1. This is a defendants' appeal arising out of a suit for a perpetual injunction against the defendants restraining them from interfering with the plaintiff's possession over plots included is Lists A and B of the plaint. The main question in dispute was whether the plaintiff, who was the lambardar, was in exclusive possession of these plots and the defendants were wrongfully interfering with his possession by granting leases of some of those plots. The first Court decided in favour of the defendants holding that the plots in dispute have not been in sole possession of the plaintiff and dismissed the suit. On appeal by the plaintiff the lower appellate Court has held otherwise and decreedt he claim. The finding as to the exclusive possession of the plaintiff over the plots in question is prima facie a finding of fact and binding in second appeal.
2. The learned advocate for the defendants, however, contends that the learned Judge has based his finding on Ex. 4 and a chart which were not admissible in evidence. The first Court had rejected these as unreliable and inconclusive. Ex. 4 purports to be a certified copy of some statement prepared by a patwari and filed in a revenue Court. The copy has apparently been obtained from that record. The lower appellate Court has treated this copy as if it were a certified copy of a public document, which is admissible without further proof. This is not so. An abstract statement prepared by a patwari, even though based on papers in his possession and filed in a suit, is only a private document and a certified copy of it does not by itself prove the original. The original should have been summoned and formally proved.
3. The chart was really prepared by the plaintiff's vakil for the guidance of the Court and submitted after the arguments were nearly over. So far as it was prepared merely for the sake of convenience there could be no objection to it, but it also is based substantially on Ex. 4 which is inadmissible. I therefore think that the Court has acted illegally in basing its finding on Ex.4 and the chart, and the finding, though one of fact, is vitiated in consequence. The trial, however, is not vitiated so long as it is possible to base the finding on the other evidence excluding those that are inadmissible: Section 167, Evidence Act. I accordingly send down the following issue for a finding by the lower appellate Court:
Excluding from consideration Ex. 4 and the chart so far as it is based on that exhibit, has the plaintiff proved that he has been in exclusive possession of all or any of the plots in dispute?
4. No further opportunity for producing fresh evidence would be allowed. The finding may be returnad within two months from this date if practicable. The usual ten days will be allowed for objections.