1. This is an appeal by the defendants against the judgment and decree of the Subordinate Judge of Hooghly at Howrah by which he decreed "the plaintiff's suit with regard to a plot of land situated within the putni mehal named Pir Seranga. The plaintiff's case shortly stated is that the land appertains to the tenancy of one Moti Lal Ghose who was the Naib of the previous putnidar of lot Seranga, and after his death a confirmatory lease was taken in favour of his daughter's sons during their minority by their father. These daughter's sons were expectant reversioners of Moti Lal's estate after the death of his widow. The daughter's sons Moti Lal, who may be described as the Sircars, were in possession of the land in question from whom the present plaintiff purchased the property by a deed dated 14th February 1920. When the plaintiff wanted to take possession of this property there was a dispute raised by the defendants who claimed to be in possession of the property. That dispute led to a proceeding under Section 145, Criminal P.C., and the Magistrate found possession with the defendants and he made an order that they should be retained in possession until the plaintiff established his right to possession in the civil Court. The suit out of which the present appeal arises was for the purpose of establishing the plaintiff's title and for ejecting the defendants. The order of the Magistrate was dated 19th July 1921.

2. The defendants in their written statement denied the title of the plaintiff. They contested almost every statement of fact recited in the plaint. Their case was that the land in dispute along with other lands was dedicated as Niskar Pirattar as there was a very ancient foundation known as Hazrat Sultan Pir Saheb. This religious foundation was held in great sanctity by all classes of people in the locality, Hindus and Mahomedans, and a mela used to be held on the disputed land once a year which was frequented by every class of people and shops used to be held, and the income taken for the purpose of the expenses of the foundation. The existence of this mela was admitted by both parties. The plaintiff's case was that the mela was founded by Moti Lal who used to realise the rents from the shopkeepers and after Moti Lal's death his son-in-law Chakku used to supervise the mela and realise the rents and after him the plaintiff's vendors. The defendants denied in their written statement that Moti Lal or Chhaku had any connexion with the mela. The most important question in such a case as this must be, in my opinion, whether the land is within the geographical limits of the village belonging to the zemindari of which a putni was granted to the putnidars, the original lessors, who were alleged to have granted a lease to Moti Lal. If the lands are really within the ambit of the village then the burden of proving that the lands are Niskar Pirattar lands must rest entirely upon the defendants. The latest authority for this proposition is the case of Jagdeo Narain Singh v. Baldeo Singh A.I.R. 1922 P.C. 272

3. The learned advocate for the appellants pressed two points strongly for our consideration in support of the appeal. He stated first that the Subordinate Judge had not found the title of the putnidars to the lands, that is to say, whether the lands were within the geographical limits of the putni mehal, and secondly, it was urged that it had not been proved that the disputed lands were included within the pattah in favour of the Sircars upon which the plaintiff based his claim. In opening the case on behalf of the appellants the learned advocate laid great stress upon a fact which he argued was an error of procedure on the part of the Subordinate Judge.

4. It was stated that the defendants called for a chitta in which the measurements of the different plots of land held by the tenants within the mouja Pir Seranga were recorded. They called for that chitta from the putnidar who is defendant 5 in the suit, but in the notice that was issued there was a mistake and instead of the actual date of the chitta 1256 B.S. the date given was 1276 B.S. That chitta was not produced by the zamindar. Thereupon in order to enable the defendants to produce a copy of the chitta the contesting defendants filed an application on 22nd February 1926 for issuing summons on the landlord to produce the chitta of 1256. The Subordinate Judge after recording his reasons in Order 61 rejected the prayer. It is contended and reasonably contended that the Subordinate Judge was not right in rejecting the prayer for issuing the summons. It is well-known that the function of the civil Court in issuing summons is akin to that of a post office, and has no power to refuse issue of summons. The only thing that the Judge can do is not to adjourn a case for the purpose of the production of the witness who is sought to be summoned at a late stage of the case. In all such cases the parties get summons issued at their own risk They have to pay the costs. The Judge may fix a date for the witness to come to the Court according to the prayer of the party who asked for the summons. The case may be disposed of before that date. This is clearly a matter in the hands of the Judge, but in my opinion the Judge of a civil Court has no power to refuse to issue summons at any stage of the case. However, the point is whether there has been any miscarriage of justice on account of the refusal of the Subordinate Judge to issue summons on the putnidar for the production of that chitta. If the landlord did not produce the chitta the defendants might have produced a copy of the chitta in order to establish their case, and as a matter of fact they did produce a paper which the witness who produced it professed to be a copy of the chitta. But during the course of his examination he could not say that it was a true copy of the chitta, which was compared with the original, and therefore the learned Judge did not accept it in evidence. It was further contended during the course of the argument that the document that was sought to be produced was not a copy but it was an original document. That was, however, not what the witness who produced the document said, nor was the proper custody of this document proved because the man who produced the document simply said that his father was a Morel and the document was with him and after his father it came into his possession. It used to be produced by him to settle any dispute between the villagers. That, however, does not make it a true copy of the original chitta and in my opinion the learned Judge rightly rejected that document. That chitta it is contended if accepted in evidence would have proved that in the chitta the land in dispute was, mentioned as the mela land of Pir Saheb.

5. Now coming back to the two questions which I have set forth above as argued on behalf of the appellants, it appears that the defendants' witness admitted that this land was within the geographical limits of the zemindari as well as within the putni. This was stated by Khorshed Sardar, defendants' witness 1 and who appears to be a principal person on the side of the defendants. He says that the land in suit is towards the south-west of village Seranga, the proprietor is the Burdwan Maharaja and Tulsi Babu is the putnidar whose ancestors dedicated these moujas to Gopalji. That being so no further evidence was necessary to establish that the lands are within the putni moujah. Further more the thak map of the moujah has been produced in this case and the boundary of the moujah runs along the river which is also the southern boundary of the land in dispute. This fact being established the entire burden of proof that this is Lakheraj Pirattar land shifts on the defendants, and on their side there is no evidence whatsoever except the holding of the mela once a year and the allegation that it is called Pir Saheb's land. As I have already stated there is a conflict of testimony as regards the realization of the profits of the mela. The Subordinate Judge has accepted the evidence that the profits of the mela were realized by Motilal and his successors after him and I do not see any reason to disagree from his view of the evidence. But in any case the mere holding of a mela for a few days in the year from what is known as Makar Sankranti day, even assuming that the mela was held at the instance of the Fakirs who looked after the foundation of the Pir Saheb, would not prove their title. They might have a right to hold the mela at the stated time if they had actually held the mela. On the other hand it is a fact that no Road Cess Return was filed by the defendants with regard to this land, no cesses paid and there is nothing to show except the bare statement of defendants' witnesses that this land is the lakheraj land of the Pir Saheb. Under these circumstances it is unnecessary to go again over the grounds of the judgment of the Subordinate Judge on this question and I agree with his conclusion that the property belongs to the putnidar and he was entitled to grant a lease of it and that it was not the lakheraj property of the Pir Saheb.

6. With regard to the second question, whether the disputed lands were included in the plaintiff's pattah or not, it has been found by the Subordinate Judge that the pattah mentioned the lands in suit as the mela lands and the Subordinate Judge held that for over 50 years the mela land has been in the possession of Motilal and thereafter of his son-in-law on behalf of Moti Lal's heirs. That is one matter of identification. Another piece of evidence which the Subordinate Judge has not noticed but which has been pointed out to us by the learned advocate for the plaintiff-respondent, is, that one of the witnesses for the defendants Sukhamay Bakshi took lease of the lands by two kabuliats from the landlord Exs. 11 and 18, one in 1916 and the other in 1920. These lands were situated on two sides of the disputed land to the east and to the west, and giving the boundaries of these two plots, the land in dispute has been described as the land of the Sircars. That is also a link connecting the Sircars' pattah with the land in dispute. The points which have been argued before us are therefore of no substance and this appeal must therefore stand dismissed with costs.

Bose, J.

7. I agree.