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Rashed Kazi Vs. Pachoo Sardar - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in42Ind.Cas.534
AppellantRashed Kazi
RespondentPachoo Sardar
Cases ReferredHari Mohan Pal v. Atul Krishna Bose
Excerpt:
bengal tenancy act (viii b. c. of 1885), sections 49, 85 - permanent sub-lease granted by raiyat, admissibility of--rights of parties--custom--raiyat, whether can create permanent under-lease. - .....placed much stress on, and that is the question as regards the admissibility of the permanent underlease in evidence. dr. kanjilal's view is this: that although the three decisions that i have already referred to state-that the document is not admissible in evidence, that decision is subject to this qualification that a raiyat may by custom have a right to create a permanent under-lease. it is dear that he may have. dr. kanjilal's view is, therefore, that first the lease ought to be given in evidence and then it ought to be seen whether the custom to grant a permanent sublease has or has not been established. 'with all due respect, that seems to me to be placing the cart before the horse, that is not the regular way in which judicial proceedings are conducted that the court should, first.....
Judgment:

Fletcher, J.

1. This is an appeal by the defendant against a judgment of the learned District Judge of Khulna, dated the 25th July 1916, affirming the decision of the Munsif at Bagarhat. The suit was a suit brought by a raiyat to eject an under-raiyat. The defence was that the defendant held under a permanent sub-lease. The question as to the validity of a document like this between a raiyat and an under-raiyat has been the subject of judicial decision on many occasions in this Court. The later course of decisions, however, turns on a point that did not find a place nor was considered in the earlier judgments. The earlier judgments were not all one way, but there was no doubt a considerable body of authority for saying that the under-lease was good between the raiyat and the under-raiyat. The later cases, as I have said, were decided on different grounds, and they were decided on this ground that the under-lease was inadmissible in evidence and could not be looked at to enable the Court to adjudicate on the rights of the parties. The first case in which that view was taken was the case of Jarip Khan v. Durfa Bewa 15 Ind. Cas. 476: 17 C. W. N. 59: 16 C. L. J. 144. That was followed in the case of Telam Pramanik v. Adu Sheik 18 Ind. Cas. 791: 17 C. W. N. 468. The latter case is interesting, because the Senior Judge on the Bench who decided ; the case of Telam Pramanik v. Adu Sheik: 18 Ind. Cas. 791: 17 C. W. N. 468, was Mr. Justice Carnduff who had been a party to one of the decisions that are principally relied on by the appellant's Vakil in this case. The case was further followed in Mohim Chandra Dey v. Baidya Nath Kapali 29 Ind. Cas. 879: 21 C. L. J. 478. As far as 1 know, after the date of the decision of the case of Jarip Khan v. Duff a Bewa 15 Ind. Cas. 476: 17 C. W. N. 59: 16 C. L. J. 144, there is no case in which it has been held that a ' permanent sub-lease granted by a raiyat is admissible in evidence. If it is not admissible in evidence, the rights of the parties cannot be adjudicated on with reference to that document. We have been asked to refer the case to a Full Bench. But the decision in Jarip Khan v. Durfa Bewa 15 Ind. Cas. 476: 17 C. W. N. 59: 16 C. L. J. 144. Has been followed on more than one occasion and the learned Judges who decided the subsequent cases did not consider that the point required the decision of a Full Bench. The learned Judges, I suppose, who decided these cases came to the conclusion that this point was a new point that had not been before the Court in the earlier oases and that, if it had been, the Court would have arrived at a different conclusion. However, as the other Benches consisting of other learned Judges saw no difficulty in following the case of Jarip Khan v. Durfa Bewa 15 Ind. Cas. 476: 17 C. W. N. 59: 16 C. L. J. 144, in other cases, I do not think we ought to refer the matter to a Fall Bench.

2. The next point that has been raised: would seem to be a much better point if disentangled from the argument made by the learned Vakil for the appellant with regard to it. The present plaintiff stated that within the jurisdiction of a particular Police station there was a kaimi jama belonging to the plaintiff. The suggestion was put forward before us that kaimi jama meant fixed rent. A fixed rent could not be within the limits of the jurisdiction of a Police station. It obviously meant that there was a permanent holding. The point, that has been made is this: That the lower Appellate Court has only found the plaintiff in the present case to be a raiyat. It may be said that he was raiyt holding at a fixed rate of rent and, if he was a raiyat holding at a fixed rate of rent, he would be able to create a permanent under-lease having repard to the terms of Section 18 and Section 85 of the Bengal Tenancy Act. In support of that, Dr. Kanjilal relied on the case of Hari Mohan Pal v. Atul Krishna Bose 32 Ind. Cas 503: 19 C. W. N. 1127. That, I think, would have been the best point in the case if it had been raised in the grounds of appeal either here or in the lower Appellate Court. The learned gentlemen who drew up the grounds of appeal in the lower Appellate Court and this Court did not challenge the judgment appealed against on the ground that it was erroneous in finding that the plaintiff was a raiyat, and, therefore, not able to grant a permanent lease but their ground of appeal was that the plaintiff ought to have been found to be a tenure-holder and the defendant a raiyat. We cannot go into this point which has never been gone into during the course of these proceedings.

3. There is another point that Dr. Kanjilal seems to have placed much stress on, and that is the question as regards the admissibility of the permanent underlease in evidence. Dr. Kanjilal's view is this: that although the three decisions that I have already referred to state-that the document is not admissible in evidence, that decision is subject to this qualification that a raiyat may by custom have a right to create a permanent under-lease. It is dear that he may have. Dr. Kanjilal's view is, therefore, that first the lease ought to be given in evidence and then it ought to be seen whether the custom to grant a permanent sublease has or has not been established. 'With all due respect, that seems to me to be placing the cart before the horse, that is not the regular way in which judicial proceedings are conducted that the Court should, first of all, let in all documents that are prima facie inadmissible in evidence and then see whether a party can establish certain particular exceptions which would entitle him to arive in evidence documents which under the general rule are not admissible. It is clear and well established in the course of proceedings in Courts of Law, that a party should, first of all, give prima facie proof entitling him to give a document in evidence. You cannot hand over a document and read it and then say that the document is admissible in evidence.

4. The last point is as regards Exhibit A, a lease which cannot be looked at. It is said that the defect, if any, is cured by part performance and, therefore, the Court ought to admit the document in evidence. That document, according to the view that has been taken in the case, is not admissible in evidence. Because some money or some rent has been paid under the terms of that document does not assist the appellant at all. An under-raiyati tenancy is liable to be determined by notice to quit and it has been found in this case that such notice has been given.

5. The present appeal fails and must be dismissed with costs.

Newbould, J.

6. I agree.


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