ADAM SARDAR Vs. BISWESWAR DAS

JUDGEMENT

(1.) THESE two appeals are by the defendants against the decisions of the Special Judge of Jessore modifying the decision of the Assistant Settlement Officer. The proceedings out of which these appeals arise were proceedings under Section 105 of the Bengal Tenancy Act by the landlord for enhancement of rent under the provisions of Section 52 of the Bengal Tenancy Act and also for the assessment of additional rent for additional area. The plaintiffs case under Section 52 failed but in the lower, Appellate Court, the learned Judge has allowed additional rent for additional area and he has arrived at his conclusion by admitting in evidence a certain document) a memorandum which is referred to in his judgment as showing the standard of measurement in Mahmudshahi Parganna. One ground of appeal by the defendants in these two appeals is that this memorandum should not have been admitted in evidence in the Appellate Court and the document is further attacked on the ground that there is nothing to show that the measurement stated in the memorandum was the measurement prevailing at the time the land was originally let out, that is, in the years 1866 and 1898 and it is further objected that there is no evidence to show in what circumstances the memorandum was prepared. We think this objection is well founded. The document has been produced before us or rather a certified copy thereof. It bears no date and there is nothing to show how and under what circumstances it was prepared. Some suggestion was made on behalf of the respondents that it was prepared under the provisions of Section 92, Sub-section (3) of the Bengal Tenancy Act. There is nothing to show this and under the circumstances, we do not think that the document should have been admitted in evidence. It is suggested, however, that three rent suits were tried together and, by consent, the evidence taken in one was to be treated as evidence in the other suits, and that by inadvertance this memorandum was only marked in the suit in which evidence was taken, but this is really a conjecture and is not founded on any certainty and we do not think that we should be justified in acting upon it. Moreover, it appears that the document was not properly admitted in evidence by the Appellate Court. The record shows that a petition was put into which the document was attached asking that it should be admitted in evidence and that on this petition the only order which was made was "file with the record." Under the circumstances, it seems to us that the document was not properly admitted and that the learned Judge should not have acted upon it. Moreover, even if it was admitted, for the reasons which I have already stated, it does not seem to us that it is a document which could have been relied on having regard to the absence of any evidence of the circumstances under which it was prepared.

(2.) FOR these reasons, we think, that the appeals must succeed. We, accordingly, set aside the decrees of the lower Appellate Court and restore the judgment of the learned Assistant Settlement Officer. The defendants-appellants will be entitled to their costs of this appeal and in the lower Appellate Court. Hearing-fee 3 gold mohurs in each case.