Patna High Court
Hitnarain Singh vs Rambarai Rai And Ors. on 20 April, 1928
Equivalent citations: 115IND. CAS.196, AIR 1928 PATNA 459
JUDGMENT Das, J.
1. This was a suit instituted by Rambarai Rai the principal respondent in this Court under the following circumstances:
2. One Autar Rai had a block of land, 21 bighas 15 kathas in area by survey measurement, in kasht rights. Autar Rai died sometime in 1920. On 30th September, 1920, Hitnarain Singh, the landlord (the principal defendant in the action and the appellant before us), instituted a rent suit against Sri Krishna Rai fur recovery of rent due in respect of the raiyati lands once in the possession of Autar Rai. On 20th December, 1920, he recovered a decree. He proceeded to execute his decree in due course of law and on 13th June, 1921, he purchased those raiyati lands. On 8th April, 1922, he obtained delivery of possession. Proceedings under Section 144, Criminal Procedure Code, followed; but these were all decided in favour of Hitnarain Singh. The plaintiff claims to be a mortgagee in possession, and he traces his title in the following way:
3. According to him, Autar Rai made over possession of the disputed lands to one Ganpat under certain usufructuary mortgages executed by Autar Rai in favour of Ganpat. These usufructuary mortgages were executed on 11th March, 1892, 5th June, 1892, and 18th December, 1905, respectively. According to the plaintiff, Ganpat transferred his right under the usufructuary mortgages to Gunendra Prasad on 9th August, 1911, and Gunendra Prasad sold his interest in those mortgages to the plaintiff on 26th June, 1922. The plaintiff contends that, as the transferee of the original usufructuary mortgagee, he is entitled to be restored to possession of the disputed lands.
4. It appears that Hitnarain Singh took certain proceedings for the annulment of the incumbrance under the provision of Section 167, Bengal Tenancy Act. With regard to this the plaintiff contends that the notices were not served in accordance with law and that indeed there is no evidence that they were at all served, and he insists that the proceeding taken under Section 167, Bengal Tenancy Act, did not operate so as to extinguish his title as a usufructuary mortgagee.
5. But the principal point made by the plaintiff in this case is that the rent suit instituted by Hitnarain Singh against Sri Krishna Rai was instituted against a wrong party inasmuch as Hira Rai and not Sri Krishna Rai was the heir of Autar Rai.
6. According to the plaintiff the decree obtained by Hitnarain in his suit against Sri Krishna cannot be regarded as a rent decree.
7. The first question to be determined in this appeal is whether the plaintiff has established a title to entitle him to the reliefs claimed. It was contended before us by Mr. Hasan Imam, that the transactions between Autar Rai and Ganpat were farzi in character and that consideration was not paid in respect of those transactions by Ganpat to Autar Rai and that possession of the subject-matter of those usufructuary mortgages was not made over by Autar to Ganpat.
8. The decision of the learned Subordinate Judge on this point is far too favourable to the defendant. He finds that the plaintiff has not established first that consideration was paid in respect of any of the transactions upon which the plaintiff relied; and, secondly, that Ganpat did not obtain possession of the disputed properties pursuant to the transactions of 1892 and 1905. According to the learned Subordinate Judge, Gunendra obtained possession of the disputed properties on the death of Autar Rai which took place sometime in 1920. It is the finding of the learned Subordinate Judge on this point which encouraged the argument before us that the transactions between Autar and Ganpat were not intended to be acted upon.
9. Now, so far as the passing of consideration is concerned, I am definitely of opinion that the onus was not upon the plaintiff to show that consideration passed in respect of the transactions upon which he relies. The learned Subordinate Judge has found that all the documents upon which the plaintiff relies were in fact executed by Autar Rai. Autar Rai never disputed the passing of consideration in respect of any of these transactions, and, in my opinion, it does not lie upon the defendant in this action to contend that consideration did not pass in respect of any of the transactions. But even were we to hold that it was open to Hitnarain Singh to raise the question as to the passing of consideration, I have no doubt whatever that the onus was upon him to prove that consideration did not pass. If I have understood the argument of Mr. Hasan Imam, he contended before us that, if consideration was not paid in respect of any of these transactions, and if possession was not taken by Ganpat pursuant to the transactions upon which the plaintiff relies then he has made out a strong case in support of his point that the transactions between Autar and Ganpat were farzi in character, I agree that the argument is a legitimate one, but then it is necessary for us to see whether possession was obtained by Ganpat pursuant to the transactions to which I have already referred.
10. The learned Subordinate Judge is hypercritical in regard to the evidence which was adduced by the plaintiff in support of his case as to the possession of Ganpat. It is, however, not necessary for me to go into all these matters because it is obvious that the learned Subordinate Judge ignored the most important evidence as to Ganpat's possession. The Record of Rights records Ganpat as in possession of all the disputed lands. Now if that be so, the onus was clearly upon the defendants to show that possession was not obtained by Ganpat, There is no satisfactory evidence on the record of this suit to show that the entry in the Record of Rights is erroneous. In my opinion, having regard to the entry in the Record of Rights and an entire absence of any evidence on this point on the other side, the learned Subordinate Judge should have held that the possession of Ganpat was established beyond reasonable doubt. I have already pointed out that the learned Subordinate Judge has found as a fact that, so far as Gunendra is concerned, he obtained possession in 1920 But I may point out, if Ganpat's possession is established there is no reason to take the view that Gunendra did not obtain possession of the disputed lands on 9th August, 1911. On a consideration of the evidence in the case, and having regard to the entry in the Record of Rights, I hold that it has been established that Ganpat obtained possession of the disputed lands on the execution of the usufructuary mortgage-bonds in his favour and that Gunendra obtained possession thereof on 26th August, 1920. If this be so, it is impossible to contend that the transactions upon which the plaintiff relies were farzi in character.
11. The plaintiff's title being established the question arises whether he is entitled to recover possession of the disputed lands. The defendants contest the position taken up by the plaintiff on the ground that he obtained a rent-decree which was operative as against the raiyati lands which were once in the possession of Autar Rai and that he has annulled the incumbrance existing on those lands. Now on this point, the plaintiff's case is that Hira Rai and not Sri Krishna Rai was the heir of Autar Rai. On the other hand the defendant contends that Sri Krishna Rai and his brother Swarath were the heirs of Autar Rai.
12. Now the evidence on the question of heirship is very meagre and it, therefore, becomes important to consider the question of onus of proof. As I have said, the plaintiff has established his title in this case. He is, therefore, entitled to recover possession of the disputed lands if nothing else is established. In other words if no evidence is adduced on behalf of the defendant, the plaintiff having established his title would undoubtedly be entitled to a decree for recovery of possession of the disputed lands. It seems to me that the onus is clearly upon the defendant to establish that he obtained a rent-decree binding on the holding and that he has extinguished the title of the plaintiff by taking the proper procedure indicated in Section 167, Bengal Tenancy Act.
13. It becomes necessary for me, therefore, to consider whether the defendant has obtained a decree binding upon the raiyati lands which were once in the possession of Autar Rai. The case of the defendant is that Sri Krishna and his brother Swarath were the heirs of Autar and that Sri Krishna, upon the death of Autar, took possession of the disputed lands, applied for mutation of his name in the landlord's sherishta, was recognized as a raiyat, and was then proceeded against in the rent suit to which I have already referred.
14. I will first consider the question whether there is any evidence to establish that Sri Krishna is the heir of Autar Rai. There is no documentary evidence on the point; but the defendant has examined three persons, Nagina Lal, Aproop Lal, and Khelawan in respect of his case on this point. Nagina Lal is the masadi of the principal defendant. He says:
Sri Krishna was a cousin of Autar, say two degrees remote.... I do not know if Sri Krishna's father had a brother 1 do not know the name of Sri Krishna's grandfather.
15. Now he does not say that he is related to Autar Rai: in fact he cannot be related to him, because it appears from his name that he is a Kayestha whereas Autar Rai was a Bhumihar Brahman. His evidence shows that he has no knowledge as to the facts as to which he is deposing and his evidence, therefore, in my opinion, establishes nothing in favour of the defendant.
16. The next witness is Aproop Lal, another Kayestha, in the employ of the defendant. In examination-in-chief he says:
Sri Krishna is the son of Autar's direct chacha. He, Sri Krishna, is Autar's sole heir. Hira is not Autar's heir.
17. In cross examination he says as follows:
Autar's father is Isri. Isri and Haricharan were two brothers. I do not know their father's name. I did not see Isri and Haricharan. I did not see any paper showing their relations. I heard that Isri and Haricharan were brothers.
18. It is obvious that the witness has no personal knowledge, but that, according to his own admission, his evidence is purely hearsay, and, therefore, inadmissible; and I may say that his assertion that Sri Krishna is Autar's sole heir is wrong even on the defendant's own case for it is stated before us that Swarath was a brother of Sri Krishna and, therefore a co-heir of Sri Krishna.
19. The only other witness examined on this point is Khelawan, a Dusadh. He, no doubt, says that "Autar and Sri Krishna are first cousins;" but in cross-examination he says:
I heard from Sri Krishna that his father was so and so and his grandfather was so and so.
20. Now, Sri Krishna is still living and therefore, what Khelawan heard from Sri Krishna is not admissible in evidence under Section 32, Evidence Act;. There is, in my opinion, not an atom of evidence in support of the defendant's case that Sri Krishna was the heir of Autar Rai.
21. I will shortly deal with the question whether the plaintiff has established that Hira Rai is the heir of Autar Rai. The learned Subordinate Judge has found on this point in favour of the plaintiff; but Mr. Hasan Imam contends before us that the decision of the learned Subordinate Judge on this point is erroneous. It must be conceded that the oral evidence adduced on behalf of the plaintiff on this point stands on no better footing than that adduced on behalf of the defendant. In other words, there is no oral evidence of which we need take notice in support of the plaintiff's case that Hira Rai is the heir of Autar Rai. But there is one document which certainly constitutes very strong evidence in support of the plaintiff's case. That is a Will which was undoubtedly executed by Autar Rai. This Will was executed by Autar Rai on the 17th August, 1907. The plaintiff himself was an attesting witness to this Will and his evidence completely proves the due execution of the Will by Autar Rai. It is a registered document and no suspicion as to its genuineness can possibly arise. In this Will Autar Rai says as follows:
I have only two nephews, one named Hira Rai and the other named Ram Khelawan Rai and both the nephews attend upon me and obey my orders and I also hope that after my death both the nephews will fully perform the sradh and other ceremonies.
22. Now there is a clear assertion by Autar Rai that he had only two nephews Hira Rai and Ram Khelawan Rai. It may be mentioned that Ram Khelawan, as a matter of fact, predeceased Autar Rai. There is, in my opinion, no reason to doubt the accuracy of the statement made by Autar Rai in his Will. It is quite true that Hira Rai cannot claim a title by virtue of this Will as Probate of this Will was not taken but the statement of Autar Rai in his will is good evidence under Section 32, Evidence Act.
23. Now, in the whole record of this case, this is the only piece of admissible evidence on the question of heirship and I can see no reason at all for discrediting the statement of Autar Rai in the Will. In my opinion the plaintiff has established, on the terms of the Will of Autar Rai, dated 27th August, 1907, that Hira Rai was the nephew of Autar Rai and that, as there is no evidence to the effect that there is any nearer heir of Autar Rai, we must hold that the plaintiff has established that Hira Rai was the heir of Autar Rai. If this be so, then it is obvious that the decree which was obtained by Hitnarain Singh as against Sri Krishna Rai cannot be regarded as a rent-decree so as to have any effect upon the title of the plaintiff. It is quite true that Hitnarain Singh has purchased the disputed lands in execution of a decree obtained against one who in no sense represented Autar Rai in that litigation, but, to quote the expression used by the plaintiff in the plaint, all that has been purchased by Hitnarain Singh is a "bag of wind," In any case the decree was not a rent-decree and the sale pursuant to that decree did not operate to convey the holdings in question to Hitnarain Singh. That being so, the plaintiff is clearly entitled to succeed in this action.
24. I should mention that, even if we were to accept the case of the defendant that Sri Krishna was one of the heirs of Autar Rai, we must still hold that the decree obtained by the landlord cannot be regarded as a rent-decree. It is the defendant's own case that Swarath and Sri Krishna were two brothers, and, therefore, co-heirs of Autar Rai. Swarath was not a party to the rent suit It follows that the holdings in question were not completely represented in that suit and that, therefore, the decree obtained by the landlord must be regarded as a money-decree and not as a rent-decree. It is the case of the defendant that Sri Krishna obtained possession of the holdings, applied for registration of his name, and was recognized by the landlord as the sole tenant. But such recognition could not extinguish the title of Swarath. But apart from anything else, the defendant's case on this point is manifestly false. The Record of Rights shows that both Ganpat and Gunendra obtained possession of the raiyati lands in the lifetime of Autar Rai, and it would be absurd to hold that Sri Krishna got possession of these lands on the death of Autar Rai. There is no documentary evidence in support of the defendant's case that Sri Krishna applied for registration of his name in the landlord's office or that his name was registered in accordance with that application. The defendant, no doubt, says that he lost all these documents as the result of the flood which overtook Arrah; but I have no doubt whatever that he is taking advantage of that flood to support a false case as to the absence of material documents.
25. In the view which I take it is not necessary for me to consider the further point whether the incumbrance was annulled by Hitnarain in accordance with law, but as this case may travel across the seas it is just as well that I should say that I think of this point. Section 167, Bengal Tenancy Act, provides as follows:
(1) A purchaser having power to annul an incumbrance... may, within one year from the date of the sale or the date on which he first has notice of the incumbrance, whichever is later, present to the Collector an application in writing requesting him to serve on the incumbrancer a notice declaring that the incumbrance is annulled.
(2) Every such application must be accompanied by such fee for the service of the notice as the Board of Revenue may fix in this behalf.
(3) When an application for service of a notice is made to the Collector in manner prescribed by this section, he shall cause the notice to be served in compliance therewith, and the incumbrance shall be deemed to be annulled from the date on which it is so served.
26. Now it is quite clear that a very strict construction must be placed upon the provision of Section 167, Bengal Tenancy Act, because it confers upon the landlord the right to put an end to an incumbrance without having to pay for it. It is, therefore, essential, in my opinion, for the landlord to establish that the proper procedure indicated in the section was adopted.
27. Sir Sultan Ahmed, appearing on behalf of the plaintiff, contends that there is no evidence in the record that notice under Section 167, Bengal Tenancy Act, para. (3), was in fact served upon the incumbrancer, and he argues that the only evidence in support of the defendant's case that notice was served upon the incumbrancer is the order-sheet in "The Section 167 case No. 14 of 1921-22." The order-sheet records an order to this effect.
Notice served. No objection filed. Case disposed of.
28. It is contended on behalf of Hitnarain Singh that the order-sheet (Ex C-4) constitutes good evidence that notice was in fact served upon the incumbrancer. But it has been laid down in a number of cases in the Calcutta High Court that "the entries in the order sheet are not prima facie evidence against the incumbrancer that the notice was served", and that it is obligatory on the purchaser to show that the notice under Section 167 has been served in the manner prescribed: see Radhey Koer v. Ajodhya Das 7 C.L.J. 262, Prafulla Nath Tagore v. Shital Khan 47 Ind. Cas 97 : 22 C.W.N. 788, Chhatardhari Lal v. Biranchi Lal 9 Ind. Cas 248 and Krishna Kamini Dasi v. Pratapendra Chandra Pandey 85 Ind. Cas. 790 : A.I.R. 1925 Cal. 1199.
29. Mr. Hasan Imam contends that the decisions of the Calcutta High Court are not correct because the order-sheet itself raises a presumption that the notice in question was served and that every presumption must be made by us as to the regularity of official acts, and Section 114, Clause (e), Evidence Act, was relied upon But the meaning of Section 114, Evidence Act, is that if an official act is proved to have been done it will be presumed to have been regularly done. It does not raise any presumption that an act was done, of which there is no evidence and the proof of it is essential to the plaintiff's case: see Narendra Lal Khan v. Jogi Hari 32 C. 1107 : 2 C.L.J. 107. It seems to me that a Civil Court dealing with this matter must be satisfied that the notices under Section 167, Bengal Tenancy Act, were in fact served upon the incumbrancer. The order-sheet in this case merely records the opinion of the Collector that the notices were served; but the opinion of the Collector is in no way binding upon the Civil Court and the Civil Court has a right to determine for itself the question whether the notices were in fact served or not. Mr. Hasan Imam relies upon two decisions of this Court: the case of Nand Kishore v. Rameshwar Singh 78 Ind. Cas. 476 : A.I.R. 1924 Pat. 515 : 2 Pat. L.R. 19 and Ram Protap Marwari v. Jhoomak Jha 39 Ind. Cas. 943 : 1 P.L.W. 440. In my opinion in none of those cases were the learned Judges considering the point which the Calcutta High Court discussed in the cases to which I have referred. The only point in the case in Nand Kishore v. Rameshwar Singh 78 Ind. Cas. 476 : A.I.R. 1924 Pat. 515 : 2 Pat. L.R. 19 was whether the notices had been served within the period of limitation prescribed in a. 167. No doubt, in dealing with that point the late Chief Justice of this Court said as follows:
Under the section once the Collector has issued the notice the incumbrance must be deemed to have been annulled.
30. Stopping here for a moment, I may point out that this is not a correct re-production of Section 167, Bengal Tenancy Act. Section 167 lays down that the incumbrance shall be deemed to be annulled, not from the date when the Collector issues the notice, but from the date on which it is served upon the incumbrancer. The late Chief Justice proceeds to say as follows:
This does not mean that the validity of the notice and the consequent annulment of the incumbrance cannot afterwards be called in question. I consider, however, that the effect of the section is to cast the burden of proof upon the person questioning the validity of the notice. It was, therefore, incumbent upon the plaintiffs... to prove that the landlord had in fact notice of the incumbrance more than 12 months before he made the application to the Collector.
31. The point which I have to consider in this case was not before their Lordships and it is, therefore, not necessary for me to say anything more than this: that if the learned Judges intended to differ from the long series of cases decided in the Calcutta High Court without referring to those cases, then, with all respect, I differ from their Lordships.
32. The other case upon which Mr. Hasan Imam relies is the case of Ram Protap Marwari v. Jhoomak Jha 39 Ind. Cas. 943 : 1 P.L.W. 440. The only point involved in that case was whether an application presented to the Deputy Collector was an application contemplated by 8. 167, Bengal Tenancy Act. No other point was involved in the case, and I decline to consider as binding upon me any obiter dictum that may have been expressed in the course of the decision of their Lordships in dealing with that case. In my opinion the decisions of the Calcutta High Court on this point are correct and I respectfully agree with those decisions. In my opinion, therefore, there is no evidence at all that the incumbrances have been annulled under Section 167, Bengal Tenancy Act, and even if it were established in this case that the decree obtained by the landlord was a rent-decree the plaintiff would still be entitled to recover possession of the disputed lands.
33. I agree with the conclusion at which the learned Subordinate Judge has arrived and dismiss this appeal with costs.
Allanson, J.
34. I agree.