SURPAT SINGH Vs. GENA JHA

JUDGEMENT

(1.) These two appeals by the plaintiffs arise out of actions for assessment of fair rent. The defence was that the lands wore granted rent-free and in each case reliance was placed by the defendants upon the Record of Rights together with other evidence. So far as Second Appeal No. 1120 of 1933 is concerned, it is admitted by the learned advocate appearing on behalf of the plaintiff-appellants that 7 bighas out of 9 bighas are governed by a recent judgment of mine in this Court and the appeal is pressed only as regards 1 bighas which is the difference between 9 bighas the area of the holding and 7 bighas. The appeal is not pressed with respect of 7 bighas as the learned Judge has identified the land in suit with certain sanad granted to the defendant's ancestors, and, the contract being established between the landlords and the original tenants, the learned Judge is justified in giving judgment to the effect that the land was rent-free. The contention on behalf of the plaintiff-appellants now is that they are entitled to assessment of fair rent so far as 1 bighas are concerned. The learned Judge in the Court below has dealt with the matter in this way. He has identified the whole of the 9 bighas with the original sanad and has come to the conclusion that the difference between the 9 and 7 bighas was merely by reason of a different standard of measurement. In my judgment the learned Judge was entitled to come to that conclusion if he was so minded. The decision of the learned Judge in the Court below that the whole of the land in dispute and the land which was the subject-matter of the original grant being the same the plaintiffs claim failed, being a decision on fact is binding on me in second appeal. Appeal No. 1120 of 1933 is therefore concluded by the finding of fact aforesaid and fails.

(2.) As regards Second Appeal No. 634 of 1933 different considerations arise. The area of the land in this case was much larger, but I am not much concerned with that particular matter. I am concerned with the evidence upon which the learned Judge in the Court below relied for the purpose of coming to the conclusion favourable to the defendants. First the Record of Rights was relied upon and the learned Judge found that the plaintiffs failed to rebut the entry thereof which was in favour of the defendants. The learned Judge also relied upon documents of title and documents between persons not parties to the action for the purpose of identifying the land in suit, and very little need be said with regard to that matter. But the learned Judge in the Court below has relied upon certain kobalas for the purpose of deciding that this land was rent-free. A recital to that effect is contained in Exs. A and A-1 which are documents of title and in Ex. 4 which is a document between persons not parties to the suit. Now it is urged on behalf of the defendant-respondents that the decision of the learned Judge in the Court below is supported by Section 32(7), Evidence Act, which provides: When the statement is contained in any deed, will or other document which relates to any such transaction as is mentioned in Section 13, Clause (a)(3), is made by a person who is dead, or who cannot be found or who has become incapable of giving evidence ... it is by itself a relevant fact.

(3.) It is contended by Mr. Nandkeolyar in the first instance that the Judge was entitled to look at the documents because the persons were dead, and, as the recitals came under Section 13 they were relevant. But the fact is that there was no evidence whatever which fell to be considered under Section 32. The kobalas were simply introduced in the case without any evidence entitling them to be admitted under Section 32, Evidence Act. Had there been such evidence I should have held very reluctantly that it came under Clause (7), Section 32 read together with Section 17 of the Act. But I need not express my own view in the matter, as their Lordships of the Privy Council have decided that the application of the section is to be extended to corporeal rights as well as incorporeal rights. I am quite clearly of the opinion that the learned Judge was not entitled to look at either of these documents (and certainly Ex. 4) for the purpose of establishing the rent-free nature of the defendants grant. At this point I should state that in this case there was no sanad or document of title or contract of any kind proved by the defendants and therefore they were forced to rely upon these kobalas plus the entry in the Record of Rights. Now the learned Judge has stated that apart from the kobalas the Record of Rights could be relied upon as the plaintiffs did not rebut the entry thereof.