Shyam Pratap Ram Missir vs Beni Nath Dubey and Others

Fazl Ali, J.—This is an appeal by plaintiff 1 in a suit which followed the decision of a revenue Court u/s 177, Chota Nagpur Tenancy Act. It appears that one Kapur Kuar, widow of Bhubaneshwar Nath Dubey, was the proprietress of village Hetkonke. After her death, defendant 1 brought a suit for rent against plaintiffs 2 and 3 in the revenue Court. Plaintiffs 2 and 3 pleaded that they had paid the rent in good faith to the appellant (plaintiff 1). The revenue Court, however, held that plaintiff 1 was not entitled to receive rent, and passed a decree for rent in favour of defendant 1. Thereafter the present suit was instituted by plaintiff 1 along with plaintiffs 2 and 3. In the suit plaintiff 1 asked for a declaration that he was entitled to receive rent from plaintiffs 2 and 3 for which "rent suit No. 145 of 1937-38 had been instituted by defendant 1." A further relief was asked on behalf of plaintiffs 2 and 3 to the effect that the sum for which the decree had been passed in favour of defendant 1 by the revenue Court should be refunded to them. There was also a prayer that "further relief or reliefs be granted which the Court deems proper."

The learned Munsif who tried the suit held that plaintiffs 2 and 3 were not entitled to any relief and dismissed the suit so far as they were concerned. He, however, passed a decree declaring the legal title of plaintiff 1 to the rent payable by plaintiffs 2 and 3 for their holdings in village Hetkonke. Defendant 1 thereupon appealed, and the learned Subordinate Judge who heard the appeal reversed the decision of the Munsif on two grounds. Firstly, f he held that plaintiff 1 was not the son of the sister of Bhubaneshwar Nath Dubey, and, secondly, he held that the suit was not maintainable in the form in which it was framed.

The first point arises in this way. The case of. defendant 1 is that he being the nearest agnate of Bhubaneshwar Nath Dubey was entitled to succeed to his properties after the death of his widow, Kapur Kuar. In this capacity he claimed to be entitled to the rent payable by plaintiffs 2 and 3, and he succeeded in the revenue Court. Plaintiff 1, on the other hand, alleges that he and defendant 2 are respectively the sons of two sisters of Bhubaneshwar Nath Dubey, and accordingly he and defendant 2 were entitled to succeed to the properties of Bhubaneshwar Nath Dubey in preference to defendant 1. Such being the respective oases of these parties, both of them proceeded to adduce evidence in support thereof. The Munsif held that plaintiff 1 and defendant 2, were the sons of two sisters of Bhubneshwar Nath Dubey, and in arriving at this finding relied on Exs. A and B and the oral evidence adduced in the case. The learned Subordinate Judge came to the opposite conclusion and gave certain reasons for discarding Exs. A and B as well as the oral evidence. It may be stated here that Ex. A is a letter which purports to have been written by defendant 1 himself and in which defendant 1 describes the father of defendant 2 as his Phoopha. The Munsif pointed out that the description supported the case of defendant 2 that he was Bhubneshwar''s sister''s son. Exhibit B is a receipt, which purports to have been executed by Bhubaneshwar Nath Dubey in which the father of defendant 2 is desoribed as the husband of his elder sister. The Munsif considered this document also to be genuine, and pointed out that that showed, firstly, the existence of two sisters of Bhubaneshwar, and, secondly, that defendant 2 was one of the sister''s son. The learned Subordinate Judge has, as I have already stated, discarded both these documents. He has discarded Ex. A, which purports to have been written by defendant 1, on the ground that the evidence of defendant 2, who has proved this document to be in the hand-writing of defendant 1., should not be accepted, because defendant 1 has denied the fact of Ex. A being in his hand, writing. He has described Ex. B, which was also proved by defendant 2 as being in the hand-writing of Bhubaneshwar, on the ground that the requirements of Section 47, Evidence Act, had not been satisfied.

In my opinion, the findings of the learned Subordinate Judge are vitiated by certain obvious errors. In the first place, it was an error of record to say that defendant 1 had denied the fact of Ex. A being in his hand-writing. It has been conceded before me that there is no such denial in the evidence of defendant 1. As to Ex. B, the learned Subordinate Judge committed an error of law in saying that, "none of the facts which are stated in Section 47 has been proved to show the oompetenoy of defendant 2 to prove the hand-writing of Bhubaneshwar Nath Dubey." In Shankarrao Gangadhar v. Ramji Harijivan (''04) 28 Bom. 58, it was held that the correct statement of law is as follows: "A witness need not state in the first instance how he knows the hand-writing, since it is the duty of the opposite party to explore on cross-examination the sources of his knowledge, if he be dissatisfied with the testimony as it stands." It appears that in that case in proof of a document a witness simply stated that he was acquainted with the hand-writing of the writer, but he was not asked in the examination-in-chief any question which would elicit any of the several matters indicated in the explanation to Section 47, Evidence Act. The witness was also not cross-examined on the point. On these facts it was held that his evidence as to the handwriting ought to be accepted, even though he had not stated in his evidence as to how he claimed to be acquainted with the hand-writing which he wag examined to prove.

The learned Subordinate Judge has also misread the oral evidence of witness 1 for the plaintiffs in stating that this witness came to know that the mother of plaintiff 1 was a sister of Bhubaneshwar Nath Dubey, because Bhubaneahvvar''s mother died in his house and her second daughter, Deoman Kuar, performed her cremation ceremony. In my opinion the finding of the learned Subordinate Judge that plaintiff 1 has not been proved to be the sister''s son of Bhubaneshwar Nath Dubey is not a finding in accordance with law, and the question as to whether he has succeeded in establishing his case must be considered afresh.

The learned Subordinate Judge was also, in my opinion, in error in holding that the suit by plaintiff 1 was not maintainable, because plaintiff 1 did not ask for a consequential relief and because he confined his suit only to the rent of the year 1993 for which a decree had been passed by the revenue Court. Section 177, Chota Nagpur Tenancy Act, states that where a third party claims a right to receive rent, such third party shall be made a party to the suit, and the question of the actual payment of the rent to such third party in good faith shall be enquired into. But there is also a proviso in the section to the effect that the decision in such a suit "shall not affect the right of any" party, who may have a legal title to such rent, to establish such title by suit in a civil Court, if instituted within one year from the date of the decision. The section does not suggest that the suit which may be brought under the proviso should not be merely a declaratory suit, but there should also be a prayer in such a suit for some kind of consequential relief. Learned Counsel for the respondents contends that the effect of the decree of the revenue Court in the rent suit was that plaintiff 1 was dispossessed, and plaintiff 1 should have asked for restoration of possession. I am, however, unable to agree to this proposition. All that was necessary for plaintiff 1 was to obtain a declaration from the civil Court that he, and not defendant 1, was entitled to realise rent from plaintiffs 2 and 3, and a mere declaratory suit was quite enough for the purpose of removing the cloud on his title which was cast by the decision in the revenue Court. The view of the learned Subordinate Judge therefore that u/s 42, Specific Relief Act, there ought to have been a prayer for a consequential relief seems to me to be untenable.

The learned Subordinate Judge has also observed that a declaration that the plaintiff was entitled to the rent, which was the subject of the suit in the revenue Court, would be useless in the circumstances of the case, and he has criticised the Munsif for granting a decree in wider terms than those prayed for by plaintiff 1. In my opinion, the learned Munsif was justified in taking a broader view, especially when in the plaint it is clearly stated that the Court should grarjt to the plaintiff such further reliefs as the Court deemed proper. In my opinion, if it was established on the evidence that the plaintiff was entitled to a declaration that he, and not defendant 1, was entitled to receiver rent from plaintiffs 2 and 3, it was the duty of the Court to grant such a relief and not to throw out the salt on the technical ground that the prayer for relief in the plaint was in somewhat narrow terms.

In the view I take, I set aside the judgment of the learned Subordinate Judge, and remand the case to him for disposal according to law. The learned Subordinate Judge should now come to a conclusion on the entire evidence before him as to whether plaintiff 1 is the son of the sister of Bhubaneshwar Nath Dubey, and if he comes to such a conclusion in favour of plaintiff 1, he should pass a decree in the terms inwhioh the Munsif had passed a decree in this case. The costs on this appeal will abide the result.