1. This appeal has been very ably and closely argued. The plaintiffs sued the Chitpore Golabari Company Limited, by a suit which, as originally framed, prayed for a declaration of the plaintiff's title in addition to a decree for Rs. 33 being the arrears of rent due to the plaintiffs in their 12-annas share in certain property. The property actually in dispute is the property in Schedule Kha of the plaint; but the property in that schedule is also included in Schedule Ka of the plaint. The plaint is an elaborate document and a very favourable specimen of the pleadings in the lower Courts. It sets out very elaborately the history of the plaintiff's title to the land and also of the alleged tenant right of the defendants. Objection was taken to a suit constituted in that way for declaratory reliefs, amongst other things, on the question of title, being brought before the learned Munsif whose jurisdiction was limited to Rs. 1,000. The learned Munsif, by an order which has been criticised for ambiguity, appears to have directed that the plaint should be treated as amended by omitting the prayer for declaration of title and he in. the end added a 17th issue to those already framed which really covers in itself the whole ground between the parties on the footing that the suit was a mere rent suit. That is: Does the relationship of landlord and tenant subsist between the parties in respect of the lands in suit?' It is quite clear that this suit must now be treated as being, from first to last, a mere rent suit and any declaration that can possibly be given in the suit must be one wholly ancillary to the question of the defendant's liability for the rent claimed.
2. In a rent-suit there is no rule of law that questions of title which require to be determined are not to be determined; but there are two reasons why, in general questions of title as between the plaintiff and third persons do not require to be determined. The first reason is that for a claim, to rent as distinct from damages mere proof of the plaintiff's title is not sufficient. The second reason is that the plaintiff who as against the third person has no title may have a perfectly good claim, against the tenant whom he has inducted, for rent. Accordingly, between the landlord and the tenant the question of relationship subsisting between them and the question of the plaintiff's or anybody else's title are distinct questions though they may, for accidental reasons, become entangled.
3. Now, in this case, the learned Judges of both the Courts below have utilized the circumstance that the parties had stated in detail their differences in the form of numerous issues to enable them to deal with the matters in dispute under the headings of different issues. But, in strictness, in such a case as the present, the treatment of these questions of title arising incidentally as independent and substantive issues is wrong. They are matters bearing upon the sole issue, the question of relationship between landlord and tenant. Not all of them were necessary for the decision of the case but most of them were necessary and lay absolutely in the way, having to be disposed of before the case could be properly decided.
4. In the end, the learned Judge of the lower Appellate Court has done this. He has traced back the plaintiffs' title to certain people of the name of Santras. He has traced back the defendants' title in respect of the lands in dispute to a certain Haridhan Dutt. He has found that Haridhan Dutt in his days did pay rent to the Santras for the lands in suit. He has, therefore, affirmed the relationship of landlord and tenant and has given to the plaintiffs a decree for the amount of rent, that is the plaintiffs correct proportion of the rent which Haridhan Dutt used to pay. In these circumstances, Babu Brojolal Chuckerbutty who appears for the defendants-appellants has taken objections which may be put under three headings.
5. He first says that all these different issues framed as such and incidentally decided by the lower Courts constitute a grievance to his client because they affect his title beyond what was necessary and proper in a rent suit; and that, as the record stands, in any subsequent contest, his client will be very much more embarrassed by the record in this case than he would have been, if the 17th issue had been treated as the only issue.
6. Now, so far as that is concerned, it is enough to say that, speaking for myself, I am satisfied that there may be, in these circumstances, some danger of an injustice. But it has to be remembered that when a case is taken from one Court to another on appeal and is finally disposed of on a particular ground and that alone, no other of the grounds, though relied upon by the lower Courts, are matters of estoppel by record. In this case, my learned brother and I both desire to be plain and emphatic to the effect that the issues other than the 17th are not proceeded upon by this Court as being issues or matters substantially in controversy on their own account. We think that the only issue was the question of the relationship of landlord and tenant and, if that matter is made absolutely clear, we can safely proceed to dispose of this appeal by considering whether the question of the relationship of landlord and tenant has been satisfactorily determined according to law.
7. It was suggested that, Id the lower Appellate Court, some observations were made against the present appellants by reason that they had not shown that they paid rent to the alleged third party, the Dighapatiat Raj. It is quite plain that the correct way to decide this suit is to leave out of account altogether any question of jus tertii in the Dighapatia Raj and it does not appear that the lower Appellate Court has proceeded in that respect upon any false notion of the true frame of the case.
8. Now, the first question to deal with is this. It is said that the decision of the Courts below really makes a new case for the plaintiffs' that, according to the plaintiffs, it would appear that the defendants had not purchased, or derived title to the Kha land-the land actually in contest-that the plaintiff's' case was, so it is alleged, that the defendants were more trespassers without title; and that they prayed for a declaration of their own title on that basis and for a decree for rent by an inconsistency in the legal reasoning. Now, I do not so read this plaint. As I read the plaint, it is intended to mean that the defendants have succeeded to the interest of Haridban Dutt, that they have succeeded to his interest not only in the other lands but in this land too; but that in the defendants' conveyance there is consciously, or else by mistake, a recital to the effect that the land now in contest is not part of the land conveyed. However that may be, when the Courts came to examine into the defendant's documents, they found that, although the earlier documents did not help the plaintiffs in this matter, Exhibit 8, coming into force in 1914, showed that the defendants did purport to take an assignment of the land in suit deriving title from Haridhan Dutt.
9. In these circumstances, it does not seem to me that there was anything to preclude the lower Appellate Court from dealing with the rights of the parties according to the facts proved on the evidence.
10. The last point that requires consideration is, I think, more difficult than any of the others. It is a question of series of documents called thekas which were relied upon by the plaintiffs to show that Haridhan Dutt paid rent to the plaintiffs' predecessors, the Santras. Now, as regards those documents, they were contested altogether; that is to' say, their genuineness was disputed from the beginning. It was said that they were manufactured for the purposes of this case or some other case. It was said that this explained the reason why any previous attempt to sue for rent had not been made. It was denied that they were in the handwriting of the Santras' Gomasta. The documents were objected to when they were tendered in evidence,. and accordingly the matter was dealt with by the trial Court which found in favour of the documents. In the ground of appeal to the lower Appellate Court which we have scrutinized, we find that observations about other particular pieces of evidence were made grounds of appeal, but the question of these thekas was not mentioned specifically there at all in those grounds. When the learned Judge of the Court of appeal below came to deal with the matter, an issue (No. 6) was framed by him which gives reliable evidence, so far as it goes, of the line of argument that the appellants took: 'Are the documents used in evidence by the plaintiffs fraudulent and collusive and have they been wrongly admitted in evidence?' Assuming that the documents referred to are these thekas the appellants there were raising the whole thing over again denying the learned Judge's right to make any presumption in their favour under Section 90 of the Evidence Act and denying the proof of their genuineness; in fact, raising the original objection in its entirety.
11. The learned Judge has been, perhaps, a little unhappy in the use of the single phrase. He says that the thekas and the counterfoils of rent receipts prove beyond doubt that the appellants' predecessor paid rent to the Santras.
12. He then says: 'It is urged by the learned Vakil for the appellants that no reliance should be placed on these papers and that they have been manufactured for these suits. It is also contended that they have not been duly proved; but I cannot accede to his contentions.'
13. He then mentions that they were used and filed in some other suits long ago, that they have respectable appearance, that they are more than thirty years old, and that their custody has been proved. Then he says: 'So it may be presumed under the law that they were written in due course. After that he goes on to say that it is proved that their writers are dead and to deal with the question that the writers were the Gomastas of the Santras. He also says that some of the counterfoils of the dakhilas signed by the Santras corroborate particular entries in the thekas and he finally says: 'Considering all this I hold that those collection papers are admissible in evidence.' Now, Babu Brojalal Chuckorbutty says that, if one scrutinizes this finding, one cannot get the precise finding of fact that these documents came into existence in the ordinary course of business within the meaning of Section 32 of the Evidence Act. If that question had been specifically raised in the ground of appeal and if one could collect from the learned Judge's judgment that he was really celled upon to mention specially the question whether they wore made in the ordinary course of business or not, it might be a matter for consideration whether his statement that it may be presumed under the law that they were written in due course was sufficiently precise. But the facts were these: He was dealing with documents whose genuineness was utterly in dispute. He found that they were fairly numerous, that there were lists of tenants, lists of rents realized and all sorts of particulars and that they were documents which any Gumasta could reasonably ho presumed to have prepared in the ordinary course of his duty. If that particular point had been put to him, the learned Judge, who was satisfied of their genuineness and content to act upon it, must have found that they were prepared in the course of the business of that proprietor's estate. I cannot myself be satisfied that this criticism has any reasonable basis. It seems to me that it is very hard on litigants at the end of a long litigation to be forced to begin all over again merely because the language of the learned Judge is not absolutely in terms, on several points, with the relevant sections of the Evidence Act. Under Section 144, he was quite entitled from the circumstances to hold that be could presume and would presume that the numerous and lengthy documents such as these proved in this case to have been written by the Gumasta of the landlord and written in the ordinary course of his duty. In these circumstances, it seems to me that it would be wrong to commence this litigation over again, practically from the beginning for that would be the consequence, merely because the only phrase used by the learned Judge is that it may be presumed under the law that they were written in due course. I think, therefore, that this appeal fails and must be dismissed. On the question of declaration; I think there is sufficient reason why there should be no order made as to costs.
14. I agree.
15. For the reasons given in our judgment delivered just now in Second Appeal 1642 of 1920, this appeal fails and is dismissed without costs.