrong in holding otherwise. These compromise petitions dealt with several matters that were neither actually in dispute nor in any way related to the suit. There may be reason for the parties to have settled all their disputes on account of the threat given in the plaint that the plaintiffs intended to bring further suits relating to them, but as those matters were foreign to the scope of the suit the Subordinate Judge is right in holding that they could not be given effect to in a decree in this case. The parties have agreed by the compromise that the character of the holdings in suit was not that of fixed rates but merely kaemi (or occupancy). This, no doubt, was a matter directly in issue in the suit and the parties were well within the purview of law to adjust the dispute with regard to it by means of a lawful compromise. But as the defendants Nos. 5 to 13 have not joined in the compromise, their rights in the holdings cannot be affected by the compromise entered into between the plaintiffs and defendants Nos. 1 to 4 and 14 and 15. The compromise petition so far has contravened Clause 4, Section 147A of the Bengal Tenancy Act and as such cannot be given effect to. Besides, it would be anomalous to declare that the status of some of the defendants in the same holding was that of occupancy tenants, whereas of the rest of the tenants at fixed rates.

Then remains the adjustment between the parties to the compromise relating to the damage claimed by the plaintiffs in respect of the trees said to have been out and misappropriated by them. The parties to the compromise have definitely come to terms as to the claim of the plaintiffs for damages and have stated that the defendants Nos. 1 to 4 and 14 and 15 have paid to the plaintiffs their respective shares out of that claim, namely, the defendants Nos. 1 to 4 Rs. 83-15-9 and defendants Nos. 14 and 15 Rs. 167-15-6. The defendants are tortfeasors and there is nothing to prevent some of the defendants admitting the plaintiffs'' claim and paying a part of the damages. This portion of the compromise should have been given effect to by the Court and a decree passed accordingly. The Court is wrong in not doing so.

The contention of the defendants that no decree can be passed in accordance with the compromise, inasmuch as the defendants Nos. 1 to 4 receded from the petition filed by them at the hearing before the decree was passed, appears to be without any substance. Reliance has been placed upon Clause 2 of Section 147A for the aforesaid contention. The terms of this clause are exactly as those in Section 375 of the old CPC of 1882. Under that section of the Code it was held concurrently by the High Courts of Calcutta, Bombay and Madras that the Courts were empowered to enquire into and give effect to a lawful compromise, adjustment or satisfaction of a suit by the parties even where one of the parties repudiated and receded from it afterwards in Court [Brojodurlabh Sinha v. Ramanath Ghose 24 C. 908 : 1 C.W.N. 597 : 12 Ind. Dec.1274 (F.B.), Goculdas Bulabdas Manufacturing Company v. James Scott 16 B. 202 : 8 Ind. Dec. 613, Samibai v. Premji Pragji 20 B. 304 : 10 Ind. Dec 762, Sridharan Somayajipad v. Puramathan Somayajipad 23 M. 101 : 9 M.L.J. 350 : 8 Ind. Dec. (N.S.) 464 and Appasami Nayakan v. Varadachari 19 M. 419 : 6 Ind. Dec. 997]. No doubt the Allahabad High Court took a different view [Bandhu Bhagat v. Shah Muhammad Taqi 14 A. 350 : A.W.N. (1892) 40 : 7 Ind. Dec. 592]. I agree with the view taken by the majority of the Courts in India and hold that Clause 2 of Section 147A clearly empowers the Court to give effect to a compromise and pass a decree accordingly even if the parties subsequently retract from it. The judgment of the Subordinate Judge on this point should, therefore, be set aside and the decree passed as regards the damages claimed by the plaintiffs, so far as the defendants Nos. 1 to 4 and 14 and 15 are concerned, in terms of the aforesaid compromise petitions.

As to the claim of the plaintiffs for a declaration that the defendants Nos. 1 to 15 are occupancy tenants and not tenants at fixed rates in respect of the lands entered in the Survey Record of Rights, the Subordinate Judge is right in holding that the claim is barred by limitation under Article 120 of the Limitation Act, as having been brought more than six years after the final publication of the Record of Rights which took place in 1900. The present suit was instituted on 6th November 1913 more than 13 years after the final publication of the Record. The plaintiffs are not entitled to any declaration in respect of the character of the holdings. It may be conceded, as is contended by the learned Vakil on behalf of the appellants, that the fact that the claim for declaration is barred by limitation, would not prevent the Court from determining that the survey entry is wrong, provided it was essential for the determination of the main or consequential relief as to the damages claimed by the plaintiffs. The survey entry, no doubt, raises only a rebuttable presumption and does not affect any title. But in the present case the claim for damages on account of the trees has nothing to do with the declaration sought by the plaintiffs as to the status of the defendants in respect of the lands recorded in the survey as at fixed rates. The defendants Nos. 1 to 13 have been recorded in the survey as tenants holding at fixed rates in respect of the 46 bighas 1 cottah and 4 dhurs of lands in survey Khatas Nos. 5, 6 and 21 of Mouza Parsa and in Khatas Nos. 3 and 5 of Chaur Chandauli, and defendants Nos. 14 and 15 have been recorded as tenants at fixed rates in respect of 14 bighas 10 cottahs 15 dhurs in respect of Khatas Nos. 3 and 4 of Mouza Parsa and in the Survey Khata No. 2 of Chaur Chandauli, The claim of the plaintiffs for the price of the trees is in respect of those standing on the plots in Khatas Nos. 63, 65, 26. 30, 64 and 6. There is no claim for price of the trees in respect of any land recorded as appertaining to the holding at fixed rates of the defendants, except some bamboo clumps on plot No. 120, Khata No. 6. This plot, no doubt, has been recorded in the name of Sheikh Lalmir, ancestor of defendants Nos. 1 to 15, as appertaining to his holding at fixed rates, but the bamboo clumps have been entered as in possession of the proprietors, The adjudication of the defendants'' status does not appear to be at all necessary in order to determine the relief regarding the damages for the trees said to have been oat and appropriated by the defendants. There was no necessity for the Court to record any finding on the status of the defendants. In spite of this the Court below has held that the defendants Nos. 1 to 15 are tenants at fixed rates in respect of the holdings in question. This decision is based on the presumption u/s 50, Clause 2 of the Bengal Tenancy Act, that the defendants held the lands at the same rate of rent for 20 years. The Court below has relied upon rent receipts filed by the defendants from 1279 to 1306. The rent receipts (Exhibits A to A 56), however, do not show that the rate of rent was paid uniformly for 20 years. On the other hand, the rents have been varying from time to time--1279 to 1283 Rs. 47-12-0--1284 to 1290, Rs. 49-4-0--1291 to 1292, Rs. 55-20. The areas in the receipts are not mentioned. The ground for the presumption of the Court below, therefore, fails. The presumption afforded by the Survey Record of Rights is rebutted by the very receipts filed by the defendants, which go to show that the rents were not at uniform rates. The decision of the Court below that the defendants were tenants at fixed rates is clearly wrong and cannot be supported, As observed above, there was no necessity of determining the status of the plaintiffs and the decision of the Court below on this point should, therefore, be set aside. It was enough to hold that the plaintiffs'' remedy was barred by limitation as not having been brought within six years from the final publication of the Record of Rights,

As to the principal relief sought by the plaintiffs, namely, damages in respect of the trees said to have been cut and misappropriated by the defendants, I would for the sake of appreciation give below a comparative statement showing the claim of the plaintiffs and the entries in the Survey Record of Rights and the report of the Commissioner deputed to hold local enquiry. This report is dated 8th December 1914.

Plaintiffs'' Claim and Entry In The Survey Record of Rights Schedule Ii of The Plaint. Finally Published On The 18th April 1900 (Exhibit 5). Khata No. Survey No. Name of trees. Price Tenant''s name Trees. in Survey No. Rs. 63 379 Two Babool... 10 Sheikh Lalmir Two Babool trees. 65 300 One Pipal... 25 Ditch... No Pipal tree 65 67 One Bargaj 40 Pathway... No Bargaj tree tree 65 67 One bamboo 100 Do... Nil... clump. 26 197 One Shishum Sheikh Inayat One Shishum tree. son of Sheikh tree. Gulam Ali. 30 56 Ten mango 100 Kari, son of One mango trees. Neor. tree. Old ... 1 New ... 9 64 195 One Bargaj, 100 Gair Majruha One Bargaj three Shishum tree: no trees. 6 120 Three bamboo 600 Sheikh Lalmir Three bamboo clumps old. clumps. Entry In The Survey Record of Rights Finally Published On The 18th April 1900 (Exhibit 5). Name of the Per Commissioner''S Report person centered as Dated 8th December 1914, in possession. At Pages 184-186 Of The Paper-Book. In Possession One Babool tree standing. No of tenant. trace or roots of the Babool tree were found on the spot when dug about two feet, alleged by the plaintiffs to have been out by the defendants. Ditch ... No trace of root of any big Pipal tree was found on the spot pointed out by the plaintiffs as recently cut. Pathway... No trace of Bargaj tree on the spot pointed out by the plaintiffs. Do ... No trace of bamboo clump having been cut. In proprietor''s No trace of any tree on the possession. spot pointed out by the plaintiffs. Do... Do. do. Kabool Sheikh Do. do. and others. Shishum tree. In possession No trace of two bamboo clumps. of properties. The field was over- grown with wild plants. There were 13 bamboo clumps standing and khoonts of 51 were found.The clumps were old.

It would at once appear from the statement that the plaintiffs can have no possible claim to the trees in plots Nos. 397 and 195, which in the survey were recorded as in possession of the tenants, nor to the trees claimed in plots Nos. 300 and 67 and the 9 mango trees in plot No. 56, as there is no mention of them in the survey record, nor has it been shown that they were since planted or that they stood there at any time or at the time of the alleged cutting. The claim of the plaintiffs with respect to a Shishum tree in plot No. 197 and an old mango tree in plot No. 56 and three bamboo clumps in plot No. 120 appear to be well founded, as they have been recorded in the survey as in possession of the proprietors. The Commissioner''s report supports this and also that they have disappeared except 13 bamboos from one clump on plot No. 120. There were also seen roots of 51 bamboos out from that clump. The evidence in the case has clearly established that the defendants out the trees away and the reason given by the Court below for disbelieving the evidence appears to be insufficient and based upon misapprehension. I, therefore, disagreeing with the view of the Court below hold that the defendants cut the trees and the plaintiffs are entitled to the damages caused to them by the defendants'' misappropriating the same.

In the Zarpeshgi deed of 1885, Exhibit 2, whereby the defendants were led into possession of the village as Zarpeshgidars, it is clearly stated that the Zarpeshgidars should not be allowed to plant or out any trees, nor should they allow anybody else to do so and in case of their cutting by themselves or by any other person they should be liable to pay the proper price sherefor together with damages," The rights in the Zarpeshgi deeds were vested in the plaintiffs by virtue of their purchase in 1912 and the plaintiffs are, therefore, entitled to the price of the trees cut by the defendants themselves or through others. The defendants are thus liable for damages. It is, however, difficult to assess the exact amount of damages. The prices of the trees as stated by the plaintiffs in the plaint are as follows:

Rs. (1) One Shishum tree on plot No. 197 ... 100 (2) The price of one old and nine new mango trees on plot No. 56, put down together as Rs. 100, and therefore of one old mango tree probably comes to ... 10 or 12 (3) Three bamboo clumps on plot No. 120 ... 600

The plaintiffs have not given enough material upon which the price could reasonably be fixed by the Court and the evidence on the point is too vague. There is no evidence as to the number of bamboos that were out by the defendants. The clump, the trace whereof the Commissioner found, consisted of 51 out and 13 standing bamboos, making a total of 64 bamboos in that clump. There is nothing to show that the other two topes had more bamboos in them than this one. The total bamboos out would, therefore, not exceed 200 in number. The price of the bamboos cut would thus not exceed Rs. 100. The price of the old mango tree has not been clearly stated either in the plaint or in the evidence and may roughly be put as Rs. 10, and the price of the Shishum tree is stated by the witnesses to be Rs. 90. This is all guess. It is, however, clear that the plaintiffs have exaggerated their claim and have failed to substantiate the figures mentioned in the plaint.

The plaintiffs have realised by means of compromise from defendants Nos. 1 to 4 Rs. 83-15-9 as proportionate share of the price of the trees and bamboos claimed by them, as per compromise petition dated the 20th April 1915, at page 19 of the paper-book, and from defendants Nos. 14 to 15 their proportionate share Rs. 167-15-6 as per compromise petition dated the 7th April 1914, at page 186 of the paper-book:. The plaintiffs have thus realised from the defendants the sum of Rs. 251-15-3 according to the aforesaid compromise petitions. This amount would probably appear to represent the entire amount of the damages the plaintiffs were entitled to get from all the defendants. Taking this view of the case the plaintiffs have already realised from some of the defendants the price of the trees that were out by the defendants and are not, therefore, entitled to realise anything from the remaining defendants.

I, therefore, agree to the order proposed in the case by the Hon''ble Chief Justice.