Citation Codes

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citation codes

Case Number

AFOD No. 171, 172, 173 and 228 of 1951

Advocates

Hari Gopal Roy
J. Majumdar
Nani Gopal Das
Biswanath Mukherjee and Barun Kumar Roy Choudhury

Judges

Mookerjee
Renupada Mukherjee, JJ.

Acts

provisions of section 66 of the Indian Evidence Act.19.
SECTION 18 LAND ACQUISITION ACT
SECTION 69 REGISTRATION ACT 1908
section 74 of the Indian Evidence Act
section 74(1)(iii) of the Evidence Act
SECTION 66 EVIDENCE ACT
SECTION 67 EVIDENCE ACT

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Smart Summary

Structured Summary of the Court's Judgment

Factual and Procedural Background

A large number of plots were compulsorily acquired for establishment of a Livestock Research Station at Haringhatta. Notification and Declaration were published in October and November, 1945. Separate Land Acquisition Cases were initiated to determine market value and to adjudicate claims for apportionment among various claimants.

Four appeals arose from references made by the proprietor (landlord) challenging valuation and the Collector's direction for apportionment. The same landlord is appellant in each appeal; respondents are claimants holding subordinate interests (different claimants in each case). The four appeals were heard together and the Court determined that the common aspects of law and fact would be addressed together, with separate treatment of apportionment where necessary.

At first instance the Land Acquisition Collector fixed the market value at Rs. 180 per acre, stating that this value had been determined from Registered sale-memos. Compensation had been apportioned between proprietor, intermediate tenure-holders and tenants based on rent shares. The proprietor filed References under section 18 of the Land Acquisition Act. The learned Land Acquisition Judge affirmed the Collector's award and apportionment. The proprietor appealed.

Legal Issues Presented

Whether the market value fixed by the Land Acquisition Collector (Rs. 180 per acre) was correct and supported by admissible evidence.
Whether copies of two sale-deeds (extracted from Sub-Registrar registers) were admissible in evidence without formal proof of execution and could be relied upon to determine market value of "garden lands".
Whether the two sale-deeds (relating to nal lands and homestead plots) were relevant for determining the market value of garden lands.
Whether the normal procedure requires separate hearings for valuation and apportionment, and whether the Government is a necessary party to apportionment references.
What is the entitlement to compensation among proprietor, intermediary tenure-holders and tenants in the four specific appeals (i.e., apportionment questions in F.A. 171, 172, 173 and 228 of 1951).

Arguments of the Parties

Appellant's Arguments (as presented by Mr. Roy)

The learned Land Acquisition Judge improperly admitted copies of two sale-deeds into evidence without formal proof of execution; those deeds greatly influenced the decision and thus the decision should be set aside.
Even if the two sale-deeds were admissible, they concerned nal lands and homestead plots, not garden lands; therefore they were not of assistance in assessing the market value of the garden lands in dispute.

State's Arguments (as presented by Mr. Majumdar)

The onus was on the claimant (proprietor) to prove that the Collector's rate was improper; claimant's evidence was meagre and unsupported by documentary proof.
The copies of kobalas copied in the Sub-Registrar's registers are public records of private documents within the meaning of section 74 of the Indian Evidence Act, and should be regarded as original public documents; therefore, no question arises to call for original documents since the entire registers were produced in court.
Reliance was placed on Pattu Kumari Bibi v. Nirmal Kumar Singh Nowlakha to support the proposition that such registry extracts (in some circumstances) may be treated as admissible.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Pattu Kumari Bibi v. Nirmal Kumar Singh Nowlakha (43 C.W.N. 907)	Establishes that an abstract of a power-of-attorney maintained in the Registration Office under rules made under section 69 of the Registration Act is a public document within section 74(1)(iii) of the Evidence Act, and that a true copy of such an entry is admissible as proof of the original under section 66 of the Evidence Act.	The Court distinguished this case: it held that Pattu Kumari dealt with registry entries that were original acts of the Sub-Registrar (an official entry), whereas in the present case the registers contained copies of private documents (kobalas) the originals of which remained with private parties; therefore Pattu Kumari was held not applicable.
Salimatul Fatima v. Koylashpoti (I.L.R. 17 Cal. 903)	Principle that mere registration of a document is not sufficient proof of its execution; the signature of the executant must be proved under section 67 of the Evidence Act.	The Court relied on this principle to hold that the kobalas required proof of execution (signature). Because no formal proof was attempted, the kobalas could not be treated as properly admitted evidence.
Munnan v. Najnum [11 I.C. 50 (Allahabad)]	Affirms that registered entry alone does not dispense with the need to prove execution/signature as required by section 67 of the Evidence Act.	The Court cited this authority alongside Salimatul Fatima to support the conclusion that the kobalas were improperly admitted without proof of execution.

Court's Reasoning and Analysis

The Court first addressed common features across the four appeals, then turned to valuation and admissibility, and finally to apportionment issues specific to each appeal.

1. Valuation and Relevance of Documents:

The Collector fixed Rs. 180 per acre as market value, stating this was determined from Registered sale-memos (two sale-deeds).
The appellant challenged both the admissibility of those two sale-deeds and their relevance, arguing the deeds related to nal lands or homestead plots, not garden lands under acquisition.
The Court agreed with the appellant on relevance: on scrutiny the two sale-deeds related to nal lands and/or homestead plots, and there was no evidence provided to correlate the value of nal lands with garden lands. Therefore the deeds would not assist in assessing market value of garden lands.

2. Onus of Proof and Exception Where Collector's Materials Are Irrelevant:

The Court acknowledged the general principle that when a claimant makes a Reference under section 18, the onus is on the claimant to show the Collector's valuation was improper.
However, the Court adopted the exception: if the Collector fixed compensation either without any evidence or by relying upon irrelevant materials, the claimant's onus is slight — it is sufficient for the claimant to show that the Collector proceeded without legal evidence or relied upon irrelevant materials. The present case fell within that exception because the Collector's valuation relied on documents not relevant to garden land valuation.

3. Admissibility of the Two Sale-Deeds (kobalas) and Statutory Provisions:

The two documents were copies from the Sub-Registrar's registers and were marked as exhibits in the trial court without formal proof by witnesses. The trial judge treated them as public documents.
The State argued the registers were public records of private documents under section 74 of the Evidence Act and thus admissible; it relied on Pattu Kumari. The Court distinguished Pattu Kumari: that case concerned entries (abstracts) maintained by the Registration Office under rules under section 69 of the Registration Act and were acts of the public officer; by contrast, in the present case the register simply contained copies of private documents whose originals remained with private parties.
The Court referred to section 67 of the Evidence Act: a kobala requires proof of signature/execution before admission. Mere registration is not proof of execution. Relying on Salimatul Fatima and Munnan v. Najnum, the Court held that registration alone did not dispense with the need for formal proof of execution. As there was no attempt at formal proof, the kobalas were improperly and illegally admitted in evidence and therefore had to be excluded.

4. Consequence of Excluding the Two Documents:

The Land Acquisition Judge had principally relied on those two documents in affirming the Collector's valuation. With those documents excluded and their irrelevance to garden-land valuation established, the Land Acquisition Judge's decision on fair market value could not stand.
The Court therefore set aside the valuation findings and remitted all cases to the Land Acquisition Judge for rehearing according to law, permitting both parties to adduce fresh evidence and to attempt formal proof of the previously rejected documents under law.

5. Procedural Observations on Valuation vs Apportionment:

The Court observed the normal and proper procedure is to take valuation References separately from apportionment References. In the present batch both were lumped together; the Court indicated apportionment matters should be heard separately from valuation matters and that the Government is not a proper party to apportionment references (the Government is a necessary party only for valuation References).

6. Apportionment — Case-Specific Directions:

F.A. 171 of 1951: Tenants filed an application agreeing that compensation may be withdrawn by the proprietor alone; accordingly the proprietor alone will be entitled to compensation when assessed.
F.A. 172 of 1951: Similarly, tenants filed an application and the Land Acquisition Judge directed transfer of amounts to the credit of the proprietor; hence the proprietor will receive compensation and apportionment is unnecessary.
F.A. 173 of 1951: There was no clear petition by all tenants admitting proprietor's right; references to an alleged out-of-court compromise and consent orders in other cases were found insufficient to defeat tenants' claims. The tenants' right to apportionment must be considered by the learned Judge in due course and separately from valuation.
F.A. 228 of 1951: No materials showed tenants had given up claims; the question of tenants' rights to share will have to be decided after the quantum of compensation is fixed as directed.

Holding and Implications

Holding:

All four appeals are allowed.

Direct consequences and directions:

The Court set aside the Land Acquisition Judge's decision on fair market value because it rested principally upon two sale-deeds that were irrelevant to garden-land valuation and were improperly admitted without formal proof of execution; those documents are excluded from evidence.
The matters are remitted to the Court of the Land Acquisition Judge for rehearing according to law. Both parties are permitted to adduce fresh evidence regarding valuation, and the previously rejected documents may be proved in accordance with law.
Apportionment issues are to be dealt with separately (as indicated for each of the four appeals); where tenants had filed petitions relinquishing claims in favour of the proprietor, the proprietor will receive the compensation as directed (F.A. 171 and 172). In other appeals tenants' claims remain open for determination after valuation is fixed (F.A. 173 and 228).
Costs: The appellant is entitled to hearing fee of two gold mohurs for each of the four appeals from the respondent State. The appellant is not entitled to costs of preparing the paper book, because much of the paper book contained papers unnecessary for hearing.

Implications beyond these direct effects: The opinion contains no express statement creating a new legal precedent; rather it applies existing evidentiary principles (sections 66 and 67 of the Indian Evidence Act and the distinction from situations covered by section 74(1)(iii)) to the facts. The decision's immediate effect is to require a fresh hearing on valuation and to clarify that registry copies of private documents cannot be admitted without proof of execution.

Judgment signed: S.N.S

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Naresh Chandra Bose v. State Of West Bengal And Ors.

The Judgment of the Court was as follows:

1. For the establishment of a Livestock Research Station at Haringhatta, a large number of plots had been compulsorily acquired. Notification and Declaration were published in October and November, 1945. Separate Land Acquisition Cases were started for settling the market value of the lands acquired as also the claims by diverse parties for apportionment.

2. These four appeals arise out of as many references made by the landlord for increased valuation and also questioning the Collector's direction for apportionment. The same landlord is the appellant in each of the cases, but the respondents are other claimants as holders of subordinate interests and they are different ones. These appeals were heard one after another. The transactions on which the learned Judge relies upon are the same in all these cases. The nature of the other evidence adduced is of the same type and character. In view of the order we intend to pass this order will govern all of them.

3. The special facts relating to the claim for apportionment will be dealt with separately under each appeal.

4. We first proceed to deal with the common features in all the four appeals.

5. In all these eases lands under acquisition are described as garden lands. The Land Acquisition Collector fixed Rs. 180 per acre as the market value for these lands. He stated that such “market value had been determined from Registered sale-memos”. Compensation was apportioned as between the proprietor and the intermediaries on the basis of the rent received by the former and the tenant was awarded the balance.

6. Against such awards the landlord filed References under section 18 of the Land Acquisition Act.

7. Although the normal and proper procedure is that the Reference relating to the valuation is to be taken up separately from the Reference about apportionment, in the present batch the learned Judge and the parties lumped both together. By the same order the Court dealt with both the matters. The Government is neither interested nor is a proper party in an apportionment reference or appeal therefrom— but only the contesting claimants are. It is only in the valuation Reference that the Government is a necessary party.

8. In view of the circumstances referred to above in the References as also in the Appeals before us the Government Pleader and the Advocates for the different sets of claimants were heard separately.

9. The learned Land Acquisition Judge affirmed the award and the apportionment as made by the Collector.

10. The proprietor is the appellant in all the appeals now before us.

11. We shall take up the question of valuation first.

12. On behalf of the appellant the common arguments in all the appeals are that the learned Judge has relied upon copies of the same two sale deeds which had not been properly admitted. Secondly, even if the said two deeds be taken into consideration they are not of any assistance in determining the market value of the lands in dispute which are garden lands whereas the lands which were the subject matter of the two transactions were nal lands. In our view both the contentions must prevail.

13. We shall take up the second question first on the footing that the documents which had been produced were admissible in evidence or had been properly marked. On a scrutiny of the two documents it appears that the subject-matter of the two kobalas would not be of much assistance in assessing the proper market value of the garden lands. The sale deeds are in respect of nal lands and/or some homestead plots. There is no evidence to co-relate the value of the garden and nal lands.

14. It is contended on behalf of the State that the onus was on the claimant to prove that the rate fixed by the Collector was not a proper one. The evidence as adduced by the claimant was not only meagre but unreliable as being unsupported by documentary evidence. This argument is not available to the State in the special circumstances of the present case. No doubt when a reference is made by a claimant the onus is upon him to prove by evidence that may be adduced by him that the market value as fixed by the Land Acquisition Collector was not the proper one. If, however, the compensation is fixed by the Land Acquisition Collector either without any evidence but merely on conjecture, or on materials which appear to be irrelevant ones, the onus which lies on the claimant as having made the reference is a very slight one. Such onus would be discharged on the claimant proving that the Collector had proceeded either without any legal evidence or the materials on which he had relied were not relevant ones. The present case comes within that exception and, therefore on the conclusion reached by us that the documents on which the Collector had based his valuation are not relevant ones or of any assistance to determine the value of garden lands, the onus which lay on the claimant shifts to the other side.

15. It, however, appears from the judgment of the learned Land Acquisition Judge that in coming to the conclusion that the value as stated by the Collector was a fair one he had placed reliance principally upon those two documents and not so such on other pieces of evidence. That fact that the evidence as adduced by the claimant was meagre or was unsupported by documentary evidence will not be a material point in this case. The judgment by the learned Judge cannot be supported on the simple ground that it is based upon evidence which is irrelevant.

16. We shall then consider the other objection which has been raised about admissibility of the two documents on which reliance has been placed.

17. Mr. Roy appearing on behalf of the appellant in these appeals contended before us that the learned Land Acquisition Judge improperly admitted in evidence copies of two sale-deeds without formal proof and as these two documents have greatly influenced his decision, the decision ought to he set aside. The copies of the sale deeds in question bear different exhibit marks in the trial court in the different cases. One of them is a sale deed executed by one Mahattari Bibi in favour of one Ekraj Mandal on the 9th March, 1945, (Ext. V in F.A 171) and the other is a sale deed executed by Saharjan Bibi for self and some minors in favour of Monaself Mondal and others on the 4th September, 1945, (Ext. B in F.A 171). It is difficult to ascertain from the records of the court below how and under what circumstances these documents were admitted in evidence because none of the witnesses on behalf of the State formally proved them. So far as our attention has been drawn to the records in the trial court, we find that the registers of the Sub-Registrar in which these documents were copied out at the time of their registration, were produced by the State and the copies of that kobalas marked as exhibits by the trial judge without formal proof on the footing that they were public documents.

18. Mr. Roy contended on behalf of the appellant that the documents so marked from the registers maintained by the Sub-Registrar were mere copies and they could not have been marked exhibits without calling for the original kobalas according to the provisions of section 66 of the Indian Evidence Act.

19. Mr. Majumdar appearing on behalf of the State contended on the other hand that the kobalas as copied out and recorded in the registers of the Sub-Registrar are public records of private documents within the meaning of section 74 of the Indian Evidence Act and as such they should be regarded as original public documents. He contended further that if the kobalas as recorded in the registers be regarded as public documents no question of calling for the original documents arises because the entire registers were produced in the trial court in their original.

20. In support of this contention reliance was placed on Pattu Kumari Bibi v. Nirmal Kumar Singh Nowlakha (1) (43 C.W.N 907). That case, however, is clearly distinguishable. The abstract of a power-of-attorney is maintained in the Registration Office under rules made by the Inspector General of Registration under section 69 of the Registration Act, 1908, and every entry in that register is “a public document” within the meaning of section 74(1)(iii) of the Evidence Act being “a document forming the act of record of the act” of an executive public officer in the discharge of a statutory duty imposed upon him. A true copy of such an entry is admissible as proof of the original entry under section 66 of the Evidence Act. In the present case what is sought to be proved by the State by production of the registers of the Sub-Registrar's Office is not any original entry or one prepared by the Sub-Registrar himself, but copies of documents, the original of which were admittedly in the custody of persons in whose favour they were executed. That being the position the documents could not be admitted in evidence by simply producing the registers of the Registration Office without calling for the original documents.

21. Moreover, a kobala is a document which requires to be signed or executed by the executant under the law. Under section 67 of the Evidence Act the signature of the executant must be proved before such a document is admitted in evidence. Mere registration of a document is not by itself sufficient proof of its execution (vide Salimatul Fatima v. Koylashpoti (2) (I.L.R 17 Cal. 903), and Munnan v. Najnum (3) [11 I.C 50 (Allahabad)], That being the position even if the contention of Mr. Mazumdar be accepted that the registers of the Sub-Registrar containing copies of the document in question should be regarded as original documents, we must hold that the kobalas were improperly and illegally admitted in evidence inasmuch there was no attempt made for formal proof of their execution. In these circumstances, the two sale deeds in question must be excluded from evidence.

22. It need only be pointed out that the admissibility of the two documents was raised in the trial Court and in spite of that no proper steps were taken by the State.

23. The result, therefore, is that the decision reached by the learned Land Acquisition Judge about fair market value of the garden lands must be set aside and all the cases remitted to the Court of the Land Acquisition Judge for rehearing according to law. Both the parties will be allowed to adduce fresh evidence about valuation and the documents which had been produced and which we have rejected, may be proved as under the provisions of the law.

24. We now take up the question of apportionment in each of the four appeals separately.

F.A 171 of 1951.

25. In this case the Land Acquisition Collector had apportioned the compensation as between the proprietor, the intermediate tenure-holders and the tenants. Before the Land Acquisition Judge an application was filed on behalf of the tenants agreeing that the amount of compensation as may be fixed be withdrawn by the proprietor alone. In view of such a petition the proprietor alone will be entitled to the compensation which may be fixed in the present case.

F.A 172 of 1951.

26. In this case also the Land Acquisition Collector had apportioned the compensation paid as between a large number of tenants along with tenants and the proprietor. In this case also an application was filed by the tenants and a direction was given by the Land Acquisition Judge transferring the amount which had been apportioned to the credit of the proprietor. In the decree, however, there is no indication of the claim of the tenants being given up in favour of the proprietor. In view of the attitude taken up by the tenants the compensation as may be assessed and be recoverable for the plots under acquisition will be payable to the proprietor alone and, there is no question of apportionment.

F.A 173 of 1951.

27. In this case, there does not appear to be any petition by all the tenants admitting the right of the proprietor to receive the entire compensation. Reference, however, is made in the order-sheet to a compromise which is alleged to have been effected between the parties out of Court and to the consent order passed in other cases.

28. Such materials, however, are not sufficient to defeat the claim of the tenants if there be any. The right of the tenants, therefore, to claim apportionment out of the compensation as may be fixed will be gone into by the learned Judge at the proper time. It is desirable that such question of apportionment be considered not along with the valuation case, but separately as has been indicated in the earlier part of this judgment. So far as the apportionment case is concerned the State is not a necessary party once the valuation is fixed.

F.A 228 of 1951.

29. In this case also there are no materials in the record which had been placed before us from which it can be stated that the claims, if any, by the tenants to a share of the compensation money have been given up. The question is whether they have any right or not will have to be decided after the quantum of compensation is fixed as directed above.

30. All the four appeals are, therefore, allowed. The matters will go back to the learned District Judge for a decision according to law and in terms of the directions given above. As regards the question of costs the appellant will be entitled to hearing fee of two gold mohurs for each of the four appeals from the respondent State. The appellant will not be entitled to the costs of the preparation of the paper book as a substantial portion of the paper book consisted of papers which were not necessary to be printed or even referred to during the hearing.

S.N.S

Naresh Chandra Bose v. State Of West Bengal And Ors.

Structured Summary of the Court's Judgment

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments (as presented by Mr. Roy)

State's Arguments (as presented by Mr. Majumdar)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Naresh Chandra Bose v. State Of West Bengal And Ors.

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