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iswar Chandra Das Sarkar and on His Death Kripamoyi Dasya and ors. Vs. Tara Nath Chakrawarti and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in1Ind.Cas.807
Appellantiswar Chandra Das Sarkar and on His Death Kripamoyi Dasya and ors.
RespondentTara Nath Chakrawarti and ors.
Cases Referred and Perma Roy v. Kishen Roy
Excerpt:
evidence act (i of 1872), section 35 - butwara chitta--admissibility in evidence--limitation--bengal tenancy act (viii of 1885) schedule iii, article 3--nature of tenancy. - .....jote the lower appellate court has given plaintiffs a decree for plots 1-5 and 8 and dismissed the suit as to plots 6, 7 and 9.3. the plaintiffs have appealed only as regards plots 6, 7 and 9.4. the defendants nos. 1 and 2 have appealed against the decree so far as it is in favour of the plaintiffs.5. with regard to plaintiff's appeal (no. 1729) the learned vakil who appeared on their he half admitted that he could not go behind the findings of the lower appellate court as to the possession of the various plots. the only point that he urged before us was that a butwara chitta of 1285 b.s. (1878), which was rejected by both courts in the absence of proof of its correctness should have been admitted, under the provisions of section 35 of the evidence act. this question is however not now.....
Judgment:

1. These are cross-appeals arising out of suit No. 678 of 1904 in the Court of the Munsif at Faridpore. The plaintiffs claimed a declaration of their jote right to the lands in suit, khas possession, mesne profits and costs. The lands consisted of 14 plots alleged by plaintiffs to form three separate jotes, the first jote comprising plots 1--9, the 2nd plots 10--13 and the 3rd plot 14. Defendants Nos. 1 and 2 are the landlords. Defendants Nos. 3--11 are sued as trespassers alleged to have possessed the plaintiffs in collusion with the landlords. The remaining defendants are tenants under the plaintiffs.

2. The Court of first instance dismissed the plaintiff's suit in Mo. The lower appellate Court upheld that decision as regards the 2nd and 3rd jotes. As regards the 1st jote the lower appellate Court has given plaintiffs a decree for plots 1-5 and 8 and dismissed the suit as to plots 6, 7 and 9.

3. The plaintiffs have appealed only as regards plots 6, 7 and 9.

4. The defendants Nos. 1 and 2 have appealed against the decree so far as it is in favour of the plaintiffs.

5. With regard to plaintiff's appeal (No. 1729) the learned Vakil who appeared on their he half admitted that he could not go behind the findings of the lower appellate Court as to the possession of the various plots. The only point that he urged before us was that a Butwara Chitta of 1285 B.S. (1878), which was rejected by both Courts in the absence of proof of its correctness should have been admitted, under the provisions of Section 35 of the Evidence Act. This question is however not now open to argument having been decided against the present contention by this Court in Mohi Chowdhry v. Dhiro Misarain 6 C.L.R. 139 and Perma Roy v. Kishen Roy 25 C. 90. The plaintiff's appeal, therefore, fails and must be dismissed with costs.

6. Coming to the defendants appeal the only point urged by their counsel is that plaintiff's suit is barred by limitation. In para. 2 of their plaint the plaintiffs say that they hold two intermediate tenures under the zamindars of Amrapur, and another ancestral old intermediate jote. The learned Subordinate Judge says. 'in the present case the plaintiffs say that the are jotidars, jote being a term used in this district to denote a tenure or an under tenure. I think it is immaterial, whether the plaintiffs are jotidars or ryots, and they would be entitled to succeed if they can show that the lands in suit form part of their jama.' He accordingly leaves open the question whether plaintiff are jotidars, i.e., tenure holders or ryots. In our opinion this question has an important bearing on the question of limitation. Indeed it is impossible to decide it without first ascertaining the nature of the plaintiffs' tenancy. On that depends the question whether they are governed by the general or the special land of limitation. We must, therefore, remand this case to the lower appellate Court for a finding on this point. The lower appellate Court may either take the evidence itself or remand the case to the Court of first instance for (lie purpose. The return with the findings of the lower appellate Court to be sent back to this Court within two months of the receipt of this order by that Court.

7. Costs of this appeal will be dealt with when the final order is passed.


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