P L D 1961 Dacca 46 (PLP)

11. On appeal the main point argued was as to the naviga bility of the river, for it appears to have been conceded by both sides that the lands were really accretions to the occupancy hold ings of the plaintiffs, namely, dags Nos. 3251, 3254 and 3310. The learned Subordinate Judge took the view that the appellate judg ment Exh. 3 (a) in the appeal from the decree in Money Suit No. 21 of 1945 could not possibly operate as res judicata, for it did not amount to any final decision at all, as the Appellate Court remanded the case "for decision regarding the title of the suit land and also regarding the ascertainment of the amount of mesne profits, by adducing, if necessary, further evidence regarding the ~~.vu vvvwi title thereto. It is urged that, in these circumstances, no finding either as to the title of the plaintiffs to the suit lands or as to the quantum of mesne profits claimed was arrived at by the said Appellate Court, and as such, there was no final adjudication. The learned Subordinate Judge in appeal also found fault with the learned Munsif for relying upon statements contained in the said judgment regarding documents filed in the said mesne profits suit but not filed in the suit before him. Indeed, the learned Subordi nate Judge was of the view that the final decision in the mesne profits suit was contained in the solenama Exh. 6 and the order -sheet Exh. 7 which showed that the suit for mesne profits was to be dismissed so far as the compromising plaintiffs were concerned; but there was absolutely no mention in the said order‑sheet with regard to the fate of the suit as regards the other plaintiffs who had not joined in the solenama. Such non‑mention was regarded by the learned Subordinate Judge as being tantamount to a dismissal of the suit for mesne profits by implication even as against the plaintiffs who had not joined in the compromise.

12. Having got, rid of the said judgment Exh. 3 (a), the learned Subordinate Judge then went on to consider some of the documents filed in the case out of which the present appeal arises and held that the plaintiffs had not produced any evidence at all to show that the Government had or have any Jalkar or fishery right in the portion of the river Kumar, from which the lands are claimed to have accreted to the holdings of the plaintiffs‑appellants. On the other hand, the learned Subordinate Judge was of the opinion that although no onus had been cast on the defendants, the defendants had satisfactorily proved by Exh. B, the judgment in certain diara proceedings that the lands gained by mouza Osmanpur on the opposite bank of the said river by alluvion, had actually been omitted from resumption proceedings because of their being private lands and not public domain.

13. The kabuliyats Exhs. 1, 1 (a) relied upon by the plaintiffs to show settlement of fisheries in the said river Kumar with certain parties by the Government were held by the learned Subordinate Judge to be in respect of another river called Pangashi in Pargana Rajpur and not in respect of the river Kumar with which no connection was shown by the plaintiffs.

14. The learned Subordinate Judge, however, did not make any reference to the oral evidence in the case and upon the view formed by him that the river Kumar was not a private navigable river, the suit of the plaintiffs was dismissed.

15. It is against this decision that the plaintiffs have come up on appeal to this Court and mainly three grounds have been urged before me in support of this appeal, firstly, that the judg ment was not a proper judgment in reversal because the lower Appellate Court had not even noticed the relevant oral evidence adduced in the case and relied upon by the trial Court ; secondly, because a large number of documents also relied upon by the trial Court had not been noticed by the learned Subordinate Judge, The second ground is that learned Subordinate Judge has misread Exh. B and the third ground is that the learned Subordinate Judge was wrong in law in holding that the Appellate judgment Exh. 3 (a) in the mesne profits case was not conclusive with regard to the question of the navigability of the river.

16. I take up the last point first. I have already stated earlier in this judgment that the reasons given by the learned Subordinate Judge for not treating the judgment Exh. 3 (a) as a final decision on any point. In this view I am in agreement with the learned Subordinate Judge, fur, although in the body of the judgment there are some observations to the effect that there was some evidence in the said case to show that portions of the river Kumar particularly those contiguous to mouza Osmanpur might be a public domain belonging to the Government, there is no finding arrived at as to the navigability of the river Kumar as such. Indeed, on a perusal of the said judgment Exh. 3 (a), it appears that the Court was of the view that on the evidence, as it stood, the defendants had failed to show a better title than the plaintiffs ; but since certain relevant documents had not been allowed to be proved in the said case due to their being filed late and the relevant maps had not been relayed, the Court was of the opinion that without such evidence, no final decision could be possibly arrived at,. Hence, the suit was remanded, as already stated, for re‑trial both regarding the title to the lands as well as the quantum of the mesne profits. The judgment could not, therefore, be treated as conclusive on any question, for no question was finally decided by the said judgment.

17. I am also in agreement with the learned Subordinate Judge that the trial Court in the present case was wrong in relying upon recitals contained in the said judgment with regard to certain documents filed in that case but not filed in the present case. This case could not possibly be decided upon evidence adduced in some other case and hence, the reliance upon those documents without even having seen them by the trial Court in the present case was entirely wrong.

18. The complaint with regard to the misreading of Exh. B, the judgment in the Diara cases also appears to me to be non justi fied. The said Diara cases were in respect of certain resumption cases stated in respect of lands thrown out by the river Kumar in 1923 within the thanas Alamdanga, Mirpur and Kushtia, compris ing mouzas Osmanpur, Hardi, Kumari and Kamalapur. These were lands on the opposite bank of river Kumar and this judgment certainly showed that the lands were in those cases on the objection of the landlords released from resumption. The learned Munsif, however, relied not merely on the decision in the said judgment but also on some recitals contained therein to show the river Kumar branched off from the Mathabhanga and went off to the east and passed through Nadia and Jessore districts and inferred therefrom that if it is so branched off and passed through various districts then that by itself indicated that the river could not be private property. This judgment in the Diara cases not being judgment inter parties, could only be utilised for the limited purpose, in the present case, to ascertain as to who were the parties thereto and what exactly, was decided. Recitals therein could not constitute evidence in the present case, and the learned Munsif was, therefore, entirely wrong in so relying upon such statements or recitals contained therein or drawing an inference therefrom. The learned Subordinate Judge, however, was in my view right in only taking into consideration the decision in the said Diara cases. The complaint about the misreading of the said judgment Exh. B, does not, therefore, appear to me to be at all justified.

19. This brings me to the first point urged in this appeal. This appears to me to be a more substantial point. Upon a perusal of the judgment of the learned Subordinate Judge, it is evident that the oral evidence has not even been noticed or considered and in so far as the documentary evidence is concerned, he has noticed the appellate judgment Exh. 3 (a) in the mesne profits case, Exhs. 1 and 1 (a), and the kabuliyats filed on behalf of the plaintiffs to show settlement of Jalkar rights with certain fishermen in respect of the Jalkar called Jalkar Pangashi, Exh. 10, the certified copy of the D‑Register relating to Touzi No. 3370 and Exh. B, the judgment in the Diara cases. Apart from these documents the trial Court appears to have relied also upon Exh. E and E (2), survey maps, Exh. D, the `A' Register of Touzi No. 3370 ; Exh. 8, the quin quennial settlement papers. Exh. 9 series which are certain settlement khatians as well as the oral evidence. Exh. 9 series, settlement khatians, relate also to Gopinathpur mouza and were intended to show that in respect of some char land in the river Kumar proceedings under section 104 of the Bengal Tenancy Act had been taken by the Government for settlement of these lands. The trial Court also considered that the quinquennial papers Exh. 8 established that the river Kumar was a navigable river.

20. D. W. 1, one of the defendants himself stated that on the eastern bank of the river Kumar lie Bajitpur and Gopinathpur and on the western bank are mouzas Kumari, Hardi, Pragpur and Osmanpur. Further that all the villagers catch fish from the river Kumar all along by Charo and Bandal and nobody demands Ejara from them for the same. He also admitted in cross‑examination that they had to cross the river by boats and that there are ferry systems over the river. With regard to his assertion in evidence- in‑chief that the river Kumar was the private property of the land lord of Bagulia, he was forced to concede in cross‑examination that he could not say whether the river Kumar appertained to the Mahal of the landlord and it was only by guess that he stated that the proprietorship of the river Kumar was with the landlords as his landlords settled lands on its either bank. The admission made by the Manager of the Bagulia landlords with regard to his possession of the relevant papers to show that the bed of the river Kumar was settled with his master, landlord, was also a material piece of evidence which has remained unconsidered by the learned Subordi nate Judge. So far as the fishery of Pangashi is concerned, it is also significant that this very Manager admitted in his cross -examination that Pangashi was near Abuirand Char Pragpur which the defendants' witness No. 1 had admitted, lay on the west bank of the river Kumar. This last named witness, namely the Manager of the said Bagulia Zemindars also made a very damaging admis sion in his cross‑examination after being recalled which was to the effect that the river Kumar had not been recorded in any of their mauzas.

21. It is argued on behalf of the appellants that upon this evidence of the defendants' witnesses themselves, if given its due weight and consideration, the result might well have been other wise, for the onus lay on the party who claimed that particular lands were included in the permanent settlement of 1793 to show affirmatively that such was the case. In the present case it is urged that it is the defendants who claimed that the bed of the river Kumar appertained to the Touzi of the Bagulia Zemindars and was permanently settled with them. Hence, it was for them to show that it was so settled with the said Zemindars. The admission of D. W. 2, the Manager, that river Kumar has not been recorded in any of their mouzas, is, therefore, a piece of evidence, going directly against the claim of the defendants.

22. That the learned Subordinate Judge is wrong in taking the view that no onus lay on the defendants, is sought to be supported by the decision in the case of the Secretary of State for India in Council v. Moulvi Wazed Ali Khan Pani and others (34 C L J 141). In this decision at page 146 Mookerjee, J. observed as follows :‑ "As regards the question of title, the case for the Secretary of State was that the plaintiffs must be restricted to the land shown as included within their permanently settled in estate the thak and revenue survey maps. This position is clearly untenable. As was pointed out by their Lordships of the Judicial Committee in Jagadindra Nath v. Secretary of State and by this Court in Ananda Hari v. Secretary of State, it cannot be presumed as a matter of law that the state of things described in the thak and survey maps existed at the time of the permanent settlement. The question, what lands were included in the permanent settlement, is a question of fact and not of law which may or may not be satisfactorily proved by subsequent survey maps. The onus of proving that any particular lands were included in the permanent settlement of 1793 is clearly on those who affirm that, such was the case, and the burden of proof is not necessarily shifted by the production of the thak and survey maps showing that specific lands are included in a particular state:

23. In accordance with this view, if the defendants claim that the land, namely, that bed of the river Kumar, was so settled with the Bagulia landlords from the time of the permanent settle ment, it was for them to show that the land was so settled, and, therefore, the papers admitted by the Manager to be in the posses sion of the Zamindars were certainly material and relevant docu ments which should have been proved in this case. The natural inference for the non‑production thereof is that the documents are being withheld. I am not expressing any final opinion, however; in the present case except to say that there is a great deal of relevant evidence both oral and documentary in this case which has not been considered at all by the Court of Appeal below.

24. The Appellate Court is, of course, entitled to reverse the decision of the original Court upon reasons of its own. But where there is relevant evidence which may go in support of a contrary view, it behaves the Court to consider the same and to give its opinion with regard thereto. It was for the Court of Appeal below as the final Court of facts to assess the evidence both oral and documentary and to say which it believed and which it did not believe. This Court should not, sitting in second appeal, be asked to assess the evidence and to weight it.

25. From what I have already stated, it will be evident that the learned Judge's observations to the effect that there is not an iota of evidence to support the plaintiff's case, does not appear to be correct. In these circumstances, I am in agreement with the learned Advocate appearing in support of this appeal that this appeal must be sent back for re‑hearing and proper assessment of the evidence both oral and documentary both in favour of the defendants as well as that in favour of the plaintiffs.

26. This appeal is accordingly allowed, the judgment and decree of the Court of appeal below are set aside and the appeal is remanded to that Court for re‑hearing in the light of the obser vations made by me above,

27. The costs of the present hearing will abide the result of the re‑hearing. K. B. A. Appeal allowed.