TMI Blog1923 (5) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... the Raja of Tankuhi. On Raja Mode Narain Singh's death, in the absence of any direct male heir, natural or adopted, his widows took possession of the estate for their lives. Ran Bahadoor Singh who, under the circumstances, was the reversioner, appears, however, to have acquired possession by some arrangement with the widows. 3. In 1875 Raja Krishna Pratap Sahai brought a suit against Ran Bahadoor Singh and the two widows of Raja Mode Narain Singh, for recovery of the whole estate, on the allegation that he had been adopted by the widows subsequent to the death of the Raja under authority given by him in his life-time. This suit was dismissed by the Subordinate Judge; from his decision an appeal was preferred to the High Court of Calcutta. Whilst the appeal was pending the parties came to a settlement and an ekrarnama was executed by Krishna Pratap in which were embodied the terms of the compromise. This document is marked Exhibit 20, and bears date May 30, 1880. By the terms of this agreement Raja Krishna Pratap Sahai undertook to withdraw all claims to the estate, in consideration of the grant to him by Ran Bahadur Singh, of a Mokarari settlement of certain villages set o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in 1912 the defendant was found to be in possession of the villages in dispute, against the claim of the plaintiffs; and in the cadastral survey proceedings taken under the provisions of the Bengal Tenancy Act of 1885 they again failed to establish their allegation. Their failure in those proceedings led in fact to the institution of the present action in August 1914. The onus thus lay heavily on the plaintiffs to show that the defendant was not in possession of these properties by virtue of the title he alleges, And this they could easily have done, in order to shift the onus by proving that the rent for the two mouzahs was paid separately into the estate office, and that the three villages were separately entered in the estate records. Their Lordships have not observed in the judgments of the Courts in India a reference to this aspect of the case. 9. In both the Courts the matter in controversy has been dealt with as involving a simple construction of the words of the pottah. Both the Subordinate Judge and the learned Judges of the High Court of Patna have found that the three properties form separate mouzahs, that the two disputed villages are not appurtenant hamlets (Dakhihi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nit Koer, the second widow of Raja Mode Narain Singh, had granted to one Ram Sahai, whose name appears as lessee in the list attached to the pottah of 1880, a lease of 7 annas share of six mouzahs for fifteen years at a yearly rental of ₹ 757. In this document also the property is described as Damodarpur Lakhawar. On September 15, 1875, Raja Ran Bahadoor himself granted to one Mohar Singh a pottah for thirteen years in respect of the remaining 8 annas share of the same villages at a rental of ₹ 749-thus making a total of ₹ 1,506 for both shares On January 23, 1880, shortly before the compromise in the suit of 1875 Ran Bahadoor Singh gave to one Harihar Narain Singh, whose name also appears in the list attached to the pottah of May 30, 1880, an usufructuary lease for fifteen years. In the Kabuliat executed by Harihar Narain Singh, the component parts of Damodarpur Lakhawar are for the first time r specifically set out. It recites that he had obtained a Thika settlement of the whole and entire sixteen annas of Mauza Lakhawar Khas, Lakhawar Makhlut Damodarpur, Lakhawar Makhlub Faridpore, Mahal Sufi, Pargana Okri, District Gaya, original with dependencies, on a fixed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17. The learned Judges of the High Court take a similar view. They say: Now there is evidence to show that the portion of the Jama which was to be set off in favour of the Tikari Raj against the Zarpeshgi was actually set off, bat there is nothing to show that any corresponding set-off was ever made by the Tikari Raj in favour of the Tamkuhi Raj (the appellant). The only conclusion to be drawn front this is the conclusion drawn by the learned Subordinate Judge, viz. : that the Tikari Raj was getting the bone tit of the set-off, and that the Tamkuhi Raj was not in possession of the three Mouzas bat of only one. Even if the Tamkuhi Raj did take the whole of the ash rent from the Ticcadar, however, this also would show nothing. Under his Mokarari the Raj of Tamkuhi was to get a clear profit of ₹ 1,151-12 a year after deduction of Mokarari rent. Now the highest amount that in any year wag ever payable by Harihar Narain to the Tikari Raj was ₹ 708-10, so that even if the Tamkuhi Raj took the whole of this sum it was less than the whole amount to which it was entitled under the Mokarari, and the fact of taking it all would not in any way show that it had possession of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Sufi Perg. Bhelawar the leasehold village, year after year to the said lessee (Harihar Narayan Singh) after obtaining receipt. 19. The Hukumnamah directed to Harihar Narayan Singh bears date June 1, 1880, namely the day after the Mokarari pottah of May 30, 1880, in favour of Raja Krishna Pratap Sahai. The document runs thus: Sri Harihar Narayan Singh, son of Mukhi Singh, resident of Mouzah Bishunpur Pandul, Pergunnah Ekil, District Gaya and Thikadar in respect of seven annas six pies oub of the entire sixteen annas of the Mouza Damodarpore Lakhawar and Lakhawar Khas, Pargunnah Okri and of eight annas six pies of the said villages in all sixteen annas of the said villages by occupation zemindar. 20. Then it goes on to say: WHEREAS the sixteen annas of Mouza Damodarpur Lakhwar and Lakhwar Khas original with dependencies together with Mouza Mohamadpur Khurd and Mohamadpur Kalan and Manikpur Bahari bearing an annual fixed Jama of ₹ 2701-12, half of which is ₹ 1350-14 as according to the currency have peen given in perpetual mokarari commencing from 1288, from generation to generation, from progeny to progeny, from heirs to heirs, from successor to successors ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal evidence except where the appellate Court has itself discovered some inherent lacuna or defect J and required evidence to fill up the gap or remedy the defect. They have apparently not considered the question that the suitor may be entitled for any substantial cause to apply to the Court for the admission of such additional evidence. The case of Kessowji Issur v. Great Indian Peninsula Railway (1907) L.R. 34 I.A. 115 s.c. : 9 Bom. L.R. 671, on which the learned Judges have relied, was peculiar in its character. A suit had been brought on the Original Side of the Bombay High Court against the Great Indian Peninsula Railway to recover damages for injuries sustained in consequence of an accident occasioned by the laches of the officials of the railway. The suit had been decreed by the Court of first instance; the Railway Company then, on discovery of some new evidence, applied for a review of judgment before the learned Judge who had decreed the claim; he refused the application. Then the Company filed an appeal, and applied to the High Court in its appellate jurisdiction for leave to produce the same evidence they had presented to the first Court and which had been rejected. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I, Rule X, which reproduces Section 623 of the Civil Procedure Code Act XIV of 1882, a party has a right to apply for a review of judgment to the Court that has decided the case before an appeal has been preferred. The grounds on which such an application may be made are specifically set forth in Rule 1. In the present case an appeal has been preferred and a review, therefore, was out of the question; and the defendants took the only and proper course, viz., to apply to the High Court, which was in possession of the case, to admit the additional evidence either under the general principles of law or under the specific provisions of Rule 27, which lays down that the appellate Court may for any other substantial cause (vix, other than those particularly specified) allow such evidence or documents to be produced or witnesses to be examined. Rules of procedure are not made for the purpose of hindering justice. As the application is now before their Lordships for the admission of the documents to which reference has already been made, it is desirable to observe that there is no restriction on the powers of the Board to admit such evidence for the non-production of which at the initial s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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