BENODE LAL CHAKRAVARTY Vs. SECYOF STATE

JUDGEMENT

(1.) The suits out of which these appeals arise were brought by the plaintiffs against the Secy. of State for India in Council for a declaration of their title to the disputed land and for recovery of possession of the same with mesne profits. Their case was that the lands in the suit appertained to their permanently settled estates in which the plaintiffs claimed a talukdari and a patni right and were assessed with revenue at the time of the Permanent Settlement. Long after the Permanent Settlement a done or channel of the name of Lakshmipur Done appeared and subsequently silted up and formed the char which the defendants claimed and resumed in 1913 under deara proceedings under Act 9 of 1817. The case for the Secy. of State was that the lands did not form part of the permanently settled estates and were not assessed to revenue at the time of the Permanent Settlement. He further said that at the time of the Permanent Settlement the lands were in the bed of a public navigable river and even if they formed the bed of a non-navigable river they were still liable to assessment as they were not assessed with revenue at the time of the Permanent Settlement. The plaintiffs succeeded in the trial Court but the learned District Judge on appeal dismissed the plaintiff's suit. On several grounds he found that the plaintiffs had failed to prove that the lands claimed by them were assessed at the time of the Permanent Settlement and he was of opinion that the suits which were instituted in 1924 were barred by limitation. He further held that the plaintiffs, as tenure-holders, had no locus standi to bring these suits and that they were estopped by the conduct of the proprietors.

(2.) We propose to consider only the first ground on which the learned Judge dismissed the plaintiff's suit, namely whether the plaintiffs had succeeded in proving that the lands in suit were dry lands at the time of the Permanent Settlement and were assessed as included within their permanently settled estates. There is no dispute that the onus lies upon the plaintiff's to prove that the lands in suit were included within their estates and assessed at the time of the Permanent Settlement; and as it is a question of fact and not of law it is to be proved in order to enable the plaintiffs to succeed in the suits: see Secy. of Slate V/s. Wazed Ali Khan A.I.R. 1921 Cal. 687. The learned Judge relied upon several facts in order to come to the conclusion that the plaintiffs had failed to prove that the lands were assessed at the time of the Permanent Settlement. But he dismissed from his consideration an exhibit in the case (Ex. 75) which was considered by the trial Court and relied upon by it. The plaintiffs argue before us that the learned Judge is wrong in holding that Ex. 75 is inadmissible in evidence and that his decision on the question of fact is vitiated by his not taking into consideration this important piece of evidence. Ex. 75 is a judgment which the Subordinate Judge in the trial Court had passed in a suit brought by some other persons (Profulla Nath Tagore and others) against the defendant in 1914. The suit related to some other lands thrown up by the Lakshmipur Done and the defendant's plea in that suit was the same as in the present one. But the suit was decided against him and it was decided that the done came into existence after the Permanent Settlement. The case came on appeal to this Court and the judgment of this Court is reported in Secy. of State V/s. Profulla Nath Tagore [1920] 58 I.C. 896.

(3.) The only point which we are called upon now to consider is whether the learned District Judge has wrongly excluded this piece of evidence from his consideration, for if he has, it would be necessary to remand the case to him for a proper hearing of the appeal before him taking the evidence which was wrongly held to be inadmissible into consideration. We[ are however of opinion on a consideration; of the facts and of the law that the learned Judge was right in holding that Ex. 75 is inadmissible in evidence. In the first) place, it was not the final judgment in the; suit. It was a judgment of the trial Court from which there was an appeal to this; Court and the appellate judgment of this. Court must be taken to be the final judgment in the suit. The plaintiffs should have, if they wanted to use in their favour the judgment in the litigation between Profulla Nath Tagore and the defendant, put in as an exhibit the final judgment in the suit. When an appeal is taken against a decree, the decree of the lower Court gets merged in the decree of the appellate Court and so the judgment of the trial Court is not the final adjudication on the point in issue between the parties in the suit.