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Abinas Chandra Majhi and anr. Vs. Pratul Chandra Ghose - Court Judgment

LegalCrystal Citation
Subject Tenancy; Civil
CourtKolkata
Decided On
Reported inAIR1928Cal448,108Ind.Cas.585
AppellantAbinas Chandra Majhi and anr.
RespondentPratul Chandra Ghose
Cases ReferredJogesh Chunder v. Rohini Kumar
Excerpt:
- .....the defendants have thereupon preferred this second appeal. the plaintiff's case was that the land in suit formed part of an occupancy holding which consisted of 30 bighas odd of land and bore a rental of rs. 59 odd and it was held by one yasin mallick, that in execution of a decree for rent which was obtained; by the landlord against the said yasin mallick the said holding was put up to sale and was purchased by the plaintiff, that the plaintiff thereupon served a. notice under section 167, ban. ten. act, upon; the defendants alleging that the defendants were under raiyats and thereafter the plaintiff instituted the suit for declaration of his title to and for recovery of khas possession of the land of which the said defendants were in such possession. the plaintiff's case was that.....
Judgment:

Mukerji, J.

1. This appeal has arisen out of a suit which was instituted by the plaintiff for recovery of khas possession of and for declaration of his title to a certain plot of land. The suit was decreed by the trial Court and that decision was affirmed on appeal by the learned Subordinate Judge. The defendants have thereupon preferred this second appeal. The plaintiff's case was that the land in suit formed part of an occupancy holding which consisted of 30 bighas odd of land and bore a rental of Rs. 59 odd and it was held by one Yasin Mallick, that in execution of a decree for rent which was obtained; by the landlord against the said Yasin Mallick the said holding was put up to sale and was purchased by the plaintiff, that the plaintiff thereupon served a. notice under Section 167, Ban. Ten. Act, upon; the defendants alleging that the defendants were under raiyats and thereafter the plaintiff instituted the suit for declaration of his title to and for recovery of khas possession of the land of which the said defendants were in such possession. The plaintiff's case was that this particular plot of land originally stood in the name of one Daimali Mullick and appertained to the jote of one Porabaddi Mallick who held as a raiyat under the said landlord. The defendants' case, on the other hand, was that the land in suit did not appertain to the raiyati holding, of the said Porabaddi Mallick, but that, as a matter of fact, it was land which had been purchased by the wife of the said Porabaddi Mallick and from her the land descended to her son Deratulla, from whom it was transferred by a gift to one Ohidannessa Bibi under whom the defendants held not as an under-raiyat but as an occupancy raiyat. The defendants' case further was that their landlords were tenure-holders having a lakheraj right to the land.

2. The grounds that have been urged in support of this appeal are four in number. The first ground relates to the question, of admissibility of a chitta and a khatiam of the year 1261 which was proved is evidence on behalf of the plaintiff and upon which reliance has been placed by both the Courts below for the purpose of holding that the land in suit appertained to the jote of Porabaddi Mallick and that Porabaddi Mallick, as well as the tenant, in execution of a decree for rent as against whom the property was sold and purchased by the plaintiff, was a raiyat and not a tenure-holder. So far as this question is concerned it would appear that the chitta and the khatian are dated 1261 and it is not disputed that the person who made the entries in these documents relating to the land in question is now dead. If that be the position the documents, in my opinion, come clearly within the provisions of Section 32, Sub-section (2), Evidence Act. The amin who made the measurement and prepared the khatian and chitta must be taken to have made the entries in these documents in the ordinary course of his business or in the discharge of his professional duties within the meaning of that sub-section. It is unnecessary in this view of the matter to consider whether these documents are or are not also relevant under the provisions of Section 13, Evidence Act.

3. The next ground that has been urged is to the effect that the onus of proof was wrongly placed upon the defendants. Beading the judgment of the learned Subordinate Judge as a whole upon the question of the status of the defendants it does not seem to me that this contention is well founded. As a matter of fact the learned Subordinate Judge appears to have taken the whole of the evidence that there is on the record and upon that evidence has come to the conclusion that the disputed land was held by Daimali Mallick, the predecessor of the defendants, as a raiyat. In the circumstances I do not think any question of onus really arose in the case. The learned Subordinate Judge has observed that the khatian and the chitta to which reference has already been made prove that the disputed land was held by Daimali as a raiyat. He has then referred to the fact that the area of the land being only 30 bighas, no presumption arose to the effect that Daimali was a tenure-holder; and, being of opinion that upon the whole of the evidence the fact that Daimali was only a raiyat has been proved, he has recorded a finding to that effect. It may be stated in this connexion that the case which the defendants put forward, namely that they had been paying bhag paddy to Mohammad Sheik on the footing of their case to the effect that it was Bijari Bibi and not her husband Porabaddi Mallick who was the holder of these lands, has not been believed by the learned Subordinate Judge.

4. The third contention is to the effect that the notice that was served under the provisions of Section 167, Ben. Ten. Act, was not a valid notice. It has been urged in this connexion that the word 'purchaser,' as used in that section, means only a certificate purchaser and in support of this position reliance has been placed upon an observation which is to be found in the judgment of the Maclean, C.J., in the case of Jogesh Chunder v. Rohini Kumar [1916] 21 C.L.J. 65. The passage runs in these words:

We ate not in a position to decide that point (that is the question of sufficiency of notice under Section 167, Ben. Ten. Act) upon the materials before us. If the sale certificate were made out in the name of the benamidar, then, in my view, he would be the proper person, as the certificated purchaser to give the notice under the Act.

5. The passage in question, no doubt, supports the appellant's contention. But it does not appear what the actual facts of the case were in connexion with which these observations were made. As far as can be made out, the judgment being of a date prior to those cases in which it has been held that a benamidar is competent to sue and is not precluded from obtaining those reliefs which really belonged to the real owner, the contention that must have been urged in the case in which that judgment was passed was that a benamdar had no right to give notice under Section 167, Ben. Ten. Act. It was apparently that contention that was dealt with by the aforesaid observation. It cannot be disputed that the person for whose benefit such notice is to be given is the real purchaser and I see no reason to limit the meaning of the words 'purchaser to the certificated purchaser' at an execution sale. It may be observed further that it has been held in a series of decisions that the word 'purchaser' includes assignees or transferees from a certificated purchaser. If that be so I do not see how a real owner for whom the benamidar merely holds the property in trust can be precluded from giving such notice when, as a matter of fact, he is perfectly entitled to enforce his right in a Court of law as against a third party.

6. Lastly it has been urged that the suit is not maintainable in view of the provisions of Section 66, Sub-section (1), Civil P.C. This objection, in my opinion, is not well founded, because the whole object of that sub-section is to prevent a real owner from relying on his secret title as against a person claiming title under a certificated purchaser. The principle of this section cannot be invoked in a case where the real owner seeks for a declaration his real title against some one who does not claim under a certificated purchaser and asks for a remedy which the law entitles him to. I do not see how the provisions of this section can be a bar to the maintainability of this suit. In this view of the matter, I am of opinion that all the grounds urged in this appeal on behalf of the appellants fail and the appeal should be dismissed with costs.

Cuming, J.

7. I agree.


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