HIRA LALL Vs. GANESH PERSHAD

JUDGEMENT

(1.) THIS appeal comes before their Lordships under somewhat peculiar circumstances. The case of the Plaintiff, who is the Appellant, is in substance this: that in October, 1830, three persons, named Sheo Ghulam Singh, Beni Singh, and Mardan Singh, sold a taluqa to a person of the name of Ghulam Muhammad, reserving to themselves a certain portion of that taluqa, which is differently described as 1845 bigahs, and 1400 bigahs,--in fact, various figures are given describing it,--subject to this condition, that they were to pay no rent for this portion reserved, nor the Government revenue, but that the Government revenue was to be paid by the vendee. They say that by the conditions of the deed of sale, subsequently confirmed by an ikrarnamah of April, 1831, this was expressly agreed and stipulated on the part of the vendee. The Plaintiff is a purchaser of a part of the reserved portion, deriving title from the original vendors. The Defendant is a person to whom one Dulham Begum (who was the widow of a person named Ghulam Ahmad, for whom it is alleged that the original vendee purchased benamee), sold it--it does not appear when.

(2.) THE Plaintiff seeks to establish that the agreement between the original vendor and vendee is binding upon the present Defendants, and that they are bound to indemnify him, the Plaintiff, for the payment of the Government revenue in respect of the reserved property, or such portion of the reserved property as he possesses.

(3.) THIS judgment turns chiefly upon the construction of the ikrarnamah. Their Lordships cannot help observing, in passing, on the extraordinary course which appears to have been pursued by the Court of the Sudder Dewani Adawlat in that suit. In the Court of first instance, the Plaintiff, although he admitted that he had the ikrarnamah in his possession, did not produce it, alleging that it had been in the possession of the Defendants, and that they might have tampered with it, or had tampered with it. But as he did not produce it, the Judge (it appears to their Lordships quite properly) held that secondary evidence of it could not be admitted, and dismissed the suit. When the case came on appeal to the Sudder Court at Agra, it seems that the Plaintiff did then produce this document, and offer it for the inspection of the Court. The Court refused to look at it, but admitted secondary evidence of its contents. It appears to their Lordships that the Sudder Court was wrong in that course of proceeding. If the Plaintiff had the original and did not produce it in the Court below, his case was not proved, because it rested almost entirely on the ikrarnamah, there being no evidence of the contents of the deed of sale; but to accept secondary evidence of the document which was in the Plaintiff's custody, without looking at the original, seems to their Lordships to be an extraordinary course. But, be this as it may, the Plaintiff is right in contending that this was a suit between the same parties in estate, relating in a great degree to the same subject matter, and in relying upon it as far as he can as an estoppel. It remains to ascertain what the real effect of the judgment in that suit was. The claim was " for a declaration of right and proprietary possession, exempt from the payment of the rateable rent (by prohibiting the Defendant from demanding the rateable revenue)." And the point decided in the Sudder Court is thus stated:--" The Court, for the above reasons, reverse the decision of the Principal Sudder Ameen, and decree in favour of the Appellants for possession of the land, exempt from the payment of revenue and wasilat to the amount claimed by them."