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Sarat Chandra Rakhit Vs. Sarala Bala Ghosh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1928Cal63
AppellantSarat Chandra Rakhit
RespondentSarala Bala Ghosh and ors.
Cases ReferredDenobundhu Ghose v. Nistarini Dassi
Excerpt:
- .....suit. the plaintiffs brought this fresh suit in 1921.2. the settlement record states that the land in suit is in beel pabla. the chitta of 1234 describes the plot as situated in mouza lata. it appears that mouza lata, mouza beel pabla and another mouza are all within dehi pabla which goes under one touzi. the defence was a denial that the disputed land was identical with plot 2732 of the chitta of 1234 and a denial of the tenancy of eowson mamud haldar and the subsequent lease to fazal bhangi and of the plaintiff's purchase. the landlord happens in this case to be the syedpur trust estate, the agent of which estate is the collector of khulna and he is a party to these proceedings. he also filed a written statement in which he supported the plaintiff's case in part in that he stated.....
Judgment:

Roy, J.

1. This appeal is by defendant 1. The suit brought by the plaintiffs was one for recovery of possession of a certain plot of land on establishment of their title and also for correction of an entry in the record-of-rights. The plaintiffs' case was that this plot of land was plot No. 2732 of the zemindari's chitta prepared in 1234 B.E. It was at one time chakran land. The 'chakran' was resumed, and thereafter the land was settled with Bowson Mamud Haldar, the predecessor-in-interest of defendants 1 to 8 in the suit. One Fazal Bhangi took settlement of the disputed land from the heirs of Rowson Mamud Haldar and, in execution of a money-decree obtained against him and the sale thereunder, the land was sold and purchased by the plaintiffs. The defendant is the gantidar of Beel Pabla and it was said in the suit that he dispossessed the plaintiffs and got himself wrongly recorded in the settlement 'khatian' which was prepared in 1918. The plaintiffs brought a suit soon after the final publication of the record of rights and there was a local enquiry made by a pleader commissioner who prepared a map and submitted his report. But the suit was withdrawn with liberty to bring a fresh suit. The plaintiffs brought this fresh suit in 1921.

2. The settlement record states that the land in suit is in Beel Pabla. The chitta of 1234 describes the plot as situated in mouza Lata. It appears that mouza Lata, Mouza Beel Pabla and another mouza are all within Dehi Pabla which goes under one Touzi. The defence was a denial that the disputed land was identical with plot 2732 of the chitta of 1234 and a denial of the tenancy of Eowson Mamud Haldar and the subsequent lease to Fazal Bhangi and of the plaintiff's purchase. The landlord happens in this case to be the Syedpur Trust Estate, the agent of which estate is the Collector of Khulna and he is a party to these proceedings. He also filed a written statement in which he supported the plaintiff's case in part in that he stated that there was a wrong entry in the record-of-rights. He denied any knowledge of the plaintiffs, but he said that Bowson Mamud Haldar's heirs should have been recorded as tenants under Syedpur Trust Estate.

3. The suit was tried by the trial Court. A number of witnesses were examined and the pleader commissioner who had made the local investigation in the previous suit which was withdrawn was also examined and he proved the map which he had prepared in the previous suit and also deposed that he hid made the particular report which was before the Court. It appears that in the trial Court the map and the report were admitted without objection. An objection was taken that the evidence which the pleader commissioner had recorded should have also been put in as, without the evidence, the report was of little value. This has been considered by both the trial Court and the lower appellate Court and they are of opinion that the absence of that evidence detracts to some extent the value of the map and the report. The learned Munsif came to the conclusion that the plaintiffs had established their case and he thereupon gave the plaintiffs a decree. Defendant 1 appealed and the learned Additional District Judge who heard the appeal affirmed the decision of the trial Court; and defendant 1 has now come up here in second appeal.

4. A number of objections have been taken by the learned vakil who has appeared for the appellant. One of his points is that the chitta of 1234 is not admissible and in support of his argument he refers to the case of Ram Chunder Sao v. Bunseedhar Naik [1883] 9 Cal. 741. As a matter of fact all that was held in that case was that chittas prepared by Government for their khas mahal are not public documents. The question whether chittas were admissible under the Evidence Act was not considered in that case. Any commentary on the Evidence Act will tell us that chittas are admissible under appropriate sections of the Evidence Act. What their value should be is a matter to be determined by the Court in the particular circumstances of the particular case. As a matter of fact these chittas were admitted without any objection. Even in. the grounds of appeal no objection was taken to their admissibility. The argument, therefore, has no substance.

5. The second objection of the learned vakil is that the lower appellate Court and apparently the trial Court also, because the Munsif hid argued on the same line, have made an error in admitting a kabuliyat executed by Waresh and Pazal Sheikh in favour of Priyanath Majumdar and have wrongly relied on the boundaries mentioned in the kabuliyat. These are statements made by a third party and cannot be accepted as was held in the case of Brojo Mohan Das v. Gaya Prosad A.I.R. 1926 Cal. 948. There is that defect in the judgment of the two lower Courts. But as a matter of fact the son of Priyanath Majumdar was examined in the case and he deposed that this kabuliyat with these boundaries was accepted by his father and he also deposed positively that the two plots mentioned in that kabuliyat are one on the east and the other on the west of the disputed land. There is independent evidence, therefore, on the matters dealt with by the learned Additional District Judge. Apart, therefore, from the kabuliyat there is evidence of the facts on which he has relied.

6. Then the learned vakil has challenged the map and the report of the Commissioner which were admitted by the Munsif who tried the suit. It is, no doubt, correct that a map and a report of a commissioner who made a local enquiry can be evidence only in the suit in which he made the enquiry. That was held in the case of Denobundhu Ghose v. Nistarini Dassi 12 C.L.R. 50. But in this case the report and the map were not taken into evidence by themselves as contemplated in the Civil Procedure Code, but they were taken in under the Evidence Act on being proved by the person who made them, that is the pleader commissioner who made them was examined in this case and he deposed that the map and the report were made by him and they were then marked as exhibits As a matter of fact it does not appear that in the trial Court there was any objection taken to the admissibility of this map and the port.

7. If the defendant was really anxious that these documents should not go in, he should have objected at once and the learned Munsif could have ordered a fresh enquiry and put matters right. But his contention in the Court below was that they were of little value, in the first place, because the evidence which the commissioner had taken was not put in and in the second place because the commissioner was unable to remember anything except what he had written in his report. The Courts below have observed that the value of the map made by the commissioner and the value of his report suffer by the exclusion of the evidence that the commissioner had recorded. The lower appellate Court, however, has taken into account other facts in considering the value of the map and the report. He has observed, for instance, the broad features depicted by the commissioner and he has noted that they were consonant with the settlement map. After a prolonged discussion of various possibilities of the ease both the Courts have come to this finding that plot 2732 of Chitta of 1234 has been identified with the land in suit and that it has been established that it was in the possession of Fazal Bhangi as tenant under the heirs of Rowson Mamud Haldar and that the plaintiffs have succeeded to that interest. On these findings it follows that the entry in the record of rights is incorrect. This is really a finding of fact and we do not see how that finding of fact can be interfered with in second appeal. The only way suggested by the learned vakil is that the case should be sent back to the lower appellate Court and a fresh local enquiry should be made. I do not think that this should be allowed at this stage. The defendant could have asked for a fresh local enquiry in the trial Court but he did not do so. He challenged the value of the commissioner's report. Both the lower Courts have come to. the finding that it has some value, and that taken along with the other facts of the case it has established the plaintiffs' case.

8. The learned vakil has taken another objection, namely, that the plaintiffs are not at liberty to pursue their remedy into another person's land. It is based on the argument that in the Chitta of 1234 the land was described as situated in Mouza Lata while the land in suit is situtated in Mouza Beel Pabla and it is so recorded in the settlement map. But' when the plaintiffs have shown that this particular plot situated in Beel Pabla is really their land, there is no reason why they should not be allowed to retain it. It would appear from the evidence in the case that the disputed land is situated close to a place where three mouzas meet together. It is quite possible that at the time of the Chitta it was thought that it lay within the Mouza Lata though it has now been found that it is really situated in Mouza Beel Pabla. It is true that defendant 1 is the gantidar of Beel Pabla, but as it has been pointed out, the defendant got his lease of ganti of Beel Pabla on the stipulation that he would not disturb any of the existing tenancies. It has been found that the tenancy of Rowson Mamud Haldar was created before defendant 1 got his ganti.

9. On these grounds, I think, there is no case for our interference. The appeal is dismissed, with costs.

Cuming, J.

10. I agree.


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