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Khetra Mohan Das and ors. Vs. Bhairab Chandra Das and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Reported inAIR1927Cal229
AppellantKhetra Mohan Das and ors.
RespondentBhairab Chandra Das and ors.
Cases ReferredImrit Chamar v. Sridhar Pandey
Excerpt:
- .....plaintiffs' case was that in 1287, corresponding to 1880,itheir mother took a settlement from the ijaradar of defendants nos. 4 to 8 and paid rent all along to the ijaradar and that on her death the plaintiffs came into possession and continued to pay rent to the ijaradar. in the record of rights prepared in 1917 defendants nos. 1, 2 and 3 were recorded as tenants under the defendants nos. 4 to 8. this entry in the record of rights had thrown a cloud on the plaintiffs' title; they, therefore, brought the suit for the correction of the record of rights and confirmation of their possession after declaration of their title. the first court decreed the plaintiffs' suit. on appeal to the district court this decision was reversed and the plaintiffs' suit was entirely dismissed. the plaintiffs.....
Judgment:

Cuming, J.

1. In the suit out of which this appeal arises the plaintiffs sued for a declaration of their title as tenants tinder Defendants Nos. 4 to 8, and for correction of the settlement record and confirmation of their possession. Defendants Nos. 1, 2 and 3 are the persons whose names are recorded in the record-of-rights as tenants now in possession.

2. The plaintiffs' case was that in 1287, corresponding to 1880,itheir mother took a settlement from the ijaradar of Defendants Nos. 4 to 8 and paid rent all along to the ijaradar and that on her death the plaintiffs came into possession and continued to pay rent to the ijaradar. In the record of rights prepared in 1917 Defendants Nos. 1, 2 and 3 were recorded as tenants under the Defendants Nos. 4 to 8. This entry in the record of rights had thrown a cloud on the plaintiffs' title; they, therefore, brought the suit for the correction of the record of rights and confirmation of their possession after declaration of their title. The first Court decreed the plaintiffs' suit. On appeal to the District Court this decision was reversed and the plaintiffs' suit was entirely dismissed. The plaintiffs have appealed to this Court.

3. Their contentions are as follows : first of all the lower appellate Court has wrongly rejected a certain jamabandi furd. They contend that this jamabandi furd being an ancient document has proved itself under Section 90 of the Indian Evidence Act; and that if the lower appellate Court was of opinion that the document was not genuine the plaintiffs should have been given an opportunity of proving the genuineness of the document. Is it, therefore, necessary to see how the lower appellate Court has dealt with this document. The learned Subordinate Judge remarks as follows:

Therefore, only the jamabandi furd (Ex. 1) is the solitary document to prove title. It was filed after the defendants filed under their hukumnama Ex. A. I have reasons to suspect the genuineness of this document. It is purported to have been granted by an ijaradar of the Rajas named Darpa Narayan, whose name appears to have been signed by the pen of one Becha Ram. There is no evidence to show that Darpa Narayan was the ijaradar add no evidence to show that Bacha Ram had the power to sign his name. Following the ruling laid down in the case of Imrit Chamar v. Sridhar Pandey [1912] 17 C.W.N. 108, I hold that the genuineness of this jamabandi furd (Ex. 1) cannot be presumed only from the proof of custody under Section 90, Evidence Act.

4. Now Section 90 provides that

where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that persons handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.

5. In other words the person producing such a document is relieved of the necessity of proving that it was executed by the person who purported to be the executant; provided that it satisfies the other conditions, namely, it is 30 years old and produced from proper custody. But that is not the same as saying that the Court shall presume the correctness or genuineness of every statement appearing in the document.

6. The learned Counsel who has appeared for the appellants contends that his clients have been misled, because the learned Munsif admitted this document without proof, and for that reason they did not adduce any evidence to prove that Darpa Narayan was the ijaradar of the zemindars. But merely because the trial Court admitted the document without proof the plaintiffs were not relieved of the necessity of proving that Darpa Narayan was an ijaradar of the zemindars, because that fact cannot be presumed to have been proved by the document itself The lower appellate Court in dealing with this document found that there was no documentary evidence by - that I presume it means no reliable evidence to - show that Darpa Narayan was the ijaradar of the zemindar. In that case, therefore, it would be quite immaterial whether Darpa Narayan had executed this document through the pen of Becha Ram, because even if he had done so that would not in itself prove that he was the ijaradar. That fact not having been proved the lower appellate Court was quite right in not relying upon this document as proving any part of the plaintiffs' case.

7. The next point raised by the learned Counsel for the appellants is that the lower appellate Court should have held that the admitted dakhilas which were granted by the landlords proved the plaintiffs' case. But in dealing with these dakhilas the lower appellate Court points out that the dakhilas only exist from 1298 to 1304 and none after 1304; accordingly it did not consider that the plaintiffs' case was supported by the dakhilas. I am not prepared to say that the lower appellate Court is wrong, and to hold the plaintiff's have title to or possession of the lands in suit.

8. No other point has been urged in support of this appeal. The result is that the appeal must fail and is dismissed with costs.

Gregory, J.

9. I agree. It has been brought to our notice that one of the appellants in this appeal is a. minor and he has not been properly represented in this appeal. The facts appear to be these : when the appeal was filed there were two appellants Khetra Mohan Das and Bonomali Das. Bonamali Das was a minor and represented by his guardian and uncle Khetra Mohan Das, Appellant No. 1. Khetra Mohan died and in his place his legal representative Bhuth Nath Das was duly substituted. But apparently for some reason or other no-application was made for the appointment of a fresh guardian for the minor Bonomali who had been represented in the appeal by Khetra Mohan. The result is that so far as Bonomali, the minor is concerned he was not properly represented in this appeal; and the order which we have passed in this appeal so far as he is concerned must be vacated. Order 32, Rule 10 Civil P.C., provides that

on the retirement, removal or death of the next friend of a minor, further proceedings shall be stayed until the appointment of a next friend in his place.

10. Therefore, in this case the order is that so far as Bonamali is concerned all further proceedings in this appeal will be stayed pending the appointment of a next friend.

11. Let the minor be given notice of the death of his next friend and of the above order.


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