1. The dispute in this case relates to a tank.
2. The appellants before us claim to have purchased it as part of Howla Hurai Shaik; the defendants, on the other hand, claim it as part of Howla Golam Nabi.
3. The Court of first instance held that the tank belonged to both the howlas and accordingly gave a decree to the plaintiff in respect of an eight-annas share. Both parties appealed and the learned Subordinate Judge on appeal same to the conclusion that the plaintiff had failed to make out his right to the disputed tank and dismissed the suit entirely. The plaintiffs have preferred an appeal to this Court.
4. Three contentions have been raised before us in this appeal. The first is that the learned Subordinate Judge has failed to consider the sale-certificate, which was one of the matters relied upon by the Court of first instance in giving a decree to the plaintiff in respect of his eight-annas share. We think that the sale-certificate ought to have been taken into consideration along with the other evidence in the case.
5. It is contended by the learned Pleader for the respondent that the learned Judge has proceeded upon the ground that the original document of title of the plaintiff's predecessor in-title, namely, the kabala relating to Hurai Shaik, bad not been produced, that the learned Subordinate Judge has relied upon that fact, as also upon the fact that the plaintiff had not taken any steps to have the entry in the Record of Rights which was against him, corrected up to the institution of the suit and that it was unnecessary to refer to the certificate of sale because the origin of title is not the sale certificate but the kabala relating to Hurai Shaik.
6. The Court below no doubt referred to certain facts and circumstances which go against the plaintiff; but in arriving at the conclusion whether the property in dispute belonged to the one howla or the other and in reversing the decree of the Court of first instance, the lower Appellate Court ought to have taken into consideration the certificates of sale of both the parties (along with the other evidence) which, as stated above, were relied upon by the Court of first instance.
7. The next contention is that the presumption under Section 103(b) of the Bengal Tenancy Act cannot be raised in respect to the tank, as the land is non agricultural land within the Barisal Municipality. But in the first place, there is no clear finding that the land is non-agricultural; and even if it is so, the learned Subordinate Judge has not proceeded upon any presumption based upon any entry in the Record of Rights, but has merely referred to the fact that although there is an entry in the Record of Rights, the plaintiff did not take any steps to have that entry, which is now challenged, corrected.
8. The last contention is that no presumption arises against the plaintiff for non-production of the original title-deed relating to Howla Hurai Shaik as the document was not called for from the plaintiff.
9. But that is the origin of the title under which the plaintiffs claim, and the Court of Appeal below might draw the inference that if this document had been produced, it would have gone against them.
10. We do not think, therefore, that the last two contentions should prevail. But we think that the case should go bask to the lower Appellate Court for a consideration of the sale certificates along with other evidence in the case and for disposal of the case according to law.
11. Costs will abide the result.