Decided on July 12,1901

A.CASPEBSZ Appellant


Maclean, C J - (1.) This is a suit for ejectment. The defence is that the defendants are not1 liable to be ejected, as their tenure of the land in question is of a permanent nature. The matter comes before us on second appeal, and we are, there fore, bound by the findings of fact of the Court below.
(2.) In support of their case the defendants first set up a pottah, which purported to show that the tenure was of a permanent nature. That document has been found by both the Courts below not to be genuine. But then the defendants say that, even if the pottah be not genuine, they have been for a very long time in possession of the land in dispute, that it has been from time to time transferred by succession and purchase from one tenant to another, that pucca buildings have, many years ago, been erected upon it by successive tenants, and that that has been done with the permission and knowledge of the landlord, and that, upon these facts, the Court would be justified in inferring or presuming that the tenure was of a permanent nature. To which the appellant replies that as the defendants in the first instance based their case upon a fraudulent pottah, it is not open to them to set up the alternative case upon which they now rely. I do not think this contention can properly prevail. When parties to a litigation set up a false document, as here, that circumstance no doubt induces the Court to view the evidence which they tender upon some other part of the case, with great care and possibly with some suspicion, but it does not prevent the parties from setting up such alternative case, nor prevent the Court from duly weighing and considering the evidence adduced in support of it. In this connection I may refer to the observations of their Lordships of the Judicial Committee of the Privy Council in the case of Ranee Surnomoyee V/s. Maharajah Sutteeschun der Roy Bahadoor (1864) 10 Moo.I.A.123. The passage I refer to is at page 149 and runs thus: " When false witnesses or forged documents are produced in support of a case, the fact naturally creates suspicion as to the case itself; and if the evidence on which their Lordships act depended in any decree for its credibility or weight on such witnesses, or document, they would have paused as to their conclusion." The fact is not so, however, in the present case; their Lordships believe they have to deal with a just cause, foolishly and wickedly attempted to be supported by false evidence." That disposes of the first point.
(3.) The second point is that, having regard to the language of para. 15 of the defence, this alternative case has not been sufficiently or properly pleaded. This, to my mind, savours of too much refinement, for it is reasonably clear that the defendants intended to raise this case, and it is equally clear from the second issue in the First Court, which runs as follows: "Whether the Adhikaries held the tenure as a permanent one either by express or implied grant; if so, is the suit maintainable?" that the plaintiff was aware that this case was raised and was in no wise misled by the pleadings. Moreover, evidence was gone into on the question without objection, and the appellants have not even raised this point as one of their grounds of appeal, and so it cannot be discussed without our permission. To my mind it is a mere afterthought, and there is nothing in it.;

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