Skip to content


Sharif-un-nessa Chowdhurani Vs. Sasadhar Moulik and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in5Ind.Cas.781
AppellantSharif-un-nessa Chowdhurani
RespondentSasadhar Moulik and ors.
Cases ReferredAbdul Rasheed v. Jogesh Chandra Roy
Excerpt:
bengal tenancy act (viii of 1885), section 103b - presumption--khatian--res judicata. - .....any opinion on the evidentiary value which the lower appellate court will have to attach to the khatian and decrees on the record and already produced; but it will be the duty of the district judge to consider the circumstances of each case, so that no doubt may remain upon the vital question, namely, the amount of rental payable by the tenant defendant to the plaintiff. this question should now be set at rest not merely for the years in suit but as a substantial issue between the parties.10. the appeals are accordingly sent back to the lower appellate court for reconsideration having regard to the observations we have made.11. we think, in the circumstances, that the parties are not entitled to call for any fresh evidence; the lower appellate court should hear and determine the.....
Judgment:

1. These are second appeals in suits to recover rents for two periods. Appeals Nos. 1141 to 1158 refer to the years 1309 to 1312, and Appeals Nos. 32 and 119 to 131 refer to the Ashar kist of 1313.

2. With reference to the suits out of which these appeals have arisen, the Court of first instance observed that the presumption of Section 103(B) of the Bengal Tenancy Act had been rebutted by the decrees produced by the defendants; and, in dismissing the appeals in these suits, the lower appellate Court states 'the defendants have filed copies of the decrees obtained by the plaintiff in 1901 which is much later than the date on which the said khatian was prepared. The plaintiff has been given decrees according to the decrees obtained by her in 1901'.

3. It is a fact that the record-of-rights under the Bengal Tenancy Act, in respect of the lands in suit, was published on the 31st December 1898. Consequently the decrees in the rent suit of 1901, were subsequent to that date, and the khatian ought to have been considered in any subsequent litigation; therefore, the presumption of Section 103(B) would naturally, we do not say that it did, operate until the Court had arrived at a couclusion in the litigation of 1901.

4. But, it is argued on behalf of the plaintiff-appellant before us that the khatian was owing to some mistake or other, not considered in the litigation of 1901, and that she is still entitled to rely on the presumption of Section 103(13); in other words the contention on her behalf is that the decrees in 1901 were not passed on a consideration of the khatian bat were given according to the rentals admitted by the several tenant defendants.

5. We allowed the hearing of these appeals to stand over in order that the judgments in the litigation of 1901 might be produced for our inspection. As already observed, the lower appellate Court arrived at its conclusion on the decrees only. We have now examined the judgments corresponding with those decrees, and it would appear that in the suits of 1901, the plaintiff did not adduce evidence and that, as a result, the suits were decreed at the admitted rates.

6. It has been urged by the tenant defendant in Second Appeal No. 1141 of 1907 that this appeal, at any rate, must fail because the decree had been passed in accordance with the khatian which was corrected by the Special Judge hearing appeals under Chapter X of the Bengal Tenancy Act. In these circumstances Appeal No. 1141 must be dismissed.

7. The other cases, however, must be remanded. The District Judge has not addressed himself to the question whether the presumption of Section 103(B) is still in operation notwithstanding the judgments in favour of the tenants in 1901. That question was not raised in that year, still less was it decided. There is evidence on the record, both in the shape of settlement papers and other decrees and judgments in rent suits between the parties, to which the lower appellate Court should now have regard.

8. In the case of Abdul Rasheed v. Jogesh Chandra Roy 11 C.W.N. 153, it was observed, (and these remarks may be a guide for the District Judge when these cases come before him) that 'if there was no settlement of rent under Chapter X of the Bengal Tenancy Act, the entry in the record-of-rights, if it was duly published, would be only prima facie evidence in favour of the landlord--evidence which may be rebutted by the tenant. But the question is whether that prima facie evidence has been so rebutted by the defendant by the production of the lease of 1273'.

9. We do not express any opinion on the evidentiary value which the lower appellate Court will have to attach to the khatian and decrees on the record and already produced; but it will be the duty of the District Judge to consider the circumstances of each case, so that no doubt may remain upon the vital question, namely, the amount of rental payable by the tenant defendant to the plaintiff. This question should now be set at rest not merely for the years in suit but as a substantial issue between the parties.

10. The appeals are accordingly sent back to the lower appellate Court for reconsideration having regard to the observations we have made.

11. We think, in the circumstances, that the parties are not entitled to call for any fresh evidence; the lower appellate Court should hear and determine the appeals on the materials already on the record.

12. The costs in each case will abide the result.

13. We have already mentioned that the decree in Appeal No. 1141 was passed in accordance with the corrected khatian. That being so, no useful purpose would be served by remanding Appeal No. 1441 (of the first group) and Appeal No. 120 in the second group. These two appeals (viz., A.C.D. Nos. 1141 of 1907 and 120 of 1908) are dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //