DEB PROSANNA MUKHERJEE Vs. HARI KISON RATHI

JUDGEMENT

(1.) THIS is a Rule granted on an application under Section 115, Civil P.C., and is directed against an order rejecting the petitioner's application for balance of landlord's fees and compensation under Section 26(j), Ben. Ten. Act. The facts are simple. The opposite party 8 held a tenancy under the petitioner's predecessors at a rental of Rs. 12-8-0 a year, and the petitioner alleges that it was an ordinary occupancy holding. The opposite party 8 sold it to opposite parties 1 to 7 falsely stating that the holding was a mokarari one and paid Re. 1 only as landlord's fees. Hence the petitioner applies under Section 26(j), Ben. Ten. Act, for recovery of the balance of landlord's fees and compensation amounting to Rs. 75 only.

(2.) THE defence was that the holding was a mokarari one and as such the claim of the petitioner was not tenable. THE trial Court accepted the defence story and dismissed the application holding that the tenants were mokarari raiyats and though the C.S. records support the petitioner's case, the presumption attached to them was rebutted by a plaint filed against the tenants by the petitioner's predecessor wherein it was expressly admitted that the holding was a mokarari one. Mr. Das who has appeared for the petitioner, has assailed the propriety of this order on one ground only, namely, that the statement in the plaint filed by the plaintiff's predecessor could not be relied on in evidence without calling the Banerjees, who were the plaintiffs in that suit and who are proved to be alive. In support of his contention, Mr. Das has relied upon the case in Lakshan Chandra V/s. Takim Dhali . In my opinion, this contention is not sound and the case cited has no application to the facts of the present case. In 39 C L J 901 Sir Ashutosh Mookerjee pointed out that though a plaint filed by a third party was admissible as evidence of a transaction, yet the truth of the statement contained in the plaint could not be proved by putting in the plaint itself without calling the plaintiff, if alive, or making out circumstances which would make the statement admissible under Section 32, Evidence Act. In this case the plaint was not filed by a third party but by a predecessor-in-interest of the present petitioner. THE statement, therefore, was not the statement of a third person which could not be admitted without calling the person who made the statement as a witness if he was alive. Here, the statement is against the interest of the person who makes it and is admissible as an admission under Section 21, Evidence Act. It cannot be said, therefore, that the Court below committed any error in admitting the plaint and the fact stated therein as evidence against the petitioner in this case. It has held that the presumption attached to the entries in the C.S. records stands rebutted by this admission in the plaint. This is a finding of fact and I am unable to interfere with this finding in revision. Under the circumstances the Rule is discharged. THEre will be no order as to costs.