P L D 1954 Dacca 150 (PLP)

The suit was contested only by defendants Nos. 1 to 12, represented by the Court of Wards, and by the 18th defendant, a dar‑etmandar. The defence was that the plaintiff's purchase of this taluk was not bona fide, the real purchaser being the defaulting proprietor himself. The plaintiff, it was said, was only a benamdar. It was also pleaded that the etman was in existence from the time of the permanent settlement, that in any case it was recognised in the last settlement proceedings, and that therefore excep tions 2 and 3 to section 12 of Act VII of 7,868 b applied and the plaintiff could riot take this estate free of the encum brances. The defence of defendant No. 18 was that as far as the plot of the land on which there was a tank, exception 4 to section 12 of Act VII of 1868 applied. It was further pleaded by him that she was entitled to protection under section 14 of Act VII of 1868 having acquired the right of occupancy. The learned Subordinate Judge rejected the theory of the plaintiff being the benamdar for the defaulting proprietor. As regards the contention that the etman was in existence at the time of the settlement or was recognised at the last revenue settlement, the learned Judge took the view that neither of these positions was established. As for the con tentions of defendant No. 18, he allowed that which was dependent on exception No. 4 but regarding the rest of the property he held that not a scrap of paper was placed before him to establish the claim of this defendant to a permanent occupancy. He therefore decreed the suit declaring the plaintiff's title and also her right to get khas possession of suit lands except the one on which the tank was situated, i.e., R. S. Dag No. 280/591, by ejecting all the defendants. As regards the claim for mesne profits the defendants contested it and an issue was framed in respect of it ; but after the arguments were heard‑ a petition was filed by the plaintiff for permission to withdraw that claim with liberty to file a fresh suit. The permission asked for was granted: At first defendants Nos. 1 to 12 only appealed from this decision, but later defendant No. 18 was transposed as co‑appellant. Mr. Das appearing for the 18th defendant and Mr. Asir appearing for the Court of Wards do not contest the finding of the learned Subordinate Judge to the effect that the plaintiff was not proved to benenamdar for the defaulting. They confined their arguments to the application of exceptions 2 and 3 of section 12 of Act VII of 1868 to the case before us and of these exceptions they relied largely on exception

2. Their contention is that the learned judge's appreciation of the evidence, documentary, as well as oral, on the question whether ‑ it has been established that the tenure existed at the time of the permanent settle ment is not correct. We have looked into this evidence and in our opinion the conclusion of the learned judge on this point has to be accepted. The records to which our attention has been drawn with regard to this question are the chittas including the Maghi Chitta of about 1836, Cadastral survey of about. 1895 and the revenue survey of about 1929. It is not disputed that the tenure and the etman are almost co‑extensive, nor is there any dispute about the identity of the suit land with that of the plots mentioned in the portions of the chittas to which our attention has been drawn. The only question before us is whether the etman which was in existence at the time of the Maghi survey continued till the revenue survey. Mr. Das's contention is that it did and the etman being in existence at the time of the Maghi survey of 1836 it was reasonable to presume back its existence even at the time of the settlement and thereby bring the case under exception 2 to section

12. For this purpose he referred to Exhs. G‑2 and D‑

1. In Exh. G‑2 the etman is described in the name of Sachi Sikdar, the possession being with Fateh Ali Sikdar who is described as cultivator, but in D‑1 which is the C. S. Khatian there is no reference to Sachi or Fateh Ali. On the other hand it is mentioned as relating to Khairullah Hamidullah. In Exh. 3 which is the R. S. Khatian the tenure appears in the name of Bagban Chandra, son of Beni Madhab Sen and the etman as etman Khairulla. There is no reference to Sachi in either of these Khatians but reliance is placed on the evidence of D. W.

2. It is argued that that evidence establishes that it was by devolution of interest that this etman descended to Khairullah Hamidullah. But the evidence of D. W. 2 is not definite. He had only heard of Khairullah Hamidullah and Amjad Ali. He no doubt said that he knew them, but in cross‑examination he had to admit that he did not see them. According to him these persons were the sons of one Kasem Ali whose father Abdul Kasim was a cousin of Sachi. Fateh Ali, he said, was son of Sachi. He also said that there was no direct descendant in the line of Sachi and Fateh Ali and their interest passed to Khairullah and Hamidullah ; but in cross‑examination he added "I do not know how the interest of Sachi and Fateh Ali devolved. I have no personal knowledge as to who died first or who are the heirs of which persons". D. W. 1 no doubt deposed that Abdul Karim was Sachi's brother whereas D. W. 2 said that they were cousins but D. W. 1 is no other than the husband of the 18th defendant. Mr. Das argues that this is all the evidence that can possibly be adduced. But the fact that there is difficulty in proving a particular position can hardly justify the reduction in the standard of proof which is normally required. We find ourselves unable to come to any definite conclusion relying on the evidence of D. W.

2. If he was at least certain that Sachi is the only brother of Kasem or he could have told us how he was a cousin, Mr. Das would have been in a stronger position ; but as it is, cousin may also include a son of a maternal aunt or a paternal aunt. However, the last sentence in his deposition that he hats no personal knowledge as to who died first or who are the heirs of which persons takes away the value of his evidence in, examination‑in‑chief. It is not denied that the burden of proving that this etman was in existence at the time of permanent revenue settlement lies heavily on the defen dants. As regards the alternative position taken by Mr. Das, namely, that exception 3 would apply, we find him in a weaker position. As a matter of fact, Mr. Das and Mr. Asir concentrated mainly on exception

2. Their case with regard to the third exception, however, is that the entry in R. S. Khatian with regard to this etrrtan can be regarded as amounting to the recognition mentioned in that exception. Mr. Nandi appearing for respondent No. 1 has brought to our notice a serious omission in the second page of Exh. 3, page 4 of the Paper Book. We are surprised that such an omission has occurred in the record, in the particulars of the interest in the column "Particulars of this interest class and special incidents". The following which is accepted on both sides as a correct rendering of the Bengali sentence found in the original has been omitted: Not binding on the Government. Profit of this estate comes from profit of superior estates. Mr. Nandi's contention is that these two sentences are by themselves sufficient to take away the case from exception

3. He argues that the word "recognition" used in that excep tion means something more than mere recording of a fact. It means recognition by the Government of the existence of the etman and these sentences according to him clearly negative such a recognition. He also points out that even if it is assumed for argument's sake that the etman was recognised in the R. S. Khatian, still the third exception would not apply because the recognition should be to the effect that it was bearing a rent which is fixed for the period of such settlement, whereas in Exh. 3, it is clearly stated that the etman was liable to enhancement of rent. In our opinion both the contentions of Mr. Nandi have to prevail. Rohini Ranjan Das v. Umesh Chandra Dutta and others (47 C W N 241.) to which our attention has been drawn by Mr. Das far from being of any assistance to him, supports the position takerk by Mr. Nandi, and Mr. Nandi has drawn our attention to an earlier decision Lakshidhar Barua and another v. Saroda Charan Dey (20 C L J 40.). In support of his second contention, namely, that in any case the entry in the R S. Khatian a does not show that there was a‑ fixed rent for the period of the settlement, Mr. Nandi relies on the decision of a single Judge of this Court in Manindra Nath Basak and another v. Maulvi Md. Jane Alam Sadagar (53 C W N (1 D R) 32.). We have been through these decisions and neither Mr. Das nor Mr. Asir could cite an authority that supports their position. In 20 C L J (supra) case it was held that the expression not binding on the Government" was by itself sufficient to show that there was no recognition as required in excep tion 3 to section

12. In 47 C W N (supra) case there was not only the words "not binding on the Government for the purpose of assessment", but also the words "out of the profits of the superior landlord". It was held that these words prima facie shows that there was no recognition, but that it was, however, open to the parties to prove that there was no recognition. The words relied on by Mr. Nandi which we have quoted as having been omitted in the Paper Book are those that are prescribed in the Settlement Manual of 1935 as the words that have to be entered in the Khatian in cases where tenures which are valid in other respects do not operate against Government for the purpose of reducing the assessment. We, therefore, consider that this is not a case in which it can be said that the etman was recognised. The words "liable for enhancement of rent" is another serious impediment in the way of the appellant because those words mean that it was not a tenure bearing a fixed rent. In these circumstances we consider that this appeal has to fail. Mr. Asir, however, urges that as far as the claim for the mesne profits is concerned the lower Court should have dismissed the suit instead of allowing it to be withdrawn with liberty to file a fresh suit, but no ground on this point has been taken in the memorandum of appeal and it is only today that an application has been presented to us for allowing this ground to be added. Curiously enough the application on which permission to withdraw the claim of mesne profits was granted which is in Bengali has not been translated and made a part, of the Paper Book. In these circumstances, Mr. Nandi rightly points out that this point cannot be considered as he took no notice of it and could not incorporate it in the Paper Book the necessary papers on which he can support the action taken by the learned judge. Mr. Asir is nest in a position to say as to why such permission was given and whether the application was opposed. We do not therefore allow a fresh ground to be taken at this stage. In the result, the appeal fails ; and is dismissed with costs of the contesting respondent. AKBAR, J.‑

I agree. A. H. Appeal dismissed.