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Jatindra Kumar Banerjee and ors. Vs. Ajit Kumar Banerjee and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Tenancy
CourtKolkata
Decided On
Case NumberA.F.A.D. No. 336 of 1944
Judge
Reported inAIR1952Cal250
ActsBengal Cess Act, 1880 - Section 20
AppellantJatindra Kumar Banerjee and ors.
RespondentAjit Kumar Banerjee and ors.
Appellant AdvocateBimala Charan Deb and ; Saroj Kumar Chatterjee, Advs.
Respondent AdvocateNarendra Nath Banerjee, Adv.
DispositionAppeal dismissed
Excerpt:
- .....landlords of the lands in suit still they were debarred from recovering the rent inasmuch as in a cess return submitted by them on the 21st march 1918 with respect to niskar 1191, they had not included the lands of this particular tenancy.3. both the courts below have held that the plaintiffs are the owners of the superior interest of the lands in suit in the right of their ownership of niskar no. 1191. they have, how-ever, accepted the plea in bar constituted fey section 20 of the cess act. accordingly, the suit has been dismissed by both the courts below.4. in support of the present appeal by the plaintiffs, two points were urged before me by mr. deb. it was contended in the first place that the cess return had not been properly proved and had not become evidence in the .case at all......
Judgment:

Chakravartti, J.

1. This appeal is on behalf of the plaintiffs and arises out of a suit for rent brought against three defendants. The suit was in respect of a plot of land which, the plaintiffs alleged, appertained to Niskar No. 1191 of the 24 Parganas Collectorate. Defendants Nos. 1 and 2 were the old tenants but the plaintiffs alleged that defendant No. 3 was giving out that he had purchased a portion of the lands in execution of a mortgage decree and had thus acquired the right, title and interest of defendants Nos. 1 and 2. The suit was contested by defendant No. 3 alone, and the principal defence put forward by him was that the suit land did not appertain to Niskar No. 1191 at all but appertained to Touzi No. 109 of the same Collectorate with which the plaintiffs had no concern.

2. The Record of Rights records the plaintiffs as owners of Niskar No. 1191 and the lands in suit are shown as appertaining to that Niskar. As against this evidence of the plaintiffs' title, the defendant No. 3 relying upon a disability of the plaintiffs to recover the rents, created, according to him, by Section 20 of the Cess Act, contended that assuming that the plaintiffs were the landlords of the lands in suit still they were debarred from recovering the rent inasmuch as in a cess return submitted by them on the 21st March 1918 with respect to Niskar 1191, they had not included the lands of this particular tenancy.

3. Both the Courts below have held that the plaintiffs are the owners of the superior interest of the lands in suit in the right of their ownership of Niskar No. 1191. They have, how-ever, accepted the plea in bar constituted fey Section 20 of the Cess Act. Accordingly, the suit has been dismissed by both the Courts below.

4. In support of the present appeal by the plaintiffs, two points were urged before me by Mr. Deb. It was contended in the first place that the cess return had not been properly proved and had not become evidence in the .case at all. In the second place, he contended that even if the cess return was taken as; properly proved, it did not follow that it was binding on the present plaintiffs. So far as the first ground is concerned, it appears that the original cess return was brought from the Collectorate by a certain officer but that officer was not called to the witness box to give formal evidence as regards the custody of the document. The entry in the order-sheet relating to the cess return is that the document had been used in evidence. It appears, however, that this document was put in cross examination to one witness of the plaintiffs themselves and he gave evidence with respect to this document on the footing that it was the cess return signed by Surendra the father of Appellant No. 2. In these circumstances, I am of opinion that it can no longer be said that the cess return has not been properly proved. I may add that the list of exhibits contains an entry to the effect that the cess return was admitted without objection.

5. As regards the second contention of Mr. Deb, he put it in the following way. He said that the cess return was signed by one Surendra Kumar Banerjee who described himself as a trustee of the estate of one Kusum Kumar Banerjee. The contention was that it had not been established that the Surendra, who signed the cess return, was the Surendra, the father of plaintiff No. 2. and in the second place that assuming that the identity of Surendra had been established, still it had not been proved that Surendra had any authority to sign on behalf of all the trustees of the estate, nor that the trust estate was still existing. I was at first inclined to give effect to this contention, but after I had proceeded some way in the course of delivering this judgment, it was pointed out to me by the learned Advocate for the respondent that there did exist evidence which satisfactorily connected exhibit (A) with Surendra, the father of plaintiff No. 2 and which established further that the cess return had been filed with respect of Niskar No. 1191, The evidence is furnished by the deposition of witness No. 1 for the plaintiffs who admitted in cross examination that the suit land appertained to Niskar No. 1191, that it belonged to Kusum Babu, that from Kusum Babu it had come to the plaintiffs, that the cess return was written by an officer of the estate and that it was signed by Surendra. In view of this evidence, there can be no question that the Surendra who signed the cess return was no other than Surendra, the father of plaintiff No. 2 and that the return purported to have been filed with respect to Niskar No, 1191.

6. Mr. Deb, however, contended that even so, the return would not be binding on persons other than those who claimed through Surendra, because Surendra was only one of several trustees who could not bind the whole estate by acting singly. So far as this contention is concerned, it seems to me to be disposed of by the terms of Section 20 of the Cess Act. That section provides that every holder of an estate or tenure in respect of which a return has been made shall be precluded from suing for or recovering any rent for any land which was not mentioned in such return. It is to be observed that the section does not require that the cess return should be signed by any particular person or persons or by the total body of landlords. All that the section requires is that it must be a return in respect of an estate or tenure. It is perfectly clear, so far as the facts of this particular case are concerned, that according to the admission of one of the witnesses for the plaintiffs themselves this return was submitted on behalf of the estate although it might have been signed by one of several trustees. In the circumstances, I am of opinion that there is no force to the objection that the return would not be binding on persons who did not claim through Surendra.

7. Mr. Deb in the last place contended that, in any event, the return was filed on behalf of the trust estate but the Record of Rights, shows that the property was not held by the plaintiffs in their personal right, and so the trust estate had disappeared. I do not think that Mr. Deb is entitled to found any argument on the disappearance of the trust estate. Section 20 contemplates cess returns made in respect of an estate or tenure. Whether a particular holder is holding the estate as a trustee or in his personal right is, in my view, perfectly immaterial. If it is established, as it has been established, that it is the same tenure which has come down, then whether the previous holder held it in another capacity and whether the present holder holds it in his personal right is a matter which has no bearing upon the binding character of the cess return.

8. For the reasons given above, I am of opinion that the plea in bar was rightly given effect to by the Courts below. The appeal is accordingly dismissed but as the respondents have not refiled the cess return which they took away nor did they point out the evidence on which they succeed till judgment had begun to be delivered, I would make no order for costs in this appeal.


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