SAILAJA NATH ROY CHOWDHURY Vs. RISHEE CASE LAW

JUDGEMENT

(1.) The plaintiffs brought the suit out of which this appeal arises under Section 106 of the Bengal Tenancy Act to have a certain entry in the record-of-rights corrected. The subject matter of the suit appears to be a two-storied building with the tank and orchard round it and some tenanted lands, the area of the whole being some sixty bighas. The building and the tank appear to be in the centre of a village which has become a municipality. The record-of- rights treated the matter thus That these lands were in the possession of the plaintiffs and that they were liable to be assessed with rent by the zemindars. Now the plaintiffs themselves are fractional owners of the zemindary and the contesting defendants come in by purchase of an eight-anna interest in the zemindary, the purchases having been made somewhere between 1287 and 1290 B.S. The case made by the plaintiffs is that there was an old Brahmattar grant made in 1165 B.S. to one Annada Prosad Mookerjee, that his son was Durga Charan Mookerjee and his grandson was Guru Charan Mookerjee, that Guru Charan died some time before 1287 B.S. and that he had a son called Annada Charan Mookerjee. The plaintiffs say that by a kobala dated 1296 B.S., their predecessors-in-interest, namely, Satindra Nath Roy Chowdhury and Girija Nath Roy Chowdhury took from the executor of Annada Charan Mookerjee's estate the Nishkar right which had been in this Brahmin family for a very long time. The learned Munsif adopted the view of the plaintiffs. He was satisfied with the evidence of a Taidad as to the existence of the ancient grant; in his opinion, the premises were known as Guru Charan Mookerjee's Bangabari; and he came to the finding that Guru Charan had built the house himself. He was clearly of opinion that no rent had ever been paid to the zemindars in respect of this house, tank, orchard or tenanted lands. The view of law upon which he proceeded was that no doubt the purchasers under the kobala being the plaintiff's predecessors and being co-owners of the estate, exclusive possession by them of the suit land would not amount to adverse possession, but in this case the plaintiffs had succeeded in tracing back the possession to Guru Charan and his possession without any stipulation for payment of rent was undoubtedly adverse to the proprietors of the estate. On appeal the learned Additional Subordinate Judge of Khulna took a very different view. He was not satisfied either with the evidence of the ancient grant or with the evidence by which the plaintiffs deduced their title from the grantee of the Sanad of 1165 B.S., namely, Annada Prosad Mookerjee to Guru Charan Mookerjee or his son Annada Charan Mookerjee. He thought, moreover, that the kobala of 1296 B.S. was not proved to make a valid grant because Annada Charan's will was not properly proved and that there was no proof of permission of the District Judge to sell. Therefore, he was not satisfied that the kobala effected anything.

(2.) In addition to that, however, and in the Course of stating that opinion he said "The plaintiffs or their predecessors get no right under the kobala even if it be conceded for the sake of argument that the alleged consideration Rs. 2,300 were paid, though the evidence as to the payment of the alleged consideration is not at all satisfactory". In that way, the learned Judge finds that the plaintiffs have not succeeded in making out their claim under the alleged ancient grant, and on that it is not, in my opinion, possible for us to differ from the finding of the learned Judge. It is a question of fact whether the title has been deduced by proper evidence from the first holder to the last holder. I must observe, however, that I do not take this judgment as being a clear or proper finding to the effect that the kobala was an unreal, collusive or colourable document If one is dealing with a document some thirty-five years old, the mere fact that proof of consideration is not at all satisfactory is by itself a slender ground for holding that the document known to have come into existence was entirely unreal.

(3.) When the learned Judge comes to the question of adverse possession, his view is this First of all, he says, that Guru Charan was related to the plaintiff's branch of the Roy Chowdhury family. It appears that at one time the plaintiff's predecessors were two brothers called Radhanath and Prannath, that Radhanath had a son called Kasbi and that Guru Charan married Kashi's daughter. So that Guru Charan was a son-in-law of one of the plaintiffs predecessors. Having stated that, the learned Judge says Guru Charan Mookerjee being a mere relation of the Roy Choudhuries was allowed to live in the house without payment of rents. The fact that Guru Charan or his son Annada Charan was allowed to live in the Bari and enjoy the attached tank and garden without payment of rent did not and cannot create any Nishkar right in either of them. His view is that when the contesting defendants purchased their present interest the plaintiffs predecessors seeing that it was passing to the hands of strangers got a kobala from the executor of Annada Charan and that explains the document of 1296 B.S.