Judgement

Appeal (No. 10 of 1933) from a decree of the High Court (December 11, 1930) partly confirming and partly reversing a decree of the Additional Subordinate Judge at Alipore (September 22, 1927).

The principal point for determination was whether the appellants (defendants) had proved their title to the property in dispute, No. 18, Kaila Sarak Road, Kidderpore, Calcutta. They alleged 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, who, in 1912, transferred his rights to

82 Law. Rep. 63 Ind. App. 85 ( 1935- 1936) Surendra Krishna Roy V. Mirza Mahammad Syed Ali Matwali

Anwar Miah, who, in turn, in 1914, sold them to the original defendant in the present action.

The facts appear from the judgment of the Judicial Committee.

The Subordinate Judge accepted as genuine documents of 1830 and 1856 and, holding that the defendants had made out a permanent tenancy right, gave to the plaintiff a declaration of his superior title to the land but dismissed his prayer for khas possession.

An appeal by the plaintiff to the High Court was allowed. The learned judges (Mukerji and Guha JJ.) refused to hold the documents of 1830 and 1856 proved, or to presume their genuineness under s. 90 read with s. 4 of the Indian Evidence Act, 1872.

1935. Oct. 21, 24. De Gruyther K.C. and Wallach for the appellants.

Nissim for the respondents.

Nov. 8. The judgment of their Lordships was delivered by

SIR GEORGE RANKIN. This appeal arises out of a suit brought on January 30, 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 schedule 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 about1 1 /2 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 No.

1. The title of Maurice has, pending suit, become vested in certain persons of the name of Roy, who are the appellants before the Board.

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 No. 1, who agreed to waive notice under s. 106 of the Transfer of Property 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 Subordina