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Modun Mohun Pal Vs. NobIn Chunder Dutt and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in(1881)ILR7Cal697
AppellantModun Mohun Pal
RespondentNobIn Chunder Dutt and ors.
Excerpt:
sale in execution - arrears of rent--under--tenure--service tenures--permanent tenures--tenure-at-will--long possession--presumption. - .....plaintiff and those of the defendants, and such evidence as had been produced on either side-which left no doubt on his mind that this tenure was really some kind of a service-tenure; but that the defendants had not succeeded in proving the particular case set up by them, had not in fact succeeded in proving that the tenure was of such a nature that they were entitled to hold the land after they had ceased to perform the services. and if this was the intention of the subordinate judge, i think that we have not been shown that his view is incorrect.9. i may observe that the patta upon which the defendants themselves rely, contains within it sufficient to show, that they had no idea of setting up a tenure of such a nature that it depended upon any old village custom, or any other basis.....
Judgment:

Richard Garth, C.J.

1. I think this appeal must be dismissed. The plaintiff sued to eject the defendants from certain lands, which the defendants and their father and grandfather before them had held for the performance of certain services. There does not appear to be any doubt as to what the services were, although the Subordinate Judge does not describe them; because both parties seem to agree, that they consisted in collecting the rents of certain debutter lands, and paying those rents, or applying them in some way, for the worship of an idol. The defendants' case was, that they had a permanent tenure which had its origin in a grant given to their ancestor in the year 1139, and the first Court having found this grant to be genuine, dismissed the plaintiffs suit.

2. The Subordinate Judge took a different view. He considered, for the reasons which he gives in his judgment, that the document brought forward by the defendants was not genuine, and he believed it to have been fabricated within the last few years. At the same time he finds that the defendants and their predecessors in title did hold the lands for many years in consideration of their rendering to the plaintiff certain services; but be says- 'The services in lieu of which the lands were originally granted to the defendants' ancestor, not being required by the plaintiff, the latter is entitled to call upon the defendants to surrender the lands.'

3. Reading this passage in conjunction with what the Subordinate Judge says in other parts of his judgment, I think he means to say, that as the grant put forward by the defendants in support of their case is untrue and fabricated, he is not bound to make any presumption of a permanent grant in favour of men who have brought forward such an instrument, and therefore, not with standing the long possession, he considered the holding to be at will; and as the services were no longer required, the plaintiff was at liberty to put an end to the defendants' tenancy.

4. Now the question for us is, having regard to the fact that the defendants, their father, and grandfather, and perhaps a generation before them, had performed the services in consideration [701] of holding the lands, whether the Subordinate Judge was bound, as a matter of law, to presume that the defendants had a permanent tenure. I think he was not bound to make such a presumption. It may be, that he was at liberty to presume, if he had thought proper to do so, a permanent grant; and that, in that case, we could not have disturbed his finding. But having declined to make such a presumption, I think we have no right to say that he was in error. I certainly for one, am not disposed to assist men who have by means of a fabricated deed attempted to deceive the Court. I should add, that if I thought there was any real doubt as to the nature of the services, or as to the nature of the evidence upon which the defendants' case is based, I should have had no objection, if my learned brother thought it necessary, to remand the case for further enquiry. But it seems to me, that there is really no such doubt. The parties are agreed as to the nature of the services, and the nature of the case set up by the defendants is plaint enough. I consider, therefore, that a remand is unnecessary, and that the appeal should be dismissed with costs.

Field, J.

5. I, also think that no ground has been made out which would justify us in interfering in this case upon second appeal. The plaintiff is an auction-purchaser, and he sued to resume a certain tenure which he alleged to have been held by the defendants in lieu of wages.

6. The defendants, in support of their case, in the 9th paragraph of their written statement, denied that the plaintiff's account of the nature of the service tenure was correct; and, in the 10th paragraph of their written statement, they set out, what, according to their contention, was the nature of the service upon which the tenure has been held; and further, they set up an old patta bearing a date antecedent to the Permanent Settlement.

7. The Subordinate Judge has found against the genuineness of this patta, and that is a finding of fact with which we cannot interfere upon second appeal.

8. But although the Subordinate Judge found against the genuineness of the patta, be seems to have been of opinion that the tenure was a service-tenure. He does not say in so many words whether he found the nature of the services [702] to be such as was alleged by the plaintiff, or such as was alleged by the defendants. What he says in his judgment is this- 'The services in lieu of which the lands were originally granted to the defendants' ancestor, not being required by the plaintiff, the latter is entitled to call upon the defendants to surrender their lands.' As I understand the Subordinate Judge, what he means is this, that, not with standing the failure of the defendants to prove the patta set up by them, there was other evidence on the record-taking together the allegations of the plaintiff and those of the defendants, and such evidence as had been produced on either side-which left no doubt on his mind that this tenure was really some kind of a service-tenure; but that the defendants had not succeeded in proving the particular case set up by them, had not in fact succeeded in proving that the tenure was of such a nature that they were entitled to hold the land after they had ceased to perform the services. And if this was the intention of the Subordinate Judge, I think that we have not been shown that his view is incorrect.

9. I may observe that the patta upon which the defendants themselves rely, contains within it sufficient to show, that they had no idea of setting up a tenure of such a nature that it depended upon any old village custom, or any other basis than that of a grant by the zemindar, and this being so, if the services were such as alleged by the zemindar, I think we cannot say, as a matter of law, that the zemindar was not entitled to resume the land granted by himself when he ceased to require the performance of those services. In this view I also think that the appeal must be dismissed with costs.


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