ABINAS CHANDRA MAJHI Vs. PRATUL CHANDRA GHOSE

JUDGEMENT

(1.) This appeal has arisen out of a suit which was instituted by the plaintiff for recovery of khas possession of and for declaration of his title to a certain plot of land. The suit was decreed by the trial Court and that decision was affirmed on appeal by the learned Subordinate Judge. The defendants have thereupon preferred this second appeal. The plaintiff's case was that the land in suit formed part of an occupancy holding which consisted of 30 bighas odd of land and bore a rental of Rs. 59 odd and it was held by one Yasin Mallick, that in execution of a decree for rent which was obtained; by the landlord against the said Yasin Mallick the said holding was put up to sale and was purchased by the plaintiff, that the plaintiff thereupon served a. notice under Section 167, Ban. Ten. Act, upon; the defendants alleging that the defendants were under raiyats and thereafter the plaintiff instituted the suit for declaration of his title to and for recovery of khas possession of the land of which the said defendants were in such possession. The plaintiff's case was that this particular plot of land originally stood in the name of one Daimali Mullick and appertained to the jote of one Porabaddi Mallick who held as a raiyat under the said landlord. The defendants case, on the other hand, was that the land in suit did not appertain to the raiyati holding, of the said Porabaddi Mallick, but that, as a matter of fact, it was land which had been purchased by the wife of the said Porabaddi Mallick and from her the land descended to her son Deratulla, from whom it was transferred by a gift to one Ohidannessa Bibi under whom the defendants held not as an under-raiyat but as an occupancy raiyat. The defendants case further was that their landlords were tenure-holders having a lakheraj right to the land.

(2.) The grounds that have been urged in support of this appeal are four in number. The first ground relates to the question, of admissibility of a chitta and a khatiam of the year 1261 which was proved is evidence on behalf of the plaintiff and upon which reliance has been placed by both the Courts below for the purpose of holding that the land in suit appertained to the jote of Porabaddi Mallick and that Porabaddi Mallick, as well as the tenant, in execution of a decree for rent as against whom the property was sold and purchased by the plaintiff, was a raiyat and not a tenure-holder. So far as this question is concerned it would appear that the chitta and the khatian are dated 1261 and it is not disputed that the person who made the entries in these documents relating to the land in question is now dead. If that be the position the documents, in my opinion, come clearly within the provisions of Section 32, Sub-section (2), Evidence Act. The amin who made the measurement and prepared the khatian and chitta must be taken to have made the entries in these documents in the ordinary course of his business or in the discharge of his professional duties within the meaning of that sub-section. It is unnecessary in this view of the matter to consider whether these documents are or are not also relevant under the provisions of Section 13, Evidence Act.

(3.) The next ground that has been urged is to the effect that the onus of proof was wrongly placed upon the defendants. Beading the judgment of the learned Subordinate Judge as a whole upon the question of the status of the defendants it does not seem to me that this contention is well founded. As a matter of fact the learned Subordinate Judge appears to have taken the whole of the evidence that there is on the record and upon that evidence has come to the conclusion that the disputed land was held by Daimali Mallick, the predecessor of the defendants, as a raiyat. In the circumstances I do not think any question of onus really arose in the case. The learned Subordinate Judge has observed that the khatian and the chitta to which reference has already been made prove that the disputed land was held by Daimali as a raiyat. He has then referred to the fact that the area of the land being only 30 bighas, no presumption arose to the effect that Daimali was a tenure-holder; and, being of opinion that upon the whole of the evidence the fact that Daimali was only a raiyat has been proved, he has recorded a finding to that effect. It may be stated in this connexion that the case which the defendants put forward, namely that they had been paying bhag paddy to Mohammad Sheik on the footing of their case to the effect that it was Bijari Bibi and not her husband Porabaddi Mallick who was the holder of these lands, has not been believed by the learned Subordinate Judge.