1. Both the plaintiff and the defendant No. 2 claimed title to the disputed land under leases said to have been granted by the landlord. The defendants relied upon a lease executed in the year 1312, and the plaintiff relied upon another lease executed in 1319. The Court of first instance held that the lease in favour of the defendant was proved and that, therefore, the plaintiff could not succeed. On appeal that decree was set aside by the learned Subordinate Judge and the defendant No. 2 has appealed to this Court.
2. Two questions have been raised in this Court, the first is that the lease under which the plaintiffs claimed is void inasmuch as a fictitious entry of a plot of land was made in it in order to give jurisdiction to the Sub-Registrar of Jhalakati in whose Registration Office the document was registered, and reliance was placed on a recent decision in the case of Harendra Lal Roy Chowdhuri v. Srimati Hari Dasi Debi 23 Ind. Cas. 637; 18 C.W.N. 817 ; 27 M.L.J. 80 ; 41 C. 972 ; (1914) M.W.N. 462 ; 16 M.L.T. 6 ; 19 C.L.J. 484 ; 1 L.W. 1050 ; 16 Bom. L.R. 400 : 12 A.L.J. 774; 41 I.A. 110 (P.C.).
3. This question however, was not raised in either of the Courts below and the necessary facts have not been gone into by them.
4. Reliance is placed upon certain statements made by the plaintiff in cross examination; but the plaintiff stated that there is a plot of land within the Jhalakati Sub Registrar's jurisdiction, which was included in the kabuliyat. The question whether it was intended at the time of granting the lease that the plot of land should form part of the lease was not gone into by the Court below, as it was not raised by the defendant; and we are not disposed to allow this question to be raised after the case has passed through two Courts, which would necessitate a remand and further evidence on the point.
5. The second contention is that the learned Subordinate Judge has not considered some of the facts found by the Court of first instance in reversing the decision of that Court It is pointed out that the learned Subordinate Judge has not considered the dakhilas produced by the defendants showing payment of rent to the landlord, and the evidence, oral and documentary, showing that the rent payable by the lessor to the superior landlord was paid by the defendant under an assignment of the rent made by the husband of the lessor.
6. The learned Subordinate Judge says: 'The evidence about defendant No 2's possession and payment of rent is not reliable'. That covers all the evidence on the point. It is true that he does not discuss the evidence and that it would have been more satisfactory if he had more specifically mentioned the documents and discussed them. But we are unable to hold that he did not consider all the evidence.
7. Then it is contended that the Record of Rights, on which so much reliance was placed, does not bear any date.
8. There is oral evidence, however, on the point, which goes to show that the settlement proceedings took place a year after the execution of the kabuliyat. The learned Subordinate Judge points out that there are two khewats. One is No. 90 which relates to certain lands which are admittedly held by Ajimuddi and Najimuddi under defendant No, 4 who is the lessor and that the disputed land which appertained to khewat No. 91 was shown in the Record of Rights as being in the khas possession of defendant No. 4, the lessor. The learned Subordinate Judge says that if these disputed lands had been in the possession of defendant No. 2, there is no reason why they could not have been entered in his name in the Record of Rights.
9. In these circumstances, we think that the appeal must be dismissed. We make no order as to costs.