GOVINDA HAZRA Vs. PROTAP NARAIN MUKHOPADHYA

JUDGEMENT

(1.) The plaintiff sued the Hazra defendants for arrears of rent due for 2 bighas 8 cottahs from 1299 to Assar 1302, but with the permission of the Court he withdrew his suit because the defendants stated that they held the lands partly as tenants of the Pal defendants, mukuraridars, and partly (one plot) as rent-free. He has now sued all these persons for a declaration that those lands are his mal lands, and that the Pals have no mukurari right or title. He also asks for the money sued for as rent in the former suit and mesne profits up to the date of recovery of possession. The same defence is made by the Hazras and the Pal defendants. The Hazias deny that they are the tenants of the plaintiff, and that they have ever paid rent to him or his predecessors. The Pals state that they hold plot No. 4 as rent-free and the other lands as mukuraridars under the plaintiff, and they also state that the Hazra defendants are their tenants. In proof of their title as mukuraridars the Pals produced some old papers, and relied on the fact that those were produced in 1876 in a, suit for rent brought against them by the patnidar. The District Judge on appeal dismissed that suit on the ground that the plaintiff was not entitled to sue for rent on his specific share, and also because the evidence of one of the plaintiff's co-sharers satisfied him that the entire rent had been paid to the landlords jointly. In respect of these old papers the District Judge expressed dissent from the Court of first instance, which had pronounced them to be genuine, because they bore old dates, but he held that it was unnecessary to adjudicate upon them.

(2.) With the exception of plot No. 4, the lands are admittedly the mal lands of the plaintiff. The matter really in issue is the title set up by the Pal defendants. In this respect we have the fact that these defendants do not say that they have ever paid rent to the plaintiff, and the Munsiff has found that it is not proved that the Hazra defendants have ever paid rent or given a potta as alleged to the Pal defendants. The Munsiff found that the mukurari title had not been proved, and he accordingly held that the plaintiffs were entitled to a fair and equitable rent from the Hazra defendants. The plaintiff's claim in respect of plot No. 4 was dismissed.

(3.) The District Judge on appeal gave the plaintiff a decree in full He held that as the lands, except plot No. 4, were mal and the Hazra defendants were in possession, it was for them to, show that they were not liable for rent to the plaintiff, and he then proceeded to deal with the papers produced to prove a mukurari title with the Pal defendants. Those were a potta bearing date 1159 and an amalnama confirming the potta bearing date 1211. He observes that neither of these papers bears the signature of the executant; that they bear seals as to which there is no evidence; and he adds that before the documents could be accepted as proof of title, there must be further evidence in the case of each, that the alleged executant was entitled to grant such a document. The District Judge also throws doubt whether the documents were produced from proper custody, as to which I would only point out that the custody of the Pal defendants is what is explained to be proper custody by the explanation to Section 90 of the Evidence Act. The District Judge has not properly dealt with those documents as proof of title. Section 90 of the Evidence Act declares that, where any document purporting or proved to be thirty years old is produced from any custody which the Court in the particular case considers proper the Court may presume that the signature and every other part of such document which purports to be in the handwriting of any particular person is in that person's handwriting and, in the case of a document executed or attested, that it was duly executed and attested by the persons, by whom it purports to be executed and attested. Now these documents were produced in Court in 1876: that is, about 22 years before this suit, and they bear dates much beyond thirty years, and therefore the law declares that the District Judge may presume certain facts from them, that is to say, he may regard such facts as proved, unless and until they are disproved, or he may call for proof of them (see definition of "may presume," Section 4, Evidence Act). The District Judge has, in my opinion, rejected these documents without proper consideration, and in this view the case must be remanded for reconsideration. No doubt these papers do not bear the signature of the executants; but they set out their names, and they bear seals purporting to be those of the executants or grantors, and the absence of signature would be amply supplied by seals shown to the satisfaction of the District Judge to be those of the grantors. The mere possession or production of documents conferring a mukurari title, if they do amount to this, unless supported by some corroborative evidence of action taken under it, would be of little, if any, weight-Mussammat Phool Bibee V/s. Goor Surun Doss (1872) 18 W. R. 485 and Roikunt Nath Kundu V/s. Lukhun Majhi (1881) 9 C. L. R. 425 The degree of credit to be given to these old documents would depend on the circumstances elicited by the evidence derived from the subsequent conduct of the parties, but the nature of these documents must be first ascertained--Hari Chintaman Dikshit V/s. Moro Lakshman (1886) I. L. R. 11 Bom. 89 Moreover, in dealing with such evidence no doubt the Court must act with especial caution, and in this respect I would point to Trailokia Nath Nundi V/s. Shurno Chungoni (1885) I. L. R. 11 Calc. 539 The District Judge has not considered the evidence from this point of view We have in this case the fact that the plaintiffs ignore the Pal defendants, while these defendants claim to be the tenants of the plaintiffs under a mukurarititle and assert that the Hazra defendants are their tenants. But so far as the case is presented to us, the plaintiffs have not been able to prove that the Hazra defendants are their tenants. The occupation of the lands by the Hazra defendants does not necessarily prove this, if the Pal defendants have an intermediate title as mukuraridars making them the direct tenants of the plaintiffs. That is the real matter now in issue. I may here observe that, in stating that there is no evidence that the Pal defendants have ever received rent from the Hazra defendants, the Sessions Judge is in error. It is for him to find, whether the evidence that is on the record does pr does not prove such payments. The Distriet Judge has also taken into consideration the suit of 1875, in which the Pal defendants were sued for rent as in occupation of this land. That they held as mukuraridars as stated by them was denied, but this issue was never tried, and on the findings of the Distriet Judge deciding the case this was unnecessary. The observations of the Court in throwing doubt on the documents tendered in proof of the mukurari title axe therefore obiter, and cannot now he taken into consideration; still the Pal defendants were found to he the tenants and were held to he liahle for rent, and this litigation is therefore of some importance in the trial of the issue of title raised in this suit. The case must, therefore, be remanded to the District Judge for reconsideration, and especially in regard to the evidence of mukurari title set up by the defendants.