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Joynal Karikar Vs. Mulluk Chand Mullick - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1926Cal509,91Ind.Cas.287
AppellantJoynal Karikar
RespondentMulluk Chand Mullick
Excerpt:
civil procedure code (act v of 1908), section 105(2) - appeal, second--remand order by consent, whether can be, objected to. - .....by the record of rights and it is said, therefore, that if any title is now sought to be made in janu, janu must show that he obtained the title by adverse possession against haran. the learned judge states that the rent receipts stand in the name of joylal and his father and that this is not inconsistent with janu and his father having any share in the holding and he goes on to state that the oral evidence in support of janu's possession is more reliable than that of the exclusive possession of the appellant. he finds as a fact that janu was in possession. it seems to us, therefore, that the entry in the record of rights has not been rebutted by the evidence adduced on behalf of the defendant. the second point, therefore, also fails.5. in the result, therefore, the appeal is dismissed.....
Judgment:

1. This is an appeal by the defendant against a decision of the Fourth Subordinate Judge of Dacca, affirming a decision of the Second Munsif of Manickgunj.

2. The facts are as follows: The suit was brought by the plaintiff-respondent for the possession of certain land. The first Court passed a decree in favour of the plaintiff but on appeal the case was remanded to the first Court in order that the plaintiff should have an opportunity of adducing evidence with regard to a certain kobala Ex. 4 in the suit. Now, it appears that at the time of the remand the defendant objected to this kobala going in evidence. But eventually by consent of both parties the case was remanded to the lower Court for a de novo trial so as to enable the plaintiff, if he could, to show that Ex. 4 was admissible under the provisions of Clause (3) of Section 32 of the Indian Evidence Act. The remand order further provided that both parties should be allowed to adduce fresh evidence. The first Court after the remand again decreed the suit in favour of the plaintiff and the second Court affirmed the decree of the first Court.

3. The first point made before us in this-appeal is that the document to which I have already referred, namely, the kobala Ex. 4 is not admissible in evidence at all as it is a conveyance by a third party to a third party and, accordingly, it is said that no statement therein with regard to the boundaries of the land, which was the point upon which the document was adduced, in evidence, is admissible as against the defendant as the document was between third parties. It seems to us, however, that this argument is not now open to the present appellant. It is true that he objected to the admissibility of the document before the remand in the lower Appellate Court on the ground that it had not been proved but eventually he consented to a remand to enable the plaintiff to show that Ex. 4 was admissible in evidence under the provisions of Clause (3) of Section 32. In these state of facts, we do not, think that it is now open to the defendant having regard to his consent to the remand and having regard to the provisions of Section 105Sub-section (2) of the C.P.C. to contend that Ex. 4 is not admissible in evidence on the grounds which I have stated. If the document was not at all admissible in evidence the appellant should have resisted the remand and should have preferred an appeal against the order of remand. Having failed to do this, it seems to us that the provisions of Section 105, Sub-section (2) are a bar to his now raising the question which he seeks to raise with regard to the admissibility of the kobala and moreover we have in addition his consent to a remand order to which I have already referred.

4. Then a second point was made with regard to the Record of Rights. The Record of Rights with regard to the land shows that the jote belonged to Haran who is the father of the appellant and that 8-annas interest belonged to Janu who is the appellant's cousin. Accordingly, therefore, the entry in the Record of Rights supported, the plaintiff's case but it is suggested that the dakhilas and also the landlord's papers which showed payment of rent by Haran have rebutted the presumption raised by the Record of Rights and it is said, therefore, that if any title is now sought to be made in Janu, Janu must show that he obtained the title by adverse possession against Haran. The learned Judge states that the rent receipts stand in the name of Joylal and his father and that this is not inconsistent with Janu and his father having any share in the holding and he goes on to state that the oral evidence in support of Janu's possession is more reliable than that of the exclusive possession of the appellant. He finds as a fact that Janu was in possession. It seems to us, therefore, that the entry in the Record of Rights has not been rebutted by the evidence adduced on behalf of the defendant. The second point, therefore, also fails.

5. In the result, therefore, the appeal is dismissed with costs.


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