1. In its original form the plaintiff's suit included a prayer for amendment of the settlement khatian in which was recorded the defendant's name as to 1/3 share of the tank in suit. But, subsequently, in the first Court, that prayer was withdrawn, and the decree passed by the Munsif, in favour of the plaintiff, was one declaring his exclusive right to the disputed tank and confirming his possession in the same. In appeal the District Judge of Tippera has affirmed that decree.
2. In second appeal, the contentions submitted on behalf of the defendant-appellant are these: first, that, inasmuch as the plaintiff's suit under Section 106 of the Bengal Tenancy Act was withdrawn, no further suit will now lie; secondly, that the defendant's name being entered as to 1/3rd share (in the khatian), the presumption is in his favour, and that it was incumbent on the plaintiff to rebut it; thirdly, that the lower Courts have erred in having regard to the qabuliat, Exhibit 1, executed by the plaintiff in favour of his landlord, because the original was not called for and it would, in any case, be irrelevant against the defendant, and, fourthly, that a suit like this is not maintainable in the Civil Court.
3. On the last contention, the weight of authority is undoubtedly opposed to the view that such a suit as this is not maintainable in the Civil Court. Among the cases, I may mention that of Mukti Nath Thakur v. Hon'ble Moharaja Rameshwar Singh Bahadur 15 C.W.N. 57 : 7 Ind. Cas. 340 (Woodroffe and Teunon, JJ.). This contention is, to some extent, connected with the first argument of the learned Vakil. The pleadings show that the defendant asserted that the plaintiff's suit was obnoxious to the plea which is called in the vernacular dobara dosh, literally, 'double fault'. On this plea the parties went to trial in the first Court as raising the plea of res judicata. It was never pleaded that the plaintiff's suit under Section 106 was withdrawn without leave to bring a fresh suit. The learned Vakil relies on Section 373 of the old Code of Civil Procedure which provided that if a plaintiff withdraws from his suit, without the permission of the Court, he shall be precluded from bringing a fresh suit for the same matter. The meaning of that section is that the plaintiff shall be precluded from bringing a fresh suit in that, or any, Court of similar or coordinate jurisdiction. It is not, in my opinion, the meaning of that section that a plaintiff, when defeated in a suit under Section 105 of the Rent Law, will be precluded from bringing his ordinary action in the regular Civil Courts. I think, therefore, there is no substance in the first and fourth arguments of the learned Vakil.
4. The second contention, as to the onus being on the plaintiff, admits of no doubt. The District Judge observed that the defendant had produced no proof whatever to show that he really had any claim whatever to it, that is, the tank. I do not think that, on that solitary statement, it can be justly urged that the District Judge threw the onus on the other side. He considered all the evidence in the case, including the qabuliat; and what weighed most with the District Judge was the fact that the plaintiff's name was entered in the landlord's sherista. In a matter of weight of evidence, the judgment of the lower appellate Court cannot be disturbed in second appeal.
5. Then, with regard to the third contention, the facts appear to be that the plaintiff, who was an illiterate tenant, swore to the terms of the contract embodied in Exhibit 1, the qabuliat which he executed in favour of his landlord. The objection taken in the first Court was that the witness, being illiterate could not prove such a document. That, of course, is beside the question. Illiterate witnesses are often called upon to produce and prove rent receipts. The main argument, however, is that it was a self-serving admission on the part of the plaintiff and cannot, therefore, benefit him, more specially, as there is no evidence that the plaintiff's landlord accepted the qabuliat. But the document, in my opinion, cannot be regarded as an admission of the plaintiff; it is, rather, a corroboration of his assertion that he was holding the entire tank under a certain person, and so it was not necessary to adduce evidence that the landlord had accepted the document. It was, nevertheless an important piece of evidence which the Courts below have regarded in arriving at the conclusion that the plaintiff alone was entitled to the entire 16 annas of the tank in dispute.
6. I see no reason to differ from the conclusion arrived at by the District Judge. This appeal, therefore, fails and is dismissed with costs.