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Chunder Sikhur Sadhu and anr. Vs. Nadiar Chand Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1888)ILR15Cal765
AppellantChunder Sikhur Sadhu and anr.
RespondentNadiar Chand Singh and ors.
Excerpt:
sonthal pergunnahs settlement reg, (iii of 1872), sections 24, 25 - suit to set aside order of settlement officer--non-publication of record of rights--onus of proof--civil procedure code (act xiv of 1882), section 568--additional evidence, production of, in appellate court. - .....to have been placed on the plaintiffs. we think that this is not a correct view to take of the suit. the plaintiffs came into court alleging that these lands were in the possession of the defendants as chakran lands ; that the service in respect of which the lands had been granted had terminated; and that they, therefore, became entitled to khas possession; and the defendants' answer to that was the settlement proceedings; and thereupon it became, we think, clearly the duty of the defendants to establish the plea which went to defeat the plaintiffs' claim. i think that the illustration which i suggested to mr. o'kinealy in the course of the argument is an apt one, that the nature of the defence is substantially equivalenttoa plea of res judicata; and, under these circumstances, it is.....
Judgment:

Norris, J.

1. This suit was brought by the plaintiffs, who are moku-raridars of a certain taluk called Jamjari, to obtain khas possession of mouzah Sarisbad, which lies within the taluk. The mouzah is at present in the possession of the defendants, and was before that in the possession of their father, Tara Churn Singha. The plaintiff's case was that the lands were in the possession of the defendants, and of their father before them, as chakran lands, i.e., that they were held by the defendants in consideration of certain services to be rendered by them ; and they allege that these services were terminated in 1291, when the defendants were dismissed from the plaintiffs' service; and that at that time the plaintiffs became entitled to khas possession of the mouzah.

2. The defendant's allegation was that the mouzah bad been in their possession and the possession of their predecessor in title for the last fifty years, not as chakran lands, but in dur mokurari tenure; and they attempted to prove their dur mokurari right by the production of a pottah purporting to create that tenure. They further alleged that the plaintiffs' suit was barred by the ordinary law of limitation, that is to say, by adverse possession of twelve years, and by the special law of limitation prescribed by Section 25 of Regulation III of 1872.

3. Both the lower Courts have decreed the plaintiffs' suit; and on second appeal it has been argued by the learned Counsel for the defendants, appellants, that the decision of the lower Appellate Court is erroneous in law, and the following among other points have been relied upon : In the first place it was contended that both the lower Courts have put an erroneous construction upon Section 24 of the Regulation. That section says : 'After the Settlement Officer shall have made the record of rights for any village, he shall notify and publish the contents of such record to the persons interested by posting it conspicuously in the village and otherwise in such manner as may be convenient.'

4. The learned Counsel contends that the true construction of this section is to leave it to the discretion of the Settlement Officer to publish the record of rights in any manner that he may deem convenient. In fact, Mr. O'Kinealy's argument is that the conjunction 'and' between the words 'village,' and 'otherwise' should be read 'or.' We think that this is an erroneous view. What the section says and means is that a record of rights must (that is, it is compulsory on the Settlement Officer to do it) be notified and published in the manner directed therein, that is, by posting it conspicuously in the village; and that it is discretionary with the Settlement Officer to publish it in any other manner that he may think convenient for the purpose of informing persons interested in the settlement proceedings of the result of the inquiry which he had made.

5. The second point urged by the learned Counsel is, that the burden of proof has been wrongly placed upon the defendants in this case. It is contended that this is substantially a suit brought by the plaintiffs to set aside a decree, because Section 11 of the Begulation is in these words: 'Except as provided in Section 25, no suit shall lie in any Civil Court regarding any matter decided by any Settlement Court under these rules; but the decisions and orders of the Settlement Courts made under these rules regarding the rights and interests abovementioned shall have the force of a decree of Court ;' and Mr. O'Kinealy contends that this is practically a suit to set aside a decree, and the onus ought to have been placed on the plaintiffs. We think that this is not a correct view to take of the suit. The plaintiffs came into Court alleging that these lands were in the possession of the defendants as chakran lands ; that the service in respect of which the lands had been granted had terminated; and that they, therefore, became entitled to khas possession; and the defendants' answer to that was the settlement proceedings; and thereupon it became, we think, clearly the duty of the defendants to establish the plea which went to defeat the plaintiffs' claim. I think that the illustration which I suggested to Mr. O'Kinealy in the course of the argument is an apt one, that the nature of the defence is substantially equivalenttoa plea of res judicata; and, under these circumstances, it is admitted that it would be on the defendant to establish the decree upon which he relied as operating as res judicata. So is it, we think, here. The onus was properly placed on the defendants to substantiate the validity and propriety of the settlement proceedings upon which they relied. These two objections are really the only points of law which have been argued. The other objections taken by the learned Counsel are nothing more than questions of fact.

6. Mr. O'Kinealy complains of the finding of the Deputy Commissioner with regard to the defendants ' contention that they were dur mokuraridars ; and he impugns the reasons which have induced him to come to that conclusion. These reasons may be right or wrong ; but there is the finding of the Deputy Commissioner where he says : 'I must agree with the lower Court that the dur mokurari tenure has not been proved,' and there is an end, as far as we are concerned as a Court of second appeal, of that question. Similarly, we think that the finding of the lower appellate Court with regard to the affirmative ease made by the plaintiffs, that these lands were chakran lands, is a finding of fact with which we cannot interfere on second appeal.

7. There remains only one more point to be considered, and it is this The defendants in the Courts below relied upon a pottah. The Deputy Commissioner has found that the pottah never existed, that it was a fabrication. Mr. O'Kinealy asks us to give his client an opportunity of adducing further evidence to show that this pottah really had an existence, and was not altogether a myth and he relies upon an affidavit of his client which states that, while this case was pending in the lower Courts, a list was sent to the deponent in which mention was made of a suit and a decree of about the year 1841, in which this pottah was referred to. The affidavit states that the deponent went to the Beerbhoom Court; and upon inquiry in the record office he was told that no such record existed. Then it states that the deponent subsequently showed the list to a friend, who told him that he was misinformed ; that when the number of the case and the date are given, there must be such a record existing; that subsequently search was mad9 under the orders of the District Judge, and such record discovered.

8. In the first place it seems to us very doubtful whether, under Section 568 of the Civil Procedure Code, we have the power to admit this evidence, and, in the second place, if we have the power, we do not think sufficient clause has been shown to render it wise for us to exercise it. The statements in the affidavit appear to be of an extremely strange character. One would have thought that the party who had this list sent to him would, in the first instance, have shown it to his pleader, and that his pleader would have taken steps to have the record office at Beerbhoom searched in order to find out whether the record in question existed. It is not necessary for us to express any opinion as to whether the documents now sought to be put in are or are not genuine, It is sufficient to say that no ground has been made out for the application, which indeed is a. novel one, to put in these documents at this stage of the case.

8. The result is that the appeal will be dismissed with costs.


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