JNAENDRA MOHAN CHOWDHRY Vs. GOPAL DAS CHOWDHRY

JUDGEMENT

(1.) The plaintiffs-appellant brought a suit against these defendants to recover rents and cesses due in respect of a putni taluq standing in the name of Ray Prasad Sarkar from Baisak 1303 to the Pous kist of 1306. The annual rent for the taluq was stated to be Rs. 212-4-0-1-4, payable in four quarterly kists; and after making allowance for certain payments made by some of the defendants and adding the sums due on account of cesses, the plaintiffs claimed the sum of Rs. 1,157-13-11-1-2 from the defendants. Defendants Nos. 1 and 3 did not contest the suit. Defendant No. 2, Maharaja Surjya Kanta Acharjya Bahadur, alone appeared to, oppose the claim of the plaintiffs. He pleaded that out of the taluq bearing a rental of Rs. 212- 4-3-1-4 in respect of which relit was claimed, he held a separate jama bearing an annual kaimi mokarari jama of Rs. 27-13-3-1-10 and paying Rs. 10-3-0 as oesses. He pleaded that he had paid the full rent and cesses for 1303 and 1304, and contended that as a separate account had been opened by the plaintitfs for the rent payable by him, the suit against him jointly with the other defendants could not lie. He admitted that Rs. 66-4-4-1-3 only was due as rent and cesses for. 1305 and 9 months of 1306, and stated that if the Court was of opinion that the suit was maintainable the plaintiffs might be granted a separate decree against him for that sum.

(2.) The question raised by the pleadings of defendant No. 2 was, therefore, whether there had been a division of the tenure by which his share had been separated from the shares of defendants Nos. 1 and 3 so as to render the plaintiff's suit in the form in which it was brought not maintainable. The yearly rental claimed for the whole taluq was not disputed, nor was it contended that the sum claimed by the plaintiffs was not the arrears of rent actually due from the whole tenure for the years in suit. The evidence on both sides was directed to the point whether or not there had been a division of the tenure.

(3.) In addition to oral evidence the defendant No. 2 relied on two documents to prove that there had been a division of the tenure. These were a receipt dated the 14 Chaitra 1286 (26 March 1880) for a sum of Rs. 38-0-3-10 granted-in favor of defendant No. 2 by Gopi Kanto Moitra naib of the plaintiffs, and a furd or account dated the 30 Chaitra 1304 (11th April 1898) which appeared on the face of it to have been written by Peary Lall Makhan, a servant of defendant No. 2 and exhibited payments of rent for the year 1304 made in respect of six different taluks by the defendant No. 2 to the plaintiffs, and which was signed and receipted by Gopal Chandra Neogy, Sumarnavis of the plaintiffs.