1. This is an appeal by defendants Nos. 1 to 3 and arises out of a suit brought by the plaintiff for a declaration that certain lands appertain to his jote from which he was wrongfully dispossessed by the defendants. The plaintiff further alleged that he was already a tenant under the land lords of the land of dag No. 11 and that the landlords during the Record of Rights included a portion of his jote within dag No. 1 of the Record of Rights which was recorded as khan patit. The plaintiff further alleged that although he had an existing tenancy right to a portion of the lands now in dispute he was obliged in order to avoid a dispute with the landlords to take a fresh settlement from the landlords and that an amaldari was granted by the landlords in 1322 B.S.
2. The defence of defendant No. 1 was that all these lands formed part of the zemindars khas patit recorded in dag No. 1 and that he took settlement from the landlords in 1324, and that, therefore, the lands appertained to the jote settled with him by the landlords.
3. It appears that there was a local investigation by which the Commissioner in his map indicated the situation of the different dags and their extent. The report of the Commissioner, however, was found by the lower Appellate Court as not helpful in the matter and that Court decided the case really without any reference to the Commissioner's report.
4. The Court of first instance held that the plaintiff was not a tenant with reference to the lands now in dispute and that the amalnama produced by the plaintiff was forgery and in the view it dismissed the suit. On appeal by the plaintiff the lower Appellate Court has reversed that decision and given a decree to the plaintiff as prayed for.
5. I must confess that the judgment of the lower Appellate Court is, to say the least of it, very unsatisfactory. As the matter stands a local investigation is necessary for the purpose of ascertaining the dispute between the parties, at any rate for ascertaining how much of the land now in dispute was really a part of the jote claimed by the plaintiff with reference to dag No. 11 in respect of which he was already a tenant under the landlords. The lower Appellate Court really rested his judgment on the finding, so far as I understand, as on the basis of the amaldari produced by the plaintiff. As I have already stated the First Court found this document to be not genuine. The lower Appellate Court merely contended itself by saying 'There is no reason why these should be suspected'. With reference to the question as to whether the amaldari was really a genuine document or not and also as to whether it was antedated with a view to establish the plaintiff's claim which did not exist before the learned Subordinate Judge refused to go into the question on the ground that no question of limitation did arise in the present case. The lower Appellate Court recorded the following finding. 'There is absolutely no reason why they would be even suspected so. As the plaintiffs have proved their alleged settlements they are entitled: to get declaration of their respective titles, in terms of the amaldaris. Although the learned Subordinate Judged found at the beginning of his judgment that the Commissioner's report was not satisfactory he based his decree upon the demarcation made by the Commissioner.'
6. As I have already stated the defendants have appealed and the learned Vakil who appears for them has contended that as the lower Appellate Court based his judgment with reference to the plaintiff's title solely on the amaldari the plaintiff's case is not maintainable as the amaldari is not admissible in evidence without registration. The learned Vakil further contends that the question of possession was material for the determination of the question as to whether the amaldari was really a genuine document or not and that the lower Appellate; Court has committed an error in refusing to try that question. In support of the contention that the document was not admissible in evidence the learned Vakil for the appellants his relied upon the Full Bench case of Syed Sufdar Reza v. Amzad Ali 7 C. 703 : 4 Shome. L.R. 240 : 10 C.L.R. 121 : 3 Ind. Dec. (N.S.) 1001 and also upon the case of Elahi v. Hukuni 20 Ind. Cas. 907 : 19 C.L.J. 464 : 18 C.W.N. 38. The learned Vakil for the respondents has contended that the question as to whether the amaldari was admissible in evidence or not was not raised in the Court of first instance and was not raised before the lower Appellate Court, therefore, it can not be raised here. With reference to that objection the learned Vakil for the appellants relied upon the judgment of the Judicial Committee in the case of Ram Kishen Das v. Babu Madho Das 19 A. 76 : 23 L.A. 106 : 7 Bar. P.C.J. 73 : 9 Ind. Dec. (N.S.) 50. It, appears to me that the question whether the amaldari is inadmissible in evidence for want of registration is a question which can be raised even if it were not raised in the Court of Appeal below. It has been pointed out that as a matter of fact the document was objected to in the First Court and it was not necessary for the. First Court to discuss the admissibility of the document for the simple reason that that Court found the document to be not genuine. It is quite clear that the question was not discussed by the lower Appellate Court. But the question when raised here, I think, must be decided, because the whole of the plaintiffs case depends as tried by the lower Appellate Court upon the amaldari produced by him. As pointed out by the Judicial Committee in the case of Ram Kishen Das v. Babu Madho Das 19 A. 76 : 23 L.A. 106 : 7 Bar. P.C.J. 73 : 9 Ind. Dec. (N.S.) 50 and by a number of decisions of this Court when a question is raised whether a document is admissible or not on the ground of want of registration or on the ground that the document is irrelevant it can be raised at any stage of the case. It is such objections as can only be remedied if taken at the earliest stage that are not allowed to be raised at a later stage. The question, therefore, arises whether this amaldari is admissible in evidence or not without registration. Mere name of a document decides nothing. It is really what the document purports to do that is of importance and the question, must be determined on that basis. The learned Vakil for the respondents relies upon the cases of Lukhan Chandra Mondal v. Takim Dhali : AIR1924Cal558 . and Dwarkanath v. Ladu Sikdar 33 C. 502 in support of the contention that this amaldari is a document which falls within the class of documents discussed in the two cases cited by him. The real test, is whether this document really purports to be a mere license to take possession, or in other words whether it is a document which purports to be a lease or an agreement to lease or not If the document really does not amount to a lease then under the authorities relied upon by the learned Vakil for the respondents it does not require registration. I had the document read to me and I have myself carefully considered its terms. It appears to me that it was really a lease in all its essentials It contains recital of an application for a lease by the plaintiff. It contains the boundaries of the land to be demised. It further recites that the landlord grants the plaintiff the right to enjoy the land as a tenant on payment of the usual rent payable for such lands. It is difficult to see if it is not a lease what is wanting there to make it a lease. I, therefore, hold that this is a document which requires registration and is not admissible in evidence without registration.
7. But it is necessary that the lower Appellate Court should try another question which arises if the amaldari is excluded. It is quite clear from the plaint that the plaintiff's case was that a part if not the whole of the land now in dispute formed part of his old jote and that he was compelled by the landlords to take a fresh settlement as he was unwilling to quarrel with his landlord. The judgment of the lower Appellate Court lends some support to this view when the lower Appellate Court says: 'It is alleged that the landlords said that the northern portions of the plots did not appertain to the plaintiff's jamas and forced them to take settlements from them of such portions and they accordingly took settlements of such portions together with portion of settlement dag No. 1 adjoining such portions to the north.' Therefore it has been contended by the learned Vakil for the respondents that there was an existing jote as to which there was no dispute and if the land now in dispute was a part of that jote belonging to the plaintiff or a settlement was already made with the plaintiff before any settlement with the defendants on receipt of nazar and on receipt of rent from the plaintiff, the plaintiff will be entitled to rely 'upon these two questions in support of his claim although the amaldari might be excluded from the evidence in this case. I think this contention of the learned Vakil for the respondent is of considerable force. I think the case cannot be finally determined without a determination of these questions.
8. The result, therefore, is that the decree of the lower Appellate Court should be set aside and the case must go back to the lower Appellate Court and that Court should determine the questions whether the land in suit or any part of it formed part of the existing jote of the plaintiff or whether there was any completed tenancy of the plaintiff created by the receipt of rent by the landlords for the disputed area before the amaldari was granted.
9. I may point out that if the lower Appellate Court, when the case goes back to that Court, finds that the Commissioner's report Is not satisfactory that Court would have the right to direct a fresh enquiry for the proper determination of the situation of the different dags and the claim of the plaintiff with reference to his existing tenancy in any portion of the lands in suit.
10. The costs of this appeal will abide the result.