BROJENDRA KISHORE ROY CHAUDHURI Vs. MOHIM CHANDRA BHATTACHARJI

JUDGEMENT

(1.) This is an appeal under the Letters Patent of this Court from a decision of my learned brother Mr. Justice Cuming. The suit was brought by the plaintiff for assessment of rent and. for the recovery of arrears. The learned Munsif, who tried the case, decided that the plaintiff was entitled to recover rent for the period in suit at the rate of Rs. 4-6-8 pies with usual cesses and damages therein and that he should recover enhancement at the progressive rate mentioned in the judgment. The defendants appealed and the learned Subordinate Judge allowed the appeal and dismissed the suit. He held that the lands is suit were not liable to be assessed with rent.

(2.) At the hearing of the appeal in the High Court, my learned brother, Mr. Justice Cuming was of opinion that the appeal should be dismissed and my learned brother Mr. Justice Mukerji was of the opinion that the matter should be remanded to the lower appellate Court in order that the appeal might be reheard and disposed of in accordance with law in the light of the learned Judge's judgment. The result was that the opinion of Mr. Justice Cuming prevailed and the appeal was dismissed. Consequently the plaintiff has appealed under the Letters Patent to this Court. Three main matters were argued by the learned vakil who appeared for the plaintiff. The first was that the learned Subordinate Judge had improperly relied upon a recital in a kobala which was marked Ex. A and dated the 31 of Aswin, 1281 B.S. which corresponds to the year 1874 That was a document, whereby one of the defendants predecessors, Govinda by name, purported to sell the plaint lands with other lands to his sister alleging that the lands were his nishkar brahmattar and that his father Gopinath was in possession of these lands in nishkar right.

(3.) Both the lower Courts seem to have come to the conclusion that this was a benami document, but the learned Subordinate Judge considered that, even though it were a benami document, the recital in the kobala had some value, having been made by the person in possession so far back as 1874. Both the learned Judges of the Division Bench of this Court agreed that the recital in the kobala should not have been admitted in evidence.