ALI HOSSAIN SHAIKH Vs. JONABALI MONDAL

JUDGEMENT

(1.) This appeal is on behalf of defendants 1 and 2 and arises out of a suit for recovery of arrears of rent for the year 1336 B.S. and the Ashar kist of 1337. The plaintiffs came to Court with the case that the defendants were Ijaradars under them for five years commencing from 1335 B.S. and that the rent payable by them is Rs. 475 a year. The case of the defendants is that they are raiyats and the rent is not Rs. 475 but Rs. 234-13-0 a year. An issue was framed as to the status of the defendant Section The lower appellate Court has come to a finding that the defendants are Ijaradars as alleged by the plaintiffs and that their right to remain on the property demised had ceased in the year 1339. Having regard to the fact that it is a suit for recovery of arrears of rent, I am of opinion that it is not necessary to go into the question of status and that question ought to have been left open by the lower appellate Court. Both Mr. Roy Choudhury and Mr. Gupta agree that the said question ought to have been left open. I accordingly expunge that portion of the judgment of the lower appellate Court which deals with the defendants status and leave the question open to be litigated if and when occasion arises.

(2.) The other question involved in this appeal is as to the rate of rent. The lower appellate Court has come to the conclusion that the rent is Rs. 475 and on that finding he affirmed the decree of the first Court. Mr Gupta appearing for the appellants urges that this finding is based on inadmissible evidence and ought to be set aside and the case remanded to the lower appellate Court in order that the said Court may come to a finding as to what is the amount of rent, after excluding such evidence as is inadmissible. For the purpose of arriving at his finding, the learned Subordinate Judge has found the Dakhilas produced by the defendants to be not genuine. That finding is based on evidence and must stand. But the lower appellate Court in coming to its finding as to the rate of rent relied principally upon Ex. 7 which is said to be an Amalnama, and the recitals in three Pottas Exs. 1, 2 and 8, the recitals being that the defendants are Ijardars holding at the rent of Rs. 475 and that the term of their Ijara at the date of the pottas had not expired but was to run on for another four yeaRs. The question therefore raised in this appeal is whether Ex. 7 and the recitals in the three pottas are admissible in evidence against the defendants.

(3.) I shall first deal with the recitals contained in the potta Section In my judgment those recitals are not admissible in evidence. These pottas were executed in the year 1336 B.S. They are executed in favour of the plaintiffs by some of their co-shareRs. I do not see under what provisions of the Indian Evidence Act those recitals could be in evidence against the defendants who had secured their interest from the plaintiffs and their co-sharers before the execution of these potta Section If the defendants interest had been created after the execution of the pottas any recital therein would have been evidence against them, because they being undoubtedly evidence as against the plaintiffs would have been admissible in evidence against the defendants as their assign Section But having regard to the fact that the defendants had already acquired a right from the plaintiffs before the pottas were executed the recitals are like those in a third party document and are not admissible in evidence against them.