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Petitioner: ALIMUDDIN MUNSHI AND OTHERS VS Respondent: MAINUDDIN TALUKDAR AND OTHERS
P L D 1963 Dacca 834
P L D 1963 Dacca 834
Before Hassan and M. R. Khan, JJ
ALIMUDDIN MUNSHI AND OTHERS---Appellants
versus
MAINUDDIN TALUKDAR AND OTHERS---‑Respondents
Appeal from Original Decree No. 144 of 1957, decided on 13th June 1961.
Bengal Tenancy Act (VIII of 1885), S. 103‑B‑No evidence as to basis of entries in record‑of‑rights ‑ No presumption of incorrectness‑Further evidence to be sought.
Nurul Amin and A. R. Khan for Appellant.
P. C. Nag for Respondents.
S. A. Chowdhury for the Deputy Registrar.
JUDGMENT
HASSAN, J.‑---This appeal is directed at the instance of the plaintiffs against a preliminary decree passed by the learned Subordinate Judge in a partition suit. He decreed the plaintiffs' claim in part.
2. It is an admitted fact that one Janu Mondal died leaving behind four sons, one of them was Sabi Mondal. Sabi Mondal had four sons and two daughters by his first wife and one daughter and one son by the second wife. Huson one of the sons by his first wife, predeceased Sabi Mondal leaving behind his father, brothers and his widow plaintiff No. 11 and a daughter plaintiff No. 12. Sabi Mondal died thereafter leaving behind his three sons Asan Ali, Hasan and Isan and two daughters Joti Bibi defendant No. 9 and Soyajan, predecessor‑in‑interest of the defendants 6‑8 and his second wife defendant No. 3 and a son (defendant No. 1) and a daughter (defendant No. 2) by his second wife (defendant No. 3). Asan died leaving behind the plaintiffs 1‑7 and another son Shomsher whose heirs are defendants 10‑12. Hasan died leaving behind the widow plaintiff No. 8, a son plaintiff No. 9 and a daughter plaintiff No. 10. Isan died leaving behind his heirs plaintiffs 13‑22. There is no dispute as regards the genealogical tables as given above. The plaintiffs in the suit have claimed that the suit lands were acquired by the four sons of Sabi Mondal, namely, Asan, Hashon, Huson and Isan and on the death of Huson, certain portion of his share was inherited by his father Sabi Mondal and the rest was inherited by his wife plaintiff No. 11 and the daughter plaintiff No. 12. Thereafter on the death of Sabi Mondal, defendants 1, 2 and 3 along with other heirs also inherited certain portion of the suit lands from the share inherited by Sabi Mondal from his predeceased son Husan. This case of the plaintiffs has been challenged by the defendants 1‑4 contending, inter alia. that the suit properties were not the self‑acquired properties of the four sons of Sabi Mondal by his first wife but it was the property acquired by Sabi Mondal himself and on his death his heirs namely, predecessors of the plaintiffs and the defendants Nos. 1, 2, 3 and 4 and the pre decessors of defendants Nos. 6 to 8‑10‑12 excluding defendant No. 4 inherited according to the shares mentioned by the defendants Nos. 1‑4 in their written statements.
3. From the aforesaid cases of the parties it is apparent that it is found that the suit properties were acquired by the four brothers Asan, Huson, Hashon and Isan then the share claimed by the plaintiffs shall have to be decreed, if, on the other hand, it is found that the properties in suit were acquired by Sabi Mondal then the share claimed by the defendants Nos. 1‑4 will prevail. This position has not been challenged rather it is accepted. Then the only dispute between the parties is whether these properties really were acquired by Sabi Mondal or his four sons by his first wife as stated above. There is no document showing the origin of the tenancy, nor any dakhila or any rent roll from the landlord has been produced to show by whom the suit properties were acquired. The plaintiffs have relied on the C. S. Khatians which have been marked Exhs. 1 (a), 1 (b) and 1, relating to khatian Nos. 205, 131 and 223 respectively. These records‑of‑right show that the tenancy stood in the name of four brothers Asan, Hason, Huson and lsan in equal shares. It is the case of the parties that when the C. S. records‑of‑right were finally published on the 31st May 1914, Sabi Mondal was alive and he died about 30 years thereafter. From Exhs. 1 (c) and 1 (d) in respect of khatian Nos. 35 and 252, it appears that the name of Sabi Mondal and his brothers were recorded in those khatians. Exh. l (c) relates to a tenancy within Kokadanga and Exh.1, relates to another tenancy within Daogaon. The other khatians namely, the khatians in dispute in this suit are within Daogaon Mouja. It appears that in three khatians the names of four sons of Sabi Mondal were entered as in possession, while in other two khatians the names of Sabi Mondal and his brothers were entered as in possession. This distinction was maintained. From Exhs. 1 (c) and 1 (d) further it appears that the two jotes recorded in those two khatians really belonged to one Janu Mondal father of Sabi Mondal and his three brothers. The plaintiffs have con tended that if really the properties were not acquired by the four sons of Sabi Mondal by his first wife, then there could not have been any record in the name of the four sons. Furthermore, it is apparent from the evidence that Sabi Mondal did not die just after the publication of the C. S. records but died about 30 years thereafter.
4. The defence contention is that these records were fraudulently entered into by the eldest son Asan by taking advantage of the old age of Sabi Mondal in order to defeat the claim of his two sisters. In order to prove that Asan took advantage of the old age of Sabi Mondal, only defendants' witness No. 1 has deposed in support of this case. The other witnesses D. W. 2, D. W. 3 and D. W. 4 have not stated a single word as regards the old age of Sabi Mondal or the collusion. Defendants' witness No. 1, namely defendant No. 1 is an incompetent witness as admittedly he was not been, nor his mother was married to Sabi Mondal when these C. S. records were prepared and finally published. No reason has been shown why these entries were allowed to stand in the name of the four sons of Sabi Mondal. We do not find that Sabi Mondal at any stage raised his finger against these entries and tried to correct the entries, nor the defendant No. 9 a sister and defendants Nos. 10‑12 heirs of another sister of Asan have come forward to challenge the claim of the plaintiffs but a witness on their behalf has supported the plaintiff. D. W. 2 has deposed that Asan told him that he had created these khatians in order to eliminate his sisters. This is not an evidence which can be believed. Asan is dead and so the evidence of this witness No. 2 for the defendants cannot be verified. In our opinion, his evidence that Asan told him about this false creation, seems to us devoid of any truth. It seems to us that he has come to support the defendants at any costs, though he has been shown to be a maternal uncle of the plaintiff No. 1 and others. He has deposed that Sabi Mondal had no other property at Daogaon except the suit lands. This deposition of the defence witness No. 2 is not at all borne out by the record. He has not been supported by either defendant No. 9 and defendants Nos. 10‑12. From Exh. 1 (d), in respect of khatian No. 252 it appears that Sabi Mondal and his three brothers had a tenancy at Daogaon. These entries vide Exh. I (d) have not been challenged by the defendants. So his evidence as well as the evidence of defendants witness No. 1 that Sabi Mondal had no other tenancy except the suit lands in Daogaon is not correct. Furthermore, from the evidence of witness No. 2 for the defendant it appears that Sabi Mondal himself erected the homestead on the suit lands by taking over the huts from Kokadanga house. This goes to show that Sabi Mondal was neither old nor incapable to look after his properties. Admittedly the suit lands were acquired about 2/3 years before the final publication of the C. S. records. It is in evidence that Sabi Mondal did not marry, defendant No. 3 at the time nor the defendants 1‑2 were born. Necessarily he shifted with his four sons and two daughters and the first wife to the new house. From this it does not necessarily follow that these suit lands were acquired by Sabi Mondal. If the suit lands had been acquired by Sabi Mondal, then there could have been no reason for the entries to be made in the name of four sons and not in the name of Sabi Mondal. D. W. 2 has deposed that he was present with Sabi Mondal while taking settlement of the suit lands by dakhilas; that Rs. 180 were fixed as nazar, that he does not remember the amount of rent. It is curious that he remembers the amount of nazar but he does not remember the amount of rent. The dakhilas alleged to have been granted by the landlords have not been produced in this suit, nor any subsequent dakhilas granted by the landlords have been produced nor any officer of the landlord has been examined in this case to show that the tenancy Was acquired ny‑stood in the name of Sabi Mondal. Furthermore, it appears that he was not summoned in this case. So it seems to us that he came to the Court only to please the defendants and as such we do not place any reliance on the evidence of this witness. D. W. 3 is another witness who has stated that Sabi Mondal acquired the suit lands ; that Hason used to live at the house of his mama Samir who was a big man ; that Kokadanga lands were not sufficient for maintenance of Sabi Mondal, that Samir took Sabi Mondal with him and helped him in taking settlement. It does not appear either from the evidence of D. W. 2 or D. W. 3 that either D. W. 2 or D. W. 3 was present at the time of taking settlement by Sabi Mondal from the landlords. Furthermore, it appears from the evidence of D. W. 3 that he saw Samiruddin Mondal with whom Hason was living and who took active part in taking settlement of the suit lands. We find from the evidence of P. W. 2 that Samir helped the four brothers in acquiring these lands. As regards help by Samir Mondal his evidence is corrobo rated by the evidence of D. W. 3.
5. Then we come to the evidence of defendants' witness No. 4. He is defendant No. 4. He is not a competent witness as to depose who took the settlement. In this cross‑examination he had to admit that he had no paper to show that the suit lands belonged to Sabi Mondal, nor did he see C. S. khatian at the time of kabalas executed in his favour but he took kabalas relying on the words of Montaz (defendant No. 1). This witness has also filed some dakhilas showing payment by him for the purchased lands from defendant No. 1 to the superior landlords. These dakhilas do not show that the tenancy stood in the name of Sabi Mondal but they go to show that a separate tenancy was created in the name of defendant No. 4. So these dakhilas and the evidence of this witness are of no help. We have already stated that the C. S. khatian was finally published during the life time of Sabi Mondal and that he died about 30 years thereafter. No trustworthy evidence has been given in this case to show that false entries were made by Asan for depriving his sisters or father. The question of depriving the sisters did not arise at that time if the properties really were acquired by Sabi Mondal, inasmuch as, sisters could not inherit during the life‑time of Sabi Mondal. The question of inheritance by sisters could necessarily come after the death of Sabi Mondal. From the evidence of D. W. 2, we have already found that Sabi Mondal was active and in good health and doing all the necessary works for the preparation of the homestead. No witness stated that from before the publication of the C. S. records up to his death he was all along ailing. In the absence of any evidence from a competent witness we cannot accept the defendants' case that Asan took advantage of the old age and ill‑health of Sabi Mondal and got the khatians recorded in the name of four brothers. If the landlord or a gomostha had been examined in this case then the true picture would have been disclosed in this case. The plaintiffs have their C. S. khatians in their favour. No onus lies on them to prove in respect of the correctness of the entries in' the khatians. Defendants are to rebut the presumption arising out of the C. S. khatians but they have not done so but they rely on the evidence of two witnesses, namely, D. W. 2 and D. W. 3. We cannot place any reliance on these two witnesses. Furthermore, we find from the evidence of D. W. 5 that the suit lands belonged to Asan and his three brothers. He has not been cross‑examined on this point. So his evidence goes unchallenged. Plaintiff No. 1 has examined himself as plaintiffs' witness No. 1. The learned Subordinate Judge has rejected the evidence on the ground that he was 12/14 years at the time of C. S. operation. His evidence that his father and uncles took korfa settlement of the suit lands from Sonamoyee Debya by an Amaldari which was destroyed by fire cannot lightly be rejected, in view of the entries in the record‑of‑rights. The story of fire in the house has been admitted by the defendants' witness No. 1. The fire that broke out was not before the preparation of the C. S. records but after preparation of the C. S. records and after the birth of defendant No. 1. So in any way an Amaldari might have been taken either in the name of Sabi Mondal or in the name of his four sons. So the existence of Amaldari cannot lightly be rejected. Defendants have not said that there was an Amaldari but D. W. 2 has stated that there was a dakhila, but that dakhda has not been produced in this case, nor any explanation has been given for not producing the same. So we find that the defendants have totally failed to prove that the suit lands were acquired by Sabi Mondal and not by his four sons and to rebut the presumption arising out of record‑of‑rights in favour of the plaintiffs.
6. Mr. Nag, the learned Advocate for the respondents contends that mere entries are not sufficient. There must be further evidence led by the persons in whose favour the entries stand to show that there was a basis for such entries and in support of his contention he has relied on the case of Rai Bahadur Kiron Chandra Roy v. Srinath Chakraborty (31 C W N 135). We cannot accept this contention as sound. Merely because there is no evidence to show the basis of the entries in the record‑of rights, the presumption is not rebutted in view of the provision of section 103 (B) of the Bengal Tenancy Act, and also the procedure as laid down in the several sections of the Bengal Tenancy Act followed by the officer concerned while preparing A the final record‑of‑rights. There must be further evidence to show that the entries are incorrect. The absence of evidence for the basis of the entries may be a circumstance which along with other evidence may go to show that the presumption has been rebutted ; but in the present case there is no evidence trustworthy) showing the entries in the record‑of‑rights are wrong. Hence we hold that the presumption arising out of the record‑of‑rights under section 103 (B) of the Bengal Tenancy Act has not been rebutted.
7. Mr. Nag in this connection has argued that the defendants are in possession of some lands proportionate to their shares as claimed by defendants. The plaintiffs witness No. 1 has deposed that out of 5/6 kottas of homestead, defendant No. 1 is in possession of 1 kotta and that as regards the cultural lands defendant No. 1 possesses only 10/12 kottas of land. D. Ws. 2 and 3 have deposed that defendants are possessing three puros of land, a partition of the suit lands and gave lands in the possession of defendants Nos. 1, 2 and 3 but this case of partition by Sabi Mondal during his life‑time has not been corroborated by any other witness. The contesting defendants has not alleged that there was a partition by metes and bounds. So it seems to us that there has been only an amicable arrangement for the peaceful enjoyment and possession of the joint properties after the death of Sabi Mondal. In such circumstances mere possession of lands in excess of the share as found by us does not prove that the lands were acquired by Sabi Mondal. According to the evidence of plaintiff No. 1, defendants 1‑3 are only possessing about 13 kottas which is in excess of the share that has been admitted by the plaintiffs in their plaint.
8. After going through the evidence we hold that the presumption arising out of the record‑of‑rights in favour of the plaintiffs has not been rebutted by the defendants, that the suit properties were acquired by the four sons of Sabi Mondal by his first wife and that the plaintiffs are entitled to get a decree according to the share claimed by them and the suit is accordingly decreed in preliminary form in full.
We allow the appeal and modify the judgment and decree of the trial Court accordingly. In the circumstances of the case we however make no order as to costs.
M. R. KHAN, J.---‑I agree. .
S. B./A. H.
Appeal allowed.