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Rajah Makund Deb Vs. Gopi Nath Sahu and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1914Cal836,25Ind.Cas.286
AppellantRajah Makund Deb
RespondentGopi Nath Sahu and ors.
Cases Referred(P.C.) and Hari Mohun v. Surendra Narayan Singh
Excerpt:
document, construction of - words, meaning and effect of--question of fact or law--appeal, second. - .....hand, in the case of sara sundar v. basunta kumar 9 c.w.n. 154 where a question arose as to the legal effect of a deed of dedication of endowed property, namely, whether the property became the absolute debutter of the deity or retained its secular character in the hands of the shebait, though subject to a religious charge, the matter was treated as one of law. there can, in our opinion, be no room for controversy as to the correctness of the principle which was accurately formulated by sir richard couch, though there may have been occasionally a loose application of the rule. as lindley, j., put it in chatenay v. brazilian submarine telegraph co. (1891) 1 q.b. 79 at. p. 85 : 60 l.j.q.b. 295 : 63 l.t. 739 : 39 w.r. 65, the expression 'construction' as applied to a document includes.....
Judgment:

1. This is an appeal by the plaintiff in a suit for declaration of title to land and for ejectment of the defendants or, in the alternative, for assessment of fair rent payable by them. Defendants resisted the claim for ejectment and contended, that as they were permanent tenure-holders under the plaintiff, the rent was not liable to enhancement. The Courts below have concurrently dismissed the suit. The District Judge has held that there was a strong body of documentary evidence to show that the defendants and their predecessors had been continuously recognised as holders of a permanent tenure from before 1837 and that there was no relevant evidence inconsistent with the existence of the tenure. The nature of the documentary evidence, upon which the Courts below have relied, may be briefly described. The first piece of documentary evidence in order of time is a Settlement field book dated the 10th February 1837, in which it is, recorded that village Satrapur, now in dispute, was held by the predecessors of the defendants as mokaddamis. The term mokaddami is applied to the, interest of those who collected rent under Muhammadan Rulers. The use of the word in the particular document in this sense is confirmed by the descriptions of the predecessors of the defendants as malguzardar or sarbarakar in a Settlement robakari dated the 30th April 1841. The Courts below have concurrently held that these documents, prepared at a time when there was apparently no dispute between the parties, furnished valuable evidence of a mokaddami tenure in the village in suit, which was in existence 70 years before the commencement of this litigation and was held at the time by persons now represented by the defendants. The Courts below have also relied on two judgments, original and appellate, dated the 28th May and 20th November, 1839, respectively, passed in a suit in which the existence of the mokaddami tenure was asserted though unsuccessfully. The next document is a sale certificate dated the 11th August 1853 by which the sarbarakari tenure was sold in execution of a decree and was purchased by the ancestor of the defendants. Next year, the predecessor of the plaintiff, in execution of a decree for arrears of rent against the original holders of the sarbarakari tenure, attached the property and got a sale proclamation issued on the 27th April 1854. The sale was apparently averted by the purchaser at the prior execution sale, and he and his successors continued in occupation of the tenure by payment of rent to the predecessors of the plaintiff. In 1894 the holders of the tenure effected a partition of the lands under an award of arbitrators dated the 28th December 1894. The tenure was divided into two unequal shares with different rentals, and this sub-division was sanctioned by a robakari dated the 7th September 1896, signed by the manager of the plaintiff landlord. Lastly, in 1897, the defendants, who are the present holders of the two fragments of the original tenure, were recorded on the settlement proceedings as sarbarakan. On a review of this evidence supplemented by oral evidence of possession and payment of rent the Courts below have held that the tenure set up by the defendants had a lawful origin and a real existence from before 1837, and that they are not trespassers but permanent tenure holders. On second appeal an earnest endeavour has been made to assail this finding on the ground that it is based on an erroneous construction of the documentary evidence on the record. In our opinion, no question of construction of documents such as may be raised and examined in an appeal from appellate decree arises in the present case, but as the contrary view has been strenuously supported, it is desirable to reiterate the principle applicable to cases of this character.

2. In the case of Nowbut Singh v. Chutter Dharee Singh 19 W.R. 222 Sir Richard Couch, C.J., laid down the fundamental principle that the misconstruction of a document which is the foundation of the suit, being in the nature of a contract or a document of title, is a ground of special appeal; but special appeal does not lie because of a mistake as to the meaning of some portion of the evidence which is in writing, if it is connected with other evidence affecting, its construction. This view was possibly not quite in harmony with that indicated in Lalla Imrit Lall v. Mahomed Lallzamah 18 W.R. 447, but is in accord with the rule laid down in Udit Narain v. Maheswar Bux Agra H.C.R. (F.B.) 32, Himmat Ali v. Nyamutoolla 23 W.R. 250 and Bungshee Dhur v. Madhoo Soodun 23 W.R. 406. No useful purpose would be served by a detailed examination of all the cases in which the rule laid down by Sir Richard Couch has been strictly applied, but reference may be made, amongst other cases, to the decisions in Shib Chandra v. Chandra Narain 32 C. 719 : 1 C.L.J. 232, Ananda Chandra v. Parbati Nath 4 C.L.J. 198, Dursun Singh v. Durbijoy Singh 1 Ind. Cas. 530 : 9 C.L.J. 623, Braja Mohun v. Thakur Das 4 Ind. Cas. 732 : 10 C.L.J. 593, Buzlul Karim v. Satish Chandra Giri 10 Ind. Cas. 325 : 13 C.L.J. 418 : 15 C.W.N. 752, Sat Benode Behari v. Rai Pasupati Nath 4 Ind. Cas. 329 : 13 C.W.N. 105 and Madan Mohan v. Manmatha Nath 13 Ind. Cas. 425, where an unsuccessful attempt was made to obtain a reversal of the decision of the lower Appellate Court on the ground that it was based on a misconstruction of documentary evidence. On the other hand, in the case of Sara Sundar v. Basunta Kumar 9 C.W.N. 154 where a question arose as to the legal effect of a deed of dedication of endowed property, namely, whether the property became the absolute debutter of the deity or retained its secular character in the hands of the shebait, though subject to a religious charge, the matter was treated as one of law. There can, in our opinion, be no room for controversy as to the correctness of the principle which was accurately formulated by Sir Richard Couch, though there may have been occasionally a loose application of the rule. As Lindley, J., put it in Chatenay v. Brazilian Submarine Telegraph Co. (1891) 1 Q.B. 79 at. p. 85 : 60 L.J.Q.B. 295 : 63 L.T. 739 : 39 W.R. 65, the expression 'construction' as applied to a document includes two tilings, first, the meaning of the words and, secondly, their legal effect or the effect which is to be given to them. The meaning of the words is a question of fact in all cases, whether we are dealing with a poem or a legal document, the effect of the words is a question of law. Consequently where the document is of such a character that it does not create, modify or extinguish the rights and obligations of the parties or otherwise affect their status, no question of its legal effect arises and consequently the construction of such a piece of documentary evidence does not raise a question of law. This is well illustrated by several cases decided by their Lordships of the Judicial Committee. In Lachman Lal v. Kanhaya Lal 22 I.A. 51 : 22 C. 609 (P.C.) documentary evidence was adduced to prove the factum of an adoption. Lord Bhand held that the question was not, one of construction of one or more deeds which would be a question of law, but was a question as to the effect to be given to decrees, leases and other documents as evidence of the fact of adoption and its consequences. Again, in Mayandi Chettiar v. Chokalingam Pillai 31 I.A. 83 : 27 M. 291 : 8 C.W.N. 545 : 19 M.L.J. 200 (P.C.), where their Lordships reversed the decisions of the Madras High Court in Chokalingam Pillai v. Mayandi Chettiar 19 M. 485 : 6 M.L.T. 247, the question was raised whether the transaction evidenced by a muchilika deed was a new grant or a confirmation with modification of a previous grant. Sir Andrew Scoble held that this was a question of the legal effect of the deed on which the title of the parties rested and was a question of law, upon which their Lordships disagreed with the Judges of the High Court. In the case of Lala Fateh Chand v. Rani Kishen Kaur 16 Ind. Cas. 67 : 39 I.A. 247 at p. 255 : 17 C.L.J. 1 (P.C) : 16 C.W.N. 1033 : 23 M.L.J. 330 : 12 M.L.T. 413 : (1912) M.W.N. 1065 : 10 A.L.J. 335 : 14 Bom. L.R. 1090 : 34 A. 579 where the question in controversy was, whether the plaintiff had a proprietary title to the lands in suit, the construction of a Wajib-ul-arz, which had been prepared by the Settlement Authorities and which contained a Record of the Rights of the proprietors and the tenants, was treated as a question of law, on which their Lordships agreed with the Judges of the High Court; Kishen Kunwar v. Fateh Chand 29 A. 203 : 4 A.L.J. 38 : A.W.N. (1906) 307. This case may possibly bo regarded as just on the border-line, because in proof of their title, the plaintiff relied not only on the Wajib-ul-urz, but also on other documentary evidence which could not be properly called documents of title. Besides, the earlier decisions of the Judicial Committee in Muhammad Imam All Khan v. Husain Khan 25 I.A. 161 at p. 169 : 26 C. 81 (P.C) : 2 C.W.N. 737, Parbati v. Chandrapal 4 Ind. Cas. 25 : 36 I.A. 125 : 31 A. 457 : 10 C.L.J. 216 : 13 C.W.N. 1073 : 6 A.L.J. 767 : 11 Bom. L.R. 890 : 12 O.C. 304 : 19 M.L.J. 605 : 5 M.L.T. 427 (P.C.), Thahur Anant Singh v. Thakur Durga Singh 6 Ind. Cas. 787 : 37 I.A. 191 : 32 A. 363 : 12 C.L.J. 36 : 14 C.W.N. 770 : 7 A.L.J. 704 : 12 Bom. L.R. 504 : 8 M.L.T. 79 : 20 M.L.J. 604 : 13 O.C. 163 (P.C) : (1910) M.W.N. 321 and Lali v. Murlidhar 33 I.A. 97 : 28 A. 488 : 3 A.L.J. 415 : 10 C.W.N. 730 : 8 Bom. L.R. 402 : 3 C.L.J. 594 : 1 M.L.T. 171 indicate that as to some of the entries, at any rate, in a Wajib-ul-urz the question may be, not of construction in the strict sense, but only of evidentiary value. The case of Nilmoni Singh v. Kirti Chunder 20 I.A. 95 : 20 C. 847 (P.C.) is clearly distinguishable, as the question there related to the limits of the powers of the Judicial Committee in the hearing of an appeal when there are concurrent findings of fact by two Indian Courts; such powers, though artificially restricted by well-recognised rules of practice, are still wider than those of a Court of second appeal. To put the matter briefly, if there is a question of the legal effect of a deed or of a legal inference to be drawn from, the facts found, there is a good ground of second appeal. This is conclusively shown by the decisions in Sevvaji v. Chinna Nayana Chetti 10 M.I.A. 151 at p. 164 : 2 Sar. P.C.J. 88 : 19 B.R. 929, where the question arose whether a transaction could be treated as a mortgage when its alleged character as a sale had not been established, Lachmeshwar Singh v. Manowar Hossein 19 I.A. 48 (P.C.) : 19 C. 253 and Ramgopal v. Shamaskhaton 19 I.A. 228 : 20 C. 93 (P.C.), where the question arose whether the possession was of an adverse character, Rampal Singh v. Balbhadar Singh 29 I.A. 203 : 25 A 1 : 4 Bom. L.R. 832 : 6 C.W.N. 849 (P.C.), where the question arose whether knowledge of facts on the part of an agent could be imputed to the principal, Mohoram Sheikh v. Telamuddin 13 Ind. Cas. 606 : 15 C.L.J. 220 : 16 C.W.N. 567, Krishna Kishore v. Mir Mahomed Ali 3 C.W.N. 255, Sulatn Das v. Jadu Nath 8 C.W.N. 774 (F.B.),Maruti v. Banubai 4 Bom. L.R. 801, where the question arose whether a tenant was of a temporary or of a permanent character, and Girdhar Das v. Ram Autar Singh 8 C.W.N. 690 where the question arose whether a prior charge had been kept alive or extinguished. The, case of Rajaram v. Ganesh Hari 21 B. 91, where the question arose whether existence of title could be inferred from acts of ownership, which was treated as a mixed question of law and fact, may possibly be deemed to lie on the border line. We hold, accordingly, that unless there is a question of the legal effect of a deed which may be treated as a document of title or embodies a contract or is the foundation of the suit, a second appeal does not lie. A second appeal is not admissible merely because some portion of the evidence is in writing of which the meaning has been mistaken by the lower Appellate Court: Pertap Chunder v. Mohendra Nath 16 I.A. 233 : 17 C. 291 (P.C.) : 13 Ind. Jur. 370 : 5 Sar. P.C.T. 444, Durga. Chowdhrani v. Jowahir Singh 17 I.A. 122 : 18 C. 23 (P.C.), Ramratan v. Nandu 19 I.A. 1 : 19 C. 249 (P.C.), Lachman Lal v. Kanahaya Lal 22 1. A. 51 : 22 C. 609 (P.C.), Shivabasava v. Sangappa 31 I.A. 154 : 29 B. 1 : 6 Bom. L.R. 770 : 8 C.W.N. 865 : 1 A.L.J. 637 (P.C.) and Hari Mohun v. Surendra Narayan Singh 34 I.A. 133 : 34 C. 718 : 2 M.L.T. 399 : 11 C.W.N. 794 : 4 A.L.J. 497 : 6 C.L.J. 19 : 9 Bom. L.R. 750 : 17 M.L.J. 361 (P.C). In our opinion, the decision of the District Judge does not involve any error of law and there is no ground for this second appeal.

3. The result is that the decree of the District Judge is affirmed and this appeal dismissed with costs.


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