MOHAMAYA PROSAD SINGH Vs. RAM KHELAWAN SINGH THAKUR

JUDGEMENT

(1.) This appeal is directed against the decree in a suit for recovery of a sum of money claimed as malikana. The Court below has found that the defendants are liable to pay the malikana to the plaintiff and the question of their liability has not been raised in this Court. But the decision of the District Judge has been assailed on four grounds; namely, first, that the amount of the net assets has been fixed at too high a figure; secondly, that the Government revenue and the cesses should have been deducted from the assets before the malikana was calculated; thirdly, that the plaintiffs are not entitled to claim any sum by way of interest, and, fourthly, that the decree as drawn up is not in accordance with the provisions of the Transfer of Property Act.

(2.) In support of the first point urged on behalf of the appellants, it has been contended that the burden was upon the plaintiffs to establish the amount of assets with reference to which malikana had to be calculated, that they have not discharged such onus and that the defendants have at any rate shown that the income is much less than has been adopted by the District Judge as the foundation of his judgment. In our opinion, there is no force in this contention. No doubt the burden lay upon the plaintiffs in the first instance to prove the amount of the net assets of the estate. But they discharged that burden when they produced the judgment in the previous litigation between the parties in which it had been determined that the net assets amounted approximately to Rs. 4,000 a year. The onus then shifted upon the defendants to establish that since the date of the decision in question the condition of the property had deteriorated and that the assets at the present time were smaller than the assets at the time of the previous litigation between the parties. But (he learned Vakil for the appellant has contended that the previous decisions are valueless, as they were based upon teikhana papers It is not open, however, to the appellant to impeach the correctness of the decision in the earlier litigation between the parties. It must be taken, therefore, (hat at that time the income of the property was approximately Rs. 4,000 a year. The question next arises whether the defendants have discharged the burden which lay upon them to rebut the evidence adduced by the plaintiffs. No doubt they have produced the survey record which shows that the amount of rent recoverable from the cultivating raiyats is Rs. 3,242 a year. This, however, is by no means conclusive. It appears that there are zerait lands within the estate and that income is derived also from other sources. A Patwari was placed in the witness-box who swore what the income was as derived from those sources. But he admitted that (here were collection papers which were not produced. We are not prepared to place implicit reliance upon the figures given by the Patwari; and, in (he absence of the collection papers, which admittedly existed but were withheld for some unexplained reason, the defendants have not been able to rebut the evidence produced by the plaintiffs. The conclusion, therefore, follows that the decision of the District Judge upon this part of the case cannot be successfully attacked.

(3.) In so far as the second point urged by the appellants is concerned, it has been argued that in order to determine the net assets upon which malikana is to be calculated, the Government revenue and the assets should be deducted from the gross income in addition to the collection charges. Here, however, the appellants are in a difficulty. In a previous litigation in 1894, this very question was raised, and it was then decided that the defendants were not entitled to deduct the Government revenue and the cesses from the gross income of the estate. But the learned Vakil for the appellant has contended that the decision was erroneous in law and does not, therefore, operate as res judicata. It is fairly clear, however, that even if the decision be assumed to have been erroneous in law, it was a decision upon a mixed question of fact and law and is consequently, binding as between the parties and their representatives-in-interest. In that litigation a parwana was produced under which in 1788 the malikana had been granted. The Subordinate Judge held that the effect of this parwana was to show that the plaintiffs were entitled to malikana at the rate of 10 per cent, on the produce of the villages; and upon the construction of the parwana in the light of the provisions of the Regulations, the Subordinate Judge held that the defendants were entitled to deduct nothing beyond the collection charges from the gross proceeds. The decision, therefore, in substance related to the effect of the parwana as regulating the rights and liabilities of the parties. It is obvious that this is a decision on a mixed question of fact and law; and it cannot be disputed that the decision of such a question, even though erroneous, is binding upon the parties and their successors. In support of this proposition, we reed only refer to the case of Aghore Nath Mukerjee v. Kamini Debi 11 C.L.J. 461 : 6 Ind. Cas. 554. The second contentions of the appellants, therefore, fails.