LAWS(PVC)-1923-4-10

SWARNAMOYI Vs. SOURINDRA NATH MITRA

Decided On April 09, 1923
SWARNAMOYI Appellant
V/S
SOURINDRA NATH MITRA Respondents

JUDGEMENT

(1.) This is an appeal by the defendants in a suit for possession of land and mesne profits, and, in the alternative, for assessment of rent. The defendants resisted the claim on a three- fold ground, namely, first that the lands were comprised in a tenancy created in favour of their predecessor on the 24 January 1856; secondly, that the plaintiffs have kept them out of possession from a substantial tract of land comprised in the tenancy, with the result that the rent has been completely suspended; and thirdly, that they were entitled to abatement of rent on account of diluvion. The Subordinate Judge has dismissed the claim for ejectment, overruled the plea of complete suspension of rent and decreed the rent at Rs. 912 a year for the period between the Pous instalment of 1319 and the Assin instalment of 1322.

(2.) The title of the defendants rests upon an amalnama alleged to have been executed in favour one Dulal Mridha by Golaknath Ghose on the 24 January 1856. Before we deal with the question of genuineness of this document, it is necessary to refer briefly to two previous litigations between the parties. On the 12 April 1907, the plaintiffs instituted a suit against the defendants for recovery of possession. The defendants set up the amalnama just mentioned. The document was not regarded as genuine by the trial Court which decreed the suit on the 8 January 1908. The defendants appealed to this Court, and alter an order of remand for further enquiry, the appeal was finally heard on the 10 August 1915 when a Division Bench allowed the plaintiffs to withdraw from the suit with liberty reserved to institute a fresh suit only in respect of a portion of the subject matter in controversy. The judgment of this Court has found its way into the reports Akimannessa V/s. Bepin Behari [1913] 22 C.L.J. 397. During the pendency of the appeal in this Court, on the 24 April 1911, the defendants instituted a suit against the present plaintiff for recovery of possession of a, large tract of land. The amalnama of the 24 January 1856 was again produced in evidence and met with the same treatment as in the previous litigation. The trial Court dismissed the suit on the 18th March 1912. An appeal was preferred to this Court but was unsuccessful. The decree of the primary Court was affirmed on the 5 July 1916, on the ground that the plaintiffs had not established that they had a subsisting title to the lands in dispute. During the pendency of the appeal to this Court, the present suit was instituted on the 10 November 1915; as already stated the trial Court has given the plaintiffs a decree on the 28 February 1920.

(3.) In the present case, the decision rests primarily upon the solution of the question whether the amalnama, which has again been produced in evidence, is or is not a genuine document. The Subordinate Judge has, come to the conclusion that its genuineness had not been established. The appellants have contended that the Subordinate Judge has not proceeded in accordance with Section 90 of the Indian Evidence act. That section provides 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 person by whom it purports to be executed and attested." The appellants have urged that it was open to the Subordinate Judge to presume that the document was executed by the person by whom it purports to have been executed seeing that it purport to be more than 30 years old and was produced from custody which was unquestionably proper. Their grievance is that it was not till the judgment was delivered that they discovered that the Court was not prepared to consider the document to be genuine under Section 90 of the Indian Evidence Act. In this connection reference has been made to the decision in Ramuvien V/s. Veerappudayan [1912] 37 Mad. 455, where the language of Section 90 was interpreted and the practice to be followed in cases of this description explained We are of opinion, however, that the defendants have not really been prejudiced by the course which was adopted by the Subordinate Judge. There is nothing to indicate that they had evidence at their disposal which would have enabled to establish the execution of the document. At this distance of time it is improbable that a direct evidence should be forthcoming of the actual execution of the document. The Subordinate Judge on the other hand, has given weighty reasons why the document should not be regarded as genuine. The document first saw the light on the 23 July 1907, when it was produced in the first of the two litigations already mentioned; and though the existence of a tenure is mentioned in a conveyance dated the 16 September 1873, this document is not mentioned by date. Indeed, from the description given in the conveyance it is not possible to identify the tenure mentioned with that alleged to have been created by this document of the 24 January 1856. Apart from this, we have the important fact that there is no proof of possession in accordance with the amalnama . It is well settled that mere production of an ancient document, unless supported by some corroborative evidence of acting under it is not entitled to any weight, An ancient deed must be corroborated by evidence of ancient or modern corresponding enjoyment or by other equivalent or explanatory proof; it is then presumed to have constituted part of the actual transfer of property mentioned, because this is the usual course of such transactions; in brief, though absence of proof of possession does not affect its admissibility, it undoubtedly affects the weight to be attached to the document. In this connexion, reference may be made to the case of Doe on the demise of Earl of Egremont V/s. Pulman [1842] 3 Q.B. 622; and the judgment of the Judicial Committee in the case of Radhamoni Debi V/s. Collector of Khulna [1900] 27 Cal. 943. The decision of the Judicial Committee in John King & Co. V/s. Chairman of Municipal Commissioners, Howrah [1914] 20 C.L.J. 407, is clearly distinguishable; there the original title deeds were not forthcoming; here the deed has been produced and disbelieved. It is of great importance that a document, which purports to be an ancient document should be corroborated by some evidence; if this is done, presumption may be made in its favour under Section 90 of the Indian Evidence Act. We are consequently not prepared to treat the amalnama as proved beyond dispute. We may add that we do not lay stress upon the circumstances that it was produced in two previous litigations and on each occasion was treated as suspicious. In favour of the defendants, this may be said that the first litigation had to be withdrawn by the plaintiffs, while in the second litigation the ultimate decision was rested upon the question of limitation. There was consequently no final adjudication as to the genuineness or otherwise of this document in either of the two suits. Nor need we emphasise the omission of mention of the tenure in road cess returns which could be admissible only against the maker: Chalho V/s. Jharo [1911] 39 Cal. 995; Sewdeo V/s. Ajodhya [1912] 39 Cal. 1005; Lachmi Prosad V/s. Jag Mohan [1914] 18 C.L.J. 633 But on the evidence adduced in this litigation, and in view of all the circumstance; mentioned, we are not prepared to accept the document as genuine. This disposes of the first question, namely, whether the grant alleged by the defendants is established by the amalnama produced by them.