1. This is an appeal by the plaintiff in a suit for declaration of title to land and for ejectment of the defendants or, in the alternative, for assessment of fair rent payable by them. Defendants resisted the claim for ejectment and contended that as they were permanent tenure-holders under the plaintiff, the rent was not liable to enhancement. The Courts below have concurrently dismissed the suit. The District Judge has held that there was a strong body of documentary evidence to show that the defendants and their predecessors had been continuously recognized as holders of a permanent tenure from before 1837 and that there was no relevant evidence inconsistent with the existence of the tenure.

2. The nature of the documentary evidence, upon which the Courts below have relied, may be briefly described. The first piece of documentary evidence in order of time is a settlement field book, dated 10th February 1837, in which it is recorded that village Satrapur, now in dispute, was held by the predecessors of the defendants as mokaddamis.

3. The term mokaddami is applied to the interest of those who collected rent under Mahomedan rulers. The use of the word in the particular document in this sense is confirmed by the descriptions of the predecessors of the defendants as malguzardar or sarbarakar in a settlement robakari dated 30th April 1841.

4. The Courts below have concurrently held that these documents, prepared at a time when there was apparently no dispute between the parties, furnished valuable evidence of a mokaddami tenure in the village in suit, which was in existence 70 years before the commencement of this litigation and was held at the time by persons now represented by the defendants. The Courts below have also relied on two judgments, original and appellate, dated 28th May and 20th November 1839, respectively, passed in a suit in which the existence of the mokaddami tenure was asserted though unsuccessfully. The next document is a sale certificate dated 11th August 1853 by which the sarbarakari tenure was sold in execution of a decree and was purchased by the ancestor of the defendants. Next year, the predecessor of the plaintiff, in execution of a decree for arrears of rent against the original holders of the sarbarakari tenure, attached the property and got a sale proclamation issued on 27th April 1854. The sale was apparently averted by the purchaser at the prior execution sale, and he and his successors continued in occupation of the tenure by payment of rent to the predecessors of the plaintiff. In 1894 the holders of the tenure effected a partition of the lands under an award of arbitrators dated 28th December 1894. The tenure was divided into two unequal shares with different rentals, and this sub-division was sanctioned by a robakari dated 7th September 1896, signed by the manager of the plaintiff landlord. Lastly in 1897, the defendants, who are the present holders of the two fragments of the original tenure were recorded on the settlement proceedings as sarbarakars. On a review of this evidence supplemented by oral evidence of possession and payment of rent the Courts below have held that the tenure set up by the defendants had a lawful origin and a real existence from before 1837, and that they are not trespassers but permanent tenure holders. On second appeal an earnest endeavour has been made to assail this finding on the ground that it is based on an erroneous construction of the documentary evidence on the record. In our opinion, no question of construction of documents such as may be raised and examined in an appeal from appellate decree arises in the present case, but as the contrary view has been strenuously supported, it is desirable to reiterate the principle applicable to cases of this character.

5. In the case of Nowbut Singh v. Chutter Dharee Singh . [1873] 19 W.R 222. Sir Richard Couch, C.J, laid down the fundamental principle that the misconstruction of a document which is the foundation of the suit, being in the nature of a contract or a document of title, is a ground of special appeal; but special appeal does not lie because of a mistake as to the meaning of some portion of the evidence which is in writing, if it connected with other evidence affecting its construction. This view was possibly not quite in harmony with that indicated in Lalla Imrit Lall v. Mahomed Lallzamah . [1872] 18 W.R 447., but is in accord with the rule laid down in Udit Narayan v. Maheswar Bux . Agra H.C.R 32 F.B, Himmat Ali v. Nyamutoolla . [1875] 23 W.R 250. and Bungshee Dhur v. Madhoo Soodan . [1875] 23 W.R 406.. No useful purpose would be served by a detailed examination of all the cases in which the rule laid down by Sir Richard Couch has been strictly applied, but reference may be made, amongst other cases, to the decisions in Shib Chandra v. Chandra Narayan . [1905] 32 Cal. 719, Ananda Chundra v. Parbati Nath . [1906] 4 C.L.J 198., Dursun Singh v. Durbijoy Singh . [1909] 1 I.C 530., Braja Mohun v. Thahur Das . [1909] 4. I.C 732., Buzlul Karim v. Satish Chandra Giri . [1911] 10 I.C 325., Rai Benode Behari v. Rai Pasupati Nath . [1909] 4 I.C 329. and Madan Mohan v. Manmatha Nath . [1911] 13 I.C 425., where an unsuccessful attempt was made to obtain a reversal of the decision of the lower appellate Court on the ground that it was based on a misconstruction of documentary evidence. On the other hand, in the case of Hara Sundar v. Basunta Kumar . [1905] 9 C.W.N 154., where a question arose as to the legal effect of a deed of dedication of endowed property, namely whether the property became the absolute rebutter of the deity or retained its secular character in the hands of the shebait, though, subject to a religious charge, the matter was treated as one of law. There can, in our opinion, be no room for controversy as to the correctness of the principle which was accurately formulated by Sir Richard Couch, though there may have been occasionally a loose application of the rule. As Lindley, J., put it in Chatenay v. Brasilan Submarine Telegraph Co. . [1891] 1 Q.B 79, the expression “construction” as applied to a document includes two things, first, the meaning of the words and, secondly, their legal effect or the effect which is to be given to them. The meaning of the words is a question of fact in all cases, whether we are dealing with a poem or is legal document the effect of the words is a question of law. Consequently where the document is of such a character that it does not create, modify or extinguish the rights and obligations of the parties or otherwise affect their status, no question of its legal effect arises and consequently the construction of such a piece of documentary evidence does not raise a question of law.

6. This is well illustrated by several cases decided by their Lordships of the Judicial Committee. In Lachman Lal v. Kanhaya Lal . [1895] 22 Cal. 609 documentary evidence was adduced to prove the factum of an adoption. Lord Shand held that the question was not one of construction of one or more deeds which would be a question of law, but was a question as to the effect to be given to decrees, leases and other documents as evidence of the fact of adoption and its consequences. Again, in Mayandi Chettiar v. Chokalingam Pillai . [1900] 27 Mad. 291, where their Lordships reversed the decisions of the Madras High Court in Chokalingnm Pillai v. Mayundi Chettiar . [1896] 19 Mad. 485, the question was raised whether the transaction evidenced by a muchilika-deed was a new grant or a confirmation with modification of a previous grant. Sir Andrew Scoble held that this was a question of the legal effect of the deed on which the title of the parties rested and was a question of law, upon which their Lordships disagreed with the Judges of the High Court. In the case of Lala Fateh Chand v. Rani Kishan kaur . [1912] 16 I.C 67, where the question in controversy was, whether the plaintiff had a proprietary title to the land a in suit, the construction of a Waijbularz, which had been prepared by the settlement authorities and which contained a record of the rights of the proprietors and the tenants, was treated as a question of law, on which their Lordships agreed with the Judges of the High Court: Kishen Kunwar v. Fateh Chand . [1907] 29 All. 203. This case may possibly be regarded as just on the borderline, because in proof of their title, the plaintiff relied not only on the Wajibulurz, but also on other documentary evidence which could not be properly called documents of title.

7. Besides the earlier decisions of the Judicial Committee in Muhammad Imam Ali Khan v. Husain Khan . [1899] 26 Cal. 81, Parbati v. Chandrapal . [1909] 4 I.C 25, Thakur Anant Singh v. Thakur Durga Singh . [1910] 6 I.C 787 and Lali v. Murlidhar . [1906] 23 All. 488 indicate that as to some of the entries, at any rate, in a Wajibulurz, the question may be, not of construction in the strict sense, but only of evidentiary value. The case of Nilmoni Singh v. Kirti Chunder . [1893] 20 Cal. 847 is dearly distinguishable as the question there related to the limits of the powers of the Judicial Committee in the hearing of an appeal when there are concurrent findings of fact by two Indian Courts; such powers, though artificially restricted by well-recognized rules of practice, are still wider than those of a Court of second appeal. To put the matter briefly, if there is a question of the legal effect of a deed or of a legal inference to be drawn from the facts found, there is a good ground of second appeal. This is conclusively shown by the decisions in Sevvaji v. Chinna Nayana Chetti . [1863-66] 10 M.I.A 151, where the question arose whether a transaction could be treated as a mortgage when its alleged character as a sale had not been, established: Lachmeshwar Singh v. Monowar Hossein . [1892] 19 Cal. 253 and Ramgopal v. Shamaskhaton . [1893] 20 Cal. 93, where the question arose whether the possession was of an adverse character; Ramgopal Singh v. Balbhadar Singh . [1903] 25 All. 1, where the question arose whether knowledge of facts on the part of an agent could be imputed to the principal; Mohoram Sheikh v. Telamuddin . [1912] 13 I.C 606., Krishna Kishore v. Mir Mohomed Ali . [1899] 3 C.W.N 255., Sulatu Dass…Plaintiff, v. Jadu Nath Das & Ors.…Defendants, . [1904] 8 C.W.N 774 F.B., Maruti v. Banubai . [1902] 4 Bom. L.R 801., where the question arose whether a tenant was of a temporary or of a permanent character, and Girdhar Das v. Ram Autar Singh . [1904] 8 C.W.N 690. where the question arose whether prior charges had been kept alive or extinguished and the case of Rajaram v. Ganesh Hari . [1897] 21 Bom. 91., where the question arose whether existence of title could be inferred from acts of ownership, which was treated as a mixed question of law and fact, may possibly be deemed to lie on the border line.

8. We hold accordingly that unless there is a question of the legal effect of a deed which may be treated as a document of title or embodies a contract or is the foundation of the suit, a second appeal does not lie. A second appeal is not admissible merely because some portion of the evidence is in writing of which the meaning has been mistaken by the lower appellate Court: Pertap Chunder v. Mohendra Nath . [1890] 17 Cal. 291, Durga Chowdhrani v. Jowahir Singh . [1891] 18 Cal. 23, Ramratan v. Nandu . [1892] 19 Cal. 249, Lachman Lal v. Kanahaya Lal, Shivabasava v. Sangappa . [1905] 29 Bom. 1 and Hari Mohun v. Surendra Narayan Singh . [1907] 34 Cal. 718. In our opinion the decision of the District Judge does not involve any error of law and there is no ground for this second appeal.

9. The result is that the decree of the District Judge is affirmed and this appeal dismissed with costs.

V.B/R.K

10. Appeal dismissed.