1. The original zamindars of a certain tauzi, who were known as the Singh Deos, on 5th September 1879 executed a usufructuary mortgage of certain lands of the tauzi in favour of Chintamoni Dutt and Brojogopal Dutt and subsequently they executed other mortgages of lands of the tauzi in favour of the Dutts.
2. In 1912 the Dutts brought a suit to enforce all these mortgages and obtained a decree. Before the decree was executed, settlement operations took place in that district and the record of rights was finally published in 1922. In that record one Hemendra Lai Singh Deo who was a successor-in interest of the original mortgagor was shown as the zemindar. Prior to the mortgage suit a certain tenure under this tauzi, which is the property with which this suit is concerned, was purchased by the Dutts in 1895. In the record of rights this tenure is described as apermanent tenure, not mukarrari. The rent of this tenure was recorded as being Rs. 148-11-0 in cash, plus a rent in kind consisting of 9 seers of ghee, 3 salis of rice, one he-goat worth one rupee and a pronami of Rs. 2 in favour of a deity known as Basuli. The entry in the record of rights concerning this tenure contains a reference to a rent decree passed in suit No. 1615 of 1889. Some time after the i final publication of the record of rights, the entire touzi was sold in execution of the mortgage decree obtained by the Dutts, and it was purchased by them. Thereafter, one of the Dutts, Fakir Dutt, sold his eight-anna share to a lady called Bama Sundari. Eventually the father of the present plaintiffs, one Kanai Lai Misra, purchased the entire touzi by two kabalas, one of which was executed by Bama Sundari, and the other by the remaining members of the Dutt family, who between them, owned the remaining eight-annas share. It should be mentioned here that the tenure which was purchased by the Dutts in 1895 was never merged in the superior interest, and that it is still the property of the Dutts.
3. The suit out of which this appeal arises is e a suit against the Dutts for arrears of rent in respect of this tenure for the period 1341 to 1344 B. Section The amount claimed is Rs. 826 calculated at the rate of Rupees 148-11-0 per annum, together with nine seers of ghee, three salis of rice, one he-goat to the value of one rupee, and Basuli pronami of Rs. 2 per annum. The defence was that no rent was payable in kind; that the original tenure had been split up into four, bearing annual rentals of Rs. 12-6-3, Rs. 49-9-0, Rs. 74-5-6 and Rs. 12-6-3 respectively payable by four different defendants; that one suit for rent in respect of these four tenures was not maintainable. There was also a plea of part payment of the rent due, The suit was dismissed by both the Courts below which have held that no rent was payable in kind, and that there had been a splitting up of the tenure. At the trial the plaintiffs relied upon the entry in the record of rights, and it was argued on their behalf that the rent decree of 1889, to which reference was made in that record, was the foundation of the entry, and placed the matter beyond dispute. The Courts below have found that the presumption of correctness of the record of rights has been rebutted by the documents upon 9 which the defendants relied.
4. The plaintiffs proved at the trial a certain patta of the year 1237 B.S. in which the disputed portion of the rent, that is to say, that portion which is said to be payable in kind, was mentioned. The learned Munsif who tried the suit found from a scrutiny of the patta and certain other circumstances that it was a forgery. The question of the genuineness of the patta does not seem to have been raised before the learned District Judge, and this question cannot now be agitated in second appeal. On behalf of the plaintiffs appellants, it has been contended h that the Courts below ought to have acted upon the presumption of correctness which attaches to the record of rights. On behalf of the defendants, it has been argued that that presurnption has been rebutted because the documents proved by the defendants show that even if there ever was a contract between the predecessors of the plaintiff and the predecessors of the defendants regarding the payment of rent in kind, that contract was subsequently varied inasmuch as the zemindars have never demanded any rent in kind, nor has the same ever been paid by the tenure, holders for a number of years. Further, according to the defendants, the Dakhilas produced by them conclusively show that the original tenancy was split up into four.
5. In this appeal the following points have been taken on behalf of the plaintiffs appellants : Firstly, if, as must be conceded, there was originally a contract for the payment of rent in kind, subsequent conduct cannot be looked at for the purpose of varying its terms, because evidence of such conduct would be inadmissible under Section 92, Evidence Act. Secondly, that as the foundation of the entry in the record of rights was the decree of 1899, mentioned therein, the onus of rebutting the presumption of correctness of the record of rights could not be discharged without showing that decree to be wrong. Thirdly, the documents upon which the defendants relied to rebut that presumption are not admissible in evidence. Fourthly, the usufructuary mortgage bond has not been correctly construed. Fifthly, the Dakhilas relied upon by the defence merely show that the landlord was taking an aliquot portion of the rent from each, tenant, and there could be no subdivision of the tenure without the express consent in writing of the landlord. Sixthly, in any event, as some portion of the total claim for cash rent is admitted, the case should be remanded for a fresh trial, in which separate decrees may be passed for the rent found due from each of the four tenure-holders.
6. These points may be discussed seriatim. The contract upon which the plaintiffs rely is evidenced by the pattah of 1237 B.S., and as already stated this has been found to be a forgery. Apart from this document, there is no evidence of any express agreement. Even if this document were genuine, it would be open to the defendants under proviso 4 to Section 92, Evidence Act, to show that the contract evidenced by it had been varied by a subsequent oral agreement. A contract of the kind the plaintiffs were invoking is not required by law to be in writing, and a contract of the year 1830 (1237 B.S.) would not, in any event, have been registered as the Registration Act was not passed until the year 1864. The defendants have consistently maintained that an oral agreement that rent was to be payable in cash only, must be inferred from the conduct of the plaintiffs as evidenced by numerous documents, which show that they have for a number of years regarded the rent as payable in cash only. As regards the second point, it has been contended that it was the duty of the defendants to show that the decree of 1899 in Rent suit No. 1615 of 1889 was wrong. The learned Munsif who tried the suit has pointed out that the decree was not produced by either party, and that the defendants denied that they were in possession of any copy thereof. In these circumstances, the manner in which this question has been dealt with by the District Judge cannot be regarded as erroneous. He first considered the presumption of correctness of the record of rights, and found upon the evidence produced by the defendants that it had been rebutted. He then went on to say:
In this view of the case it is the duty of the plaintiffs to satisfy the Court that the basis on which the, entry was made was sound or, in other words it was for the plaintiffs to produce reliable evidence to show that in the year 1899 the plaintiff's predecessors obtained a decree in Bent Suit No. 1615 to the effect that the rent was as is claimed in the plaint. The plaintiffs have failed to produce any such reliable evidence and, therefore, the note made in the Settlement Record of Bights about the decree is not: of any avail to the plaintiffs.
7. As the decree was never produced, it is not possible to say with certainty that it was the foundation of the entry in the record of rights. But even if that were the case, all that the plaintiffs would have been called upon to do was to show that the entry was wrong. This could be done in other ways, than by demolishing the decree : Bagha Mowar v. Ram Lakhan Missir ('18) 5 A.I.R. 11918 Cal. 807. In my judgment the learned District Judge has correctly appreciated the legal position as regards the onus of proof, and has rightly held that the decree of 1899 should have been produced by the plaintiff. The third point relates to the receivability in evidence of certain documents upon which the defendants relied, and which show the rent as payable in cash only. It was argued that these were not documents inter partes, and that they were therefore inadmissible both under the general law, as well as under Section 18A, Ben. Ten. Act. That section reads as follows:
Notwithstanding anything contained in Section 13, Evidence Act, nothing contained in any instrument of transfer to which the landlord is not a party shall be evidence against the landlord of the permanence, the amount or fixity of rent, the area, the transferability or any incident of any tenure or holding referred to in such instrument.
8. The documents in question are the following : Exhibit B a deed by which one Hridoy De, said to be a benamidar of the Dutts released in their favour this tenure which had been purchased by them in his name. Exhibit C, a kobala by which one of the Dutts sold and conveyed his share in this tenure to the wife of another Dutt who was his cosharer. Exhibit E, a deed of gift by one of the Dutts of his share in this tenure in favour of his wife and nephew. It is not disputed that when these documents were executed the Dutts were only tenure-holders and so could not be regarded as the predecessors-in-interest of the plaintiffs who are proprietors of the superior zemindari interest. I am of opinion that Exs. B.C. and B are inadmissible under Section 18A, Ben. Ten. Act. There are two other documents, Exs. F and F(1) which may here be considered. The Dutts were at one time usufructuary mortgagees of the superior zemindari interest with the right to realise rents from tenure-holders undsr the touzi. They obtained rent decrees against the persons who were at that time the holders of this tenure, and Exs. F and F(1) are two sale certificates issued to the Dutts who had purchased the tenure in execution of these decrees. The position of the Dutts at that time was that of persons in whom were vested all the zemindar's rights in respect of the rent of this tenure. That being so, they stood in the zemindar's shoes in so far as any recognition or assertion of the right to rent, or custom governing the payment of rent was concerned.
9. Though the defendants, the Dutts, are now merely tenure-holders, they were at the time of the rent execution sales in the position of the zemindars who were the predecessors-in-interest of the plaintiff. Exhibits F and F(1) are therefore documents to which the landlords were parties within the meaning of Section 18A, Ben. Ten. Act. Further, in agreement with the decision of Akram J. in Basanta Kumari Dasi v. Jnanendra Nath Ghosh : AIR1940Cal539 , I am of opinion that sale certificates are not instruments of transfer and so are not hit by that section at all. They are, however, documents evidencing a transaction, to wit a rent execution sale by which a right to receive and a custom to pay rent in cash only were recognized and asserted. They are therefore admissible under Section 13, Clause (a), Evidence Act. See in this connexion also Basanta Kumari Dasi v. Jnanendra Nath Ghosh : AIR1940Cal539 . In the result, Exs. B.C. and E are not evidence, but Exs. F and F(1) are good evidence to support the findings of the Courts below that the presumption of correctness of the record of rights has been rebutted.
10. The fourth point has reference to Ex. D, the usufructuary mortgage already mentioned. The schedule to this deed sets out the mouzas of the zamindari in respect of e which the usufructuary mortgage was executed. The schedule is divided into three columns, the first Column contains the names of the mouzas, the second the names of the tenants, and the third the rent. In each case the rent is indicated as payable in cash, and no rent in kind is mentioned. On behalf of the plaintiffs, I have been asked to construe the mortgage deed as meaning that the mortgagor was to have as security only the right to receive the cash portion of the rentals payable by the tenure-holders, and to hold that the portion of the rental of this tenure which was (payable in kind was not mentioned because that represented a liability not to the zamindar but to a deity. I do not think it is open to me to construe this document in second appeal. The construction of the mortgage deed for the purpose of ascertaining whether it contains an admission that no portion of the rent was payable in kind, is a question of fact upon which both the Courts below have found against the plaintiff. In Ujir Ali Sirdar v. Shardhai Behara ('22) 9 A.I.R. 1922 Cal. 185 earlier cases were referred to, and it was held, following the decision of Sir Richard Couch Nowbut Singh v. Chutter Dhari Singh ('73) 19 W.R. 222 that the misconstruction of a document which is alleged to contain an ' admission, that is to say, a misappreoiation of the meaning and effect of an admission is not a question of law which can be raised in second appeal. In Midnapur Zamindari Co. Ltd. v. Uma Charan Mandal ('23) 10 A.I.R. 1923 P.C. 187 it was held by the Judicial Committee of the Privy Council that where the question to be decided is one of fact, it does not involve an issue of law merely because documents, which were not instruments of title or contracts or statutes or otherwise the direct foundation of rights but were really historical material have to be construed for the purpose. In Atul Chandra Roy v. Saroda Sundari Dhupi : AIR1936Cal49 R.C. Mitter J. held that if the words of document are misconstrued that would not be a question of law. In any case I am satisfied that as the schedule to Ex. D is descriptive of the mouzas embraced in the zemindary, the amount stated therein as being the rentals of the mouzas, represents the entire rentals. As a description, the schedule would be incorrect if it failed to mention a rental in kind which was in fact payable in respect of any particular mouza, and it has never been suggested that the schedule is incorrect.
11. The fifth point relates to the dakhilas or rent receipts Ex. A series. None of these mention rent in kind and they are therefore good evidence, as the Courts below have held, to rebut the presumption arising from the record of rights. No contention to the contrary has been advanced before me, although it was faintly suggested that these dakhilas must have been granted by mistake. The point which has actually been taken with reference to these documents, is that they do not afford any evidence that the original tenure was split up into four separate tenures. It is contended that they are receipts for aliquot parts of the cash rent from each of several tenants, and merely show an apportionment of rent. This argument might have some force if the cash rent was not the entire rent, but the findings of the Courts below, which I must affirm, are that no rent was payable otherwise than in cash. Further, I am of the opinion, regard being had to all the other circumstances established in the case, that these rent receipts are sufficient to raise the presumption mentioned in proviso 1 to Section 88, Ben. Ten. Act, that the landlord had given his express consent in writing to a division of the tenure. I accordingly hold that there was at some time a valid subdivision of the tenure which was binding on the landlord.
12. It follows therefore that one suit for arrears of rent in respect of the four tenures into which the original tenure came to be divided is not maintainable, and this brings me to the sixth and last point argued on 'behalf of the appellant. It is urged that as all parties were represented in the suit, and I as the defendants admitted their liability for some portion of the arrears of rent claimed, the liability of the defendants should have been apportioned, and the suit should not have been dismissed. There were however pleas of part payment, and I have been invited to remand the case for trial of an issue as to the amount actually due by each defendant. I am unable to accede to such a request. The question, was the jama of Rs. 148-11-0 split up into four jamas, was issue 2 in the suit. The plaintiff could at that stage have asked for permission to withdraw the suit with liberty to bring four fresh suits. He did not do so, but elected to proceed to trial. The finding, which I must maintain, being that four of the defendants were tenants respectively of four separate tenures, it is clear that one suit for rent against all of them was not maintainable, and was rightly dismissed. The result is that the appeal must be dismissed with costs.