P L D 1961 Dacca 668 (PLP)

9. Mr. Mofakhar has in support of his contention, cited two decisions reported in 62 I C page 491 and 72 I C page 643.

10. The case of Midnapur Zemindari Company, Limited v. Jogendra Kamar Bhoumik and others (62 I C 491) is of a Division Bench of the Calcutta High Court. The relevant passage on which Mr. Mofakhar relies is to be found at page 493 which is as follows : , "It may be conceded that, as observed by Lord Mansfield, C. J., in Doe d. Leicester v, Biggs 2 Taunt 109 at p. 113 ; 127 E R 1017 ; 11 R R 533 and by Willes, J., in Bateson v. Gosling 7 CP9 at p. 12 ; 41 LJCP 53; 25 LT350 ; 20WR98 if there are two clauses or parts of a deed repugnant to each other, the first will be received and the latter rejected, unless there is some special reason to the contrary, but this is an expedient to which the Court very reluctantly has recourse, and never until it has exhausted every other means in its power to reconcile apparent inconsistencies, and the rule is subordinate to the general principle that the intention must be ascertained from the entire contents of the deed, for, in the word of Wilde, C. J., in Walker v. Giles 6 C B 662 at p. 702, there is no doubt that effect ought to be given to that part which is calculated to carry into effect the real intention and that part which would defeat it should be rejected."

11. In the present document under my consideration, except the word "proja" (tenant) occurring in the 4th line of recital to the kabuliyat, I find no other indication anywhere that the kabuliyat was given as a tenant and not as a bargadar. The main and operative part of the document or for that matter the document itself, if I may say so, is a barga kabuliyat. From the beginning to the end of the operative part of the document which contains the terms and conditions, it is a barga kabaliyat and nothing else. The plaintiff was to give expenses for the first year's cultivation. He was further to give bullocks for first and second year's cultivation and in return he was to get half the produce per year. The defendants will take the paddy to the farmyard of the plaintiff where they will thrash it and it was also agreed that in case the plaintiff wanted to cultivate any portion of the suit land he could cultivate with his own men and the bargadar‑defendants could not object to the plaintiff so doing The passage that I have quoted and on which Mr. Mofakhar relies in my opinion does not help him ; It rather goes against him. It is clearly laid down in this decision that if there be any inconsistency between one and the other clause of a document, attempt should be made to reconcile the two but if that cannot be done the effect should be given to the operative part of the document. Here, in the present case, there is only mention of five years' tenant, occurring in the 4th line of the recital of the document, on which Mr. Mofakhar is laying so much stress. In my opinion, this does not in any way affect the colour or the contents of the document which is nothing but a barga kabuliyat. The word "tenant" used in the recital of this document only once is used in the loose sense of the terms. The first phrase occurring in the first line of the recital, in my opinion, is a formal expression or a mode of writing such a document in the locality where it was created and the same does not bear either any meaning or any intention of the parties which .are to be found in the main opera tive part of the document, It is not the case that the plaintiffs intended the agreement to be one and the defendants intended it to be the other and therefore the intention cannot be clearly found from the‑ contents of the document. As I have read the docu ment myself more than once with the learned‑Advocate appearing for the appellants and the respondent, I am convinced and it is also clear from the contents of the document which the intention of the parties was. The intention, in my opinion, of both the parties was one and that is to create a barga kabuliyat and nothing else.

12. The next case cited by Mr. Mofakhar is a case of the Division Bench of the Patna High Court in Gopal Misser and others v. Partap Mandal and others (72 I A 643). The passage replied on by Mr.Mofakhar in this case is as follows "The test, in my opinion, is this, if the first description is sufficient in itself to identify the land which is conveyed, then, if there is a conflict between the first description and the second description, the second description ought to be rejected as a false description ; but if the first description is not sufficient by itself to identify the lands intended to be sold, then the second des cription ought to be read as restricting the operation of the grant." In this case the question to be decided was as to whether the two descriptions of the land in question given in the document in the two parties, i.e., in the beginning and in the operative part, were conflicting; and if so, which of the two descriptions will prevail. This case, I am afraid, does not at all apply either to the facts or to the principles or to the question involved in the case under my consideration.

13. There is. a marginal note on this kabuliyat which reads : Kabuliat Joni 2‑8‑10 Dharjo 320 Ara tautmullo 640" From this Mr. Mofakhar wants to say that the kabuliyat was for creating a tenancy in favour of the defendants and for this area of land (2 drones 10 kanies) a fixed rate of rent was settled which is 320 aris of paddy valued at Rs.

640. Nothing occurs in the body of the document regarding these two figures about the quantum of paddy and the amount representing its price, as is to be found in this marginal note. The two Courts below have found that this marginal note was given for the purpose of payment of registration fees. I am also of the view from reading the document that these two figures do not represent either rent for the land or the share of the plaintiff in the barga cultivation by the defendants. The terms of payment are shown in the body of the document which, as I have already said, is half the produce per year or on failure of the defendants to pay the half produce, the right is given to the plaintiff to realise damages at 15 aris of paddy per kani of land by putting the movable and immovable properties of the defen dants to sale.

14. The second contention of Mr. Mofakhar that the inclusion of the land of the 13th schedule covered by Exhibit A(1) into Exhibit A goes to show that the lands covered by Exhibit A were also given in tenancy. It is in my opinion not a substantial one nor can be sustained. Sashi Bhusan Bose, the executor of the pitta (Exh. A‑1) in respect of the self same lands as contained in schedule 13 of Exhibit A came to the box and deposed that he is a benamdar of the plaintiff and as such benamdar he granted the patta (Exhibit A‑1) dated 29‑4‑48.

15. Mr. Mofakhar contends that there being no document to show that Sashi Bhusan Bose as benamdar was holding this land and has thereafter transferred the same in favour of the plaintiff, this story set up by the plaintiff or Sashi Bhusan that he was the benamdar of the plaintiff cannot be accepted and does not affect his client's rights in any manner. Exhibit A(1) was executed on 29‑4‑

48. Exhibit A was executed on 12‑8‑

48. The defendants accept ed Exhibit A (1) about four months before from Sashi Bhusan and thereafter knowingly included the same lands in the 13th schedule to the barga kabuliyat (Exhibit A) executed on 12‑8‑48 in favour of the plaintiff. Therefore they cannot say that they did not know about the benami nature of the ownership of Sashi Bhusan to the lands of the 13th Schedule to Exhibit A. Secondly, there is no bar that the two parties cannot mutually give up a particular agreement at a later point of time and come to a fresh settlement on new terms with regard to the same property. In the present case, in my view, the defendants have given up the right under Exhibit A(1) with regard to the lands covered by the 13th schedule of Exhibit A and have accepted the lands of the 13th schedule in barga right from the plaintiff under Exhibit A.

16. Mr. S. R. Pal, the learned Advocate for the respondent, has relied on proviso to clause (17) of section 3 of the Bengal Tenancy Act for showing that the transaction was a barga trans action and the kabuliyat was a barga kabuliyat and not a docu ment creating any tenancy right in favour of the defendants. Clause (17) of section 3 and the proviso thereof runs as follows :‑ "3. (17) "tenant" means person who holds land under an other person, and is or but for a special contract would be liable to pay rent for that land to that person Provided that a person who, under the system generally known as `adhi', `barga' or `bhag' cultivates the land of another person on conditions of delivering a share of the produce to that person, is not a tenant, unless (i) such person has been expressly admitted to be a tenant by his landlord in any document executed by him or executed in his favour and accepted by him, or (ii) he has been or is held by a Civil Court to be a tenant;" He has, in support of this contention, relied on a case of our Court in the case of Abu Nasser Sayedullah v. Abdul Malik and another (P L D 1960 Dacca 587), where my learned brother, Rahman, J., has dealt with the proviso to clause (17) of section 3 of the Bengal Tenancy Act. This case is fully applicable to the facts of the present case and I find no reason to take a different view from the said decision. I, therefore, find also on the basis of the interpreta tion of proviso to clause (17) of section 3 of the Bengal Tenancy Act that the present agreement between the plaintiff and the defendant was for a barga right. .

17. Mr. Pal has next cited a case Altapadi Khan v. Uzirali Khan and others (A I R 1933 Cal. 381). In that case the question of interpretation of a document was involved. It was held in this case that the inten tion of the parties must be gathered from a reading of the entire document and the same mast be interpreted accordingly. With regard to the marginal note appearing in this document Mr. Pal relied on a passage in this case reported in A I R 1933 Cal.

381. In that case also there was a marginal note in the document and the same was sought to be interpreted as part of the document. Costello, J. observed as follows : ‑ "I take the view therefore that I ought to pay more attention to what the document itself says than to a mere existence of a descriptive expression on the margin of the document which might have found its way there by some wholly fortuitous circumstances or for some extraneous reasons." In the present case, the marginal note as held by the Courts below was in my view also possibly meant for registration purpose and not to indicate the Intention of the parties.

18. Mr. Pal has relied on another case Juran Mandal and others v. Ram Mandal and others (A I R 1928 Cal. 737), which is also on marginal notes for extraneous endorsements not contained in the body of the document. The Division Bench of the Calcutta High Court in that case held "But where the wording of the contract is capable of different interpretations the Court is justified, and in my judg ment it is its duty; to put a proper construction upon the terms of the contract and is justified in finding with what intention a particular expression was used as a matter of pure con struction." In the present case, in the light of the above principle, the docu ment cannot be interpreted to be anything else than a barga kabuliyat on the terms as contained in the body thereof and the marginal note on which Mr. Mofakher has relied cannot be inter preted for anything else than for having been inserted for masons of registration purpose and the lower Appellate Court was right in giving the same interpretation to the marginal note.

19. Mr. Mofakhar did not take the plea that the condition of payment of damages at the rate of 15 aris of paddy per kani do the failure of defendants to pay half the produce as agreed upon was at any point of time varied by mutual agreement of the parties and it .was reduced to 320 aris of paddy or the price thereof at Rs: 2 per aris. If the intention of the parties was to have 320 aris of paddy or Rs. 640 towards compensation, then I find no reason for having not entered the same in the body of the document by striking out the condition of damages at the rate of 15 aria of paddy per kani instead of mentioning 320 aris of paddy or Rs. 640 in the margin of the document. Looked at from this point of view, it therefore becomes clear that this endorsement on the margin was for the purpose of registration and not as condition agreed upon by and between the parties.

20. Mr. Mofakhar has filed an application under Order XLI, rule 27 of the Civil Procedure Code for acceptance of additional evidence, in support of the case of .his clients setting up the tenancy in violation of the terms of the barga kabuliyat. The two documents are two receipts granted by some one it is saidon behalf of the plaintiff accepting Rs. 640 towards compensation. The acceptance of these two documents will mean to allow the defendants to make out an alternative case at this stage. That is they are trying to show that although at the rate of 15 aria of paddy the compensation was agreed to be paid yet it was reduced to 320 aris. This cannot be allowed at this stage. These two documents sought to be filed as additional evidence by Mr. Mofakhar were in the possession and custody of his clients and they did not file the same before the Trial Court or the First Appellate Court. The explanation given by Mofakhar is this, that these two documents were mislaid somewhere and they could not get hold of them until he filed the present application under Order XLI, rule

27. If these two documents were genuine and were at all in possession of the defendants from before the filing of the suit by the plaintiff, I do not find any reason for the defendants not to have mentioned about these two documents in their written statement or to have taken the plea that the compensation rate was reduced from 15 aria of paddy per kani to 7 aris of paddy per kani as it is to be found on the calculation on the basis of 320 aris as mentioned in the margin of the document. Nor the defendants raised this point at the time of the hearing of the appeal by the learned Subordinate Judge. I therefore find no reason as to why the defendants should be allowed to adduce additional evidence which was in their control and custody throughout the proceedings, the admission of which will completely alter the defence of the defendants, which they cannot be allowed at this stage. I there fore reject the application under Order XLI, rule 27 of the Civil Procedure Code filed by the defendants for acceptance of additional evidence. In the result, therefore, this appeal is dismissed with costs and the judgment of the learned Subordinate Judge is affirmed. K. B. A. Appeal dismissed.