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Dukha Mandal and ors. Vs. W.N. Grant and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in16Ind.Cas.467
AppellantDukha Mandal and ors.
RespondentW.N. Grant and ors.
Cases ReferredRampyarabai v. Balaji Shridhar
Excerpt:
evidence act (i of 1872), sections 32, sub-section (2), 34 - jamabandi papers--entries made 70 years ago--presumption--corroboration. - .....the judge of the lower appellate court was wrong in regarding them as evidence as to the rent variation many years ago. now, in these papers, entries were made by the landlord's agent behind the back of the tenants. prima facie, they would not be evidence against the tenants, unless they were made so by statutes. the learned vakil for the respondents relies on section 32, sub-section 2, of the evidence act and contends that as they were entries made in the ordinary course of business by the landlord's agents, they become relevant as evidence against the tenants. they having been made so many years ago, it must be conceded that they were made by persons who are dead and cannot be called.4. it is argued by the learned vakil for the appellants that under that section, their value.....
Judgment:

Richard Harington, J.

1. This appeal arises out of a suit brought under Section 103 of the Bengal Tenancy Act to rectify an entry made in the Record of Eights. On the (sic), the question is whether the Judge the lower Appellate Court acted contrary (sic) in accepting jamabandi papers which produced for the purpose of showing there had been a variation in the rent in respect of the holding at a time since (sic) Settlement.

2. The tenants produced receipts for showing payment of uniform rent for 20 years. That threw on the landlords the onus of showing that there had been a variation since the time of the Permanent Settlement. They produced for that purpose certain jamabandi papers. The papers began as long ago as the year 1838.

3. The argument that has been addressed to us is that the jamabandi papers by themselves have never been treated as an independent evidence, and that, therefore, the Judge of the lower Appellate Court was wrong in regarding them as evidence as to the rent variation many years ago. Now, in these papers, entries were made by the landlord's agent behind the back of the tenants. Prima facie, they would not be evidence against the tenants, unless they were made so by statutes. The learned Vakil for the respondents relies on Section 32, Sub-section 2, of the Evidence Act and contends that as they were entries made in the ordinary course of business by the landlord's agents, they become relevant as evidence against the tenants. They having been made so many years ago, it must be conceded that they were made by persons who are dead and cannot be called.

4. It is argued by the learned Vakil for the appellants that under that section, their value cannot be put higher than what has been assigned to them by Section 34 of the Evidence Act, which made them only corroborative and not independent evidence. The first point taken is that they cannot be admitted as evidence unless it is shown that the persons who made the entries cannot be called as witnesses. But I think when the entries began as long ago as 1838 and ended only in 1882 it must be taken with regard to the bulk of the entries that the presumption is that the men who made the entries cannot be called. The entries began over 70 years before the action was tried. In my opinion that fact is sufficient to justify the Judge in treating the papers in evidence under Section 32, Sub-section 2 of the Evidence Act.

5. Then it is contended that if that be so, they cannot be put higher than that at which they have been placed by Section 34 of the Evidence Act. This question came up for decision, in the case of Rampyarabai v. Balaji Shridhar 28 B. 294 : 6 Bom. L.R. 56. In that case, it was pointed out that entries may be made evidence either under Section 32 or under Section 34 and that under Section 32, the necessity for corroboration is not imposed. I am not prepared to dissent from the reasoning in that case. I, therefore, think that the Judge is not wrong in accepting these documents as evidence of the fact that there had been a variation in the amount of rent paid for the period between the time the action was brought and Permanent Settlement.

6. It is to be observed that it is not sought in this proceeding to impose a particular liability on any person. It is only sought to show what the nature of the tenancy is.

7. On the whole, I come to the conclusion that the documents were admissible under Section 32, Sub-section 2, and that the judgment cannot be assailed on the ground that the Judge used them as evidence for the purpose of showing variation in rent.

8. The result is, the appeal is dismissed with costs.

Caspersz, J.

9. I agree.


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