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Maulvi A.R.M. Abdul Wahed and ors. Vs. Nagendra Chandra Lahiri and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Reported inAIR1940Cal524
AppellantMaulvi A.R.M. Abdul Wahed and ors.
RespondentNagendra Chandra Lahiri and ors.
Cases ReferredDearish v. Dwijadas Chakrabarty
Excerpt:
- .....l.r. app. 62. in the report of that decision there appears at p. 62 the following observation:the jamabandi papers may be only used as corroborative evidence, viz. of the same value as that which is attached to books of accounts under act ii of 1855. these papers were admittedly prepared by the zemindar's own agent in the absence of the ryots; and if the mere fact of the agent coming forward to swear that he wrote the papers is to justify a court accepting every fact recited therein as true against the ryots, no ryots in this country would be safe.4. in aktowli v. tarak nath ghose ('12) 16 c.l.j. 328 the headnote sets out the facts in the following terms:in an application under section 105, ben. ten. act, for settlement of fair and equitable rent, the landlord filed certain collection.....
Judgment:

Khundkar, J.

1. This appeal in which the plaintiffs are the appellants arises out of a suit for a declaration that khatian No. 1319 of Mouzah Gobindapur is a mukarari holding and for correction accordingly of the finally published Eecord of Eights. The holding in question was recorded as a jama of Rs. 3-3-9. The plaintiffs-appellants were the tenants and there were three sets of landlords defendants, namely defendants 1 to 3 who were cosharers in the superior interest to the extent of 12 annas; defendants 4 to 7 who were cosharers in that interest to the extent of 2 annas, and defendants 8 to 11, represented in the suit by the Court of Wards, who were cosharers in the proprietary right to the extent of 2 annas. At the hearing of the suit the third set of defendants did not appear to contest the plaintiffs' claim. The defence, however, was that rent was enhancible and that the entry in the Record of Rights was correct. The defendants relied upon the presumption of the correctness of the record of rights which arises under Section 103(B) Sub-section (5). The plaintiffs on the other hand strenuously contended that they were entitled to the presumption under Section 50, Sub-section (2), Ben. Ten. Act. In support of this contention, they produced certain dakhilas which have been referred to in the judgment of the learned Munsif. These dakhilas had been granted either by the 12 annas cosharer landlords, i.e. defendants 1 to 3, or the 2 annas cosharer landlords, namely defendants 4 to 7, and no rent receipts granted by the remaining 2 annas cosharer landlords, i.e. defendants 8 to 11, were filed. It would appear from the judgment of the learned trial Court that the earliest of the rent receipts relied upon by the plaintiffs appellants was a receipt for the year 1308 B.S., Ex. 2-C. The rent receipts filed by the plaintiffs stated that the total rent recoverable from them by all the landlords in respect of the entire jama was Rs. 3-6-0. But it appears also from the judgment of the learned Munsif, and this fact is admitted, that at some time after the fixing of the rent at Rs. 3-6-0 the tenants obtained a proportionate abatement of the rent on account of the acquisition of some land by the Government, and this resulted in the jama being reduced to Rs. 3-3-9 which as stated is the figure appearing in the finally published Record of Rights.

2. The plaintiffs' case was that they had been paying rent at a uniform rate for more than 20 years, as the dakhilas show. The defendants contended that the original jama was Rs. 3-12 gds. 3 karas, sicca, that in the year 1257 B.S. i.e., in the year 1850 A. D., there was a variation of rent as well as a conversion from the sicca rupee into Company's coin. In support of this contention the defendants relied on a jama wasil baki paper of that year. Both the Courts below have accepted the evidence of this paper and have held that if the plaintiffs were entitled to invoke the presumption under Section 50, Ben. Ten. Act, that presumption has been rebutted. On behalf of the appellants Mr. Sen has taken up 4 broad points, which Mr. Lahiri on behalf of the respondents has in my judgment successfully answered. As in the argument of both the learned advocates a number of decisions have been cited, a brief resume of these arguments should be set out. Mr. Sen's first point was that the jama wasil baki papers were not admissible under Section 34, Evidence Act, there being no evidence that these papers were properly kept, and in this connexion he has gone on to argue that even if these papers were admissible they are not by themselves sufficient to charge the plaintiffs with liability under Section 34, Evidence Act. That Section is as follows:

The entries in books of account regularly kept in the course of business are relevant whenever they refer to a matter into which the Court has to inquire, but such statements shall not alone be sufficient evidence to charge any person with liability.

3. Mr. Sen's contention is that the Section requires that evidence of the kind referred to therein be corroborated. He submits that the jama wasil baki paper is the only evidence to show that the rent of Rs. 3-1 2 gds. 3 karas was converted into a rent of Rs. 3-6-0 and that there is no other evidence to show that the realization of rent previous to 1850 was at the rate of Rs. 3-1 2 gds. 3 karas. In support of this contention he has relied upon the following cases : Gajjo Koer v. Syad Adalay Ahmed ('71) 6 Beng. L.R. App. 62. In the report of that decision there appears at p. 62 the following observation:

The jamabandi papers may be only used as corroborative evidence, viz. of the same value as that which is attached to books of accounts under Act II of 1855. These papers were admittedly prepared by the zemindar's own agent in the absence of the ryots; and if the mere fact of the agent coming forward to swear that he wrote the papers is to justify a Court accepting every fact recited therein as true against the ryots, no ryots in this country would be safe.

4. In Aktowli v. Tarak Nath Ghose ('12) 16 C.L.J. 328 the headnote sets out the facts in the following terms:

In an application under Section 105, Ben. Ten. Act, for settlement of fair and equitable rent, the landlord filed certain collection papers for showing variation of rent from time to time. The collection papers were produced by an officer of the landlord who deposed that they were in his custody. There was no evidence as to who wrote those papers, nor as to who collected the rent. There was neither any evidence to show when and by whom the entries in the collection papers were made.

5. At the end of p. 333 of the report there occurs the sentence : 'We therefore hold that in the case before us, the jamabandi papers were improperly received in evidence.' Mr. Lahiri on behalf of the respondents draws attention however to the remainder of the report and particularly to what follows immediately after the sentence just quoted:

The question next arises, what course should be adopted in this view of the matter. On behalf of the appellants it has been strenuously contended that the jamabandi papers should be excluded and that the claim for assessment should be dismissed. After anxious consideration, we have arrived at the conclusion that this course should not be pursued. The objection urged in this Court does not appear to have been taken in this precise form, in the Court of first instance; and it has been forcibly argued on behalf of the respondent that if the objection had been taken, evidence of the description contemplated by Section 34 might have been adduced to make the entries admissible under Section 32, Evidence Act. It was pointed out in Rampyarabai v. Balaji Sridhar ('04) 28 Bom. 294 that if a statement is admissible under Section 32, corroboration would not be needed in terms of Section 34. This view was accepted by this Court in Dukha Mandal v. Grant (12) 16 C.L.J. 24 and is in accordance with the opinion expressed by Norman J., so far back as 1867 in Kheero Monee Dossla v. Bejoy Gobind Bural ('67) 7 W.E. 533.

6. It might hare be pointed out that the jama wasil baki paper in the present case was actually admitted not under Section 34, Evidence Act, but under Section 32 of the Act, as would appear from the judgment of the Court of first instance. The language of the two Sections differs materially. The provision under consideration here is contained in Sub-section (2) of Section 32 which is as follows:

When the statement was made by such person in the ordinary course of business and in particular when it consists of any entry or memorandum made by him in books kept in the ordinary course of business, or in the discharge of professional duty; or of an acknowledgment written or signed by him of the receipt of money, goods, securities or property of any kind; or of a document used in commerce written or signed by him; or of the date of a letter or other document usually dated, written or signed by him.

7. A reference to the first part of Section 32 shows that such statement is a relevant fact. It is quite clear from the language of Section 32 that such statement would be admissible and would not necessarily require to be corroborated by other evidence. Mr. Lahiri has drawn my attention to the case in Gopeswar Sen v. Bejoy Chand : AIR1928Cal854 in which most of the earlier authorities were reviewed. The headnote of that report runs as follows:

It is not that books of accounts are not admissible under Section 34, Evidence Act, unless corroborated. They are admissible; only, they are not sufficient by themselves to charge a person with liability.

Rebutting the presumption under Section 50, Ben, Ton. Act, is not, in itself, to charge a tenant with any liability. Books of accounts admitted under Section 34, Evidence Act, may therefore be used to rebut such presumption without any corroboration.

8. In the report at page 582 reference is made amongst others to the following cases : Umed Ali v. Habibullah ('20) 7 A.I.R. 1920 Cal. 444 in which it would seem to have been held that if talab baki papers were admissible under Section 32(2) it was unnecessary to consider whether they were relevant under Section 34. Dukha Mandal v. Grant (12) 16 C.L.J. 24 in which it would appear to have been held that if the entries were admissible either under Section 32 or Section 34, no corroborating evidence was necessary and that they could be used to show variation in the rent. Mr. Sen has placed strong reliance upon a passage in the judgment of Mukherjea J. in Gopeswar Sen v. Bejoy Chand : AIR1928Cal854 which is as follows:

The evidentiary value of such entries when they are sought to be used against the tenant has got to be carefully appraised, the entries themselves being scrutinized with care and the circumstances under which they were made being carefully considered. The occasions on which they have, without corroboration, been implicitly relied on against the tenants are few and far between. The reason why they find this disfavour is that they are made behind the back of the tenants and they put the tenants entirely at the mercy of the zemindar or his agents. When however, there is nothing to suggest that they were made with a motive and all the circumstances point to their having been made in the ordinary course of business the chances of their accuracy and of the transactions to which they relate being true are considerably enhanced. It depends therefore on all the circumstances of any particular case whether used for a purpose such as the present, they would require corroboration or not for their acceptance.

9. Now the last portion of this observation actually assists the case for the respondents. The jama wasil baki paper came into existence in the year 1850. The appellants admit that the increased rates stated therein, i.e. Rs. 3-6-0 is correct. The bona fides of the jama wasil baki paper has not therefore been seriously challenged, and it follows that there could have been no motive for concocting it. Now as regards the argument that the jama wasil baki paper is the only evidence to show an increase in the rate of the jama, it is contended by Mr. Lahiri that the presumption of correctness of the entry in the Eecord of Eights under Section 103(B), Sub-section (4), Ben. Ten. Act, is also evidence. Mr. Sen has argued that such a presumption would not be available against any person who has himself challenged the correctness of the entry under Section 106, Ben. Ten. Act. Such a contention cannot be accepted. Section 106, Ben. Ten. Act, relates to the proceedings to be taken after the final publication of the Record of Bights when the presumption has already arisen. Section 103(B), Sub-section (5), says:

Every entry in a Record of Eights finally published shall be evidence of the matter referred to in such entry, and shall be presumed to be correct until it is proved by evidence to be incorrect.

10. In Promode Chandra v. Binayak Das ('23) 10 A.I.R. 1923 Cal. 611 the rent of a tenure had been recorded as fixed in the Record of Eights. In a suit under Section 106, Ben. Ten. Act, for correction of the entry, the landlords alleged that the rent was enhancible and produced quinquennial registers prepared under Regulation 48 of 1793, and the tenants contended that the rent had remained unvaried for over 20 years and filed some road cess returns. It was held inter alia that to start with there was a presumption in favour of the tenants from an entry under Section 103, Ben. Ten. Act. Therefore, the onus of proof rested entirely on the landlords to negative the effect of the said presumption. Mr. Sen's next contention was that the enhanced rent of Rs. 3-6-0 which the appellants, indeed, have always admitted, was not a variation of the original rent in any sense of the term, but was the result of the conversion of sicca Rupee, in which the rent was originally paid, into Company's coin. While taking this point, Mr. Sen also submitted that the jama wasil baki paper was a document lacking any certitude, because the entries therein cannot be said to be very clear and definite. Now, I have seen a translation made by Mr. Lahiri of this paper. There are several columns in it, but I need make reference only to some of those columns. The first column is headed Gujasta Jama, which means the last rent, and the figures therein are Rs. 3-lanna-2gds. 12 karas. A subsequent column is headed Ijafa Bitang which, I think, has been correctly translated as details of increase. In this column there appears the figure 1 anna, 8gds. 4 karas. A later column is headed Baki Jama which, I think may be translated! as rent due or in arrears, and here the figure is Rs. 3-2 as 11gds. Then there occurs a column which is of great importance. The words at the head of this column are Kat Company, and I think it is reasonably clear that this relates to the conversion of the rent of Rs. 3-2 as 11 gds from sicca into Company's coin. The figure in that column is Rs. 3-6 as. I am satisfied from the examination of this document that it shows not merely a conversion, but a real enhancement of rent by the sum of 1 anna 8 gds. 4 karas.

11. Mr. Sen's next contention was that the variation in the rent is too slight to destroy the presumption under Section 50, Ben. Ten. Act, and in this connexion has cited the following cases : Mansur Ali v. Bunoo Singh ('67) 7 W.R. 282 it was held that a variation of one anna is not sufficient to destroy the uniformity required by Section 4, Act 10 of 1859. In Alimuddin Molla v. K.S. Banerjee : AIR1925Cal632 , Suhrawardy and Gumming JJ. held upon the authority in Tara Kumar Ghose v. Arun Chandra Singh ('23) 10 A.I.R. 1923 Cal. 261 that a slight variation, even though not explained, would not operate to deprive the tenants of the benefit of the presumption under Section 50, Ben. Ten. Act. With great respect to the learned Judges who laid down that proposition I do not think this is any longer the law. I am indebted to Mr. Lahiri for citing the case in Dearish v. Dwijadas Chakrabarty ('26) 13 A.I.R. 1926 Cal. 1214, which was a Letters Patent Appeal from the decision of B.B. Ghose J. and was disposed of by Gumming and Mukherjee JJ. In this decision the earlier cases including those to which reference have been made above were all considered. Mukherjee, J., delivering the judgment to the Court expressed the matter in the following words:

It Is true that in some of these earlier cases, if not in all, there were small variations in the rent and even though they were not explained such variations were not considered sufficient to deprive the tenant of the benefit of the presumption. But on looking into these cases, it would appear that no proposition of universal application was laid down in any of them. Indeed no such proposition could possibly have been laid down; for it may be that a very small addition to the rent may sometimes be made so that the tenant may not be actually harassed and at the same time that he may not afterwards set up a plea to the effect that his rent has never been altered. The relevant question is whether there has been really a change or variation and not whether the same was in respect of a substantial amount; and the amount of the variation is only one of the elements to be considered in determining that question. In order to decide the question it will also have to be considered whether the tenant submitted.

12. This decision has been followed to the best of my knowledge in all subsequent cases of this Court upon the point. In Jogendra Krishna v. Provash Chandra : AIR1934Cal37 , it was indeed held on the facts that as no variation of rent or a new settlement had been proved, the presumption under Section 50, Ben. Ten. Act, was not rebutted. Nevertheless, a reference was made to the case, just referred to and at p. 502 of the report, there appears this sentence:

As has been pointed out in the decision of this Court in44CLJ 10312 a change in the rent or the rate of rent may not be a substantial one; but it may all the same be a change as contemplated by Section 50(2), Ben. Ten. Act.

13. There is still a later decision of a single Judge of this Court in Arjid Ali v. Sm. Sorbassona Dassi ('36) 64 C.L.J. 51, in which Mitter J. has made the following observation which appears at p. 53 of the report:

There have been some cases in this Court which say that in order that the presumption under Section 50(2) may be rebutted, there must not only be a real variation, that is to say, not only a mere variation on paper, but a substantial one. If the decisions had been all one way, in spite of my own views, I would be bound to give effect to those decisions and make the rules absolute. But the decisions are not uniform. In my judgment the correct principle has been laid down by Cumming. and Mukherji JJ. in a Letters Patent Appeal in Dearish v. Dwijadas Chakrabarty ('26) 13 A.I.R. 1926 Cal. 1214 where the decision of B.B. Ghose J. was affirmed.

14. I can only say that the view expressed by Mitter J., is one with which I respectfully agree. Whatever may be the law on the subject, the extent of the variation in the rent in the present case cannot, in my judgment, be described as unsubstantial. As already stated the original rent was Rs. 3-1 anna 2 gds. 12 karas and the enhancement was by a sum of 1 anna 8 gds. 4 karas. Certainly this is not a considerable enhancement. But regard being had to the rental of the jama itself the proportion which the amount of the enhancement bears to jama is a matter which cannot be brushed aside. Actually, the proportion is approximately five pies in the Rupee.

15. Mr. Sen's last point was that in so far as the third set of defendants, i.e. defendants 8 to 11 who are cosharers of the proprietary interest to the extent of two annas, did not appear to contest the plaintiffs' claim, the Courts below were wrong in assuming that there may have been some variation in the rent separately collected by the said proprietors. In this connexion Mr. Sen contends that what we are concerned with is the rate of the entire jama, and that rate is stated correctly in the rent receipts granted by defendants 1 to 3 and by defendants 4 to 7. I think the answer to this contention is fairly obvious. It is not disputed that the rate of rent stated in the rent receipts granted by the contesting defendants is that which appears in the Record of Rights and which was before the acquisition of the appellants' lands by the Government, Rs. 3-6-0. Now, if this rate of Rs. 3-6-0 is accepted and it is quite clear that it has been accepted both by the appellants and by the respondents, there can be no doubt, for the reasons already stated, that it represents a variation of rent as shown in the jama wasil baki paper, and not a mere increase due to conversion of the sicca rupee into the coin of the East India Company. Again I do not think the Courts below have really acted upon any assumption that there may have been a variation in the rent separately collected on behalf of defendants 8 to 11. In the suit out of which this appeal has arisen the onus was on the plaintiffs to show what was the actual rate at which rent was being paid to all the cosharer landlords. They must have had the rent receipts granted by the non-contesting defendants 8 to 11, and they certainly had an opportunity of producing them. This they have not done. In my judgment, all Mr. Sen's contentions, ably and carefully put forward though they were must fail. The appeal is dismissed with costs. Hearing fee is assessed at two gold mohurs.


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