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Fazlar Rahim Vs. Nabendra Kishore Roy and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in15Ind.Cas.341
AppellantFazlar Rahim
RespondentNabendra Kishore Roy and ors.
Cases ReferredSyama Sunderi Dassya v. Jogobundhu Sootar
Excerpt:
thakbust map - state of things at permanent settlement--presumption--evidence. - .....by them. the lower appellate court, on the other hand, has taken a contrary view, holding that the evidence of the thakbust map is superior to that of the chittas, and it has decreed the suit.3. on second appeal before us, three point have been taken by the learned vakil for the defendant.4. the first contention is that the subordinate judge is wrong in law in saying that the thakbust map is very good evidence to show the state of things at the time of the permanent settlement. it is argued that the thakbust map is evidence of the state of things in 1865, when it was prepared, and that it is not sufficient by itself to prove the state of things at the time of the permanent settlement. in support of this contention, reliance is placed cheifly upon mohesh chunder sen v. juggut chunder sen.....
Judgment:

1. This appeal arises out of a suit brought for the recovery of possession of certain lands claimed by the plaintiffs as appertaining to a mahal purchased by them at sale under the Bengal Land Revenue Sales Act of 1859. The plaintiffs having made this purchase proceeded to issue notices for the annulment of encumbrances under Section 37 of the said Act, and they were unsuccessful in obtaining possession of the land and had to institute the present suit. They rested their case mainly on the thakbust map of 1865. The defendants sat up the title of the owners of certain other shares in the mahal and relied on their part on certain chittas prepared by the Government in 1843-44 when the purgana was measured.

2. The Court of first instance gave preference to the chittas and dismissed the suit on the strength of the evidence afforded by them. The lower Appellate Court, on the other hand, has taken a contrary view, holding that the evidence of the thakbust map is superior to that of the chittas, and it has decreed the suit.

3. On second appeal before us, three point have been taken by the learned Vakil for the defendant.

4. The first contention is that the Subordinate Judge is wrong in law in saying that the thakbust map is very good evidence to show the state of things at the time of the Permanent Settlement. It is argued that the thakbust map is evidence of the state of things in 1865, when it was prepared, and that it is not sufficient by itself to prove the state of things at the time of the Permanent Settlement. In support of this contention, reliance is placed cheifly upon Mohesh Chunder Sen v. Juggut Chunder Sen 5 C. 212, but, as was pointed out by this Court in Syam Lal Sahu v. Luchman Chowdhury 15 C. 353 at p. 356, what was held in the former was that the thakbust map by itself, was not in that case sufficient evidence of 'title, and Norris and Beverley, JJ., who decided the later appeal, declared that they were prepared to say that in no case is the evidence of survey maps sufficient evidence of title. We are, indeed, unable to find any authority for the broad proposition stated by the learned Vakil. In Abdul Hamid Mian v. Kiran Chandra Roy 7 C.W.N. 849, it was held that it was open to a Court to find on the strength of entries in a thakbust map, that the same state of things existed at the time of the Permanent Settlement, and the late Chief Justice and Mr. Justice Geidt came to the conclusion that it could not be said that a District Judge in drawing such a conclusion had committed any error of law. Again, in the recent case of Moizuddi Biswas v. Ishan Chandra Das Sarkar 7 Ind. Cas. 849 : 15 C.W.N. 706 : 13 C.L.J. 293, in which most of the authorities are referred to, it was distinctly held that an entry in a thakbust map could not be said to be insufficient to entitle a Court of fact to hold that the disputed lands were really included in the estate at the time of the Permanent Settlement. We may also point out that in Syama Sunderi Dassya v. Jogobundhu Sootar 16 C. 186, it was observed by Petheram, C.J., and Tottenham, J., that a thakbust map is not only evidence, but is very good evidence, as to what the boundary of a particular property was at the time of the Permanent Settlement. The finding of the learned Subordinate Judge, therefore, based upon the entries in the thakbust map, cannot be questioned before us as being based on no evidence.

5. The second contention raised is that the Subordinate Judge was wrong in saying that the chitta did not raise any presumption of correctness. The chittas in question were prepared by the Government as zemindar; but in this case a part of the parganna measured had escheated to the Government on account of the rebellion of the former owner, and it is suggested that the Government must, in these circumstances, be held to have measured it in its sovereign capacity. We are unable to draw any distinction between the position of the Government as owner of land which has been escheated, and its position as owner of land acquired in any other way; and it is well settled that a chitta prepared by the Government, when interested as a proprietor of the estate concerned, cannot be said to he a public document. That being so, it is impossible to say that the learned Judge was wrong in holding that no special presumption attached to these chittas.

6. The third contention is that there has been no finding by either of the Courts below on an important issue, namely, the 12th issue, as to whether any tanks, buildings and so forth had been made on the disputed land.

7. The first Court found it unnecessary to come to any decision on this issue, and the lower Appellate Court clearly omitted to do so. It is conceded by the learned Vakil for the respondent that the contention that the case must be remanded for a finding on that issue cannot be denied.

8. The result, therefore, is that the case will be remanded to the lower Appellate Court for a finding on the 12th issue and the disposal of the case on that finding. So far as the findings impeached before us are concerned, they are held to be conclusive.

9. We make no order as to costs of this appeal.


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