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Swarnamoyi and anr. Vs. Sourindra Nath Mitra and ors. - Court Judgment

LegalCrystal Citation
Subject Tenancy; Civil
CourtKolkata
Decided On
Reported inAIR1925Cal1189
AppellantSwarnamoyi and anr.
RespondentSourindra Nath Mitra and ors.
Cases ReferredManindra v. Narendra
Excerpt:
- mookerji, j.1. this is an appeal by the defendants in a suit for possession of land and mesne profits, and, in the alternative, for assessment of rent. the defendants resisted the claim on a three-fold ground, namely, first that the lands were comprised in a tenancy created in favour of their predecessor on the 24th january 1856; secondly, that the plaintiffs have kept them out of possession from a substantial tract of land comprised in the tenancy, with the result that the rent has been completely suspended; and thirdly, that they were entitled to abatement of rent on account of diluvion. the subordinate judge has dismissed the claim for ejectment, overruled the plea of complete suspension of rent and decreed the rent at rs. 912 a year for the period between the pous instalment of 1319.....
Judgment:

Mookerji, J.

1. This is an appeal by the defendants in a suit for possession of land and mesne profits, and, in the alternative, for assessment of rent. The defendants resisted the claim on a three-fold ground, namely, first that the lands were comprised in a tenancy created in favour of their predecessor on the 24th January 1856; secondly, that the plaintiffs have kept them out of possession from a substantial tract of land comprised in the tenancy, with the result that the rent has been completely suspended; and thirdly, that they were entitled to abatement of rent on account of diluvion. The Subordinate Judge has dismissed the claim for ejectment, overruled the plea of complete suspension of rent and decreed the rent at Rs. 912 a year for the period between the Pous instalment of 1319 and the Assin instalment of 1322.

2. The title of the defendants rests upon an amalnama alleged to have been executed in favour one Dulal Mridha by Golaknath Ghose on the 24th January 1856. Before we deal with the question of genuineness of this document, it is necessary to refer briefly to two previous litigations between the parties. On the 12th April 1907, the plaintiffs instituted a suit against the defendants for recovery of possession. The defendants set up the amalnama just mentioned. The document was not regarded as genuine by the trial Court which decreed the suit on the 8th January 1908. The defendants appealed to this Court, and alter an order of remand for further enquiry, the appeal was finally heard on the 10th August 1915 when a Division Bench allowed the plaintiffs to withdraw from the suit with liberty reserved to institute a fresh suit only in respect of a portion of the subject matter in controversy. The judgment of this Court has found its way into the reports Akimannessa v. Bepin Behari [1913] 22 C.L.J. 397. During the pendency of the appeal in this Court, on the 24th April 1911, the defendants instituted a suit against the present plaintiff for recovery of possession of a, large tract of land. The amalnama of the 24th January 1856 was again produced in evidence and met with the same treatment as in the previous litigation. The trial Court dismissed the suit on the 18th March 1912. An appeal was preferred to this Court but was unsuccessful. The decree of the primary Court was affirmed on the 5th July 1916, on the ground that the plaintiffs had not established that they had a subsisting title to the lands in dispute. During the pendency of the appeal to this Court, the present suit was instituted on the 10th November 1915; as already stated the trial Court has given the plaintiffs a decree on the 28th February 1920.

3. In the present case, the decision rests primarily upon the solution of the question whether the amalnama, which has again been produced in evidence, is or is not a genuine document. The Subordinate Judge has, come to the conclusion that its genuineness had not been established. The appellants have contended that the Subordinate Judge has not proceeded in accordance with Section 90 of the Indian Evidence act. That section provides that ' Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document which purports to be in the handwriting of any particular person is in that person's handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the person by whom it purports to be executed and attested.' The appellants have urged that it was open to the Subordinate Judge to presume that the document was executed by the person by whom it purports to have been executed seeing that it purport to be more than 30 years old and was produced from custody which was unquestionably proper. Their grievance is that it was not till the judgment was delivered that they discovered that the Court was not prepared to consider the document to be genuine under Section 90 of the Indian Evidence Act. In this connection reference has been made to the decision in Ramuvien v. Veerappudayan [1912] 37 Mad. 455, where the language of Section 90 was interpreted and the practice to be followed in cases of this description explained We are of opinion, however, that the defendants have not really been prejudiced by the course which was adopted by the Subordinate Judge. There is nothing to indicate that they had evidence at their disposal which would have enabled to establish the execution of the document. At this distance of time it is improbable that a direct evidence should be forthcoming of the actual execution of the document. The Subordinate Judge on the other hand, has given weighty reasons why the document should not be regarded as genuine. The document first saw the light on the 23rd July 1907, when it was produced in the first of the two litigations already mentioned; and though the existence of a tenure is mentioned in a conveyance dated the 16th September 1873, this document is not mentioned by date. Indeed, from the description given in the conveyance it is not possible to identify the tenure mentioned 'with that alleged to have been created by this document of the 24th January 1856. Apart from this, we have the important fact that there is no proof of possession in accordance with the amalnama'. It is well settled that mere production of an ancient document, unless supported by some corroborative evidence of acting under it is not entitled to any weight, An ancient deed must be corroborated by evidence of ancient or modern corresponding enjoyment or by other equivalent or explanatory proof; it is then presumed to have constituted part of the actual transfer of property mentioned, because this is the usual course of such transactions; in brief, though absence of proof of possession does not affect its admissibility, it undoubtedly affects the weight to be attached to the document. In this connexion, reference may be made to the case of Doe on the demise of Earl of Egremont v. Pulman [1842] 3 Q.B. 622; and the judgment of the Judicial Committee in the case of Radhamoni Debi v. Collector of Khulna [1900] 27 Cal. 943. The decision of the Judicial Committee in John King & Co. v. Chairman of Municipal Commissioners, Howrah [1914] 20 C.L.J. 407, is clearly distinguishable; there the original title deeds were not forthcoming; here the deed has been produced and disbelieved. It is of great importance that a document, which purports to be an ancient document should be corroborated by some evidence; if this is done, presumption may be made in its favour under Section 90 of the Indian Evidence Act. We are consequently not prepared to treat the amalnama as proved beyond dispute. We may add that we do not lay stress upon the circumstances that it was produced in two previous litigations and on each occasion was treated as suspicious. In favour of the defendants, this may be said that the first litigation had to be withdrawn by the plaintiffs, while in the second litigation the ultimate decision was rested upon the question of limitation. There was consequently no final adjudication as to the genuineness or otherwise of this document in either of the two suits. Nor need we emphasise the omission of mention of the tenure in road cess returns which could be admissible only against the maker: Chalho v. Jharo [1911] 39 Cal. 995; Sewdeo v. Ajodhya [1912] 39 Cal. 1005; Lachmi Prosad v. Jag Mohan [1914] 18 C.L.J. 633 But on the evidence adduced in this litigation, and in view of all the circumstance; mentioned, we are not prepared to accept the document as genuine. This disposes of the first question, namely, whether the grant alleged by the defendants is established by the amalnama produced by them.

4. We have next to consider, whether the alleged grant may be inferred from the recitals in documents of subsequent dates, which are undoubtedly genuine. Amongst such documents our attention has been invited to the conveyance of the 16th September 1873, the Osat Howla granted by the fourth and fifth defendants to Someraddi and Imamuddin on the 31st August 1886, another Osat Howlah granted by those defendants to Dulal Mridha on the 30th September 1896, the Mirash Ijara granted by Dulal Mridha to Komaruddi, on the 6th February 1897, the mortgage by Dulal Mridha in favour of Akram Ali on the 9th February 1897, the sale certificate of an execution sale of the interest of Dulal Mridha, when Abdul Somed became purchaser on the 6th December 1889, and finally, the plaint in the :suit for rent instituted on the 15th April 1909 by the second defendant and the heir; of Abdul Somed (Defendants Nos. 3 to 3 Kha) against Kamaruddi and others. No doubt, these documents contain recitals of the existence of a tenure. But, as pointed out by the Subordinate Judge, they do not recite the existence of the tenure alleged to have been created by the document of the 24th January 1856. Under the circumstances, the Subordinate Judge was, in our opinion, perfectly justified in declining to infer the existence of this document on the basis of the recitals contained in the documents mentioned.

5. The next question which requires considering is, whether the defendants have acquired the statue of a tenure-holder by adverse possession. This question had been decided in favour of the defendants by the Subordinate Judge. The principle applicable in such a case was explained by this Court in Ishan Chandra Mitter v. Raja Ramranjan Chakrabutty [1905] 2 C.L.J. 125, Possession of a limited interest, for instance, the claim to an intermediate tenure, may be just as much adverse as is adverse possession of a complete interest in the property; consequently such possession of a limited interest may be just as much adverse for the purpose of barring a suit for the determination of that limited interest as adverse possession of a complete interest in the property operate: to bar a suit for the whole property. Such adverse possession of a limited interest, however, though, a good plea to a suit for ejectment is good only to the extent of that interest. The same principle has been recognized and applied in a long series of cases: Baidu Majhi v. Raga Sri Sri Durga Prosad Singha [1904] 9 C.W.N. 292; Madhava v. Narayana [1885] 9 Mad. 244; Sankaran v. Periasami [1890] 19 Mad. 467; Seshamma v. Chickaya [1890] 19 Mad. 467; Maidin v. Nagapa [1882] 7 Bom. 96; Budesab v. Hanmanta [1896] 2l Bom. 509; Yamunabai v. Dhondi [1903] 5 Bom. L.R. 188; Subbayya v. Maddluletiah [1907] 17 M.L.J. 469; Parameswaram Mumbannoo v. Krishnan Tengal [1902] 90 Mad. 585 and Sontayana Gopala Dasu v. Inapatalupala Rami A.I.R. 1921 Mad. 410. There can be no room for doubt that the defendants have asserted the existence of the tenures now in dispute for a period longer than, 12 years to the knowledge of the plaintiffs and their predecessors-in-interest there is thus no escape from the position that they have acquired the status of a tenure-holder. But although the Subordinate Judge has decided the point in favour of defendants as regards their status as tenure-holder he has declined to give them the benefit of the principle so far as the conditions of their tenure are concerned. The appellants have contended that there is ample evidence on the record to show that the defendants claimed to have held possession not merely as tenure-holders, but as tenure-holders with the incidents and conditions specified in the document of the 24th January 1858. In this view, there is no escape from the position that the defendants have acquired a right to hold the tenure under the conditions mentioned in that document.

6. This leads us on to the question, what is the rent which the defendants are liable to pay. They are clearly liable to pay rent on the area in actual occupation on the condition specified in the document of the 24-th January 1856. Under that document, the tenure holders are entitled to hold the land at the rate of Rs. 4 per kani subject to a deduction of 3-16ths, that is to say, to a deduction of an area of 3 kanis per drone of land. The result is that the rent is payable at the net rate of Rs. 3-4 per kani.

7. We have finally to determine the area for which this rent should be assessed for the years in suit. The evidence on this point is not of a satisfactory character. But we have come to the conclusion that no useful purpose will be served by remanding the case for the purpose of an investigation as to the area in the actual occupation of the defendants during the period in suit. From the materials on the record we have found that during this period the defendants may be assumed to have been in occupation of 160 kanis of land. If the rent is assessed on this area at Rs. 3-4 per kani, the annual rent will be Rs. 520, instead of Rs. 912 as assessed by the Subordinate Judge. The defendants are consequently entitled to succeed to this extent. But we must add that the present decision as to the area is not final - it will hold good only for the years now in suit, and will not bar a future enquiry into the question of area, should such ascertainment be necessary.

8. We have not dealt with the ingenious arguments addressed to us by both sides at considerable length on an interesting point, namely, that of suspension of rent due to eviction, which would have been of importance if the amalnamah of the 24th January 1856 had been held to be genuine. In that view, a question would have arisen whether the defendants were entitled to the benefit of the principle enunciated in a long series of decisions of this Court from which we have no desire to depart: Rai Charan v. Administrator-General [1909] 36 Cal. 856; Chandrakant v. Ram Nath [1910] 11 C.L.J. 591; Rasheswari v. Saurendra [1909] 11 C.L.J 601; Zeanulla v. Sukhiannessa [1910] 11 C.L.J. 605; Sarip v. Aftab [1910] 13 C.L.J. 115; Purna v. Rasik [1910] 13 C.L.J. 119; Ashutosh v. Joy Lal [1912] 17 C.L.J. 50; Godai v. Aminuddi [1913] 18 CLJ 509; Dwijendra v. Aftab [1916] 25 C.L.J. 53; Udai v Katyayini A.I.R. 1922 Cal. 87; Nowrang v. A.J. Meik A.I.R. 1923 Cal. 41; Manindra v. Narendra [1919] 46 Cal. 956. At the same time, we must not be taken to affirm the proposition that the principle is applicable even where the tenant is found, as the result of a litigation, to have actually lost his title to a portion of the land of his tenancy by reason of the adverse possession of the grantor. No doubt, the rent remains suspended so long as eviction lasts; but the contention of the appellants goes further and implies that the covenant for quiet enjoyment continues even when the tenant's title to a portion of the land has been extinguished. This will require careful examination on principle, when the occasion arises.

9. The result is that this appeal is allowed in part and the decree of the Subordinate Judge modified. The rent will be assessed for the years decreed by the Subordinate Judge at Rs. 520 instead of Rs. 912. The parties will bear their own costs in this appeal. A self-contained decree will be drawn up in this Court. The order of the lower Court as to costs will stand.

10. The cross-objection has not been pressed and is dismissed without costs.


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