1. This is a plaintiff's appeal and arises out of a suit for a declaration that the property in dispute, which is a plot of land in Koil in the district of Aligarh, belongs to it. According to the plaint, the plot is a part of a public street No. 71 and is vested in it. It granted a lease of this land on 14-8-1937 to one Bunyad Ali for 30 years. The defendants first party prevented it from raising any constructions and a criminal complaint was filed against them in which, however, they succeeded. It was on these allegations that the present suit for the reliefs mentioned above, was brought.
2. The defendants denied the plaintiff's title and claimed a title in themselves. The plaintiff produced a large number of documents, including Exs. 8 and 9 the former is a khasra of 1921 prepared under the order of the Government dated 16 3-1921, the latter is an extract from the register of immovable property of 1931 kept by the Municipal Board under a Government Order of 1931.
3. The learned Munsif held that the above two papers were not admissible in evidence. This conclusion he based upon an unreported decision of Yorke J., in Second Appeal No. 1454 of 1939, decided on 14-10-1941. He considered the other evidence and found that they were not enough to prove the plaintiff's title. In the result, he dismissed the suit. On appeal, the learned Civil Judge referred to these two documents and two other documents, which had been accepted by the learned Munsif, and felt himself bound to discard the former on the authority of the decision of Yorke J., although his own view and inclination were otherwise. He however failed to consider the other evidence to which he had himself referred. He affirmed the decision of the learned Munsif and the Municipal Board has come to this Court in second appeal. The appeal Originally came up before Allsop J., who, by his order dated 26-9-1946 referred it to a Division Bench.
4. The learned Counsel for the appellant argues that the judgment of Yorke J., is in the teeth of the plain provisions of Section 35, Evidence Act, and certain sections of the U.F. Municipalities Act (2 [II] of 1916) and the rules made in accordance therewith. The law on the subject is enshrined in Section 35 and we propose to deal with it first. It says
An entry in any public or other official book, register or record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register or record is kept, is itself a relevant fact.
5. The Act of 1916 does not aim at a definition of the expression 'municipality' beyond saying this that
It means any local area which is a municipality by reason of a notification issued under Section 3.
But it has been defined by Murray in his Oxford Dictionary as
A town, city or district possessed of privileges of local self-government, also applied to its inhabitants collectively.
Going into further detail the learned author says
A body of public functionaries may preside for certain purposes over a district (as a county, department, municipality, or borough.)
The Act of 1916 is in the direct line of succession to several previous Acts dating back to the year 1868 when the first Act was passed. Aiyangar in his Law of Municipal Corporation in British India has quoted the definition of a municipal corporation, as given by Kyd,
A Corporation aggregate has been denned as a colfection of many individuals united into one body under a special denomination exercising a variety of political rights, more or less extensive, according to the designs of its institution.
6. The above leaves no room for doubt that a municipality is a public body founded for the benefit of the public. Indeed Section 84 of the Act, though in a restricted sense, makes it abundantly clear. It says,
Every officer or servant of a board shall be deemed to be a public servant within the meaning of the Indian Penal Code....
It is, therefore, obvious that if a municipality is a public body and its functionaries are public officials, a book or a register maintained by that body is a public book or register within the meaning of Section 35, Evidence Act. It is equally obvious that the two exhibits, which have been ruled out of consideration, namely, an extract ,from the khewat khasra of 1921 and an extract from the register of immovable property of 1931 kept by the Municipal Board under the ,order of the Government, are public documents. We are, therefore, of opinion that if Yorke J., intended to hold that they were not admissible in evidence we, with great respect, enter our dissent from that view.
7. Our view receives support from a number of authorities, but we propose to notice just a few of them. In Shib Deo Misra v. Ram Prasad 0043/1924 : AIR1925All79 Sulaiman J., speaking about a register maintained by the chowkidar, held that a register maintained at a police station was a public document and admissible in evidence. At p. 694
Under the Police Act (5 [V] of 1861), Section 12, the Inspector General of Police is authorized to frame orders and rules relative to, amongst others, the collecting and communication by them of intelligence and information etc....
8. In the case before us, Section 127 of the Municipalities Act provides that
The following matter shall be regulated and governed by rules made by the local Government under Section 296, namely,-
(c) any other matter relating to the municipal fund or municipal property in respect of which the Act makes no provision or insufficient provision and provision is necessary.
In pursuance of the power conferred by notification No. 674/XI 808-E, dated 9 3-1925, the Government framed the following rule:
(A) A board shall maintain a register, in the following form of all immovable property which is vested in the board or is placed under the board's management or is held by the board on lease and which is not nazul.
We might mention here that the word 'nazul' has been loosely used in the judgment of the Courts below. The plot in dispute was claimed by the municipality as its own and the Courts below were not right in describing it as 'nazul,' because nazul has a different connotation.
9. If the officials of the board, in pursuance of the powers given by the Act, and in accordance with the notification of the Government, maintained these papers, there is no doubt that the test laid down by Sulaiman J., in the case mentioned above, has been answered and these documents are admissible in evidence. Of course it is for the learned Civil Judge to decide what evidentiary value is to be attached to them. The evidentiary value of a document, apart from its admissibility, is always determined by a variety of circumstances. We do not propose to decide that question. All that we propose to hold is that the documents are admissible in evidence. The view which we propose to take also receives sup-port from the case in Jassa Ram v. Puran Bhagat ('38) 25 A.I.R. 1938 Lah. 440.
10. We are, therefore, of opinion that the learned Civil Judge was not right in excluding from evidence the documents mentioned above and also the two other documents which had been accepted by the learned Munsif. As the appeal was dismissed on a preliminary ground, the case must go back to the learned Civil Judge for decision on the merits.
11. We allow the appeal, set aside the decree of the lower appellate Court and send the case back to that Court with a direction to readmit it to its original number and proceed to hear it according to law on the lines indicated above. Costs to abide the result. As the appeal has been allowed on a preliminary point, the appellant is entitled to a refund of the court-fee.