Skip to content


LukhynaraIn Chuttopadhya Vs. Gorachand Gossamy - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1883)ILR9Cal116
AppellantLukhynaraIn Chuttopadhya
RespondentGorachand Gossamy
Excerpt:
special appeal - revenue sale law--evidence--registration--common registry--act xi of 1859, section 39. - .....the fact of registration under act xi of 1859 is in itself prima facie proof of the existence of a tenure registered in the common register. we think that this is not so. if the tenure in this case had been specially registered, then, under section 50 of the act, entry in the special register would apparently have been prima facie good evidence of the existence of the tenure, but no such provision is made in the act with regard to registration in the common register. it may be observed that, in any case in which a registered document is produced, the fact of registration is not accepted as prima facie evidence of the genuineness of that document. it has to be proved independently. we see no reason to hold that the registration of a tenure in the common register under act xi of 1859.....
Judgment:

Tottenham, J.

1. A preliminary objection is taken by the respondent's pleader in this case, that no second appeal lies, the subject of the suit being, as he submitted, one of the Small Cause Court class. For the appellant, however, it was contended, and, as we think, rightly contended, that the question of right to the land was raised by the plaintiff, and that the suit was treated by both the Courts below as one for title. We, therefore, hold that the appellant has a right to have the second appeal heard and the question of title decided.

2. The suit was brought against an auction-purchaser under Act XI of 1859 for an alleged trespass and damage done by him to the plaintiff by appropriating the fruit of certain trees said to be upon the plaintiff 's mokurari tenure, which mokurari tenure is alleged to have been registered in the Common Register under Act XI of 1859. He, however, did not produce any further evidence of the existence of the tenure beyond filing a mokurari patta, and of that patta he adduced no proof.

3. For the appellant it is contended that the fact of registration under Act XI of 1859 is in itself prima facie proof of the existence of a tenure registered in the Common Register. We think that this is not so. If the tenure in this case had been specially registered, then, under Section 50 of the Act, entry in the Special Register would apparently have been prima facie good evidence of the existence of the tenure, but no such provision is made in the Act with regard to registration in the Common Register. It may be observed that, in any case in which a registered document is produced, the fact of registration is not accepted as prima facie evidence of the genuineness of that document. It has to be proved independently. We see no reason to hold that the registration of a tenure in the Common Register under Act XI of 1859 relieves the person alleging such tenure of the necessity of proving its existence in the regular way. Section 37 of the Act provides, that certain tenures, if registered, are protected from being set aside by auction-purchasers. The effect of this is, that a bond fide tenure actually proved is not protected unless it is registered. It does not provide that the registration of an alleged tenure will have the effect of proving it. We think, therefore, that the registration of the tenure alleged in this case is not a sufficient proof of the plaintiff 's title.

4. The appellant's pleader, however, contended that there was further evidence in an admission by the lessor of the genuineness of the patta, such admission being contained in a petition made to the Collector at the time of the execution of the patta, or shortly afterwards, praying the Collector to enter the tenure in his books, and to hold the lessee responsible for a certain portion of the Government revenue. It turns out, however, that the petition here referred to is only a copy of the petition made, not by the lessor, but by a person calling himself the mooktear of the lessor. The petition, therefore, is of very little importance in this case, especially when we find that another petition made by the lessor before the Settlement Officer expressly repudiates any such patta as is now set up by the appellant.

5. It is unnecessary for us to go into the merits of the case, but we think that the lower Appellate Court was right, as a matter of law, in confirming the decision of the first Court.

6. The appeal is dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //