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Shashi Bhusan Dhur and ors. Vs. Istismam-ul-mulk Rats-ud-dowa Amir-ul-umrah-nawab Asid Kabir Syed Sir Wasif Ali Mirza Khan Bahadur Jung, K.C.S.i., K.C.V.O., Nawab Bahadur of Murshidabad and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in49Ind.Cas.951
AppellantShashi Bhusan Dhur and ors.
Respondentistismam-ul-mulk Rats-ud-dowa Amir-ul-umrah-nawab Asid Kabir Syed Sir Wasif Ali Mirza Khan Bahadur J
Excerpt:
murshidabad act (xv of 1891), section 3, notification under, whether conclusive proof of matters contained in it - evidence act (i of 1872), section 13--map prepared by private party long before suit, whether admissible. - .....case the learned vakil for the appellant has relied upon two points. the first point is that the learned subordinate judge's finding as to the effect of section 3 of the murshidabad act, xv of 1891, is incorrect. as regards that matter i agree with the learned subordinate judge, and i think that by reason of section 3 the notification of march 1900 was conclusive proof of all the subject-matter of the notification, and in my judgment the area--which is mentioned in the notification--of 514 bighas is part of the subject-matter of the notification; and consequently upon that point, namely, whether the holding of the plaintiff was of 514 bighas or of 344 bighas, i think that the notification by reason of section 3 is conclusive and that the holding must be taken as 514 bighas.2. the.....
Judgment:

Lancelot Sanderson, C.J.

1. In this case the learned Vakil for the appellant has relied upon two points. The first point is that the learned Subordinate Judge's finding as to the effect of Section 3 of the Murshidabad Act, XV of 1891, is incorrect. As regards that matter I agree with the learned Subordinate Judge, and I think that by reason of Section 3 the notification of March 1900 was conclusive proof of all the subject-matter of the notification, and in my judgment the area--which is mentioned in the notification--of 514 bighas is part of the subject-matter of the notification; and consequently upon that point, namely, whether the holding of the plaintiff was of 514 bighas or of 344 bighas, I think that the notification by reason of Section 3 is conclusive and that the holding must be taken as 514 bighas.

2. The second point urged by the learned Vakil was that the Subordinate Judge's finding of fact, namely, that the 18 bighas 18 cottas appertained to the holding of the 514 bighas, was incorrect, being based upon evidence which was inadmissible; and his chief attack was directed to the map which is alleged to have been made by one Gopal Chandra Banerji in the year 1893.

3. In my judgment the learned Vakil's point as regards this map is a good one. The evidence that we have before us is that it was made in 1893 and some persons are alleged to have pointed out to Gopal Chandra Banerji the boundaries; and, certain assumptions have been made that the map was made for the purpose of an application being made by the plaintiff to the Government of India, under the 1891 Murshidabad Act, by reason of which a notification was subsequently made. I do not see how we are entitled to draw that assumption; and, under the circumstances I am not prepared to hold that the map which was made in 1893 should be admitted in evidence under Section 13 of the Evidence Act as contended by the learned Vakil for the respondent. We do not know the circumstances under which that map was made. In my judgment it is impossible for us to say whether it was a transaction by which a right was recognised or asserted. Consequently, I do not think that the judgment of the learned Subordinate Judge can on this part of the case be supported. The judgment, as I have already mentioned, is really based upon the map, although reference was made to a map which was made by the Civil Court Commissioner who was deputed to make a local investigation; but the Commissioner in his report to a large extent relied upon and acted upon the map which bad been made by Gopal Chandra Banerji in 1893, so that really the two matters either stand or fall together. In this view of the case I am of opinion that we are compelled to remand this case for a further consideration by the learned Judge upon the second point because it is clear to me, on reading the judgment of the learned Munsif, that there was some evidence of the plaintiff or his predecessor having been in possession of the land in question--there was some evidence as to his servants having cut or sold timber upon some part of the land in question but unfortunately there is no specific finding of fact upon this evidence.

4. We, therefore, set aside the judgment and decree of the learned Subordinate Judge and remand the case to the lower Appellate Court to decide in accordance with the above observations, the question whether the land in dispute appertains to the plaintiff's holding of 514 bighas and dispose of the appeal accordingly.

5. Costs throughout will follow the event.

Panton, J.

6. I agree.


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