PRATAP NARAIN JHA Vs. RAMASRAY PERSHAD CHAUDHURY

JUDGEMENT

(1.) The suit out of which this appeal arises was instituted for recovery of arrears of produce rent for the years 1337 to 1340 Faslis. The Munaif finding the evidence regarding the appraisement which was adduced on behalf, of the plaintiffs to be untrustworthy and insufficient, decreed the suit in part on the admissions of the defendants. His decision was reversed on appeal by the Additional Districts Judge of Darbhanga who held on the authority of the decision in Hafiz Zeyauddin v. Jagdeo Singh A.I.R.1929. Pat. 384 that in a suit for arrears of produce rent, the entire onus was upon the tenant. defendants to satisfy the Court as to what was the produce during the years in suit. He found that the tenants had failed to prove that appraisement had not been made as claimed by the plaintiffs; and that their own account of the produce could not be accepted, partly because certain receipts which had been granted on behalf of a co-sharer of the plaintiffs for his share of the produce rent for the years 1337 and 1339 had not been formally proved. He decreed the plaintiffs suit in full, and the defendants preferred a second appeal against his decision. The second appeal originally came up for hearing before a Judge sitting singly, at whose instance it was referred to a larger Bench, in order that the question of the correctness of the expression of opinion of the Division Bench in Hafiz Zeyauddin V/s. Jagdeo Singh A.I.R.1929. Pat. 38 might be considered.

(2.) In the first place it is to be observed that the remarks in the decision in Hafiz Zeyauddin's case A.I.R.1929. Pat. 384 on which the head note in the report in the Patna Law Times is based, are at the most obiter dicta, because the decree in that appeal was made by consent, based on the figures given in the landlord's recodes return, and the question of onus did not arise. Mahomed Ibrahim V/s. Abad A.I.R.1930. Pat. 388 where in the argument the decision in Hafiz Zeyauddvn's case A.I.R.1929. Pat. 384 had been Cited, it was observed that in a suit for arrears of produce rent as in any other rent Suit the plaintiff's case must be proved admitted before he can obtain a decree; that is to say in a suit for arrears of produce rent as in any other suit, the burden of proof initially lies upon the plaintiff.

(3.) In our judgment the account of the matter given in Mahomed Ibrahim V/s. Abad A.I.R.1930. Pat. 388 is the more correct pf the two and since we have to decide whether this obiter dictum in Hafiz Zeyauddin V/s. Jagdeo SinghA.I.R.1929. Pat. 384 should be accepted or not, we are of opinion that it should be regarded as in correct, so far as it lays down that in a suit for arrears of produce rent the onus is on the defendant to satisfy the Court what was the produce during the years in suit. As we have observed, the report cannot properly be considered as authority for that proposition, but since it has been so considered, and so far as obiter dicta of this kind can be regarded as authority, it must fox the future be treated as overruled. The learned Additional District Judge erred in law in treating the receipts of the plaintiffs cosharer which were produced on behalf of the defendants as in-admissible in evidence, because they had not been formally proved. They were admitted into evidence without objection, and they were proved by the evidence of the defendants witness Chatra Singh. He described himself as karpardaz of the co-sharer landlord on whose behalf the receipts had been granted; and lie stated that the receipts had been granted by the patwari after payment of the produce rent. He was not cross-examined oh either of these points. The learned Munsif discussing the papers which purported to be records of an appraisement made on behalf of the plaintiffs, came to the conclusion that these were not papers prepared in the field, partly because he noticed that the ink was far too fresh for records which purported to be three or four years old. The learned Additional District Judge, when he came to hear the appeal seven, then months later, was not satisfied that the ink looked fresh; but the learned advocate for the appellants remarks with reason that ink which look fresh in July 1931 would necessarily not t look fresh in December of the following her This would be a question of fact and not in itself a ground for interference in second appeal.