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Nabendra Kishore Roy and ors. Vs. Srimati Rahima Banu and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in31Ind.Cas.695
AppellantNabendra Kishore Roy and ors.
RespondentSrimati Rahima Banu and anr.
Cases ReferredNobendra Kishore Roy v. Durga Charan Chowdhury
Excerpt:
chittas - evidence--observations of high court as to probative values of chittas in another case, how far to be followed by lower courts--chittas, when private and public documents. - .....by the government when interested as a proprietor of the estate concerned, cannot be said to be a public document.' see fazlar rahim v. nabendra kishore roy 15 ind. cas. 341 : 17 c.w.n. 151.5. it appears, therefore, that different view* have been taken as to whether these chittas are or are not public documents and it seems that this difference is due to the fact that the evidence adduced in each case was not the same. we think the subordinate judge ought not to have relied upon the observations of the high court as to the probative value of these chittas made in another case, the evidence in which was different from that adduced in the present.6. in the present case, we have not been referred to any evidence to show that the chittas were prepared 'for the purpose of distributing in.....
Judgment:

1. The plaintiffs-appellants as purchasers of an entire estate at a sale for arrears of Government revenue, known as the 4-annas bahali hissya pargana Darra, sued to recover possession of the lands in dispute as appertaining to the said estate. The defence was that the lands did not belong to the estate purchased by the plaintiffs, but to another hissya (the 3-annas 1-kurant hissya) in that pargana, and was part of a taluk which was existing from before the Permanent Settlement. The Commissioner who was appointed to make a local investigation found that, according to the thak map, some of the lands formed part of the estate purchased by the plaintiffs, but that according to certain chittas of the year 1844, the lands appertained to 3-annas and odd gandas-zamindari. The Court of first instance preferred the thak map to the chittas, on the ground that the chittas were prepared by the Government in its capacity as the fractional zemindar of the pargana in order to ascertain the lands belonging to it, without prejudice to the rights of the rival bahali maliks, and its evidentiary value is hardly better than that of one prepared by any other private proprietor. That Court accordingly decreed the suit with respect to a portion of the lands. On appeal, the learned Subordinate Judge held that the chittas prevailed over the thak, and dismissed the suit entirely. The plaintiffs have appealed to this Court. Now both the thak map and the chittas are evidence, and it was for the lower, Appellate Court to attach such value as it thought proper to each of them, and in second appeal, we cannot go into the weight to be attached to these documents respectively. The learned Subordinate Judge, however, referring to a decision of a Division Bench of this Court (Caspersz and Doss, JJ.) in a case Nobendra Kishore Roy v. Durga Charan Chowdhury 10 Ind. Cas. 287 : 15 C.W.N. 515 relating to the very same estate in which a similar question was raised, observed: 'As regards the probative force of the chitta of 1251, it has been decided by the Hon'ble High Court that the record thus prepared, is a document of a public nature and evidence of the slate of affairs then existing.'

2. The learned Judges in that case observed: 'The chitta was prepared at that time, as appears from the evidence, for the purpose of distributing in equal manner the public revenue on the separate bahali hissya which was subsequently purchased by the plaintiffs. The record thus prepared is a document of a public nature and evidence of the state of affairs then existing.'

3. We do not know what evidence there was in that case with reference to which those observations were made.

4. On the other hand, in a later case relating to the same estate, which came up to this Court, another Division Bench (Carnduff and Chapman, JJ.,) referring to the same chittas observed as follows:

The chittas in question were prepared by the Government as zemindar: but in this case, a part of the pargana measured had escheated to the Government on account of the rebellion of the former owner, and it is suggested that the Government must, in these circumstances, be held to have measured it in its Sovereign capacity. We are unable to draw any distinction between the position of the Government as owner of land which has been escheated, and its position as owner of land acquired in any other way; and it is well settled that a chitta prepared by the Government when interested as a proprietor of the estate concerned, cannot be said to be a public document.' See Fazlar Rahim v. Nabendra Kishore Roy 15 Ind. Cas. 341 : 17 C.W.N. 151.

5. It appears, therefore, that different view* have been taken as to whether these chittas are or are not public documents and it seems that this difference is due to the fact that the evidence adduced in each case was not the same. We think the Subordinate Judge ought not to have relied upon the observations of the High Court as to the probative value of these chittas made in another case, the evidence in which was different from that adduced in the present.

6. In the present case, we have not been referred to any evidence to show that the chittas were prepared 'for the purpose of distributing in equal manner the public revenue on the separate bahali hissya which was subsequently purchased by the plaintiffs' as was found in the case of Nobendra Kishore Roy v. Durga Charan Chowdhury 15 Ind. Cas. 341 : 17 C.W.N. 151

7. If the chittas were prepared for a public purpose such as the distribution of revenue on the shares, or assessment and settlement of revenue on the share belonging to the Government, they would be public documents, but if they were prepared with the object of ascertaining the lands belonging to the Government without prejudice to the rights of the owners of the bahali shares, as found by the Court of first instance, they cannot be called public documents, even though they might have been availed of subsequently for assessment of Government revenue. Chittas may be very valuable evidence for the purpose for which they are prepared; but they may not have the same value on any other question. We, however, cannot go into these questions, and it is for the lower Appellate Court to find upon the evidence on the record in the case for what purpose the chittas were prepared, and the determination of the question whether they are or are not public documents will depend upon the finding which may be arrived at.

8. It is contended, however, on behalf of the respondents that even if the chittas are not public documents, the judgment of the learned Subordinate Judge is not affected, because the Court is entitled to attach such weight as it likes to a private document. No doubt it was open to the lower Appellate Court to attach such weight as it thought proper to the chittas considered as private documents. But it is impossible for us to say to what extent the Court below was influenced by the idea that the chittas upon which the judgment is mainly based were public documents.

9. It is further contended on behalf of the respondents that the Subordinate Judge has not treated the chittas as public documents, but has referred to them as documents of a public nature. But he took that description from the judgment of Caspersz and Doss, JJ., in Nobendra Kishore Roy v. Durga Charan Chowdhury 10 Ind. Cas. 287 : 15 C.W.N. 515.

10. The words 'a document of a public nature' could not have been used loosely in the sense of documents prepared by officers of Government. The learned Judges in that case were of opinion that the chittas were prepared for the purpose of distributing in equal manner the public revenue. That would be a public purpose, and it seems to us, therefore, that the words 'a document of a public nature' must have been used in the sense of 'public document.'

11. The learned Subordinate Judge also refers to some other evidence, but there is no doubt that his judgment is based mainly upon the chittas considered as documents of a public nature and it is impossible for us to say what value lie attached to them.

12. We are constrained, therefore, to remand the case for a re-hearing of the appeal to the lower Appellate Court. If the Court finds upon the evidence on the record that the chittas were prepared for a public purpose, the suit will be dismissed. If, however, it is found that the chittas were not prepared for a public purpose, they will be considered as private documents and that Court will decide the case upon the whole evidence, treating the chittas as private documents and attaching such value to them as it thinks proper. Costs will abide the result.


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