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Dwijesh Chandra Roy Vs. Naresh Chandra Gupta - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtKolkata
Decided On
Reported inAIR1945Cal492
AppellantDwijesh Chandra Roy
RespondentNaresh Chandra Gupta
Cases ReferredAbdul Khaleque v. Sushil Chandra
Excerpt:
- .....the evidence objected to and admitted there was sufficient evidence to justify the decision of the learned judge. the change in the case sought to be made at the trial considerably weakened the case of the plaintiff.14. the learned judge dealt with the evidence adduced by the plaintiff separately. the case made out in evidence was that the lands remained submerged until 1924/1925 and were then settled with a man named haribol. on a minute review of the evidence the learned judge thoroughly disbelieved that evidence. at p. 86 of the paper book the learned judge observed that there was a complete absence of evidence on the side of the plaintiff to establish the constructive possession by his father whether the land was above water or not. at p. 97 the learned judge observed that neither by.....
Judgment:

Das, J.

1. This is an appeal by the plaintiff in a suit for recovery of certain lands against the decision of the learned District Judge of Sylhet dated 4th November 1940, which modified in part the decision of the learned Subordinate Judge dated 28th September 1939, and virtually dismissed the suit. One Draesh Chandra Roy Choudhury, the father of the plaintiff, was the owner of touzi No, 75 of the Mymensingh Collectorate, Mouzas Joysiddhi and Bilsanki appertained to that touzi No. 75. These two mouzas abutted on the right bank of the river Bheramona which at this point flowed more or less from the north west in a south easterly direction. On the left bank of this river was situate mouza Kamalpur appertaining to separate account No. 3 of taluk No. 4 of Pargana Beniachomg in the District of Sylhet.

2. The case laid in the plaint is that from, sometime before the survey and settlement of 1913/1914 of the District of Mymensingh the right bank of the river Bheramona gave way, with the result that the river swept over a part of mouzas Joysiddhi and Bilsanki in a south westerly direction and eventually took up its present course flowing more or less from north to south for some distance and then turning to the east. The lands from which the river receded became submerged, but in course of time reformed in situ, with the river to the west instead of the east. This change of course, recession and reformation took place before the settlement operations of 1913/1914. The lands after their reformation were in unculturable state as they were before their submergence and continued to be in that state until about 9 or 10 years prior to the institution of the present suit. In the meantime the plaintiff's father died in May 1920 when the plaintiff was a minor. on the death of the plaintiff's father the Court of Wards took charge of the plaintiff's estate and remained in possession, thereof. In April 1934 the plaintiff attained majority and the Court of Wards relinquished charge of his estate. After getting back his estate the plaintiff arranged to take possession, of the reformed lands but was resisted by some Kamalpur men who denied the plaintiff's title and claimed to be entitled to remain in possession of different parcels of those lands as tenants of one Mahesh Gupta, the owner of separate Account No. 3 and the predecessor in interest of defendants 1 and 2. Therefore, on 8th April 1935 the plaintiff filed the present suit against the heirs of Mohes and the numerous tenants in possession claiming recovery of possession of the reformed lands. In the schedule to the plaint the lands in suit were shown as three plots, Plots Nos. 1 and 2 being alleged to be the lands reformed in situ and appertaining to mouza Joysiddhi and plot No. 3 to mouza Bilsanki.

3. The heirs of Mohes and some of the tenants entered appearance and filed written statements. They admitted that the river Bheramona had changed its course and that the lands in suit were reformed lands, but contended that Mohes Gupta had acquired the lands as part of separate account No. 3 in 1301 B. S. Their main defence was that ever since his purchase in 1301 B. S., Mohes Gupta was in adverse possession of the disputed lands and settled tenants upon them and the plaintiff's suit was barred by limitation.

4. The main issues raised on the pleadings were (1) Did the lands in suit form part of mouzas Joysiddhi and Bilsanki and (2) was the suit barred by limitation? The plaintiff, as we have seen, was a minor in 1920 when his father died. In order to avoid the bar of limitation it was necessary for him to allege and prove that his father had been in actual or constructive possession of the lands in suit right up to his death, for, if his father had been dispossessed in his lifetime and time had begun to run against him, the subsequent incapacity of the plaintiff would be of no avail. Therefore he alleged in the plaint that after the reformation of the lands in situ they were in an unculturable state and were khas patit lands of his father and that they continued in that state right up to 1925/1926. At the trial, however, the plaintiff set up a new case which was somewhat inconsistent with the ease made in the plaint. The new case sought to be made out was that the lands in dispute remained submerged and reformed in 1924/1925 and were then settled with one Haribol.

5. On the evidence adduced before him the trial Court was satisfied that the lands in dispute appertained to mouzas Joysiddhi and Bilsanki and that the plaintiff had proved his title thereto, but the trial Court found and held that most of the lands were in the possession of Kamalpur men as tenants of Mohesh Gupta, from long before the death of the plaintiff's father Dines Chandra Roy Choudhury and that the claim of the plaintiff to the lands so adversely possessed was barred by limitation. Accordingly the trial Court passed a decree in favour of the plaintiff only in respect of that portion of the disputed lands over which there had been no adverse possession by Mohesh Gupta or his tenants.

6. The plaintiff preferred an appeal to the District Judge. The contesting defendants filed cross objections. The learned District Judge severely criticised the plaintiff's attempt to make out a new and inconsistent case which he characterised as a false case. In agreement with the trial Court he found in favour of the plaintiff's title but held that the plaintiff had failed to prove his possession within the requisite period. The learned District Judge held that the defendants were in adverse possession of the greater part of the disputed lands from long before the death of the plaintiff's father and that such adverse possession extended over more lands than had been found by the trial Court, and he modified the decree of the trial Court accordingly. The present appeal is by the plaintiff from this decision of the District Judge. The only point urged in support of this appeal is that the maps marked as Exs. S, A and N were improperly admitted in evidence, and inasmuch as the decision of the learned District Judge has been based on such inadmissible evidence, it must be set aside.

7. At the outset Dr. Sen Gupta, appearing for the respondents, points out that no objection was taken on behalf of the plaintiff when Exs. S and A were tendered in evidence and marked as exhibits. We agree that the proper time to take objection as to the admissibility of a document is when the document is tendered in evidence, but we are not prepared to go further and hold that the omission to object to a document which is not in itself admissible would constitute such document evidence. It is the duty of the Court to exclude all irrelevant evidence, even if no objection is taken to its admissibility by the parties. The question of relevancy of a document is a question of law and can be raised at any stage. Dr. Sen Gupta next points out that in the grounds of appeal (ground No. 7) exception has been taken only as to the admissibility of Ex. N, but not of Exs. s or A, and therefore the appellant's objection should be strictly limited to Ex. N. As we have said, the question of admissibility of evidence is a question of law, and in the premises we do not think it right to hold the appellant strictly to this ground of appeal and to preclude him from raising the question of the admissibility of Exs. S and A as a point of law. We, there, fore, propose to examine the question of the admissibility of each of these three exhibits on its merits.

8. Exhibit S is a map prepared in 1903/1904 in connexion with Title Suit NO. 1 of 1903 between Dewan Ajman Reza and Mohesh Gupta. The matter in dispute in that suit related to chak No. 1 of Mouza Kamalpur. Mohesh Gupta denied the Dewan's title to the chak. There was a local investigation and the map Ex. S was prepared in connexion with that suit. The Chak No. 1 lay outside the lands in dispute but the map showed portions of the disputed land which had reformed at that time. Dewan Sahib lost the case. It does not appear that the person who prepared that map, was called in the present ease. The map was, however, more than 30 years old when it was tendered in evidence in the present case. No objection appears to have been taken as to its admissibility and it was marked as Ex. S. In these circumstances the appellant can hardly complain as to the method of proof. The question, however, still remains, apart from the mode of proof, whether this map is relevant to the matters in issue in the present suit. A map 'by itself is nothing but statements made by the maker by means of lines and pictorial representation instead of by word of mouth as to the state or configuration of a particular site and the objects standing thereon. To admit in evidence a map without calling the maker thereof is the same as admitting in (evidence statements made by a third party who is not called as a witness. In other words, it amounts to admitting hearsay.

9. As pointed out by the Judicial Committee in Lekraj v. Mahpal Singh ('80) 5 Cal. 744 at p. 70 the Evidence Act having repealed all rules of evidence not contained in any statute or regulation, the party seeking to put any document in evidence must show under which section of the Evidence Act such evidence is admissible. There was no dispute in that Suit No. 1 of 1903 as to the lands in dispute in the present suit, and therefore the map Ex. S cannot be regarded as assertion of right by Mohesh to these lands within the meaning of Section 13. It is not claimed that this map is admissible under Sections 32 as a statement of a deceased person or under Sections 36 as a public map. The only section pointed out by Dr. Sen Gupta was Section 11. The mere proof of the map by itself is only proof of the fact that the map was prepared by the maker thereof.

The fact that a particular person prepared a map or in other words made certain statements by lines, cannot, without or apart from and independent of the proof of the correctness of its contents, have any bearing on the matters in issue in this case. To give to Section 11 the meaning attributed to it by Dr. Sen Gupta will be to open the door to the admission of hearsay evidence of any degree.

10. In our opinion this map Ex. S was not relevant and was improperly admitted in evidence. The map Ex. A was prepared in 1917/1918 in another case being T. S. NO. 482 of 1917, between the same Dewan Saheb and Mahesh Gupta. In that suit the Dewan Saheb claimed title to certain specific plots in mouza Kamalpur on the basis of purchase of a revenue paying estate in a revenue sale subsequent to the dismissal of his former T. S. No. 1 of 1903. The T. S. No. 482 of 1917 was, however, disposed of on compromise. The compromise decree in that case was put in evidence in the present case. The map Ex. A is a part of that decree. Apart from the fact that this map Ex. A is a part of a decree, this map stands on the same footing as the map Ex. S. Dr. Sen Gupta claims that the map EX. A is admissible because it was relayed by the Commissioner, in the present case. The mere fact that a map, inadmissible in evidence has been subsequently relayed does not appear to us to make it relevant and admissible. Dr. Sen Gupta then points out that it is a part of the decree and as such admissible in evidence. Now, this compromise decree in T. S. No. 482 of 1917 is not a decree which falls within any of the Section 40, 41 or 42. Under Section 43 all judgments, orders or decrees other than those mentioned in Sections 40, 41 and 42 are irrelevant, unless the existence of such judgment, order or decree is a fact in issue or is relevant under some other provisions of the Evidence Act.

11. Thus we are thrown back to the other provisions of the Act and, therefore, this map Ex. A attached to the decree must be shown to be relevant under some section of the Evidence Act. Dr. Sen Gupta relies on Section 13. It does not appear to us that that section covers this decree and the map Ex. A attached thereto in so far as they relate to the lands in dispute in this suit. These lands do not appear to have been the subject-matter of that suit No. 482 of 1917, and therefore that case or the decree passed therein or the map Ex. A attached thereto cannot possibly be regarded as a transaction by which, or as an instance in which any right to these lands was claimed or recognised or exercised within the meaning of Section 13. That decree and that map Ex. A have effect only so far as they relate to the matters in issue in that suit. The rest of the map cannot be regarded in law as part of the decree at all. In this view of the matter, the map Ex. A in so far it depicts the lands in dispute in the present suit, like the map Ex. S, was irrelevant and should not have been treated as evidence in this case.

12. The next map to which objection has been taken is the Sadansari map Ex. N. This map was prepared in or about April 1922 under orders of Mahesh Gupta for the purpose of showing the tenants who held under him and their respective holdings. Along with this map were compiled chittas of the mouza Kamalpur Exs. L and L1. The chittas, as usual, refer to the plots shown in the map Ex. N. That map and the chittas, if genuine and correct, would show that the entire disputed lands had been in existence in 1921/1922 and Mohesh Gupta had been in possession of them at least since that date. The learned Subordinate Judge held that Sadansari map Ex. N had been manufactured for the purposes of this suit and did not rely on it. The learned District Judge, however, upheld its genuineness, that is to say, that it was prepared at the time it purports to have been prepared, namely in 1921/1922. There are observations here and there in the judgment of the learned District Judge which may be construed as throwing doubts on its genuine, ness, but on the whole the ultimate finding is in favour of its genuineness and the appellants are bound by such finding. As it was prepared after the death of the plaintiff's father, it could not be taken as evidence of possession of Mohesh during the lifetime of the plaintiff's father, and indeed the learned District Judge did not rely on it as proof of the extent of the adverse possession of the defendants. The zamindari books of Mahesh Gupta were produced and proved, showing collection of rent from the tenants on the basis of this map Ex. N and these chittas Ex. L and L1. This map Ex. N and the chittas Ex. L and L1 and the books of account, in our opinion, go together and constitute an assertion of right claimed by Mohesh over the lands in suit and come well within Section 13. That chittas are admissible in evidence on certain conditions admits of no doubt: Abdul Khaleque v. Sushil Chandra ('57) 39 C. W. N. 330. The collection papers have been produced which support the map Ex. N and the chittas. In our judgment this map Ex. N and the chittas Ex. L and L1 along with the account papers showing collection of rent were properly admitted in evidence.

13. That the maps Ex, S and Ex. A were relied on as showing the existence of the lands in suit at the respective dates of those maps cannot be disputed. Those maps we have held were strictly speaking not admissible in evidence. The question then arises whether the admission of those maps must necessarily vitiate the decision of the learned District Judge. The answer to this question is furnished by Section 167, Evidence Act. That section provides that the improper admission or rejection of evidence shall not be ground of itself for a new trial or reversal of any decision in any case, if it shall appear to the Court before which such objection is raised that, independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision or that, if the rejected evidence had been received, it ought not to have varied the decision. Ordinarily it is extremely difficult to ascertain what effect the inadmissible evidence had on the mind of the Judge and what his views would have been, independently thereof. We have, however, been taken through the long and elaborate judgment of the learned District Judge and we are satisfied that independently of the evidence objected to and admitted there was sufficient evidence to justify the decision of the learned Judge. The change in the case sought to be made at the trial considerably weakened the case of the plaintiff.

14. The learned Judge dealt with the evidence adduced by the plaintiff separately. The case made out in evidence was that the lands remained submerged until 1924/1925 and were then settled with a man named Haribol. On a minute review of the evidence the learned Judge thoroughly disbelieved that evidence. At p. 86 of the paper book the learned Judge observed that there was a complete absence of evidence on the side of the plaintiff to establish the constructive possession by his father whether the land was above water or not. At p. 97 the learned Judge observed that neither by documents nor by oral evidence had the plaintiff proved anything about possession. At pp. 101 and 104 he stated that he disbelieved the story of Haribol's possession and at p. 105 he concluded by saying that he considered and held that the plaintiff had failed to prove that he had possession at any time any where within the area in dispute. These findings were arrived at on a consideration of the evidence adduced by the plaintiff and independently of the maps. As to the evidence on the side of the defendants there were the kabuliyats, decrees account papers besides oral evidence and the impugned maps. While, therefore, we appreciate the contention of Mr. Chakravarty that it is ordinarily difficult to say what view the Judge would have taken if the evidence wrongly admitted were not admitted at all, we are satisfied that in this particular ease there was a volume of other and independent evidence on which the decision of the learned Judge could have been and was also based. We are not prepared to say, on the materials before us, and particularly in view of his findings on plaintiff's evidence that the learned Judge's decision would have been different, had not these two maps been admitted in evidence. In this view of the matter, we do not think it right to set aside the decree or to remand the case. The result, therefore, is that this appeal must be dismissed with costs. The cross objection is not pressed and is dismissed without costs.

Biswas, J.

15. I agree.


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