ANANDA MOHAN PODDAR Vs. DURGA CHARAN DUTTA

JUDGEMENT

(1.) This is an appeal on behalf of the plaintiffs against a decision of the Subordinate Judge of Dacca, modifying that of the Additional Munsif of Narayanganj. The plaintiffs were purchasers of a taluk named Taluk Rajaram Roy, being estate No. 4015 of the Dacca Collectorate, from one Prasanna Chandra Saha by a kobala dated 10 December 1934. Prasanna, in his turn, had acquired the taluk by purchase at a sale for arrears of revenue held on 20 June 1934, and for the purposes of the suit, the plaintiffs have been held to be entitled to all the rights of the purchaser at the revenue sale. After their purchase, the plaintiffs through Prasanna applied, for delivery of possession, and possession was delivered, to them on 11 April 1935. Thereafter they got their names recorded in the collectorate register, but when they went to take actual possession, they were resisted by the defendants. That led them to commence the pre-sent action. There were a large number of defendants, but the suit was contested by only three of them, defendants 1, 2 and 42, The main defence was that the disputed lands were comprised in a mokarary tenure Sikmi Taluk Bhagyamanta Roy held under Estate Rajaram Roy from the time of the Permanent Settlement; in other words, that the defendants were protected from ejectment by virtue of Clause 1 of Section 37 of Act 11 of 1859. A further plea was taken in respect of one specific plot, C.S. Dag No. 24, as regards which it was alleged that it did not form part of the estate which had been sold, but that it appertained to a separate taluk No. 12520, which had been carved out of the parent estate as a result of butwara proceedings under the Estates Partition Act.

(2.) As regards plot No. 24, both Courts held that it appertained to Estate No. 4015. On the other point, the learned Munsif negatived the defence, but on appeal the learned Subordinate Judge gave effect to it, holding that the Sikmi Taluk set up by the defendants was shown to have been in existence from the date of the Permanent Settlement. Against this decision the plaintiffs have preferred the present appeal, and the defendants have filed a cross-objection as regards plot No. 24. The main question which has been argued by Mr. Sen, on behalf of the plaintiffs, is that the finding of the learned Subordinate Judge is not a proper or legal finding at all, inasmuch as it is based on certain presumptions not warranted by law. It appears that in support of their case that the Sikmi Taluk existed from the time of the Permanent Settlement, the defendants relied on certain ancient documents which have been marked as Exs. E to H, the oldest of which, Ex. E, is a judgment of the year 1853 in a proceeding under Act 4 of 1840. It is said that these documents make mention of a subordinate taluk Bhagyamanta Roy under taluk Rajaram Roy, which the learned Judge apparently takes to be identical with the Sikmi Taluk alleged by the defendants. In the said Ex. E there is a reference to two earlier documents, one of the year 1846 and the other of the year 1830, and it is said that these documents also contain an allusion to the Sikmi Taluk. Prom these data the learned Subordinate Judge came to the conclusion that the Sikmi Taluk was definitely proved to have existed at least as far back as 1830, and then from this finding, he proceeded to draw the further inference, in the absence of any evidence to the contrary from the plaintiffs side, that the taluk must have been in existence since the date of the Permanent Settlement. It is Mr. Sen's grievance that the learned Judge permitted himself to draw this inference, presuming backwards from 1830 to the year 1793.

(3.) So far as the question of the identity of the Sikmi Taluk is concerned, namely, its identity with the taluk mentioned in the documents relied on by the defendants, I do not think the appellants can go behind the finding of the lower appellate Court in this respect, nor, in my opinion, are they entitled to challenge the conclusion that the Sikmi taluk was shown to have been in existence at least as far back as 1830. The only question which may be said to have the semblance of a question of law is whether this last mentioned fact is sufficient in law to raise the further presumption in favour of the defendants regarding the existence of the taluk at the date of. the Permanent Settlement. The learned Subordinate Judge expressed himself on this question in these terms: It is not necessary for the defendants to prove by evidence that the Sikmi Taluk was created before the time of the Permanent Settlement. Mere proof of existence of the Sikmi Taluk from over 100 years back raises the presumption in the defendants favour and shifts the onus on the plaintiffs to show that the Sikmi Taluk was created after the creation of the parent taluk.