FAIJADDIN Vs. AGNI KUMAR SARMA

JUDGEMENT

(1.) The suit that gave rise to this appeal was one for recovery of rent, brought by the plaintiff on the allegation that the rent of the holding in the occupation of the defendant was Rs. 35, odd. The defence was that the rent was Rs. 25-11. The Court of First Instance dismissed the plaintiff's suit, but that decision was reversed by the lower Appellate Court on appeal. Exception has been taken to the judgment of the lower Appellate Court on three grounds; first, that that Court has erred in saying that the collection papers filed by the plaintiff for the last 20 years or more prove that the annual rent is Rs. 35-13-6. My attention has been directed to an entry more than 30 years ago where the rent of the defendant or his predecessor is given as Rs. 32-8-0. There may be slight discrepancies, as it has been pointed out that on one occasion rent was mentioned as Rs. 34, odd. The variation may be due to temporary variation in area or some other cause. But the main fact remains that the collection papers do show payment of rent at Rs. 35 and odd. The consideration of this question, however, becomes of less importance when we examine the second point which is that the collection papers, which have not been proved by persons who make the collections, should not have been treated as independent evidence of the amount of rent realised from the defendant. There is a great deal of force in this contention. The only evidence we have on the record is the evidence of Nishi Kant, the Officer of the plaintiff who produced the collection papers, to prove that they were filed in his presence in the Zemindar's sherista by the former dar ijaradars, and he also testifies to the signatures of some of the dar ijaradars. He,Jiowever, does not prove that the rent was realized from the defendant by the dar ijaradars at the rate mentioned in the is collection papers. If the decision of the learned Subordinate Judge were based chiefly on the collection papers, or that the entries in the collection papers had materially influenced his judgment, I would have felt it my duty to remand the case to the Court below for a proper consideration of the evidence which is admissible and some to a decision on it. But on reading the learned Judge's judgment as a whole, it appears to me that what greatly influenced him in coming to the conclusion at which he arrived was not the collection papers but some other facts, as, that the defendant did not produce a single dakhila for the last 20 years in support of his, and the rebuttal of the plaintiff's case, lie produced some dakhilas anterior to 1305 granted by some dar ijaradars, the genuineness of which the learned Judge doubts. This is a fact upon which the learned Judge placed great reliance. The non-production of documents of this character no doubt tells greatly against the truth of the defendant's case. The learned Judge was perfectly entitled in law to draw an adverse inference. This is apparent from the concluding part of his judgment. He says : "Considering the entire evidence. on the record, and having regard to the fact that the defendant could not prove by a singe dakhila what rent they paid for the last 20 years, I find that the plaintiffs are entitled to the rent at the rate claimed." This clearly shows that the learned Judge's judgment was based more upon the non-production of the dakhilas by the defendant than on any other evidence on the record.

(2.) There is another piece of evidence in which the learned Judge has relied, and relied very correctly, namely, the evidence of the witness Nishi Kanta who himself realized the rent at the rate claimed for the last 12 years. He has further produced and proved some papers which completely support the plaintiff's case. There is direct evidence of this witness to prove realization of rent at the rate claimed for the last 12 years supported by papers written by him, the genuineness of which has not been questioned. This has apparently induced the learned Judge to find for the plaintiffs where there is no evidence worth the name adduced by the defendant to contradict it. I am, therefore, of opinion that this is a case in which I am entitled to follow the rule laid down by Garth, C.J., in the case of Womes Chunder Chatterjee V/s. Chundee Churn Roy Chowdhry (1881) 7 Cal. 293. On this point reliance is placed in the case of Ujir Ali Sirdar V/s. Shadhai Behara (1922) Cal. 185. It is clear from a perusal of the judgment of this Court in that case that the evidence held to be inadmissible was of such a character that their Lordships could not declare that the Judge in that case could have, excluding that evidence, arrived at a similar conclusion on a re-consideration of the case. In the present case, as I have observed, the lower Appellate Court was mainly influenced by the absence of evidence on behalf of the defendant, and the positive evidence of Nishi Kanta and his papers in support of the plaintiff's case. In my judgment, it will serve no useful purpose to remand the case for a re-consideration of the evidence.

(3.) The third point taken is that the defendant's original rent was Rs. 29, whereas in decreeing the plaintiff's present claim at Rs. 35 and odd, the Court below has contravened the provisions of Section 29 of the Bengal Tenancy Act. The defendant's case was that his rent was Rs. 25-11. With regard to that the learned Judge observes that there is no evidence, however, worthy of reliance to prove that the jama was ever Rs. 25-11. The defendant now says that his rent was Rs. 29, because he finds some entries to that effect in the collection papers which he challenges in the same breath as inadmissible in evidence. I am not prepared to give effect to this contention. The finding of the learned Judge being in effect that there, is no evidence to prove the original jama, Section 29 will have no application. The learned Judge goes on to hold that it appears from the collection paper that the jama of the nal lands was Rs. 29 besides the jama of bhitti lands, and relying on one of those papers, he says that some new lands were added which were taken from other persons jama, and this accounts for the increase of rent in the collection papers. If the defendant wants to rely on the collection papers for the proof of the original jama he has to accept all these descriptions contained in those papers as correct. But as the learned Judge finds there is no evidence that the original jama was as the defendant stated, I do not think that Section 29 of the Bengal Tenancy Act will have any application in this case.