P L D 1961 Dacca 249 (PLP)

2. Plaintiffs' case, shortly stated, is that the land in suit as described in the schedule of the plaint was settled in barga with the defendant who used to deliver half the produce. During the communal trouble of Chaitra, 1356 B. S., the plaintiffs' officer who kept the seha, porcha, chekmuri, etc., in a wooden chest under lock and key while the Muslim refugees occupied the plaintiffs' Kutchery at Garabaria by force, left for West Bengal for fear of life. While the papers referred to above were kept in the wooden chest some local people of ferocious nature broke open the wooden chest and looted the papers that were kept in that chest. The plaintiffs live at Murshidabad which is far off from Garabaria, and the fact of loot was brought to the notice of the Officer‑in‑charge of Gangni Police Station. The plaintiff could not recover those papers. They authorised Shamsul Huq and Hafejuddin Biswas to look after the property of Garabaria by a registered power of attorney. They have given the papers which they had in their Sardar kutchery to the ammuktear. The defendant was a mere bargadar in respect of the land in suit under the plaintiffs. He (defendant) refused to deliver the barga produce while their ammuktear demanded the same. Then the arnmuktear filed a petition to the Sub‑Divisional Officer of Meherpur for getting the barga bhag of the land in suit. The defendant created some forged dakhilas with the help of the blank chekmuries which were stolen from the chest referred to above, and produced them before the Sub‑Divisional Officer. The defendant was never settled with the land as alleged in any tenancy right. Hence the plaintiffs have been obliged to institute the present suit. They claim mesne profits of Rs. 10 only praying for an accounting of the mesne profits under Order XX, Rule 12 of the Code of Civil Procedure, and to pass a decree on receipt of proper court‑fees upon the amount that would be fixed by the Court.

3. The suit was contested by the defendant alleging that Kishori Mohan Mondal was the officer of the plaintiffs for about 14 or 15 years, and was attached to the Vatshala Estate. Out of the land in suit the defendant took settlement of 10. bighas of land of dags Nos. 1810, 1850 and 897 excluding dag No, 1768 from Kishori Mohan at a premium of Rs. 100 and at annual rental of Rs. 9‑13‑0 on the 27th Chaitra, 1354 B. S. Subsequently, Kishori Mohan Mondal realised rent from the defendant on 28th Falgoon 1355 B. S. and granted dakhilas which bear the dag numbers referred to above. The defendant could not pay rent for further period because of the fact that there was no man in the plaintiffs' kutchery. In fact the defendant is a bonafide tenant in respect of the land in suit. The defendant also alleged that the plaintiffs' officer filed Suit No. 122 of 1953 against him for barga produce, and he filed both the dakhilas there, and, as such, the suit was withdrawn with a liberty to bring a fresh suit. The present suit has been falsely instituted against the defendant by the plaintiffs' officer. The defendant did not claim any interest in the land of dag No. 1768 and half of dag No. 1850, and in respect of the remaining land this defendant asserted tenancy right.

4. The trial Court, in view of the defence taken up by the defendant, decreed the suit of the plaintiffs in respect of dag No. 1768 and half of dag No. 1850 declaring their title and possession as the Court found that the plaintiffs were in possession of these dags, but holding that they were not entitled to mesne profits. As regards the remaining land, namely, whole of dag No. 1810, half of dag No. 1850 and whole of dag No. 897, the trial Court relying on the dakhilas Exhs. A and A(1) said to have been granted by Kishori Mohan Mondal, an officer of the plaintiffs, found that the defendant had a tenancy right in this land, and dismissed the suit of the plaintiffs.

5. On appeal by the plaintiffs the learned Subordinate Judge affirmed the decision of the trial Court, and also held that in view of evidence of P. W. 1 Abdur Rahman, the present plaintiffs had no interest in the suit land, and the suit at the instance of the plaintiffs was not maintainable. So, the learned Subordinate Judge dismissed the appeal as well as the suit of the plaintiffs. Hence this appeal by the plaintiffs.

6. It is contended by the learned Advocate for the appellants that the Courts below are absolutely wrong in holding on the basis of dakhilas, Exhs. A and A (1), said to have been granted by the plaintiffs' officer Kishori Mohan Mondal, that the defendant has acquired the tenancy right in a portion of the disputed land in the absence of any evidence that he was legally authorised to grant such settlement, and (2) that the learned Subordinate Judge is absolutely wrong in holding that the plaintiffs had no subsisting interest in the disputed land, and as such, the suit was not Maintainable.

7. I think these contentions of the learned Advocate are of substance. It is no doubt true that the two dakhilas bear the signa ture of Kishori Mohan Mondal was and Kishori Mohan Mondal was a rent collector of Vatshala Estate. But there is no evidence that this Kishori Mohan Mondal was authorised to settle any land of the estate. The burden lies on the defendant, who claims a settlement from Kishori Mohan Mondal, to establish that he had legally authority to settle the land, but the defendant could not produce any such written authority nor any other evidence. In the printed form of the dakhila it is written, i.e., the signature of karmacharies authorised for collection and mabalagbandi, and mabalagbandi means the details of collection. The dakhilas on which the defence relied to prove settlement do not show that this Kishori Mohan Mondal was also authorised to settle any land with anybody. In this predicament the defendant examined one Jamiruddin who deposed to say that he took settlement of some lands from Kishori Mohan Mondal. Relying on this evidence as well as the absence of the landlords to deny the fact that Kishori Mohan Mondal was an authorised agent to lease out the land, the Courts below came to the conclusion that they were inclined to believe that Kishori Mohan was the authorised agent, and, as such, the dakhilas granted by him has created the tenancy right in favour of the defendant. The Courts below totally misconceived the question of the burden of proof. From Ext. 1, the paper showing the bhag account and Exh. 2 the dag bill chitta prove that the defendant was a bargadar in respect of the land in suit, and both the Courts below also found that the defendant was bargadar of the plaintiffs, and there is no dispute abut this fact. But the defendant's case is that he subsequently took lease from Kishori Mohan on payment of Rs. 100 at a jama of Rs. 9 and odd per year of a portion of the disputed land. In support of this contention, as I have already stated, he produced the dakhilas, Exhs. A and A (1). The signature of Kishori Mohan Mondal, the rent collector, tallies with his signatures in Exhs. 1 and 1 (a). The case of the plaintiffs is that during the communal trouble the chekmuries were taken away by those who took forcible possession of the kutchery. It might have been that these chekmuries already contained the signatures of Kishori Mohan Mondal for facilitating the collection of rent through karmacharies subordinate to him. But one thing is very clear that these dakhilas, except the signatures of Kishori Mohan, were in the handwriting of a different man. In the front page of these dakhilas plot numbers are not mentioned, but on the back of the dakhilas plot numbers are mentioned with area. This writing on the back of the rent‑re ceipts is quite distinct, and it is different from the handwriting of Kishori Mohan as it appears from his signature. Even if the dakhilas bear the signatures of Kishori Mohan Mondal, it has not been proved that the writing in the dakhilas was also in his handwriting. It appears that these dakhilas bearing the signatures of Kishori Mohan Mondal were filled up by somebody else, and to connect the dakhilas with a portion of the disputed land, khatian and plot numbers were given on the back of these dakhilas, and that too in a different handwriting. In the absence of any evidence that Kishori Mohan Mondal has been authorised to lease out any land of the estate, simply the granting of dakhilas by Kishori Mohan will not create any tenancy in favour of the defendant until and unless it is proved that the landlords had' accepted the settlement or that Kishori Mohan was legally com petent to grant settlement of the land. There is no evidence in support of the defendant's case, and he totally failed to establish that Kishori Mohan Mondal had such a legal authority to grant settlement to him. Having been confronted with this situation the defendant examined one Jamiruddin who deposed that he also took settlement of land from Kishori Mohan, but he has not produced any dakhila to show that in fact he had taken any such settlement from Kishori Mohan Mondal. Even if he has taken such a settlement, it is a question to be decided whether such settle ment is valid and binding on the landlord in the absence of any evidence of legal authority in Kishori Mohan to grant such settle ment. The Courts below were under the wrong impression that the plaintiffs are to prove that Kishori Mohan had no such legal authority. Therefore, the Courts below stated : "The plaintiffs have no doubt challenged the authorisation of Kishori Mohan, But they did not come to deny the fact that Kishori Mohan was not the authorised agent. In the absence of any of the plaintiffs, I am inclined to believe that Kishori Mohan was the authorised agent, and, as such, the dakhilas granted by Kishori Mohan has conferred tenancy right upon the defendant." This is absolutely wrong. The burden lies on the defendant to prove that they have got settlement from an authorised agent of the landlords or that the landlords have accepted such settlement granted by their Karmachari. In the absence of any such thing it cannot be held that the defendant has acquired tenancy right in any portion of the disputed land.

8. The learned Subordinate Judge went further to hold that the plaintiffs had no subsisting interest in the disputed land in view of the fact that P. W. 1 stated that he bad exchanged some of his properties with the property of the plaintiffs. In that view of the matter, the learned Subordinate Judge held that the suit filed by the plaintiffs was not maintainable, and observed at pages 15 and 16 of the Paper Book as follows : "P. W. 1 Abdur Rahman has stated in his evidence that he has exchanged his property with the property of the plaintiffs in 1360 B. S. The suit has been filed on 31st January, 1955, corresponding to 18th Magh, 1361 B. S. The learned lawyer for the respondent has therefore argued that in that view of the case on the date of filing of the suit, the present plaintiffs had no interest in the suit land. There is considerable force in this contention although it was not taken. up in the trial Court. This being a question of law, the respondent may take it even in appeal. As the plaintiffs had no interest in the suit land, the suit is not maintainable by them." It is unfortunate that the learned Subordinate Judge allowed the defendant's lawyer to raise this point which is certainly not a pure question of law, and its determination depends upon the determination of certain facts, namely, what property P. W. 1 Abdur Rahman has exchanged with what property of the plaintiffs From his evidence it does not appear that he has exchanged any of his properties with those of the plaintiffs including the land in suit. Then how can it be said that it is a question of law, and how can it be allowed to be raised for the first time in appeal ? If that point was raised in the trial Court the plaintiffs might have adduced evidence or the defendant might have adduced evidence to prove as to which property of P. W. 1 Abdur Rahman was exchanged with what properties of the plaintiffs, and whether it includes the suit land or not. In the absence of any such evidence it is dangerous to hold that the plaintiffs have no subsisting interest to maintain the suit, and to dismiss the suit on that ground.

9. The result, therefore, is that this appeal is allowed, and the judgments and decrees of the Courts below are set aside, and the plaintiffs' suit is decreed, and the case is sent back to the trial Court to ascertain the damages on barga basis in view of the fact that the defendant was admittedly bargadar in respect of the entire suit land, and in view of the finding that he has not acquired any tenancy right in respect of any portion of the suit land, he is bound to pay damages for use and occupation on barga basis. After ascertainment of the amount the Court will pass a decree for the amount on receipt of the deficit Court‑fees from the plaintiffs.

10. As no one appears on behalf of the respondent there will be no order as to costs.

11. In course of delivering the judgment Mr. Rab came in, and tried to make his appearance on behalf of the respondent recorded, but I did not allow him to appear at that stage. K. B. A. Appeal accepted.