AMAR NATH MISRA Vs. TRILOCHANDAS DUTTA

JUDGEMENT

(1.) The original zamindars of a certain tauzi, who were known as the Singh Deos, on 5th September 1879 executed a usufructuary mortgage of certain lands of the tauzi in favour of Chintamoni Dutt and Brojogopal Dutt and subsequently they executed other mortgages of lands of the tauzi in favour of the Dutts.

(2.) In 1912 the Dutts brought a suit to enforce all these mortgages and obtained a decree. Before the decree was executed, settlement operations took place in that district and the record of rights was finally published in 1922. In that record one Hemendra Lai Singh Deo who was a successor-in interest of the original mortgagor was shown as the zemindar. Prior to the mortgage suit a certain tenure under this tauzi, which is the property with which this suit is concerned, was purchased by the Dutts in 1895. In the record of rights this tenure is described as apermanent tenure, not mukarrari. The rent of this tenure was recorded as being Rs. 148-11-0 in cash, plus a rent in kind consisting of 9 seers of ghee, 3 salis of rice, one he- goat worth one rupee and a pronami of Rs. 2 in favour of a deity known as Basuli. The entry in the record of rights concerning this tenure contains a reference to a rent decree passed in suit No. 1615 of 1889. Some time after the i final publication of the record of rights, the entire touzi was sold in execution of the mortgage decree obtained by the Dutts, and it was purchased by them. Thereafter, one of the Dutts, Fakir Dutt, sold his eight-anna share to a lady called Bama Sundari. Eventually the father of the present plaintiffs, one Kanai Lai Misra, purchased the entire touzi by two kabalas, one of which was executed by Bama Sundari, and the other by the remaining members of the Dutt family, who between them, owned the remaining eight-annas share. It should be mentioned here that the tenure which was purchased by the Dutts in 1895 was never merged in the superior interest, and that it is still the property of the Dutts.

(3.) The suit out of which this appeal arises is e a suit against the Dutts for arrears of rent in respect of this tenure for the period 1341 to 1344 B. Section The amount claimed is Rs. 826 calculated at the rate of Rupees 148-11-0 per annum, together with nine seers of ghee, three salis of rice, one he-goat to the value of one rupee, and Basuli pronami of Rs. 2 per annum. The defence was that no rent was payable in kind; that the original tenure had been split up into four, bearing annual rentals of Rs. 12-6-3, Rs. 49-9-0, Rs. 74-5-6 and Rs. 12-6-3 respectively payable by four different defendants; that one suit for rent in respect of these four tenures was not maintainable. There was also a plea of part payment of the rent due, The suit was dismissed by both the Courts below which have held that no rent was payable in kind, and that there had been a splitting up of the tenure. At the trial the plaintiffs relied upon the entry in the record of rights, and it was argued on their behalf that the rent decree of 1889, to which reference was made in that record, was the foundation of the entry, and placed the matter beyond dispute. The Courts below have found that the presumption of correctness of the record of rights has been rebutted by the documents upon 9 which the defendants relied.