SURENDRA KRISHNA ROY Vs. MIRZA MOHAMMAD SYED ALI MUTAWALI

JUDGEMENT

(1.) This appeal arises out of a suit brought on 30 January 1918, for declaration of title to and for possession of a parcel of land at Kidderpore now known as 18, Kaila Sarak Road. On the side of the plaintiff and on the side of the defendants there have been various devolutions of interest, to which however it is not now material to direct attention. The plaintiffs case was that in 1903 he purchased the lands in Sch. Ka to the plaint from a Commissioner of Partition who was selling them under an order of the Court made in a partition suit having reference to the Bhukailash Raj estate. The property which he purchased was lakheraj and it is now admitted that the plaintiff has the title which he claims and that it covers the land in suit. The suit lands were at one time described as measuring about 1? bighas but according to later measurements it would seem that they amount roughly to an acre, being about 2 bighas 13 cottas. The case for the plaintiff is that the defendants have no interest in these lands higher than a precarious tenancy interest terminable by fifteen days notice. The defendants on the other hand contend that they have a permanent tenancy right. They set up the case that in 1830 a predecessor of the plaintiff granted, to one Sobrati, a mourasi mokarari kayemi patta, and that in 1856 Sobrati granted a dur-mourasi patta to Korban Ali Serang ; that Korban Ali in 1912 transferred his rights to Anwar Miah and that Anwar Miah in 1914 sold to Elias Maurice the original defendant 1. The title of Maurice has pending suit become vested in certain persons of the name of Boy who are the appellants before the Board.

(2.) Though the suit was instituted in 1918 it did not come on for trial until 1927. In 1921 it appears to have occurred to the advisers of the plaintiff that as he had not given any notice to determine the defendants' tenancy he would be in a difficulty upon his own case in recovering khas possession. Accordingly an order was obtained giving permission to withdraw the suit and to bring a fresh suit, but this question was taken in revision to the High Court by Elias Maurice defendant 1 who agreed to waive notice under S.106, T. P. Act, and that the suit might proceed upon that footing. An order was made by the High Court accordingly and no question of notice or limitation now arises to be discussed. At the hearing of the suit in 1927 the learned Subordinate Judge accepted as genuine documents of 1830 (Ex. B) and 1356 (Ex.C) : holding that the defendants had made out permanent right, he gave to the plaintiff a declaration of his superior title to the land but dismissed his prayer for khas possession. On appeal by the plaintiff to the High Court of Calcutta the learned Judges took a different view of the genuineness of the documents of 1830 and 1856, and refused to hold them proved or to presume their genuineness under S. 90 read with S.4, Evidence Act. Whether they were right or wrong in taking this view is the sole question which their Lordships have now to determine.

(3.) In the High Court both learned Judges comment upon the suspicious appearance of Exs. B and C and Mukerji, J., refers to the shining ink and the thin pointed pen as particular matters of suspicion. On the whole however their Lordships do not think fit to proceed upon this ground. It has to be admitted that at no time before 1912 when these documents are recited in the transfer by Korban Ali to Anwar Miah is any mention of or reference to these documents to be discovered in the evidence. The High Court were materially influenced by two other documents which seem to cast great doubt upon the genuineness of Exs. B and C. The first, Ex. 4-A, purports to be an original unregistered kabuliyat executed by Korban Ali in 1892 in favour of the Bhukailash estate which is known to have been at that time under the receivership of Mr.A.M. Dunne. It is written on stamped paper and at the head of it there is Written " confirmed, A. M. Dunne " (in handwriting), " receiver of the estate of Raja Kallisunkur Ghosaul Bahadur " (rubber or other stamp). Underneath that again in handwriting is " for one year certain A.M.D. " and the initials A.M.D. are also at the foot of second page of the document. At the top of the first page the name " Korban Ali Serang " purports to be signed. The document purports also to be signed at the foot by Purno Chandra Chattopadhaya and Ramdhan Basu. The document recites that :