GOURI SANKAR DATTA MOZUMDAR Vs. MINNAT ALI CHOWDHURI

JUDGEMENT

(1.) This appeal arises out of a suit for rent. The plaintiff's case is that the ancestor of the defendants executed registered kabuliats in his favour. We are informed that these kabuliats were for terms of three years. It is recited in the plaint that on the strength of these kabuliats and at the rate of rent paid from before, the defendants ancestor and afterwards the defendants themselves paid the said rent and owned and held possession of the land. The suit has been decreed at the rate admitted by the defendants and the plaintiff appeals.

(2.) The only point of law that arises in appeal is whether the District Judge is right in holding that under Section 91 of the Evidence Act the plaintiff is not entitled to adduce any other evidence than the kabuliats inasmuch as he suppressed the kabuliat in the trial before the Court of first instance. In our opinion, the view of the learned District Judge is erroneous. The collection papers which have been excluded were not put in proof of the terms of the kabuliat to quote the words of Section 91 of the Evidence Act. The plaint shows that the suit was not based exclusively on the kabuliat but also on the collection of rent. A raiyat is presumed to hold in any year at the same rent as in the preceding year, and if the collection papers prove that these raiyats were holding at the rate claimed by the plaintiff in the years prior to the years in suit they will be certainly admissible in evidence whether or not they might be-given in proof of the terms of the original. kabuliat.

(3.) We think, therefore, that the decree of the learned District Judge should be set aside and that he should re-hear the appeal after considering the collection papers produced.