SHYAM PRATAP RAM MISSIR Vs. BENI NATH DUBEY

JUDGEMENT

(1.) This is an appeal by plaintiff 1 in a suit which followed the decision of a revenue Court under Section 177, Chota Nagpur Tenancy Act. It appears that one Kapur Kuar, widow of Bhubaneshwar Nath Dubey, was the proprietress of village Hetkonke. After her death, defendant 1 brought a suit for rent against plaintiffs 2 and 3 in the revenue Court. Plaintiffs 2 and 3 pleaded that they had paid the rent in good faith to the appellant (plaintiff 1). The revenue Court, however, held that plaintiff 1 was not entitled to receive rent, and passed a decree for rent in favour of defendant 1. Thereafter the present suit was instituted by plaintiff 1 along with plaintiffs 2 and 3. In the suit plaintiff 1 asked for a declaration that he was entitled to receive rent from plaintiffs 2 and 3 for which "rent suit No. 145 of 1937-38 had been instituted by defendant 1." A further relief was asked on behalf of plaintiffs 2 and 3 to the effect that the sum for which the decree had been passed in favour of defendant 1 by the revenue Court should be refunded to them. There was also a prayer that "further relief or reliefs be granted which the Court deems proper."

(2.) The learned Munsif who tried the suit held that plaintiffs 2 and 3 were not entitled to any relief and dismissed the suit so far as they were concerned. He, however, passed a decree declaring the legal title of plaintiff 1 to the rent payable by plaintiffs 2 and 3 for their holdings in village Hetkonke. Defendant 1 thereupon appealed, and the learned Subordinate Judge who heard the appeal reversed the decision of the Munsif on two grounds. Firstly, f he held that plaintiff 1 was not the son of the sister of Bhubaneshwar Nath Dubey, and, secondly, he held that the suit was not maintainable in the form in which it was framed.

(3.) The first point arises in this way. The case of. defendant 1 is that he being the nearest agnate of Bhubaneshwar Nath Dubey was entitled to succeed to his properties after the death of his widow, Kapur Kuar. In this capacity he claimed to be entitled to the rent payable by plaintiffs 2 and 3, and he succeeded in the revenue Court. Plaintiff 1, on the other hand, alleges that he and defendant 2 are respectively the sons of two sisters of Bhubaneshwar Nath Dubey, and accordingly he and defendant 2 were entitled to succeed to the properties of Bhubaneshwar Nath Dubey in preference to defendant 1. Such being the respective oases of these parties, both of them proceeded to adduce evidence in support thereof. The Munsif held that plaintiff 1 and defendant 2, were the sons of two sisters of Bhubneshwar Nath Dubey, and in arriving at this finding relied on Exs. A and B and the oral evidence adduced in the case. The learned Subordinate Judge came to the opposite conclusion and gave certain reasons for discarding Exs. A and B as well as the oral evidence. It may be stated here that Ex. A is a letter which purports to have been written by defendant 1 himself and in which defendant 1 describes the father of defendant 2 as his Phoopha. The Munsif pointed out that the description supported the case of defendant 2 that he was Bhubneshwar's sister's son. Exhibit B is a receipt, which purports to have been executed by Bhubaneshwar Nath Dubey in which the father of defendant 2 is desoribed as the husband of his elder sister. The Munsif considered this document also to be genuine, and pointed out that that showed, firstly, the existence of two sisters of Bhubaneshwar, and, secondly, that defendant 2 was one of the sister's son. The learned Subordinate Judge has, as I have already stated, discarded both these documents. He has discarded Ex. A, which purports to have been written by defendant 1, on the ground that the evidence of defendant 2, who has proved this document to be in the hand-writing of defendant 1., should not be accepted, because defendant 1 has denied the fact of Ex. A being in his hand, writing. He has described Ex. B, which was also proved by defendant 2 as being in the hand- writing of Bhubaneshwar, on the ground that the requirements of Section 47, Evidence Act, had not been satisfied.