SHEIKH JAKI MAMOOD Vs. DINO BANDHU BHATTACHRAJEE

JUDGEMENT

(1.) This appeal arises out of a suit for rent in kind. The defence of the tenant was that the plot for which the rent was claimed lay within another holding which he hold at a money rent, and that the plaintiffs were not entitled to separate rent in kind for this plot. The lower appellate Court found that this plot was not included in the defendant's nagdi holding, and accordingly gave a decree to the plaintiffs for the value of the rent in kind. The defendant appeals to this Court.

(2.) The first point taken on behalf of the appellant is that the learned Subordinate Judge erred in admitting in evidence certain butwara papers. The learned pleader for the appellant relies on the cases of Drobo Moyee Gosmanee. V/s. Dhurmo Doss Koondoo 10 W.R. 197 and Gopal Chunder Shalia V/s. Madhub Chunder Shaha 21 W.R. 29. In the first of those oases, however, it is not stated what the papers were which the Court held to be inadmissible in evidence, and in the second case the papers excluded were chittas. The law governing partitions has been much changed since those cases. The Deputy Collector has now to prepare a record of existing rents in which he has to enter, among other details, the rent as stated by the tenant. He has also to go to the village, after giving due notice, and then read out the entries in the record in the presence of such of the interested persons as are present. After all these proceedings have been completed the Deputy Collector determines the partition and prepares the paper of partition which specifies the lands included in each separate share. The papers which have been produced in this case appear to be, first, the paper of partition prepared under Section 57 which was given to the plaintiffs when their share was divided off. This contains a list of the plots which fell to their share. Another paper which has been filed appears to be the field-book or chitta which describes the various plots. Now it may well be that such chitta would be no evidence against a tenant who was not a party to the partition, if it stood entirely by itself. But the partition paper prepared under Section 57 is, we think, admissible in evidence under Section 13 of the Evidence Act as a record of a transaction in which the right to certain plots is recognised. Of course we do not say it would be very valuable evidence against a tenant who was not a party to it, but that it would be admissible in evidence seems to us perfectly clear. In the same way the chitta, which perhaps by itself would be inadmissible in evidence, might be admitted under Section 9 of the Act, as explanatory of the partition paper, which without the chitta might be very difficult to understand.

(3.) We think, therefore, that these papers were admissible in evidence in this case and the first contention of the appellant, therefore, fails.