Thakur Kurmi vs Lalji Misser and Another

Mohamad Noor, J.—One Mt. Lakhrupi Kuer gave zarpeshgi lease of some lands including the land in suit to defendant 2. The plaintiff Lalji Missir purchased these lands from the Musammat and then redeemed the zarpeshgi. Later on he instituted the present suit on the allegation that after the redemption of the zarpeshgi defendants 1 and 2 dispossessed him from the land in suit which was in the sir possession of the Musammat and after the lease in possession of defendant 2. Defendant 2 did not appear, but defendant 1 contested the suit claiming an occupancy right in the land under a settlement made with him about 30 years ago by Mt. Reji Kuer, mother of Mt. Lakhrupi Kuer.

The learned Munsif, mainly relying upon the revisional survey records and upon the rent receipts produced by defendant 1, dismissed the suit. On appeal by the plaintiff the learned Subordinate Judge reversed the decision and decreed the suit. Defendant 1 has appealed.

The learned Subordinate Judge relied upon the zarpeshgi deed executed by Mt. Lakhrupi Kuer in favour of defendant 2 in which the land in suit was treated as bakasht and then believed the evidence of the plaintiffs'' witnesses that during the time when the land was in the zarpeshgi lease of defendant 2 it was in his direct cultivation.

He also held that the Exs. A series (the receipts) were fabricated. Two points are urged before me: one is that the zarpeshgi deed in question does not show the land to be bakasht. It is true that it does not show this directly, but I think the learned Subordinate Judge''s inference is correct. The deed purported to give in zarpeshgi two classes of lands: one in possession of the raiyats and the other zirat.

The asset fixed was Rs. 86-1-0 in respect of the former and Rs. 35-15-0 in respect of the latter, making a total asset of Rs. 122. The learned Subordinate Judge found in the cadastral survey khatian that the land recorded in the possession of the raiyats had a total rental of Rs. 86-1-0. He therefore concluded that the zarpeshgi deed was on the basis that the land in suit was unencumbered with any tenant.

The second contention of the learned advocate has been that the recital in the deed describing the land as zirat was not admissible in evidence. Unfortunately the decisions in this respect are not uniform. While in Brojendra Kishore Roy Chaudhuri Vs. Mohim Chandra Bhattacharji and Others, Cuming and Mukerji, JJ., held that the recital in the deed was not a transaction within the meaning of Section 13, Evidence Act, this Court, in the case of Sabran Sheikh Vs. Odoy Mahto, held that they were admissible both under Sections 13 and 11, Evidence Act.

It is however not necessary to notice the decisions in this connexion in detail. Whatever may be conflicting views about the admissibility of the recitals in a deed as a statement by its executant, there is no doubt that the zarpeshgi deed is admissible to prove that the land was leased as bakasht by the landlord from whom the plaintiff derived his title and under whom the defendants claimed to be an occupancy raiyat. The evidentiary value of this is quite a different matter; perhaps it may be nothing. No doubt the learned Subordinate Judge attached rather undue importance to this deed and his judgment shows that he treated the recital itself as admissible, a view supported by the decision of this Court already referred to.

Assuming that he used this deed for a purpose for which it could not have been used, I do not think his decision has in any way been affected by this wrong use. He has, at the end of the paragraph dealing with this deed, said that it was a piece of evidence and on the basis of it he was inclined to believe the witnesses who deposed that No. 2 was in khas possession of the land during his zarpeshgi lease. But independently of the deed he has held the receipts-relied upon by the respondent to be fabricated. If the receipts go out, much of the reasons on which the learned Munsif dismissed the plaintiffs'' suit disappear.

I do not think that the use of the recitals in the deed has affected the decision, and I do not see any reason for remanding the case, especially when the learned Subordinate Judge is supported by a decision of the Division Bench of this Court. Then it will not be proper to re-open the question of receipts, on which the finding of fact of the learned Subordinate Judge is mainly based, and the deed could have at any rate been used to show that the landlord was dealing with the land as if it were bakasht and the learned Subordinate Judge was entitled to take the fact into consideration in weighing the evidence of the witnesses.

My attention has been drawn to the case of Banga Chandra v. Jagat Kishore AIR 1916 PC 110, where their Lordships of the Privy Council held that the recitals in deeds could not by themselves be relied upon. for the purpose of proving assertions of fact which they contain. Nobody disputes that proposition. In this case it is not a question of assertion of fact but dealing with the property in a certain manner, namely giving the land in zarpeshgi as bakasht and treating it as such in fixing the assets. My conclusions therefore are that the document is not inadmissible. It can be used for a limited purpose of showing how the lands were dealt with by the admitted landlord. If the learned Subordinate Judge gave a higher value to it, his decision on facts is in no way affected. The appeal is dismissed with costs. Leave is asked for preferring a Letters Patent appeal which is refused.