RAI BRINDABAN PRASAD Vs. RAI BANKU BIHARI MITRA

JUDGEMENT

(1.) This is an application under Section 151 and Order 47, Rule 1, Civil P.C. in respect of our decision in Second Appeal No. 150 of 1932 Brindaban Prasad v. Banku Behari Mitra 1935 Pat 144, which arose out of suit No. 2661 of 1929 instituted by the landlord Rajoi against the applicant Brindaban Prasad, raiyat of khata No. 60, for recovery of bhaoli rent in respect of the years 1335 and 1336 F. The plaint in that suit is signed by Jadunath Majumdar, mukhtar-am on behalf of the plaintiffs, Sailendra Nath Bose, trustee to the estate of Rai Banku Bihari Mitra, and Rai Biman Bihari Mitra. While the suit was pending Rai Banku Bihari Mitra and his wife were substituted for his trustee. The claim is Rs. 1888-7-9 being Rs. 1510-12-6 on account of price of grain forming the landlord's share according to the takhmina (eye-estimate) sheet and Rs. 377-11-3 on account of damages, with costs and interest and other reliefs, and the plaint sets out that "in 1335 and 1336-F the defendant grew paddy and rabi crops specified below on the bhaoli kasht lands" and appropriated the hakimi or landlord's share; that there being no alternative a takhmina of the crops produced was prepared on behalf of the plaintiffs in every year and in every season and the takhmina sheet and a hisab or account of the price of the crops were filed as part of the plaint. The holding was stated to be 57 bighas 5 kathas 10 dhurs held on the bhaoli batai system and to produce paddy and rabi. The takhmina papers show 23 bighas 12 kathas 8 dhurs in 19 plots as producing paddy at varying rates with, a total of 390 maunda 12 seers in 1335 and the same area in 20 plots (No. 935 being introduced in different ink) as producing 512 maunds odd in 1336 and are signed by Sheobhajanlal mohurrir, Nandkumar Singh jamadar and Deoki Singh gomasta, while those for rabi are similarly signed and show an aggregate area of 33 bighas 13 kathas 2 dhurs yielding a crop of 207 maunds odd in 1335 and 256 maunds in 1336. The hisabs are signed by Sheobhajanlal and Deoki Singh.

(2.) The defence was substantially payment in full and that the suit had been maliciously brought because the raiyat had refused to pay nakdi rent at Rs. 10 per bigha and was ready to apply for commutation of the rent under Section 40, Ben. Ten. Act. It was urged that the takhmina papers were forged and that paddy was produced at 4 or 5 maunds kham and rabi at 2 maunds kham per bigha and that the paddy lands produced only one crop and rabi only was produced in the rabi lands. The defendant also complained that a commissioner had been sent to the lands at the instance of the plaintiff without his knowledge. Further points were taken later in an additional written statement filed after the amendment of the plaint, among them that the substituted landlords were not entitled to the land as their name was not registered under the Land Registration Act. To give evidence of the quantity of produce the defendant had, on 4 and on 22 July, 1930, called for the production of the village papers from the beginning of 1922 to 1337 F. receipt books, siahas both produce and money rent, khasra batai, jamabandi, jamakharch and sudkars of Rajoi. An excuse was given on behalf of the plaintiffs that the papers were not available as they had been sent to the trustees in Chapra (which could not possibly have been true in respect of most of them) and the Court did not insist upon production. The only witness examined on behalf of the plaintiffs was Deoki Singh who admitted that the batai khasras of his time were at the kachahri of the plaintiffs. He further deposed that he was gomasta from 1335 and rents were due for 1335 and 1336, that the takhmina of the produce was made by himself and Sheobhajanlal who wrote the takhmina and hisabs and danabandi papers filed by the plaintiffs which the witness proved, that no payment had been made and that receipts were granted on payment of rent, and he further stated that no tenant had divided the produce to him in 1335 and 1336. Three witnesses were examined in support of the defence case and in particular one of them deposed that he had gone to fetch the receipts for the produce divided in 1335 and for that divided in 1336 which had been delayed by the gomasta on the excuse that the receipt book had not come from the head office at Sundarganj and he was twice put off,

(3.) The Munsif held that in the absence of receipts payment had not been proved and that the demand for commutation at Rs. 10 per bigha had not been established. As to the produce he did not rely upon the pleader commissioner but taking the rates shown in receipts of previous years, he allowed paddy at 10 maunds kachha and rabi at 2 maunds kachha per bigha with the deduction for wages and the addition for cess and with damages at 12 per cent. The appeal by the defendants was dismissed, but in the plaintiff's appeal the Subordinate Judge enhanced the rates to 13 maunds per bigha of paddy and to 5 maunds of rabi with 1 maund of linseed per bigha of rabi on the basis of the commissioner's report without considering the defence evidence that no notice had ever been given to the defence of his crop-cutting experiment. A second appeal was preferred but it could only be argued on the question whether by reason of the provisions of Section 78, Land Registration Act, 1876, the Court was precluded from passing a decree in favour of the plaintiff and it was dismissed. After the dismissal of the second appeal the defendant brought to the notice of this Court that he had argued before the Subordinate Judge that the papers of the plaintiffs which he had called for and which were not produced, would have shown the quantity of the crops and division of them, and he claimed that his statement, as to the quantity of produce should be accepted as in his memorandum of second appeal to the High Court he bad set out the grounds(3) and (5): (3) For that the lower appellate Court has erred in law in fixing an average rate of produce on surmise, particularly when the village papers have been kept back and the decree if any could be passed according to the defendant's admission. (5) For that the Court below ought to have drawn an adverse inference against the plaintiffs on the non-production of their village papers, especially when they were not the recorded proprietors and when even the real patwari was not examined by them.