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Soroj Kumar Acharji Chowdhuri v. Umed Ali Howladar

Calcutta High Court

Jul 7, 1921

Judgment

Subsequent
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Structured Summary of the Court's Opinion

Factual and Procedural Background

This opinion deals with appeals arising from two suits concerning disputed lands and their inclusion within particular tenures and raiyati jotes.

Appeal No. 1380 arises out of Suit No. 134. The Plaintiffs sought a declaration that the lands in dispute formed part of their nim howla Asaruddi within howla Haris Chandra (situate in the patni of Defendants Nos. 8 and 9) and claimed recovery of possession. The Plaintiffs alleged that in 1321 they let out the lands to a sub-tenant for one year but, when the Defendants obstructed their taking possession, the sub-tenant surrendered the lands back to the Plaintiffs. The Defendants' primary defence was (a) that the lands were not included in the Plaintiffs' nim howla but were the khas lands of the patnidar, (b) that the suit was barred by the provisions of Sec. 109 of the Bengal Tenancy Act, and (c) that it was barred by limitation. The Courts below had decreed the suit in favour of the Plaintiffs.

Second Appeal No. 1341 arises out of Suit No. 1882. In that case there was no previous suit under section 106 (so Sec. 109 was not directly in issue), but limitation was contested. The record-of-rights had been published in February 1907 and the suit was instituted on 15th December 1914. The Plaintiffs did not seek correction of any record-of-rights entry but sought declaration of title and confirmation of possession.

Legal Issues Presented

Whether the suit is barred by Section 109 of the Bengal Tenancy Act where a prior suit under section 106 had been withdrawn with liberty to bring a fresh suit.
Whether the suits are barred by limitation (including whether Article 120 of the Limitation Act applies to a suit for declaration of title and/or confirmation of possession, and the effect of publication of a record-of-rights).
Whether certain documentary evidence (Exs. 3 to 6) consisting of documents executed between third parties that contain recitals referring to the disputed howlas is admissible under sections 11(b) or 13 (or section 11) of the Evidence Act.
Whether copies of destroyed original records (Exs. 1 and 2) were properly admitted as secondary evidence.
Whether the Courts below made a sufficiently specific finding on whether the lands in dispute were included in the raiyati jote claimed by the Plaintiffs (as distinct from inclusion within the howla generally).

Arguments of the Parties

Appellant's Arguments

The suit is barred by the provisions of Sec. 109 of the Bengal Tenancy Act because there had been a prior proceeding (a suit under sec. 106), and reliance was placed on the decision in Srimati Abeda Khatun v. Majib Ali to support the proposition that Sec. 109 bars suits even if a previous application was withdrawn.
The Revenue Officer had no power to give liberty to bring a fresh suit in the Civil Court (this point was raised though the Court did not decide it).
Certain documents (Exs. 3 to 6) are inadmissible because they were executed between strangers to the present suits and only refer to the disputed landlords in the recitals/boundaries; these recitals should not be admitted against the parties here.
Objection to admissibility of Exs. 1 and 2 was taken (originals destroyed; copies produced).
There was no specific finding that the land was included in the raiyati jote claimed by the Plaintiffs.

Respondent's / Plaintiffs' Arguments

The documents objected to (Exs. 3 to 6) were used in a different suit (Suit No. 1882) out of which Appeal No. 1341 arises, and in the present suit the documents actually used and relied upon were Exs. 15, F, and 21 to which no exception can be taken.
On limitation, the Plaintiffs asserted that their cause of action arose when the Defendants attempted to disturb their possession in 1914 (within six years of institution of the suit instituted in December 1914), and the Courts below accepted that account.
As to Exs. 1 and 2, the originals were destroyed and copies were properly admitted as secondary evidence.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Srimati Abeda Khatun v. Majib Ali	Observation that an application which has been made, whether withdrawn or dismissed for non-prosecution, is nevertheless an application made within the meaning of Sec. 109.	The Court distinguished this case because there the application was dismissed for non-prosecution; the Court held that the observation applies where an application was withdrawn without liberty to bring a fresh application, not where it was withdrawn with liberty.
Cheoddetti v. Tulsi Singh	Held that an application under Sec. 105 withdrawn without liberty to bring a fresh application could not be regarded as a suit and therefore did not bar a subsequent suit under Sec. 109.	The Court relied upon this line of authority to support the view that withdrawal (especially where treated as never made) removes the Sec. 109 bar; it distinguished situations where withdrawal was without liberty and where dismissal for non-prosecution occurred.
Srimati Kamini Sundari v. Abdul Habin	Followed Cheoddetti; an application made but withdrawn is to be treated as one never made.	The Court adopted this reasoning to hold that where a Plaintiff was permitted to withdraw with liberty to bring a fresh suit, the prior suit should be regarded as not having been brought, and Sec. 109 therefore did not bar the present suit.
Dwarkanath v. Mukunda Lal	Held that documents not inter partes which contain recitals that land belongs to a particular tenure may be admissible under Sec. 11(b) or Sec. 13 of the Evidence Act, though they are not conclusive and may be weak evidence.	The Court acknowledged this authority but noted contrary views; ultimately, having regard to recent decisions, the Court held Exs. 3 to 6 inadmissible in the present context.
Abdul Ali v. Syed Rejan	Expressed a contrary view to Dwarkanath regarding admissibility of such recitals in third-party documents.	The Court cited this as part of the conflicting authorities on the admissibility issue and relied upon the line of cases that led it to exclude Exs. 3 to 6.
Abdullah v. Kunj Behary Lall	Considered whether recitals in boundaries of other lands in documents between third parties are admissible under Sec. 11 or Sec. 13 of the Evidence Act, and answered the question in the negative.	The Court regarded this decision as controlling on the point and, in light of recent decisions including this one, held that Exs. 3 to 6 are not admissible in evidence.
Muhabharat Saha v. Abdul Hamid Khan	Authority relied upon in relation to the application of Article 120 of the Limitation Act to suits for declaration of title.	The Court noted reliance upon this case but, on the facts (Plaintiffs' cause of action arising from attempted dispossession in 1914), held the suit was within time — it was unnecessary to decide all aspects of Article 120's application in the abstract.
Shyamanand v. Rajnarain	Authority similarly relied upon regarding limitation and Article 120.	The Court took account of the authorities but, given the accepted date of cause of action (1914) and the Plaintiffs' evidence, concluded the suit was not barred by limitation.

Court's Reasoning and Analysis

The Court proceeded in distinct steps addressing the major contested points in both appeals:

Sec. 109 bar (Appeal No. 1380 / Suit No. 134): The Court examined whether a prior suit or application brought under the Bengal Tenancy Act prevents subsequent civil proceedings under Sec. 109. The Plaintiffs had previously brought a suit under Sec. 106 and had withdrawn it with liberty to bring a fresh suit. The Court distinguished between an application or suit that has been dismissed (including for non-prosecution) and one that was withdrawn with liberty. It treated withdrawal with liberty as equivalent to the suit never having been brought; therefore Sec. 109 did not operate to bar the present suit. The Court also considered (but did not decide) the subsidiary argument that a Revenue Officer might lack power to give liberty to sue in the Civil Court; it observed that even if he lacked such power, he could allow withdrawal with liberty in his own court, and the practical effect would be the same (treating the previous proceeding as not having been brought).
Limitation (both suits): For Suit No. 134 (Appeal No. 1380) the Court observed that the suit for recovery of possession on declaration of title was brought within 12 years of dispossession and therefore no limitation question arose. For Suit No. 1882 (Second Appeal No. 1341) the record-of-rights had been published in February 1907 and the suit instituted on 15 December 1914 (more than six years later). The Court considered Article 120 of the Limitation Act and authorities cited for the proposition that a suit for declaration of title may be governed by Art. 120. However, because the Plaintiffs stated that their cause of action arose when the Defendants attempted to disturb possession in 1914 (within six years), and since the Courts below accepted this account, the Court held the suits were not barred by limitation. The Court emphasized that entries in the record-of-rights merely raise a presumption of correctness which the Plaintiffs could rebut by evidence.
Admissibility of Exs. 3 to 6: The Appellate Court below had apparently considered evidence from both suits together and in several places referred to recitals in Exs. 3 to 6 that mentioned the nim howla Asaruddi and howla Haris Chandra in the boundaries. The Court analyzed conflicting authorities on whether recitals in documents between third parties are admissible under sections 11(b) or 13 (or section 11) of the Evidence Act. While some earlier authorities permitted such recitals as admissible (though weak) evidence, more recent decisions (including Abdullah v. Kunj Behary Lall) had answered the question negatively. Having regard to the recent decisions, the Court held Exs. 3 to 6 to be inadmissible.
Effect of excluding inadmissible evidence and remand: Although there was considerable other oral and documentary evidence supporting the Courts below, the Court concluded that in a second appeal it could not uphold the findings of the Court below after excluding evidence that it had held inadmissible. Consequently, the Court was constrained to remit the cases to the Lower Appellate Court to determine the matters afresh, considering only the admissible evidence on the record.
Exs. 1 and 2 (secondary evidence): The Court noted that the original records were destroyed and copies were admitted as secondary evidence; the Court found no problem with this admission and overruled the objection.
Specificity of findings as to inclusion in raiyati jote: The Court observed that the Appellate Court below had found that the lands in suit "were within the howlas as stated above" and referred to "the howlas, nim howlas and raiyati as set up by the Plaintiffs." The Court considered that the finding was ambiguous because a howla and a raiyati jote are not co-extensive; it directed that on remand the Appellate Court should make a clear finding whether the lands are included within the raiyati jote claimed by the Plaintiffs. For the other suit (No. 1380), where no raiyati jote was claimed, the Court found the earlier finding that the lands were included in the howla to be sufficient.

Holding and Implications

Holding: Both appeals are remanded to the Appellate Court for fresh decisions on the evidence contained in the record excluding the documents (Exs. 3 to 6) which the Court has held inadmissible; costs to abide the result.

Additional specific holdings and immediate legal effects:

The Court held that the suit in Appeal No. 1380 (Suit No. 134) is not barred by Section 109 of the Bengal Tenancy Act where the previous suit under Sec. 106 was withdrawn with liberty to bring a fresh suit (such withdrawal is to be treated as if the suit had never been brought).
The Court held that no question of limitation arose in Suit No. 134 as it was brought within twelve years of dispossession; in Suit No. 1882 (Second Appeal No. 1341) the Court held the suit was not barred by limitation, accepting that the cause of action arose in 1914 (within six years of institution).
The Court held Exs. 3 to 6 inadmissible under the Evidence Act principles as interpreted in recent authorities, and therefore directed that the Appellate Court must reconsider the matters without reliance on those documents.
The Court found no objection to the admission of Exs. 1 and 2 as secondary evidence given that the originals were destroyed.
The Court directed that the Appellate Court should make a clear finding on whether the lands are included within the raiyati jote claimed by the Plaintiffs (where that claim is made); where no raiyati jote is claimed, an inclusion-in-howla finding is sufficient.

Implications: The direct consequence is remand to the Appellate Court for fresh determinations on the admissible evidence and clarification of findings where required. The opinion does not purport to set a broad new precedent beyond its application of existing authorities to the particular facts; it reconciles and distinguishes earlier case law (particularly as to the operation of Sec. 109 and the admissibility of third-party document recitals).

Disposition

Case remanded to the Appellate Court for fresh decision on admissible evidence; costs to abide the result.

Show all summary ...

The Judgment of the Court was as follows:—

This appeal arises out of Suit No. 134 brought by the Plaintiffs for a declaration that the lands in dispute form part of their nim howla Asaruddi within howla Haris Chandra, situate in the patni of the Defendants Nos. 8 and 9, and for recovery of possession of the said lands. The Plaintiffs alleged that they let out the lands for one year to a sub-tenant in 1321, but the Defendants having obstructed them in taking possession he surrendered the lands to the Plaintiffs. The main defence was that the lands were not included in the Plaintiffs' nim howla but were the khas lands of the patnidar, that the suit was barred by the provisions of Sec. 109 of the Bengal Tenancy Act, and was also birred by limitation. The Courts below have concurred in decreeing the suit.

The first contention raised on behalf of the Appellant is that the suit is barred by the provisions of Sec. 109 of the Bengal Tenancy Act. It appears that the Plaintiffs brought a suit under sec. 106 of the Bengal Tenancy Act, but withdrew from the suit with liberty to bring a fresh suit. It is urged that sec. 109 bars a suit even if the previous suit was withdrawn, and reliance is placed upon the case of Srimati Abeda Khatun v. Majib Ali . Sec. 109 of the Bengal Tenancy Act lays down that subject to the provisions of sec. 109-A, a Civil Court shall not entertain any application or suit concerning any matter which is or has already been the subject of an application made, suit instituted or proceedings taken under secs. 105 to 108 both inclusive. But where a suit is withdrawn with liberty to bring a fresh suit we think it must be regarded as having been non-existent. A similar view was taken in Cheoddetti v. Tulsi Singh , where an application under sec. 105 was withdrawn without liberty to bring a fresh suit. The learned Judges (Chitty and Teunon, JJ.) held that an application under sec. 105 cannot be regarded as a suit and that therefore, although an application was withdrawn without liberty to bring a fresh application, a suit for enhancement of rent is not barred by the provisions of sec. 109. In Srimati Kamini Sundari v. Abdul Habin , Teunon and Richardson, JJ., following the above case held that an application (under sec. 105) made, but withdrawn, is to be treated as one never made. In the case of Srimati Abeda Khatun v. Majib Ali , however, there is an observation of Mookerjee, C.J, and Fletcher, J., that an application which has been made, whether it is withdrawn or whether it is dismissed for non-prosecution, is nevertheless an application made within the meaning of sec. 109. But in that case the application under sec. 105 was dismissed for non-prosecution. Where an application or a suit has been dismissed whether upon the merits or for non-prosecution it comes within the words “has been the subject-matter” of the application or the suit, and the applicant cannot avoid the consequences merely by not prosecuting the application or suit. Where, however, as in the present case, a Plaintiff in a suit under sec. 106 has been permitted to withdraw from the suit with liberty to bring a fresh suit, we think it should be treated as one not having been brought. The application under sec. 105, in the cases of Cheoddetti v. Tulsi Singh and Srimati Kamini Sundari v. Abdul Habin , was withdrawn without liberty to make a fresh application and the observations of the learned Judges in the case of Srimati Abeda Khatun v. Majib Ali as to the effect of withdrawal of an application, must be taken to apply to a case where the application is withdrawn without liberty to make a fresh, application.

It is contended that the Revenue Officer had no power to give liberty to bring a fresh suit in the Civil Court. But it is unnecessary to decide that question, because assuming that he had no power to do so, he could allow the suit to be withdrawn with liberty to bring a fresh suit in his own Court, and the effect of such an order must be taken to be (as we have said above) as if the suit had never been brought. We are accordingly of opinion that the suit is not barred by the provisions of Sec. 109 of the Bengal Tenancy Act.

No question of limitation arises in this case as the suit is for recovery of possession on declaration of title, and the suit is brought within 12 years of the dispossession.

The next contention is that the Court below in arriving at the conclusion that Plaintiffs have proved their title and possession, has relied upon certain documents (Exs. 3 to 6) which are inadmissible in evidence. These documents were executed between strangers to the suit, and the landlords in dispute were referred to in the boundaries of lands dealt with in those documents.

It is contended on behalf of the Respondent that the documents objected to were used in Suit No. 1882 out of which Appeal No. 1341 arises and not in this case, the documents which have, been used in this case being Exs. 15, F, and 21 to which no exception can be taken. It appears, however, that the evidence relating to both the suits were considered together, and the Court below in more that one place refers to the recital of nim howla Asaruddi and howla Haris Chandra in the boundaries of the documents, Exs. 3 to 6. That being so, it is difficult to say that they were not used in evidence in deciding this case.

In the case of Dwarkanath v. Mukunda Lal it was held that documents, though not inter partes containing recitals that a particular land belongs to a particular tenure which is in question, are admissible in evidence under either sec. 11(b) or sec. 13 of the Evidence Act, although they are not conclusive or binding evidence and may he very weak evidence or even of no weight at all. A contrary, view was, however, taken in Abdul Ali v. Syed Rejan . The question whether recitals in boundaries of other lands in documents between, third parties (such as there are in the present case) are admissible in evidence under sec. 11 or sec. 13 of the Evidence Act was considered in the case of Abdullah v. Kunj Behary Lall and was answered in the negative. The question is not free from doubt, but, having regard to the recent decisions on the point, we hold that Exs. 3 to 6 are not admissible in evidence.

There is no doubt considerable other evidence, both oral and documentary in support of the finding of the Court below, but in second appeal we cannot uphold the finding upon the other evidence after excluding the evidence which is inadmissible. We are accordingly constrained to send the case back to the Lower Appellate Court for a finding upon the other evidence upon the record.

Second Appeal No. 1341 arises out of Suit No. 1882. In this case no question arises whether the suit is barred by sec. 109, Bengal Act, as there was no previous suit under sec. 106. But the question of limitation has been urged in this case.

It appears that the record-of-rights was published in February 1907 and the suit was instituted on the 15th December 1914, i.e, more than six years after the publication of the record-of-rights. But the Plaintiffs do not pray for correction of any entry in the record-of-rights. It is contended that a suit for declaration of title is governed by Art. 120 of the Limitation Act and the cases of Muhabharat Saha v. Abdul Hamid Khan and Shyamanand v. Rajnarain are relied upon. There is also a prayer for confirmation of possession. It is unnecessary to consider whether a suit for confirmation of possession is governed by Art. 120, because assuming that Art. 120 applies, the Plaintiffs stated that their cause of action arose when the Defendants attempted to disturb the possession of the Plaintiffs. The attempt at dispossession was made in 1914 (i.e, within six years of the suit) and the Plaintiff's case on the point has evidently been accepted by the Courts below. It is true that the entry in the record-of-rights was made more than six years before the suit, but the entry merely raised a presumption of correctness against the Plaintiffs and they had to prove by evidence that it was incorrect. We are accordingly of opinion that the suit is not barred by limitation. The question of admissibility of Exs. 3 to 6 in evidence arises in this case. We have already dealt with the question in Appeal No. 1380, and our decision on the point will govern this case also. The learned Pleader for the Respondent pointed out that two of the documents, viz., Exs. 3 and 4, were not executed by third parties, the executant being a co-owner of the nim howla under which the plaintiffs claim the raijati jote and was therefore interested in the land. The Court below will consider the point in this case, as also in Suit No. 134, if it applies to that suit.

Objection is also taken to the admissibility of Exs. 1 and 2. It is found, however, that the original records are destroyed, and the copies were admitted as secondary evidence. We do not think, therefore, that there is anything in that objection.

The last contention is that there is no specific finding whether the land in dispute is included in the raiyati jote claimed by the Plaintiff.

The Court of appeal below has come to the finding that the lands in suit “were within the howlas as stated above,” and in an earlier part of the judgment it refers to “the howlas, nim howlas and raiyati as set up by the Plaintiffs.” It seems, therefore, that by the words “within the howlas as stated above,” the Court below meant to find that the lands were included within the raiyati jote set up by the Plaintiffs, but it might have been made clearer, because the raiyati jote and the howla are not co-extensive, and as the case is going back, the Court below will come to a clear finding upon the point whether the lands are included within the raiyati set up by the Plaintiffs. So far as the other case is concerned (No. 1380), we think the finding that the lands are included in the howla is sufficient, because no raiyati jote was claimed, in that case.

The result is that both the cases must go back to the Appellate Court, for a fresh decision upon the evidence on the record other these the documents which are inadmissible in evidence, having, regard to the observations made above.

Costs to abide the result.

H.C.S

Case remanded.