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Anukul Chandra Dhar Vs. Kamala Kanta Roy and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1923Cal270,67Ind.Cas.787
AppellantAnukul Chandra Dhar
RespondentKamala Kanta Roy and ors.
Cases ReferredGujia Lall v. Fatteh Lall
Excerpt:
evidence - ex parte rent decree--evidence of relation of landlord and tenant--evidence act (i of 1872), sections 11 and 13--relevant fact--ejectment suit by landlord--defendant claiming occupancy rights as being in possession for 2 years after abandonment by recorded tenant--rent-decree obtained by landlord against heirs of recorded tenant within 12 years of suit, admissibility of. - .....of a certain ex parte rent-decree passed in the year 1912 against the heirs of the recorded tenant rafi mahomed. it is urged on behalf of the appellant that as he was not a party to this decree it cannot be used in evidence against him and it has been further urged that, even if it is admissible in evidence, it is only admissible with regard to the fact that such a decree was in fact passed. we should say that, although the decree was an ex parte decree, it was satisfied by payment of the decretal amount. now, the learned vakil for the appellant in support of his argument with regard to the non-admissibility of the ex parte decree referred to the case of ram narain rai v. ram coomar chunder poddar 11 c. 562 : 5 ind. dec. (n.s.) 1133, as against this it has been pointed out that that.....
Judgment:

1. This is an appeal by the defendant against a decision of the Additional District Judge confirming a decision of the Munsif. The suit out of which this appeal arises was brought by a co-sharer landlord to recover khas possession from the purchaser of a non-transferable occupancy holding. The defence alleged was that the defendant had been in possession of the holding for a period of some 16 or 17 years and that, under the circumstances, the plaintiff could not recover khas possession but could only get rent. The only question that really arises in the appeal is with regard to the admissibility of a certain ex parte rent-decree passed in the year 1912 against the heirs of the recorded tenant Rafi Mahomed. It is urged on behalf of the appellant that as he was not a party to this decree it cannot be used in evidence against him and it has been further urged that, even if it is admissible in evidence, it is only admissible with regard to the fact that such a decree was in fact passed. We should say that, although the decree was an ex parte decree, it was satisfied by payment of the decretal amount. Now, the learned Vakil for the appellant in support of his argument with regard to the non-admissibility of the ex parte decree referred to the case of Ram Narain Rai v. Ram Coomar Chunder Poddar 11 C. 562 : 5 Ind. Dec. (N.S.) 1133, As against this it has been pointed out that that decision is based upon the Full Bench case of Gujia Lall v. Fatteh Lall 6 C. 171 : 6 C.L.R. 439 : 3 Shome L.R. 132 : 3 Ind. Dec. (N.S.) 112 referred to at page 566 of the judgment and that the case of Gujia Lall v. Fatteh Lall 6 C. 171 : 6 C.L.R. 439 : 3 Shome L.R. 132 : 3 Ind. Dec. (N.S.) 112 has been considerably modified by recent decisions of the Judicial Committee; and we were farther referred in answer to the appellant's contention as to the non-admissibility of the decree to Section 11 and also to Section 13 of the Indian Evidence Act, it being urged that the ex parte decree is admissible in evidence to show the existence of the relevant fact of the existence of the tenancy of Rafi Mahomed as lately as the year 1912 and, accordingly, the landlord's rights as arising from such tenancy. We think that these arguments are well-founded and that the ex parte decree has rightly been admitted in evidence to show that there was no abandonment of the tenancy by Rafi Mahomed or his heirs prior to the year 1912. It may be that, as licensee or otherwise, the appellant was in possession for the period stated, namely, 16 cr 17 years, but that is not, in our opinion, sufficient. It must be shown that the appellant has been in possession for a period of mote than 12 years after Rafi Mahomed abandoned the tenancy.

2. It appears to us, therefore, that there is satisfactory evidence that, as lately as 1912, Rafi Mahomed, or, rather, his heirs were paying rent in respect of the land and occupying the position of tenants. This being so, we think both the lower Courts have rightly decided in favour of the plaintiff's contention and have passed the decree for khas possession.

3. The appeal, accordingly, fails and must be dismissed with costs.


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