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Matiwor Rasuk (Rasul in Vakalutnana) Alikar Rasul and ors. Vs. Dhanu Molla, and After His Death His Heirs and Legal Representatives and - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in59Ind.Cas.963
AppellantMatiwor Rasuk (Rasul in Vakalutnana) Alikar Rasul and ors.;matiwor Rasul and ors.
RespondentDhanu Molla, and After His Death His Heirs and Legal Representatives and ;hosenuddi and ors.;bango B
Cases ReferredDinanath Chanda v. Nawabali
Excerpt:
judgment, contents of - evidence oral omission to make special reference to, whether vitiates judgment-butwara map and chitta, admissibility of-evidence act (i of 1872), section 35--bengal estates partition act (viii of 1876), section 54. - .....regards part of plot no. 1 in suit no. 2490 and plot no. 4 in suit no. 2284. as regards the other plots the subordinate judge has found that the defendants have been in adverse possession from the year 1306. in coming to his finding on this question of adverse possession the learned subordinate judge relied on the batwara map and chittas prepared under section 54 of the estates partition, act viii of 1876, when the estate of the defendants was under partition by the revenue authorities first in 1879 and again in 1893. he also relied upon the collection papers of the zemindar defendants which show that the tenant defendants were tenants under hem chandra chowdury, the owner of the estate, contiguous to dighirpar--from at least 1298. he has also relied upon two kubuliyats, exhibits f and.....
Judgment:

1. These two appeals arise out of two suits brought by the plaintiffs for recovery of khas possession of certain parcels of land on declaration of their title thereto. The two suits bore Nos, 2284 and 2490 of 1913. In each suit the subject-matter consisted of four plots or parcels of land. Both the Courts below have found that in Suit No. 2490 plots Nos. 2 to 4 and part of plot No. 1 and in Suit No. 2284 plots Nos. 2 and 4 and parts of plots Nos. 1 and 3 appertain to plaintiff's state Dighirpar. That is a finding of fact which has not been challenged before us.

2. The next question that arose in the suits was the question of limitation. In the Court of first instance it was held that, in respect of the plots over which the plaintiffs' title bad be in established, there was no bar of limitation, the finding of the Court of first instance being that the adverse possession of the defendants bad begun in the 1309. In the Court of first appeal the learned Subordinate Judge has found that the plaintiffs' suit was barred by limitation except as regards part of plot No. 1 in Suit No. 2490 and plot No. 4 in Suit No. 2284. As regards the other plots the Subordinate Judge has found that the defendants have been in adverse possession from the year 1306. In coming to his finding on this question of adverse possession the learned Subordinate Judge relied on the batwara map and chittas prepared under Section 54 of the Estates Partition, Act VIII of 1876, when the estate of the defendants was under partition by the Revenue Authorities first in 1879 and again in 1893. He alsO relied upon the collection papers of the Zemindar defendants which show that the tenant defendants were tenants under Hem Chandra Chowdury, the owner of the estate, contiguous to Dighirpar--from at least 1298. He has also relied upon two Kubuliyats, Exhibits F and G, add a conveyance, Exhibit H.

3. The contentions before us are, first, that the Collectorate partition maps and chittas are not admissible in evidence and, secondly, that the learned Subordinate Judge has failed to take into consideration the oral evidence adduced by the parties.

4. With regard to the oral evidence it seems the case that no special reference has been made to it, but the omission to make such special reference is not in itself, sufficient to show that, as a matter of fact, the Subordinate Judge did not consider the evidence of the witnesses who were examined in the cases. We have no reason to suppose that he did not consider that evidence.

5. With regard to the Collectorate partition chittas, we have been referred to the cases reported as Perma Roy v. Krishen Roy 25 C. 90 : 13 Ind. Dec. (N.S.) 61 and Nanda Lal Pathak v. Chanurpat Das 18 Ind. Cas. 143 : 17 C.L.J. 462 : 17 C.W.N. 779. In those cases it has been held that snob measurement rapers are not admissible in evidence under the provisions of Section 35 of the Evidence Act. Bat in the present cases some evidence introducing the maps and chittas was given, so that the present cases are rather analogous to the cases reported in Bhola Roy v. Jung Bahadur Singh 22 Ind Cas. 798 : 19 C.L.J. 5 at p. 7 find Dinanath Chanda v. Nawabali 49 Ind. Cas. 984. As a matter of fact, of the chittas and the (sic) introductory evidence, as we have said, was given, and thereafter they were admitted without objection on either side. It is not open to the defendants now to say that they have not been sufficiently proved. If they had taken the objection at the time, then it would have been open to the plaintiffs to give such further evidence as might be required, In fact, the judgments of both the Courts below indicate that the defendants as well as the plaintiffs both relied upon these measurement papers and maps and no objection as to their admissibility is to be found in the grounds of appeal preferred to this Court. We think, therefore, that in relying upon the statements found in those batwara papers indicating that certain, plots were Cultivated and certain other plots were lying waste the learned Subordinate Judge was within his rights.

6. For these reasons, we dismiss the appeals with costs, the bearing fee being divided half and half between the two sets of respondents who have appeared. The cross-objections are not pressed and are, accordingly dismissed, but without costs.


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