BHABENDRA CHANDRA ROY Vs. AJODHYA CHATTERJI

JUDGEMENT

(1.) This appeal raises two question. The first is with regard to the admissibility of certain documents upon which the lower Courts have relied for the proof of the plaintiffs title and the second relates to a payment by the plaintiffs, who are the respondents before me, made to prevent a sale in execution which, according to their contention was fraudulent execution, inasmuch as the property which was alleged to be that of the judgment-debtor was the property of the plaintiffs.

(2.) It is unnecessary to state the facts in detail; but the dispute is with regard to a tank which (according to the plaintiffs) was in the two annas share of persons known as Sekhar Babus. The defendant on the other hand contended that it was within the 14 annas interest belonging to him. According to the plaintiffs the collusive rent sale was instituted by the defendant, this tank was put up for sale, and after attachment the plaintiffs deposited the money under Section 6, Bengal Bent Recovery Act. Incidentally I should say that this property is situated in Chota Nagpur. It is with regard to this payment to overt the sale in execution that the plaintiffs claimed and succeeded in obtaining a decree for money paid under compulsion, in other words, an involuntary payment. It will be seen therefore that the case depended in the first instance upon the plaintiffs proving their title to the property. For that purpose a number of documents were adduced in evidence on behalf of the plaintiffs the ones with which we are more particularly concerned are Exs. l to 7. Ex. 1 was a kabala executed by Sekhar Babus in favour of the plaintiffs. To this no objection can be taken as it was necessary (and it is admitted by the appellant) for the plaintiffs to adduce this document in evidence.

(3.) There were such documents however as leases by the Sekhar Babus to certain fishermen with regard to the fishery rights in the tank; they were Exs. 2, 3 and 7. Exs. 4, 5 and 6 were sudbarna bonds executed by the Sekhar Babus or some of them in favour of the plaintiffs. It is quite clear that the only documents amongst that number to which objection might be taken are the documents in which the Sekhar Babus purport to grant fishery rights in the tank. The learned Judge in the Court below in considering these documents came to the conclusion that they established the fact that Sekhar Babus of Lagda used to hold a 2 annas share in the mauza in niskar right and, in this connexions I must point out that one of the contentions of the plaintiffs in the action was based on. the alleged fact that this tank was rent free and not (as the defendant alleged and as the Record of Rights recorded) liable. to a rent of something like Rs. 11.