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Rai Kiran Chandra Roy Bahadur and ors. Vs. Tarak Nath Gangopadhyay and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1936Cal456,166Ind.Cas.460
AppellantRai Kiran Chandra Roy Bahadur and ors.
RespondentTarak Nath Gangopadhyay and ors.
Cases ReferredHigham v. Ridgway
Excerpt:
- .....made an application for their transfer to the category of plaintiffs.2. they stated that the lands in suit appertained to the niskar of the chakraburtties, that defendants 1 and 2 were permanent tenure-holders under the chakraburtties and they are also permanent under-tenure-holders under defendants 1 and 2, and that the entry in the record of rights which had recorded them as korfas was wrong. they wanted a declaration of their title as kaimi under-tenure-holders in respect of the lands. the court passed an order by which they were transferred to the category of plaintiffs and chakraburtties were transferred to the category of pro forma defendants being made pro forma defendants 15 to 25 and the allegations made in the application for the transfer were ordered to be made part of.....
Judgment:

R.C. Mitter, J.

1. The subject matter of the suit out of which this appeal arises are settlement plots Nos. 58 and 63. In the Record of Rights published in 1922 the Narail Babus, who are the appellants before me, and the contesting defendants in the lower Court, are recorded as proprietors. There is a further entry in the settlement record that defendants 1 and 2 are occupancy raiyats under the Narail Babus, and that the plaintiffs are Korfa raiyats under defendants 1 and 2. On 23rd December 1927 certain persons, whom I may call the Chakraburtties, as plaintiffs instituted the suit out of which this appeal arises. In the plaint they stated that the said two plots were their Niskar Brahmatter lands, that defendants 1 and 2 are tenure-holders under them and the plaintiffs are under-tenure-holders under defendants 1 and 2. They further stated that the settlement record in rendering the lands as the mal lands of the Narail Babus had cast a cloud upon their title and for that purpose they wanted a declaration of title and confirmation of possession through their tenants. In the suit as originally filed the present plaintiffs were pro forma defendants. Later on the Chakraburtties filed an application in Court to withdraw from the suit on the ground that they were satisfied that the said two plots were not their Niskar Brahmatter, but they were the mal lands of the Narail Babus. On that the present plaintiffs, who were then pro forma defendants, made an application for their transfer to the category of plaintiffs.

2. They stated that the lands in suit appertained to the Niskar of the Chakraburtties, that defendants 1 and 2 were permanent tenure-holders under the Chakraburtties and they are also permanent under-tenure-holders under defendants 1 and 2, and that the entry in the Record of Rights which had recorded them as Korfas was wrong. They wanted a declaration of their title as Kaimi under-tenure-holders in respect of the lands. The Court passed an order by which they were transferred to the category of plaintiffs and Chakraburtties were transferred to the category of pro forma defendants being made pro forma defendants 15 to 25 and the allegations made in the application for the transfer were ordered to be made part of the plaint by way of amendment. The plaint was corrected, but all the said allegations were not embodied. After that the suit proceeded and both the Courts granted a decree in favour of the present plaintiffs. A point was raised that so far as the present plaintiffs were concerned, the plaint disclosed no cause of action. That point was considered by the learned Subordinate Judge who held that the suit was maintainable at the instance of the present plaintiffs and the plaint disclosed a cause of action. In my judgment Section 111-A, Ben. Ten. Act, is no bar to the suit, inasmuch as the suit is one for declaration of plaintiffs' title. The plaintiffs claim in the plaint that they have the status of Kaimi Mokarari Mouresidars, a status higher than that recorded in the settlement record.

3. The decision in the case in Keshab Chandra Banerjee Bahadur v. Madan Mohan Poddar 1935 Cal 801, delivered by Mukerjee, J., fully supports the view which I am taking. The plaint in my opinion discloses a cause of action. The Record of Rights having recorded the status of the present plaintiffs as Korfas, had certainly cast a cloud upon the plaintiffs' title. The case in Nagendra Kishore Roy Chowdhury v. Brojendra Kishore Roy Chowdhury 1932 Cal 842 has been cited before me by Mr. Sen appearing on behalf of the appellants for the purpose of supporting his contention that if a plaintiff simply states that the Record of Rights is incorrect and by reason of that great obstacles in the matter of exercising plaintiff's possession will arise in future, the plaint does not disclose any cause of action. In that case however the Record of Rights was prepared more than six years before the suit, and the allegations in the plaint, were that great obstacles will arise in future. A Division Bench of this Court said that the plaint did not disclose any cause of action, and if the entry in the settlement record be taken as furnishing the cause of action in the suit, it would be a serious question as to whether the suit was not then barred by limitation. In that case however the earlier cases decided by this Court were not cited. As I read the law, the position seems to be this: that if there is an entry adverse to the plaintiff he is not bound to institute a suit for declaration that the entry is wrong. He can wait, and when an invasion on his rights is made on the basis of the entry, he can come and sue for a declaration of his title on the ground that the record is wrong, and the suit is in time if brought within six years of the threatened invasion. But he can also make the entry in the Record of Rights as the basis of his cause of action on the ground that the said entry has cast a cloud upon his title. One of the purposes of a suit for declaration is the removal of the cloud. If he makes the said entry as his cause of action he has to institute the suit within six years from the date of the final publication of the Record of Rights and not from the date of the certificate of the final publication. In Keshab Chandra Banerjee Bahadur v. Madan Mohan Poddar 1935 Cal 801 that position is clearly indicated and a number of cases beginning from the case in Rajani Nath v. Manaram Mondal 1919 Cal 151 is noticed in the judgment. In my judgment, therefore, the very fact that the present plaintiffs have been recorded as Korfa raiyats, gives them a cause of action for this suit. Their case is that the entry is wrong as according to them their status is that of a Mourasi Mokararidars. For these reasons I hold that the plaint did disclose a cause of action, even after the Chakraburtties had been transferred to the category of pro forma defendants. This disposes of the main point argued before me.

4. In the merits Mr. Sen urges that the findings of the learned Subordinate Judge are vitiated inasmuch as he relied upon inadmissible evidence for the purpose of supporting his argument, he says that the kabuliat executed by Abhoy is inadmissible in evidence, as also the cess returns which have been filed by the predecessors of the Chakraburtties, namely pro forma defendants 15 to 25. In so far as the said kabuliat is concerned it is a kabuliat given by Abhoy in favour of Narail Babus in respect of some mal lands. The Narail Babus accepted the kabuliat. In the southern boundary is given the land of Bhawani Prosad Chakraburty, that is to say the Niskar Brahmatter land of the Chakraburtties. The plaintiffs identified Abhoy's land to be the northern boundary of the lands in suit. Having regard to these facts, I do not see why the statement made in that kabuliat should not be admissible in evidence against the Narail Babus. It is not a case of recital of boundaries in a third party document.

5. Regarding the cess returns the position is this: in them the lands in suit are described as Niskar lands. It is admitted that the predecessors of the Chakraburtties had Niskar lands somewhere in the same village and the question is as to the identity of the said lands. Mr. Sen says that under the provisions of Section 95 of the Cess Act, these cess returns could not be used in evidence. He says that a person who files a cess return cannot use the statement made therein in his favour and the same disability attaches to his heirs and legal representatives of the person actually filing the same and also to persons who claim derivative title either by sale or lease from the persons filing the returns. It seems to me that there is great force in this argument, but it is not necessary for me to decide that point having regard to certain circumstances present in this case which I am going to recite just now. In the application for withdrawing the suit the Chakraburtties stated that the lands were not Niskar lands and that they were satisfied to that extent after the filing of the suit. In fact this was the reason which they gave for abandoning the suit. The present plaintiffs thereafter filed these cess returns and they wanted to show that the statement of the Chakraburtties was false, and the position they had taken at the time when they were transferred to the category of the plaintiff was a position which could not be maintained by them having regard to the admissions made in the cess returns. In my view the cess returns could be used for the said purpose, because of the express provisions of Section 95 of the Cess Act, which says that a Cess return can be used against the person filing it. If they can be used against persons filing them, certainly they can be used against the heirs of the persons filing them. If they are admissible in evidence for one purpose, then according to the principles laid down in Higham v. Ridgway 2 S M L C 284 (the same case appears in Campbell's Leading Cases, Vol. 11, p. 266), the cess returns will be admissible for all purposes. In fact that is how Best in his book on Evidence takes the scope of Higham v. Ridgway 2 S M L C 284 to be. At p. 423, Edn. 12, the learned author says this: 'the evidence if admissible, is admissible as evidence for all purposes.' In this view of the matter I do hold that the cess returns had been properly admitted in evidence, and the contention of Mr. Sen must be overruled.

6. The result is that this appeal must be dismissed with costs.

7. The prayer for leave to appeal under Section 15, Letters Patent is refused.


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