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Sm. Krishna Subala Bose and ors. Vs. Dhanapati Dutta and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 41 of 1953
Judge
Reported inAIR1957Cal59
ActsCode of Civil Procedure (CPC) , 1908 - Sections 9 and 11 - Order 41, Rule 27(1); ;Evidence Act, 1872 - Sections 13, 18(2), 44, 63, 76, 115 and 167; ;Crown Grants Act, 1895 - Section 2; ;Suits Valuation Act, 1887 - Section 8; ;Court-fees Act, 1870 - Section 7; ;Tenancy Laws; ;Bengal Tenancy Act, 1885 - Section 158; ;Contract Act, 1872 - Section 20; ;Registration Act, 1908 - Section 47
AppellantSm. Krishna Subala Bose and ors.
RespondentDhanapati Dutta and ors.
Appellant AdvocatePramatha Nath Mitra, ;Lala Hemanta Kumar and ;Sudhir Kumar Dutta, Advs.
Respondent AdvocateAtul Chandra Gupta and ;Amarendra Nath Gupta, Advs. for Nos. 1 to 5
DispositionAppeal dismissed
Cases ReferredIn Rajlakshmi Dasi v. Banamali Sen
Excerpt:
- guha ray, j.1. this is an appeal on behalf of the heirs of the referring claimant dulal chand bose, that is, claimant no. 1 from the judgment of the president of the calcutta improvement trust tribunal confirming the award of the collector and dismissing the reference under section 18, land acquisition act. the proceedings relate to municipal premises no. 188/2 maniktola main road, measuring 4 bighas and 16 cottas. admittedly it forms the western part of a larger holding originally numbered premises no. 109 and measuring 18 bighas and 12 cottas. this larger holding really consisted of two holdings namely nos. 15 and 18 in sub-division ii, division 3, dihi panchannagram under the collectorate of 24 parganas. the eastern and the largest part of the holding is numbered premises no. 188 and.....
Judgment:

Guha Ray, J.

1. This is an appeal on behalf of the heirs of the referring claimant Dulal Chand Bose, that is, Claimant No. 1 from the judgment of the President of the Calcutta Improvement Trust Tribunal confirming the award of the Collector and dismissing the reference under Section 18, Land Acquisition Act. The proceedings relate to municipal premises No. 188/2 Maniktola Main Road, measuring 4 bighas and 16 cottas. Admittedly it forms the western part of a larger holding originally numbered premises No. 109 and measuring 18 bighas and 12 cottas. This larger holding really consisted of two holdings namely Nos. 15 and 18 in Sub-division II, Division 3, Dihi Panchannagram under the Collectorate of 24 Parganas. The eastern and the largest part of the holding is numbered premises No. 188 and measures 10 bighas 2 cottas and the central part is premises No. 188/1 measuring 3 bighas 14 cottas.

2. The referring claimant is admittedly the landlord of all the premises, namely, premises Nos. 188, 188/1 and 188/2 and admittedly claimants Nos. 2 (a) to 2 (e) are tenants under him. The latter claimed a mokarari mourashi tenancy which the former disputed but the Collector upheld the claim of the latter and awarded to them as compensation in all the sum of Rs. 1,29,554-2-4 only and to the former the sum of Rs. 1567-5-8 pies' calculated on the basis of 30 times the proportionate annual rent for 4 bighas and 16 cottas. The reference made at the instance of Dulal Chandra Bose who died after the reference was made raises only a question of apportionment as between the two sets of claimants and the whole question depends on the status of the second set of claimants who are admittedly tenants under the first. According to the referring claimant, the other claimants are merely thika tenants while according to themselves, they are mokarari mourashi tenants. As the learned President of the Tribunal found them to be mourashi mokarari tenants, the only question for decision in this appeal is whether that finding is correct.

3. The facts, as far as they are now beyond dispute, are briefly that of the two holdings, namely, Nos. 15 and 18, which originally made up municipal premises No. 109, the first was recorded in Mr. Crow's proceedings (vide Exs. 2-4 at pages 65-70 of the paper-book in which the year of the proceedings is not noted, though Mr. Mitra on behalf of the appellants argued that these were of 1480) in the name of Mathur Mohan Bose and others as proprietors and the second in the name of Govinda Chandra Sarkar and others. On 18-11-1872, Manindra Ghosh filed before the Deputy Collector, 24 Parganas, a petition Ex. 6 (page 2, part II of the paper-book) alleging that in the recent settlement survey the land of the two holdings had been measured in his name and praying for the grant of a potta in his favour on acceptance of a kabuliat from him. He was then called upon to produce his kobala. Exhibit 7 is the final order of the Deputy Collector on this application. It appears from Ex. 7 that the two holdings were surveyed in May, evidently of the year 1872, as one property in consequence of both holdings then belonging to the estate of Kali Singhee who subsequently died and holding No. 15 was sold by the Receiver of the High Court in respect of Kali Singhee's estate to Manindra Ghosh, but the boundaries entered in the deed embraced both the holdings Nos. 15 and 16. As regards holding No. 18, one Trailokyamani Dasi, mother of the late Singhee applied for patta but to this Manindra Ghosh objected. Both the parties were accordingly referred to the Civil Court and the grant of pattas in respect of any of the two holdings was postponed. Exhibit 8 is the certified copy of a kabuliat executed by Manindra Ghosh in respect of holdings Nos. 15 and 18 and though it is dated 6-11-1873 the kabuliat actually appears to have been executed on 17-11-1873. Manindra died leaving two sons, Trailokya and Amarnath and a widow Kshetramani Dasi and Amarnath instituted Partition Suit No. 482 of 1889 against his mother and brother and the whole of the garden land and tank known as premises No. 109 Maniktola Main Road was allotted to him, subject to the right to maintenance of Kshetramani Dasi on 21-2-1898. Amarnath died on 10-1-1905 leaving his widow Indu Prava as his sole heiress. Trailokya died on 27-9-1912 leaving his only son Bhupendra as his sole heir. Indu Prava executed a deed of conveyance on 10-5-1918 in favour of Bhupendra and by the same deed Kshetramani who was also a party to it freed the property from her right of maintenance. By another sale deed Bhupendra sold the property to Lal Behari Roy on 13-10-1923 and Lal Behari Roy in his turn executed in favour of Dulal Bose, claimant No. 1 on 3-9-24 Ex. A and all the facts stated above appear from the recitals in Ex. A. That shows how the proprietary right in premises No. 109 Maniktola Main Road came to be handed down to the referring claimant.

4. It has now to be seen how the second set of claimants came to be the tenants. Mathura Mohan Bose, recorded as one of the proprietors in Mr. Crow's proceedings is alleged to have executed a potta in respect of the property in question on the 12th Pous 1251 B.S., that is, 6-12-1844 in favour of one Kamal Krishna, Bag and this potta is said to be the origin of the tenancy. This potta is not an exhibit and was not produced by the second set of claimants even though Dhanapati, claimant No. 2 (a) was called upon to produce it, as appears from an application by claimant No. .1, printed at pages 35-36, part I of the paper-book. In execution of a rent decree in Rent Suit No. 15 of 1908 of the First Court of the Munsif at Sealdah by Indu Prava against Rameshwar Bag and two others, successors in interest of Kamal Bag, the tenancy of Kamal Bag in holdings 15/18 was auction-purchased for a sum of Rs. 7425/-by Ram Chandra Mandal on 14-11-1908 and Ex. E is the sale certificate. Ram Chandra Mandal filed an application under Section 158, Bengal Tenancy Act against Indu Prava as administrator to the estate of her husband Amarnath and this was Misc. Case No. 56 of 1912. On 5-8-191.2 there was a compromise and Ex. II is a copy of this and there was an order on the basis of this compromise. Exhibit K is a copy of this order. It is distinctly stated in Ex. H that in the property in suit measuring more or less 18 bighas, Kamal Krishna Bag and his sons Rameswar, Harakrishna and his grandson Manmatha had been in possession for over 20 years from time immemorial, that the potta by which the tenancy was created in the name of Kamal Krishna Bag on the 12th Pous 1251 B. S. was made an exhibit in the case and that it is settled that mourashi mokarari right accrued to the applicant in respect of the disputed property and that the annual rent having been fixed at Rs. 175/- and the suit for khas possession against the tenant having been subjudice in that Court, Indu Prava, the opposite party consented to the case being tried there. Exhibit K embodies all the material terms of the compromise.

5. Ram Chandra Mandal's son Atul executed on 27-6-1917 a sale deed in favour of Nitya Manjari in respect of premises No. 109 Maniktola Main Road and Ex. N is a certified copy of it. Nitya Manjari and her sons executed in favour of Surja Prasad Saha on 18-9-21 a sale deed of which a copy is Ex M for a sum of Rs. 74,422/- at the rate of Rs. 200/- per cotta. After Surja Prasad's death on 23-11-26 Mst. Munni, his widow and executrix of his Will took out probate and sold the eastern portion measuring 10 bighas 2 cottas to Shew Narayan Babuna, the central portion measuring 3 bighas 14 chittaks to another person from whom Lakshmi Narayan Babuna purchased it and by Ex. L dated 12-7-30 she sold the western part measuring 4 bighas 16 cottas to Kishori Mohan Dutta whose successors in interest are the second set of claimants.

6. After Shew Narayan Babuna's purchase of the eastern part now forming premises No. 188, Dulal had to institute a suit against him for a declaration that he was merely a thika tenant without any permanent right entitling him to putting up permanent structures. This is Suit No. 30 of 1934. The trial Court dismissed the suit by a judgment Ex. B on the findings that the kobala Ex. 1B which is a certified copy marked without the original being called for and which purports to have been executed by Mathura Mohan Bose, the original owner on 21-2-1844 in favour of one Nabakrishna Singhee, predecessor in interest of Kali Singhee, did not prove that the potta executed by Mathura Mohan Bose in favour of Kamal Bag on 6-12-1844 was a forgery, that potta was perfectly genuine, that Dulal who is a successor in interest of Indu Prava representing the entire estate of her husband as administratrix was bound by the decision in the case under Section 158, Bengal Tenancy Act which the Munsif who decided it had jurisdiction to decide and that Shew Narayan had a mourashi mokarari interest. An appeal by Dulal also failed. The appellate judgment is Ex. 1. It found in the first place that the kobala, Ex. 1B having been executed earlier than the potta, the potta must have been a forgery but the decision in the case under Section 158, Bengal Tenancy Act operated against Dulal both as res judicata and estoppel so as to prevent him from questioning the mourashi mokarari nature of Shew Narayan's tenancy.

7. The learned President of the Tribunal in a judgment which does not really discuss the various points raised in the proceedings and barely states the facts and then comes to the conclusions in a most perfunctory manner, found that the second set of claimants had a mourashi mokarari tenure in the land in question and that the referring claimant had no interest other than that of receiving a fixed rent for the land acquired; and that the claim of the referring claimant was barred by the principles of res judicata and by the law of estoppel. Even the issues framed in the proceedings were not embodied in the judgment and one has to find out the issues from a part of the order sheet. Mr. Mitra on behalf of the appellants at the very threshold of his arguments pointed this out and asked for a remand. Mr. Gupta on behalf of the respondents was completely at one with Mr. Mitra in condemning the judgment as most unsatisfactory though he did not join him in his prayer for a remand on this ground. There is little doubt that the judgment is not a proper judgment at all and the result was that the matter had to be argued out at considerable length on both sides, as though this was the Court of first instance.

8. Mr. Mitra on behalf of the appellants during his arguments applied for the admission in evidence of the kobala executed by Mathur Mohan Bose and others in favour of Nabakrishna Sinha on 21-2-1844 as additional evidence for a proper appreciation of the case, as the original kobala could not be traced during the hearing of the proceedings in spite of the best efforts of the appellants, Additional evidence may be taken in appeals only under Order 41 Rule 27. As the document was not tendered at the trial, Rule 27(1) of Order 41, does not apply. So Rule 27(2) is the only part of the rule that can be invoked. It applies only where the appellate Court needs the aquitional evidence for being able to pronounce judgment or for any other substantial cause. The only object of this kobala is to try to snow that the potta on which the second set of claimants base their case, though they too nave not filed that potta, could not have amounted to a valid lease because Mathur Mohan had already transferred his interest to Nabakrisima Singhee. Assuming Mathur Mohan to have completely divested himself of his interests prior to his execution of the lease in favour of Kamal Krishna Bag, it does not necessarily follow that the potta in question was a forgery. It would have been a forgery if some body else had executed it in the name of Mathur Mohan, but there is nothing whatever to indicate that. At the worst, if Mathur Mohan had actually executed it as must be held on the materials on the record, the potta could not have created a valid tenancy in favour of Kamal Krishna Bag. The inference, therefore, which Mr. Gupta in his judgment fix. I drew from this fact that the potta was a forgery is hardly tenable. As a matter of fact, these judgments Ex. B and Ex. 1 are not admissible in evidence at all in these proceedings and far less are the findings of fact embodied in those judgments. They relate to a suit to which the second set of claimants were no parties, though the referring claimant was. These must, therefore, be left completely out of account, even though they appear to have been filed, Ex. B by the second set of claimants and Ex. 1 by the referring claimant, without any objection from the other side. As a matter of fact, Ex. 1 was admitted first without any objection from the second set of claimants and then the second set filed Ex. B without any objection from the referring claimant. This, however, does not entitle the Court to admit in evidence what is in law inadmissible. Mr. Mitra argued that the judgments themselves are transactions which negatived certain rights and so are admissible under Section 13, Evidence Act. The assertion or the denial of rights contemplated by Section 13, Evidence Act is evidently the assertion or the denial by parties and not by Courts, for Courts do not assert or deny anybody's rights, they find for the one or the other of the contestants. This contention, therefore, of Mr. Mitra is quite untenable.

9. It is not disputed that the referring claimant is the landlord and that the second set of claimants are the tenants. It is further not disputed that at one stage or another the Singhees acquired the proprietary right, for Manindra Ghosh acquired it by purchase from the receiver to the estate of Kali Sin-ghee and on the strength thereof obtained a potta from the Collector. It is also undisputed that the proprietary right created in favour of the grantee is governed by the Crown Grants Act, 1895, Section 2 of which makes it clear that nothing in the Transfer of Property Act shall apply or be deemed ever to have applied to any grant or other transfer of land or any interest therein heretofore made by or on behalf of the Crown in favour of any person whomsoever and that every such grant and transfer shall be construed and take effect as if the said Act had not been passed. Section 3 of the said Act makes it further clear that all provisions, restrictions, conditions and limitations over contained in any such grant or transfer as aforesaid shall be valid and take effect according to their tenor, any rule of law, statute or enactment notwithstanding. The sale deed by Mathuramohan is alleged to have been executed on 21-2-1844, and the potta by him on 6-12-1844, so that both the deeds were executed before the Transfer of Property Act was enacted. The original grant is not before us and the terms thereof are not known. As far, therefore, as one can judge from the materials on the record and the provisions of the Crown Grants Act referred to, it is just possible that under the terms of the grant, there were restrictions on alienation by the grantee and that in spite of an alienation by the grantee, there was no real transfer of the grantee's interest to the transferee till the Crown recognised it by the grant of another potta. This happened in the case of Manindra Ghosh and might well have happened in the case of the Singhees. That this might have happened is fairly clear from the acts that the tenancy cannot be and has not been, faced to any origin other than the potta and that it has been in existence for a very long time. Though the Crown Grants Act came into force much later than the grant itself, Section 2 by using the words ''or be deemed ever to have applied to any grant etc.' leaves no room for doubt: that it is meant to have retrospective operation. In The Secy of State v. Raja Partha Sarathi Appa Rao ILR 49 Mad 349; (AIR 1926 Mad 706) (A) which was an appeal arising from a suit for a declaration that the condition restraining alienation in a grant was void, it was held that the grant was in effect one made by the Crown and, therefore, the restraint was valid and not void. The same view was taken in the case of Dost Mohammad v. Bank of Upper India, 3 All LJ 129 (B). It is hardly necessary to labour the point any further. It follows, therefore, that the mere fact that before the execution of a potta in favour of Kamal Krishna Bag, Mathur Mohan had executed a sale deed in favour of Nabakrishna Singhee cannot give rise to an inference that at the time when the potta was executed in favour of Kamal Krishna Bag, Mathur Mohan had no interest subsisting which he was legally entitled to transfer. Even if, therefore, the kobala which was sought for the first time in this Court to be introduced as evidence were taken in, there would still be insufficient 'materials on which to base a finding that the potta did not create the tenancy in question and, as already pointed out, the tenancy is undisputed and no other origin than the potta is ascribed to it. That being so, there is hardly any justification for admitting this piece of evidence at this stage, specially when the tenancy and its exact nature have been dealt with for a long time both by the landlord and the tenant on the footing that the tenancy is mourashi mokarari, and when this would inevitably mean reopening a question that has been treated as closed between both the parties for a long time. The Court does not certainly need this additional piece of evidence just to be able to pronounce judgment or for any other substantial cause. This prayer must, therefore, be disallowed.

10. Mr. Mitra on behalf of the appellants next concentrated his arguments on a many-sided attack on Ex. H and Ex. K which in these proceedings, apart from Ex. A, the sale deed of Lal Behari Roy in favour of Dulal Chand, form the real basis of a finding that the second set of claimants had a mourashi mokarari tenure in the land acquired so as to be entitled to the major part of the compensation. This attack is broadly twotold, namely, first that these documents being copies of copies are not admissible in evidence at all and secondly, that if these could be held to be admissible in evidence, they do not operate as either res judicata or estoppel, because in the first place the Munsif who disposed of the case under Section 158, Bengal Tenancy Act had no jurisdiction to try it, in the second an order on consent not being a judicatum cannot be res judicata and in the third, the compromise is vitiated by fraud and by mutual mistake as to a material fact. I shall take up the first line of attack first.

11. Exhibits H and K show on examination three endorsements each certifying these to be true copies. The last one of these endorsements on each is easily explained by the entry against Exs. H and K on the left hand side of the list of documents printed at page 1 of Part II of the paper-book, showing that the documents actually filed were taken back on production of certified copies and the paper-book reproduce the copies left on the record and the copies now on the record are those left after the documents actually, filed were taken back. We are even then left with two endorsements on each and Mr. Mitra argues that these go to indicate that the documents actually filed were merely copies of copies and if they were not, there would have been only one certificate of the document being a true copy endorsed on each. It appears from the list of documents at page I, part II of the paper-book, that these were admitted after objection but there is no indication available anywhere on the record as to the exact nature of the objection. The unsatisfactory way, however, in which the learned President dealt with the case hardly leaves' us any option in the interest of justice but to assume that they were objected to on the self-same ground. The date of the first certificate on each is 9710-1912, and that of the second is 11-3-35. Under each of these certificates there is the following endorsement 'Authorised under Section 76 of Act 1 of 1872.' Mr. Gupta from these data wants us to hold that the documents are not really copies of copies. He also refers to Rule 609 of the present edition of the Civil Rules and Orders under which a copy of a copy has to bear on itself an express indication that it was copied from a copy and he illustrates his point by referring to a part of the third certificate on each document. This edition of the Civil Rules and Orders appears to have been printed in 1935 and the preface bears the month March, 1935. From this it is quite clear that if these Rules and Orders of 1935 come into force at all before 11-3-35 which is the date of the second certificate on each, they could not have come into force much earlier, so as to be assimilated by the offices of the Civil Courts by the date when the certified copy was issued. This question, however, would not have arisen if in the 1918 edition of the Civil Rules and Orders there was a similar provision, but it is clear from a comparative table of the rules of the old and new editions at pages xiii-xxxix that Rule 609 is altogether new. It is not, therefore, possible from the absence of any indication in the second certificate that the document was copied from a copy to infer that it must have been compared with the original. The first contention, therefore, of Mr. Gupta has to be examined. This is based on Section 76, Evidence Act under which a public officer having the custody of a public document which any person has a right to inspect has to give that person on demand and on payment of the legal tees for it, a copy of it and he has to write at the foot of such copy that it is a true copy of such document and copies so certified are under Section 76, Evidence Act certified copies. An explanation added to the section further lays down that an officer authorised to deliver such copies shall be deemed to have the custody of such documents within the meaning of the section. Mr. Gupta then argues that certified copies of public documents are not themselves public documents and unless the officer who endorsed the second certificate on each document and described himself as authorised under Section 76 of Act 1 of 1872, had in his custody the original of the document and actually compared the copy with that original, though the copy certified might have been prepared from another certified copy, he could not possibly have described himself as an officer authorised under Section 76 of Act 1 of 1872, for Section 76 would not have been at all applicable to a certificate on a copy from a copy, because the copy from which the copy was prepared would not have been a public document at all. Section 79 provides that the Court shall presume a document which purports to be a certificate to be genuine. This presumption, of course, is rebut table. On the materials on the record, there is nothing to rebut it and from the correctness of the certificate, a part of which is the certifying officer's description of himself as authorised under Section 76 of Act 1 of 1872 follows the inference that Mr. Gupta asks us to draw, namely, that though Exs. H and K, as filed before the President, might have been prepared from another set of certified copies, they must have been compared with the originals of those documents of which the certifying officer must have been the custodian. When a copy is prepared from another copy, it does not come within the meaning of secondary evidence in Section 63, Evidence Act unless it is compared with the original. That the original of Ex. K which is an order of the Court is a public document is beyond dispute and as the order of the Court incorporates the terms of the solenama it would not matter in the least if Ex. H which is the solenama itself were left out of account, as a document which is not a public document. It is accordingly held that Ex. K at least is secondary evidence of the order of the Court in the case under Section 158, Bengal Tenancy Act but the solenama, Ex. H not being a public document, S, 76 has no application to it and so no inference is possible from the description of the certifying officer as one authorised under Section 76 of Act 1 of 1872 as to his having compared this copy with the original. It has, therefore, to be excluded from the evidence.

12. The learned President held that Ex. K operated both as res judicata and estoppel as against the referring claimant. Mr. Mitra's first line of attack on this finding is that the Munsif who dealt with the case under Section 158, Bengal Tenacy Act had no jurisdiction to decide it and so it operates as neither. It is open under Section 44 Evidence Act to a party against whom a judgment has been proved under Sections 40, 41 or 42 to show that the judgment was delivered by a Court not competent to deliver it or was obtained by fraud or collusion. Section 158(1), Bengal Tenancy Act provides that the Court having jurisdiction to determine a suit for the possession of land may, on the application of either the landlord or the tenant of the land, determine the matters specified. From this Mr. Mitra argues that as the land in question was auction-purcuased by Ram Chandra Mandal at a rent sale on 14-11-1908 that must present the minimum value of the area of 18 bighas and odd in 1912, the whole of that area being the subject-matter of the proceedings under Section 158, Bengal Tenancy Act and this was evidently beyond the pecuniary limits of the Munsif's jurisdiction. This objection is on the face of it untenable. Section 158, Bengal Tenancy Act in speaking of a suit for possession of land evidently means a suit for possession of land as between a landlord and a tenant. The Bengal Tenancy Act which is an Act to amend and consolidate certain enactments relating to the law of landlord and tenant could not possibly contemplate a suit for possession as between a landlord and a third party or between a tenant and a third party, or even between a tenant and a tenant or between a landlord and a landlord. These would really be suits between party and party without the two being related as landlord and tenant. Under Section 7(xi)(cc) and (e), Court-fees Act, a suit between landlord and tenant for recovery of immovable property from a tenant or from a landlord has to be valued for the purposes of Court-fees according to the rent payable for the year next before the date of institution of the suit. Under Section 8, Suits Valuation Act, this class of suits has for the purposes of jurisdiction the same value as that for the purpose of computation of Court-fees. As the annual rent for the entire land was Rs. 175/-, as Ex. K shows, there can be little doubt that the Munsif had jurisdiction to deal with the matter. There is thus no substance in this part of Mr. Mitra's contention.

13. Mr. Mitra's argument that Ex. K is vitiated by fraud or by mutual mistake as to a material fact proceeds on the assumption that the potta executed by Mathur Mohan in favour of Kamal Bag is a forgery. Mr. Gupta's judgment Ex. 1 which furnished the basis of this assumption is clearly inadmissible, as already pointed out. It has also been pointed out in connection with Mr. Mitra's application for the reception of additional evidence that the mere fact that Mathur Mohan had executed a sale deed in favour of Naba Krishna Singhee a few months prior to his execution of a potta in favour of Kamal Bag does not necessarily give rise to the inference that Mathur Mohan was divested of his interests by the sale deed so as to be disentitled to convey at a later date any valid title to Kamal Bag by executing a potta in his favour. This completely knocks out the whole foundation of Mr. Mitter's arguments as to Ex. K being vitiated by fraud or by mutual mistake as to a material fact, for there is no other evidence at all to show either fraud or anything like a mutual mistake as to a material fact. There is nothing at all in the written statement filed by the referring claimant even to suggest a case of fraud or mutual mistake as to a material fact though of course it is stated that the potta was found to be a forgery in Title Appeal No. 180 of 1935 and could not be relied upon. Besides, though under Section 44 Evidence Act, the referring claimant is entitled to show that Ex. K was obtained by fraud it is hot open to him to plead that the compromise on which Ex. K is based was vitiated by a mutual mistake as to a material fact, namely, the genuiness of the potta, Mr. Mitra, of course, argues that this also raises a question as to the competency of the Munsif to pass an order on the basis of a compromise which, if it is void under Section 20, Contract Act, has to be treated as non-existent. I do not think this really raises a question of jurisdiction which is determined by the annual rent and as the Munsif had the jurisdiction to deal with the matter, he could in exercise of this jurisdiction pass a wrong or a right order. If the compromise were void under Section 20, Contract Act, the order passed on the basis of it would be a wrong or incorrect order to be rectified in appropriate proceedings but it would not amount to an order without jurisdiction. In the result, this part of Mr. Mitra's contention also must be held to be untenable.

14. The only other question that remains to be considered is whether Ex. K would operate as res judicata or estoppel or both as against the referring claimant. That Ex. K was a judicial order under Section 158, Bengal Tenancy Act as between India Prava representing her husband's estate and as such the interests of the landlord on the one hand and Sri Ram Mandal who was the tenant at the time on the other is beyond question. It hardly matte is in this litigation whether Ex. K operates as res judicata or estoppel as long as it operates as the one or the other. Mr. Mitra refers to the case of Sivadas Dutta v. Birendra Krishna Dutta, 43 Cal LJ 116: (AIR 1926 Cal 672) (C) where it was held that res judicata meant a matter upon which the Court had exercised its judicial mind and a judgment passed on consent could not be considered as a judicium so that a consent decree would not come within the rule of res judicata within the meaning of Section 11, Civil P. C. though it would raise an estoppel as much as a decree passed in invitum. It is certainly true that a consent order is outside the scope of Section 11, Civil P. C. but Section 11 is admittedly not an exhaustive statement of the circumstances in which an issue may be res judicata. Sheo Parsan v. Ram Nanda 43 Ind App 91: (AIR 1916 PC 78) (D); Hook v. Administrator General of Bengal, 48 Ind App 187: (AIR 1921 PC 11) (E). The view taken in 43 Cal LJ 116: (AIR 1926 Cal 672) (C) is shared by the Bombay High Court in Minalal v. Kharsetji, ILR 30 Bom 395(F), but a doubt was expressed about it in a later case by the same High Court, namely, Bhai Sankar v. Morarji, ILR 36 Bom 283 (G). Whatever doubt there might be on the point, has been set at rest by the Supreme Court in the case of Shankar Sitaram v. Balkrishna Sitaram : [1955]1SCR99 , where their Lordships express themselves as follows on the effect of a compromise decree between the parties, when the compromise was not vitiated by fraud etc: 'The obvious effect of this finding is that the plaintiff is barred by the principle of res judicata from re-agitating the question in the present suit. It is well-settled that a consent decree is as binding upon the parties as a decree passed by invitum. The compromise having been found not to be vitiated by fraud, misrepresentation, misunderstanding or mistake the decree passed thereon has the binding force of res judicata.' In Rajlakshmi Dasi v. Banamali Sen : [1953]4SCR154 their Lordships had to consider if the decision of a question of title raised before a Land Acquisition Judge could operate as res judicata in a subsequent suit between the same parties on the question of title, and their Lordships in answering this in the affirmative observed that the binding force of a judgment delivered under the Land Acquisition Act depends on general principles of law and not on Section 11, Civil P. C. and the decision of the Land Acquisition Judge would operate as res judicata between the parties, even though he was not competent to try the subsequent suit. In this case, their Lordships at one place equate res judicata with estoppel by record and this, in spite of certain differences between the two goes to indicate that res judicata is after all, a form of estoppel, namely, estoppel by record which the Indian Evidence Act does not provide for. On the authority of the Supreme Court decision already referred to, it is clear that the decision in the case under Section 158, Bengal Tenancy Act, bars on the principle of res judicata the referring claimant Dulal Chand from questioning the mourashi mokarari character of the tenancy of the second set of claimants. The question whether at the same time it operates as estoppel thus becomes more or less academic.

15. Even apart from Ex. K, there are the admissions in Ex. A, a sale deed executed by Lal Behari Roy in favour of Dulal Chand Bose in respect of 109 Maniktola Main Road, of which, as already stated, the property acquired is the western part. It was executed on 3-9-1924. At one place in this conveyance, Lal Behari Roy describes the property sold as subject to the mourashi mokarari tenancy of certain tenants and at four places as subject to the mourashi mokarai tenancy of Surja Shaw, Exhibit M shows that Surja Shaw purchased on 18-9-1921. These recitals by Lal Behari Roy who was the predecessor in interest of Dulal Chand are admissions and can be proved against him and these can be proved against Dulal Chand also if they were made while Lal Behari's interest in the property subsisted. Mr. Mitra argued that these recitals were made at a time when Lal Behari was divesting himself of his interests by executing the sale deed and so these admissions could not be proved against Dulal Chand under Section 18(2), Evidence Act. This argument seems to assume that the recitals and the execution are simultaneous, but in fact they are not. The recitals, though put in black and white by the scribe are put there at the instance of the executant and they must and do, receive the mental assent of the executant before he puts signature to the document containing the recitals as an outward token of his mental assent. A comparable instance would be the deposition of a witness taken in Court and then subscribed to by him after it has been read over to him. There is thus a time-lag between the recitals and the execution and it can hardly be said that the recitals are made exactly at the time of the execution. Besides, the consideration for the sale in this case was Rs. 10,044/-, so that the instrument required compulsory registration be-fore it could take effect as a valid sale deed or, in other words, before it could have the effect of divesting Lal Behari of his interests. Under Section 47, Registration Act, the instrument after registration takes effect from the date of execution and not from that of registration. Yet in a case where registration of the document is compulsory, till registration there is no divesting of the vendor's interests and it is only after registration that this divesting takes place though once there has been registration the instrument becomes operative from the time of registration. This evidently means that once a sale deed in respect of property worth Rs. 100/- or more is registered, it becomes operative from the time of its execution so as to prevail over another sale deed in respect of the same property executed later but registered earlier. To argue from this that the recitals in the sale deed also being made at the time of execution were made at the time when the vendor divests himself of his title is to say that even though the actual divesting does not occur till registration of the executed document, the legal fiction introduced by Section 47, Registration Act for the purpose of determining the time when the document becomes operative as a sale deed is available even for the purpose of determining the character in which the vendor makes the recitals, or, in other words, that Section 47 can be legally extended by implication in its meaning beyond what it expressly provides for. That, to my mind, is an unwarranted assumption. In this view the recitals in the sale deed were Lal Behari's statements at a time when his interest in the property still continued and those statements of his are admissible as against his successor in interest, namely, Dulal. Of course, these admissions may be proved to be incorrect but there is no evidence in this case even to suggest that they are incorrect.

16. On, the materials on the record, therefore, the finding that the second set of claimants were mourashi mokarari tenants is the only one that could be arrived at and the apportionment made was thus in order.

17. The appeal must accordingly fail and it is ordered that it be dismissed with costs -- the hearing fee being assessed at ten gold mohurs

Guha, J.

18. Appeal dismissed.


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