Patna High Court
Charitter Rai And Ors. vs Kailash Behari And Ors. on 8 February, 1918
Equivalent citations: 44IND. CAS.422, AIR 1918 PATNA 537
JUDGMENT Mullick, J.
1. These five appeals arise out of five second appeals heard by Mr. Justice Chapman sitting alone as a Judge of this Court. The litigation commenced with some applications made by the plaintiff landlords under Section 105 of the Bengal Tenancy Act against the raiyats of certain villages for assessment of fair and equitable rent. The tenants or some of them set up the defence that they were raiyats either at fixed rents or fixed rates of rent and that, therefore, the landlords were not competent to make any enhancements as regards their holdings and they contended that the entry in the Record of Rights published under Section 103 (B) of the Bengal Tenancy Act shewing them to be settled raiyats was wrong. The Assistant Settlement Officer found, so far as the tenants before us are concerned, that the entry in the Record of Rights was correct and that they were not raiyats at fixed rents or rates of rent but settled raiyats whose rents were liable to enhancement. He accordingly assessed rent upon these raiyats allowing an enhancement on account of the rise in the price of food crops and for other grounds. The tenants thereupon appealed to the Special Judge and we are concerned with the four appeals which in the Court of this latter officer were numbered 155, 160, 186 and 187 of 1912. It is necessary to observe that Appeal No. 186 of 1912 covered the oases of two sets of raiyats, the judgment in regard to one set being delivered by Mr. Monahan as Special Judge and the judgment in regard to the other set being delivered by Mr. Macpherson as Special Judge. This in effect makes a total of five appeals before the Special Judge. The tenants succeeded before the Special Judge, who held on grounds which will be considered presently that the entry in the settlement record was incorrect. The landlords then preferred five second appeals to the Calcutta High Court, which were transferred to this Court for hearing.
2. These second appeals were heard, as I have already observed, by Mr. Justice Chapman who came to the conclusion that the learned Special Judge was wrong and that the landlords had succeeded in rebutting whatever presumption as to fixity was raised by the evidence of the tenants; he, therefore, decreed the appeals before him and restored the judgment of the Assistant Settlement Officer. The present appeals are preferred against the judgment and decree of Mr. Justice Chapman by some of the raiyats who had succeeded before the learned Special Judge.
3. Before dealing with each appeal separately it is desirable to take up one point which is common to all. Before Mr. Justice Chapman the landlords contended that the learned Special Judge was wrong in deciding that the collection and other papers produced by the landlords before the Assistant Settlement Officer were inadmissible in evidence. Mr. Justice Chapman came to the conclusion that this contention was well founded. In this Court the raiyat appellants attack the judgment of Mr. Justice Chapman on the ground that he has taken an erroneous view of the law. These Zemindari papers are papers produced from the office of the landlords dating from 1202 F. 8., that is, two years after the Permanent Settlement. The papers previous to 1861 appear to be unsigned and the plaintiffs are unable to say by what officer or officers they were prepared. The papers subsequent to 1S61 appear to bear the signature of certain officers who are or were in the plaintiffs' employ or in the employ of their predecessors.
4. Let us first examine the contention that the unsigned papers are admissible under Section 90 of the Indian Evidence Act. Now Section 90 merely allows a party to ask the Court to presume that a document which is more than 30 years old and purports to have been prepared or signed by a particular person was in fact prepared or signed by such person. Further than that the section does not go. It certainly does not contemplate that where a party producing a document is unable to say who prepared or signed it or where the document itself does not purport to shew who prepared or signed it, the mere fact of the document being more than 30 years old makes it admissible without proof. If that was the law, it would be impossible to test the value of such evidence and in cases between landlord and tenant no tenant would be safe. Section 90 of the Evidence Act will not, therefore, assist the landlord.
5. But the documents both signed and unsigned would be admissible not only as corroborative evidence but as independent evidence, if the landlords complied with the requirements of Section 32 of the Evidence Act. It was no doubt necessary for the landlords to establish the antecedent condition that the persons who prepared these papers were dead or could not be found, but the tenants appear to have taken this for granted and the papers were accepted by the trial Court with an endorsement to the effect that they were admitted without objection. In these circumstances it is too late for the raiyats to take the objection that the documents required formal proof. This principle has been affirmed by their Lordships of the Privy Council in Shahzadi Begam v. Secretary of State for India 34 C. 1059 : 9 Bom. L.R. 1192 : 6 C.L.J. 678 : 2 M.L.T. 439 : 34 I.A. 194 (P.C.) where at page 1074 their Lordships observed as follows:
Their Lordships are, however, of opinion that it is now too late for the respondent to take an objection to the admissibility of a document which was received without objection at the trial.
6. The learned Judge of this Court was therefore, clearly right in holding that the documents are legal evidence. In Aktowli v. Tarak Nath Ghose 17 Ind. Cas. 266 : 16 C.L.J. 828 : 17 C.W.N. 774 the question of the relevancy and weight to be attached to similar papers was very fully discussed by their Lordships of the Calcutta High Court and the conclusion arrived at was that although the papers could not be admitted under Section 34 of the Indian Evidence Act as corroborative evidence without independent evidence of the fact of collection at certain rates, they could be used as independent evidence if they were relevant under Section 32, Clause (2). To like effect is the judgment of their Lordships of the Bombay High Court in Rampyarabai v. Balaji Shridhar 28 B. 294 : 6 Bom. L.R. 50. Their Lordships, however, added a caution in the concluding portion of their judgment as follows:
At the same time we wish it to be distinctly understood that though the accounts, which are relevant under Section 32 (2), do not, as a matter of law, require corroboration, the Judge is not bound to act on them without corroboration; that is a matter on which he must exercise his own judicial discretion as a Judge of fact. In what I have said I have in no way limited the discretion of the Judge as a Judge of fact in determining whether or not he will act on the accounts without corroboration, the only point being that the law does not require corroboration.
7. It is necessary, therefore, to consider what weight the learned Special Judge would have attached to the papers if he had held them to he legally admissible. I will proceed, therefore, to deal with each Letters Patent Appeal separately.
8. Letters Patent Appeal No. 72 of 1917 corresponds to Second Appeal No. 1298 of 1915, which corresponds to Appeal No. 186 of 1912 before the Special Judge. When Appeal No. 186 was first preferred in the Court of the Special Judge three holdings were concerned. Mr. Monahan the Special Judge dealt with the case of one of these holdings which was in the possession of the appellant Tirbeni (defendant No. 10 in the Court of the Assistant Settlement Officer), and came to the conclusion that Tirbeni had established the presumption required by Section 50 of the Bengal Tenancy Act and that the papers of the landlord had not fully rebutted that presumption. With regard to the tenants who were in possession of the other two holdings, namely, defendants Nos. 4 and 13 in the Court of the Assistant Settlement Officer, Mr. Monahan decreed the landlord's claim in the absence of the tenants. These tenants thereupon filed an application for review, which came up for hearing before Mr. Macpherson who was the successor of Mr. Monahan as Special Judge. Mr. Macpherson saw good grounds for admitting the review and finally disposed of these two cases by agreeing with Mr. Monahan (though for an additional reason) and holding that the landlord's papers were thoroughly unreliable and that the presumption raised had not been rebutted. The result of this was that out of Special Appeal No. 188 there have arisen two second appeals, namely, Nos. 1298 and 4183.
9. Letters Patent Appeal No. 72 deals with Second Appeal No. 1298. In this case the raiyats are, as I have observed, defendants Nos. 4 and 13 before the Assistant Settlement Officer. The learned Vakil, for the appellants, urges that although the landlord has succeeded in Mr. Justice Chapman's Court in establishing that the collection and other papers produced by the landlord are admissible in evidence, still as there is a definite finding by Mr. Macpherson that the landlord's papers are thoroughly unreliable the appeal before Mr. Justice Chapman was concluded by a finding of fact and should have been dismissed. This would, no doubt, have been so if the matter had rested there. So doubt the finding of Mr. Macpherson that the landlord's papers were utterly unworthy of credit would altogether do away with the necessity of determining whether or not the papers were admissible under the provisions of the Indian Evidence Act and, therefore, Mr. Justice Chapman's decision that the papers were admissible would not in any way affect the competency of the appeals before him. But the learned Vakil for the landlord before us meets this argument on behalf of the appellants by contending that defendants Nos. 4 and 13 have at the outset failed to establish that there was any presumption under Section 50 of the Bengal Tenancy Act in their favour and he shows this in the following way. These two tenants have no rent receipts by which they can establish payment at a fixed rent for 20 years. It is not their case that they have paid at any fixed rate of rent. What they have done is this; they have asked us to look at the landlord's jamabandi of 1277 F.S. and to hold that the rental recorded in the survey and settlement record is identical with the rent recorded in the jamabandi of 127 F.S. Now this does not appear to be a fact. What appears to be the real fact is that the jamabandi of 1277 shows not only the rent now recorded in the survey and settlement record but an additional sum on account of Company's batta. If, therefore, the tenants contend that their holdings were created at the time of or previous to the Permanent Settlement, then the landlord had prima facie a right to demand Company's batta when sicca rupees were finally converted into Company's rupees. The tenants cannot say that the entry on account of batta is to be disregarded and the amount represented in Company's rupees only is to be taken as the true rent in 1277. If they contend that the amount entered on account of batta is an abwab, then they are in the dilemma that they must admit that their holding was created sometime subsequent to 1836 when the sicca rupee was finally declared not to be legal tender. The conclusion at which I have arrived is that the jamabandi of 1277 must be taken as a whole and the entry there must be taken to mean that the rentals payable by these tenants were not identical with the rents recorded in the survey and settlement record published in or about 1911. If that is so, then the basis upon which the tenants claim to be entered as raiyats at fixed rents or rates of rent completely disappears; and this is admitted by the learned Vakil for the appellants who says that if he is not entitled to pick out that part of the entry which relates to Company's rupees in the jamabandi of 1277 then he is unable to raise the presumption in favour of his clients. Therefore, the decision of the Assistant Settlement Officer in regard to these two tenants was correct and the decision of the learned Special Judge cannot be sustained, irrespective of the fact whether or not the landlord's collection papers were admissible in, evidence. If the landlord's papers are not admissible the tenants are unable to shew the payment in 1277 at the rate which they claim to have paid. If the landlord's papers are admissible then the entry must be taken as a whole, and it does not support the case that in 1277 the rent recorded in -1911 was the rent of the holding. It is to be observed that the Special Judge Mr. Macpherson was of opinion that although Company's batta may have been entered in the jamabandi of 1277 still in the absence of direct evidence to shew that Company's batta was in fact realised the tenant is competent to maintain that his real rent in that year was exclusive of Company's batta. The reply to this is that the rate of rent is not dependent upon the quantity collected. The landlord may be unable to collect his full rent but if his papers are complete and if they do in fact shew that the full rent was inclusive of batta, then it is immaterial whether or not the batta was collected. The full rent, therefore, in the case of defendants Nos. 4 and 13 was the rent inclusive of batta and does not, therefore, agree with the rent shown in the survey and settlement record. That being so, Letters Patent Appeal No. 72 must be dismissed with costs. Mr. Justice Chapman's judgment restoring the judgment of the Assistant Settlement Officer in regard to these two tenants must be affirmed. The tenants have failed to raise any presumption and the question of the admissibility of the papers does not arise.
10. Letters Patent Appeal No. 75, which corresponds to Second Appeal No. 4183, relates to the raiyat Tirbeni (defendant No. 10) who was the other tenant concerned in Appeal No. 186 of 1912 before the Special Judge. His case is also identical so far as concerns the question of presumption with that of the tenants in Letters Patent Appeal No. 72. In this case also the tenant had recourse to the jamabandi of 1277 for the purpose of establishing a uniform payment of rent at the rate of Rs. 210. Now the jamabandi shews that the rent in 1277 was Rs. 210-15-0, with Company's batta Rs. 14-13-0. The Record of Rights shews the rent to be Rs. 210-15-0. In my opinion the rental in 1277 F.S. must be taken to be Rs. 210-15-0, plus Rs. 14-13-0, which is greatly in excess of the amount shown in the Record of Rights and, therefore, I must hold that Tirbeni has failed to establish a statutory presumption under Section 50 of the Bengal Tenancy Act. Letters Patent Appeal No. 75 must, therefore, be dismissed with costs.
11. As regards the costs the respondents having succeeded and the appellants having failed upon the merits as well as on the ground of admissibility the landlords will be entitled to their costs.
12. Letters Patent Appeal No. 74 arises out of Second Appeal No. 2845 of 1913, which corresponds to Appeal No. 160 of 1912 before the Special Judge Mr. Monahan. In this appeal the judgment of Mr. Justice Chapman as regards the admissibility of the Zemindar's papers must be upheld and, therefore, the only question is whether the appeals must be remanded or whether there was any finding by the Special Judge which concluded the second appeal before Mr. Justice Chapman. Now in this case there is a finding by Mr. Monahan to the following effect: "Thus the above jama-bandis of 1235 and 1237 taken in conjunction with the sharahwar jamabandis would be sufficient, in my opinion, to rebut the presumption in favour of fixity of rent provided that these jamabandis can be accepted as evidence." Mr. Monahan decided that the papers were not admissible at all, but he was of opinion that if they were legally admissible then they were sufficient to rebut the presumption raised by the raiyats. There is no question that a prima facie presumption was legally raised. The only question is whether landlords had by their evidence rebutted that presumption. In view of the very deliberate finding recorded by Mr. Monahan it is impossible for us to accept the contention of the learned Vakil for the raiyats appellants before us that Mr. Monahan did not take into consideration the collection papers at all or at any rate that he did not take into consideration all the collection papers and that he recorded his finding only upon the evidence which was in his opinion admissible. I cannot give his judgment this construction. I think it was his intention to provide for the contingency of the Appeal Court holding that he was wrong upon the question of the admissibility of the. documents and he, therefore, took the precaution of recording what would be his finding if the Appeal Court came to the conclusion that the jambandis and other papers were admissible. Therefore, Mr. Justice Chapman having decided that the jamabandis were admissible, it was competent for him to decree the appeal forthwith and to order enhancement according to the rates found by the Special Judge. This he has directed to be done in the concluding portion of his judgment, which is as follows: "I would, therefore, reverse his (Special Judge's) judgment in appeal and direct that the decree be drawn up in accordance with the rents, which it is apparent from the learned Special Judge's judgment he would have settled if he had admitted the jamabandi papers as evidence." Our order, therefore, will be that the judgment and decree of Mr. Justice Chapman be affirmed and the appeal of the tenants before us be dismissed with costs.
13. Letters Patent Appeal No. 73 corresponds to Second Appeal No. 482, which corresponds to Appeal No. 155 of 1912 before Mr. Monahan. In this case the question of the admissibility of the Zemindars' papers having been decided in his favour, the only question is whether Mr. Monahan's finding disposed of the matter in dispute in second appeal. It appears that Mr. Monahan, after holding that the papers were not admissible, does not come to any clear finding as to whether they would have established the Zemindars' case if his finding on the point of law had been otherwise. His judgment is not altogether satisfactory and I am not certain that he had a clear conception in his mind as to the nature of the proof which it was necessary for the Zemindars to adduce in order to rebut the presumption created by the production of 20 years' receipts by the raiyats shewing payment of a uniform rental. In my opinion the proper course will be to remand this case to the Special Judge in order that it may be dealt with according to law after consideration of the Zemindars' papers which, agreeing with Mr. Justice Chapman, we hold to be admissible in evidence. The Assistant Settlement Officer assumed that these papers were genuine. There appears to have been some argument before him as to whether they were forgeries but he did not accede to the argument of the tenants on this point. Mr. Monahan the learned Special Judge appears also to have taken for granted that the papers were genuine. The only question which was argued before him was whether they were admissible in evidence according to law. It will not be open, therefore, when the case goes back on remand, for the tenants to argue that the papers are not genuine. The only question which will be open will be as to what these papers prove and whether they do in fact entitle the landlords to say that they have rebutted the presumption which the tenants have raised. That is to say, the learned Special Judge will have to consider what credit is to be attached to these papers. He may be of opinion that these papers are not of any value whatever but that is a matter entirely for him. It is needless to refer to the caution which is given in Gopal Mundul v. Nobbo Kishen Mookerjee 5 W.R. Act X Rulings 83 to the effect that Zemindari papers being ex parte ought to be very carefully scrutinised before they are held sufficient to make the tenant liable for the rent shown in them. Every case in which the Zemindar seeks to obtain enhancement upon the strength of his papers must depend upon its own facts. The learned Assistant Settlement Officer appears to have applied himself only to a consideration of the rates of rent disclosed in the papers of the Zemindars. As has been observed by Mr. Monahan, a change in the rates would not necessarily shew a change in the gross rental paid by a tenant who pleads uniform payment for 20 years, and it would be quite possible for a Zemindar to re arrange the rates from year to year without affecting the gross rental paid. The learned Vakil for the Zemindars, respondents before us, however, asserts that he will be able to shew from his papers that there is not a single tenant in the village here in question who was a tenant at the time of the Permanent Settlement who has not at some subsequent time paid a different rent for the same area in two successive years. If he can shew this, that will throw back the onus upon the tenant to establish that although his rental has changed that rental still includes a part of the rental paid upon the original area held at the time of the Permanent Settlement. It is impossible for us to dispose of the matter finally, although it is eminently desirable that this litigation should be ended as quickly as possible. I think, therefore, although in my opinion, the course is extremely unsatisfactory, that the only order we can make is that the appeal should be allowed and that the case should be sent back to the Special Judge in order that he may come to a finding upon the question of fact, namely, whether or not the presumption raised by the raiyats has been rebutted by the landlords, after giving due weight to the evidence adduced by both parties and to the observations made in this judgment. Neither party will be permitted to adduce additional evidence.
14. As regards costs although the tenants succeed in obtaining a remand, it is to be observed that they might have obtained the same result in the Court of Mr. Justice Chapman if they had brought to his notice the judgment of Mr. Monahan in this case. The fact appears to be that they brought to Mr. Justice Chapman's notice only one judgment, namely, the judgment in the Appeal No. 186 of 1912. The other judgments were apparently completely ignored and I am quite certain that if the judgment of Mr. Monahan in Appeal No. 160 of 1912 had been brought to the notice of Mr. Justice Chapman, he would not have restored the judgment of the Assistant Settlement Officer but would' have remanded the case to the Court of the Special Judge for a decision upon the merits, in other words, he would have taken the very course which we have now taken. In these circumstances the appellants will not be entitled to any costs in this Court.
15. Letters Patent Appeal No. 76, which corresponds to Second Appeal No. 3440' of 1913, which corresponds to Appeal No. 187 of 1912 before Mr. Monahan. In this case also there is no conclusive finding by Mr. Monahan in favour of either party. The same remarks apply to this appeal as to Letters Patent Appeal No. 74. For the same reasons this appeal must be decreed and the case remanded to the Special Judge for disposal in accordance with law after due regard to the judgment of this Court. No additional evidence will be allowed. The appellants having failed to bring to Mr. Justice Chapman's notice the judgment of Mr. Monahan in Appeal No. 187 of 1912 before him they, will not be entitled to any costs.
16. In each of the Appeals Nos. 72, 74 and 75 the costs awarded to the respondent landlords will be assessed at 3 gold mohurs.
Dawson Miller, C.J.
17. I agree.