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Abdul Munser Munshi and ors. Vs. Yakub Talukdar - Court Judgment

LegalCrystal Citation
Subject Tenancy
CourtKolkata
Decided On
Reported inAIR1928Cal703a,117Ind.Cas.599
AppellantAbdul Munser Munshi and ors.
RespondentYakub Talukdar
Cases ReferredBrojendra Kishore Roy v. Mohini Chandra Bhattachaijee
Excerpt:
- mitter, j.1. this is plaintiffs landlords appeal and arises out of a suit for rent. plaintiffs claimed rent at the rata of rs. 24-2-0. the defence of the defendant was that the rent was payable at the rate of rs. 18 per annum. plaintiffs purchased the superior interest in the year 1914. in the year 1899 the defendant mortgaged the rent land to the plaintiff and borrowed a certain sum of money. in that mortgage-deed it was stated by the defendant that the rent in respect of this holding payable to the superior landlord was rs. 18. in 1904 the mortgage debt was paid off and as i have already stated ten years after, in 1914, plaintiff purchased the superior interest. the court of first instance held that the collection papers on which the plaintiffs relied were not genuine and should not be.....
Judgment:

Mitter, J.

1. This is plaintiffs landlords appeal and arises out of a suit for rent. Plaintiffs claimed rent at the rata of Rs. 24-2-0. The defence of the defendant was that the rent was payable at the rate of Rs. 18 per annum. Plaintiffs purchased the superior interest in the year 1914. In the year 1899 the defendant mortgaged the rent land to the plaintiff and borrowed a certain sum of money. In that mortgage-deed it was stated by the defendant that the rent in respect of this holding payable to the superior landlord was Rs. 18. In 1904 the mortgage debt was paid off and as I have already stated ten years after, in 1914, plaintiff purchased the superior interest. The court of first instance held that the collection papers on which the plaintiffs relied were not genuine and should not be relied on, and that the plaintiffs had failed to establish that Rs. 24-20 was the rental payable in respect of the holding. The Court, of first instance further relied on the mortgage bond and held that the defendant's case that the rent was Rs 18 and o Id and not Rs 24-2-0 was established by the statement in the mortgage bond. An appeal was taken to the Subordinate Judge of Pabna and the learned Subordinate Judge affirmed the decision of the Munsif.

2. A second appeal has been taken to this Court and the main point taken here is that the Courts below should not have relied on the statement in the mortgage bond having regard to the provisions of Section 21, Evidence Act. It is said that at the time when the mortgage bond was executed plaintiffs did not acquire the superior interest in respect of holding in suit and that any statement made in the mortgage-deed was the statement of the defendant and could not be used in his favour. It is to be noticed, however, that both the mortgagor and the mortgagee are now dead. It is conceded that the mortgage bond could be admissible in evidence, if the matter fell within Section 32, Clause 7, Evidence Act. The question, therefore, turns on this, as to whether this mortgage bond could be regarded as a transaction within the meaning of Section 13, Evidence Act. By the mortgage bond it was asserted by the defendant that he had a right in the leasehold interest which carried a rental of Rs. 18 which was payable to the superior landlord who3o interest has now devolved on the present plaintiff. There was a further assertion in that deed that that interest was being mortgaged in favour of the plaintiffs' pre decessor-in-title. In these circumstances it is difficult to say that by the deed in question the right to the leasehold interest which carried a rental of Rs. 18 and odd payable to the superior landlord' was not asserted. The question as to what the amount of rental was, was one of the essential terms of the mortgage-bond. It was one of the essential elements which was necessary to be stated in order to determine the rights of the defendant-mortgagor in the holding which he was mortgaging in favour of the plaintiff's predecessor or ancestor. The present case is, therefore, distinguishable from the case cited at the Bar by the learned vakil for the appellant. Reference has been made to the case of Brojendra Kishore Roy v. Mohini Chandra Bhattachaijee : AIR1927Cal1 . It will appea, however, that the facts of the case are distinguishable and the learned Judges in that case did not express any opinion on the question now in controversy. For the reason which I have stated I think this document is admissible in evidence it is a transaction by which the right of the; defendant to the land was asserted, and; for the definition of that right, the amount of rent had to be stated. I think the mortgage bond was admissible in evidence. Apart from the question as to whether the mortgage bond was rightly admitted in evidence, it appears that; other findings are conclusive in second appeal. The lower appellate Court states that a closer examination of the papers goes to show that these papers were rather clever fabrications. The effect of the judgment of the lower appellate Court, is that it was established satisfactorily that the original jama was Rs. 18. Whether the document is admissible or not, the judgment was based on an independent conclusion with regard to the nature of the plaintiffs' papers. It is conceded that the burden was on the plaintiffs and that the papers were disbelieved by both the. Courts below. In this view the Courts, below were right in coming to the conclusion that the rate of rental was Rs. 18: and add payable by the defendant and not. Rs. 21-20 as claimed by the plaintiffs.

3. The appeal, therefore, fails and must be dismissed with costs.


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