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Luchmi Pershad and anr. Vs. Ekdeshwar Singh - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in4Ind.Cas.577
AppellantLuchmi Pershad and anr.
RespondentEkdeshwar Singh
Excerpt:
bengal tenancy act (viii of 1885), sections 29(b) and 103b - record of rights--presumption of correctness--plea to avoid instrument--onus. - .....arrived at by the court of first instance, and decreed the plaintiff's suit accepting the qabuliyat executed by the defendant on the 11th december 1897.3. two contentions have been raised before us, first, that the lower appellate court omitted to consider the presumption of correctness of the entries in the record-of-rights, referred to in section 103b of the bengal tenancy act; and, secondly, that onus was on the plaintiff landlord and not on the defendant tenants to prove that the qabuliyat in question did not contravene the provisions of section 29(b) of the act. in our opinion, here is no substance in either of these contentions.4. the presumption contemplated by section 103b was clearly present in the mind of the lower appellate court: and, after all, what does that.....
Judgment:

1. This appeal arises out of a suit instituted by the plaintiff-respondent for a declaration that the defendants hold certain lands at certain rentals and, also for a declaration that the rentals entered in the record-of-rights in respect of these lands are inoperative. The plaintiff, also, sued for recovery of rents and cesses.

2. The lower appellate Court differed from the conclusions arrived at by the Court of first instance, and decreed the plaintiff's suit accepting the qabuliyat executed by the defendant on the 11th December 1897.

3. Two contentions have been raised before us, first, that the lower appellate Court omitted to consider the presumption of correctness of the entries in the record-of-rights, referred to in Section 103B of the Bengal Tenancy Act; and, secondly, that onus was on the plaintiff landlord and not on the defendant tenants to prove that the qabuliyat in question did not contravene the provisions of Section 29(b) of the Act. In our opinion, here is no substance in either of these contentions.

4. The presumption contemplated by Section 103B was clearly present in the mind of the lower appellate Court: and, after all, what does that presumption amount to? It is a presumption that the entries were correct at the time of the preparation of the record-of-rights. The record-of-rights is a record of the rights then existing; and, clearly, it is not a record of what existed before the year 1897 when the qabuliyat was executed.

5. Then, as to the question of onus, we think, on principle as also as a matter of common sense, that where the executant of a document sets up any specific plea whereby to avoid or minimise the effect of the document, it is for him to make out his special plea. No authority has been indicated to the contrary, and the findings of the lower appellate Court are very clear that, before the document was executed by defendant No. I, on the 11th December 1897, the rate of rent was Rs. 2-12 per bigha, and that the qabuliyat raised the rent to Rs. 2-12-3 per bigha, and, secondly, that the limit imposed by Section 29, Clause (6) of the Bengal Tenancy Act was not contravened.

6. Something has been said with regard to the portion of the defendant No. 2 who did not execute the qabuliyat. It appears that the tenancy is a joint tenancy which. was held in the name of defendant No. 1, and, clearly, the liability that was incurred by defendant No. 1 attaches to. his co-parcener, the defendant No. 2.

7. The appeal, therefore, fails, and is dismissed with costs.


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