1. This is a plaintiff's appeal arising out of a suit brought by certain reversioners of the family of Ram Lochan Singh deceased who was the last male owner. The plaintiffs' case was that they were his next heirs and that he had died without any issue. There was previously a dispute in the revenue Court in which the plaintiff's were not successful. Hence the present suit. On behalf of the contesting defendant, Shankar Dayal Singh, it was first denied that the plaintiffs were the nearest collaterals and it was also pleaded that the defendant was the son of a daughter of the deceased Ram Lochan Singh, and was therefore entitled to succeed to the estate in preference to the plaintiffs. The trial Court framed issue 1 as to whether the plaintiffs were the reversionary heirs of the family of Ram Lochan Singh, and if so, was the defendant the daughter's son of Ram Lochan Singh? The lower Court has found that the plaintiffs are the collaterals, but has also found that the defendant is Ram Lochan Singh's daughter's son. Accordingly the suit has been dismissed. Only one of the plaintiffs, namely, Mehendra Singh has appealed.
2. It is urged on behalf of the appellant that the learned Subordinate Judge has thrown the burden of proof on the plaintiffs wrongly inasmuch as he started with the proposition that as the plaintiffs want to oust the defendant, unless they show that the defendant is not the daughter's son of Ram Lochan Singh, they cannot succeed. It is further urged that the learned Subordinate Judge has wrongly rejected the deposition of Mt. Pato given in the previous mutation proceeding, although she was dead at the time of the civil suit. The finding based on the evidence is also challenged. It seems to us that the learned Judge has not thrown a heavier burden on the plaintiffs than that of requiring;them to prove that they were the next heirs of the deceased Ram Lochan Singh. The mere fact that the plaintiffs were the nearest male collaterals would not in itself be sufficient to show that they were the next heirs. It was certainly incumbent on them , to show that he had not left any nearer heirs like daughter or, daughter's son, who would exclude the plaintiffs, even if they were the nearest male collaterals. The learned Judge however has not decided the case on a finding that the plaintiffs have failed to discharge the burden of proving this. He has recorded a categorical finding that the defendant is the daughter's son of Ram Lochan Singh and has a better title than the plaintiffs who were separate from him. The question of the burden of proof therefore is not of any great importance now. As regards the statement of Mt. Pato, the sister of Ram Lochan Singh, made by her in the mutation Court in the proceeding in which the plaintiffs and the defendant were parties, the learned Judge has considered it inadmissible inasmuch as
the evidence was not given in a judicial proceeding because the mutation case is only an administrative proceeding and not a judicial proceeding.
3. The learned Judge regarded the statement as evidence, but thought that inasmuch as the proceeding in the revenue Court was not a judicial proceeding, the statement was not admissible. He is quite right in holding that the statement is not admissible under Section 32, Evidence Act, because the statement was made after the dispute had been raised. But the learned Judge has overlooked the additional words which occur in Section 33, Evidence Act, which make the evidence given by a person in a judicial proceeding 'or before any person authorised by law to take it' relevant. The question therefore was not only whether the proceeding before the revenue Court was a judicial proceeding but also whether the Collector was not a person authorised by law to take such evidence. No doubt it is the duty of the Collector to maintain annual registers, and in cases where there is no dispute, the entry of transfers in the Registers is an administrative Act. But where a dispute has arisen and the case has been referred to the Collector under Section 39(3), the proceeding is governed by the provisions of Section 40, which lays down that all disputes shall be 'decided' on the basis of possession, and also provides that if in the course of his 'enquiry' the Collector is unable to satisfy himself as to which party is in possession, then he is to ascertain by 'summary enquiry' who is the person best entitled to the property and is to put such person in possession. Sub-section (3) speaks of putting such person in possession as an 'order as to possession passed under the section.' It seems to us that when the section speaks of, a decision and directs that the Collector should make a summary enquiry and then pass an order as to who is the person entitled to possession, the proceeding before him is certainly before an officer who is authorised by law to take evidence.
4. It cannot be suggested that the Collector can act on private information received from undisclosed sources behind the back of the parties and decide the case on such information. He must adopt the procedure laid down for a judicial enquiry and he must base his decision on evidence taken before him. To such a proceeding Section 193, Land Revenue Act, would be applicable and persons who are summoned to attend the Court have to state truth upon the subject respecting which they are examined and are called upon to make statements. We must therefore hold that even if the proceeding were not strictly speaking a judicial proceeding, the Collector is certainly a person authorised by law to take evidence, and that therefore Section 33, Evidence Act, is applicable to the statement of Mt. Pato made in the previous proceeding. But the evidence of Mt. Pato was rejected by the Revenue Courts themselves and has also been considered worthless by the learned Subordinate Judge. In her deposition she certainly made several conflicting statements which cannot be easily reconciled. She stated first that Ram Lochan Singh was her own brother and that, she had no issue nor was any child born to him, although it was the plaintiffs' case that Mahendra Singh used to live in the same house with Ram Lochan Singh. She stated in cross-examination that she did not count the houses which were between the houses of Ram Lochan Singh and Mahendra Singh. She also made a curious-statement which, as translated, runs as follows:
At this place Ram Lochan Singh used to allege himself as my brother. He was not my kinsman.
5. She was either confused or has made a statement about matters which she did not know. The learned Subordinate Judge has regarded these discrepancies as very damaging. We think that her previous statement is not worthy of belief. The plaintiffs relied on entries in a school register showing that one Shankar Dayal Singh, son of Bahadur Singh, was admitted in the village school of Karan Chhapra in March 1906, and that in October of that year his name was struck off on account of non-payment of fee and continued absence from the school. On the evidence of two school teachers it is argued that there was already a school in village Lachhman Chapra where an uncle of Shankar Dayal Singh was admittedly married and where Shankar Dayal Singh might presumably have been residing temporarily as his father was a resident of Adar, a village 20 miles distant from this place. It is then argued that the boy would have been admitted in the school of village Lachhman Chhapra and not in the village of Karan Chhapra. This circumstance is however not of any importance because according to the evidence of these teachers village Lachhman Chhapra is about a mile long and village Karan Chhapra is only four furlongs from this village. It might well be that the school in which the boy was admitted was the nearest school, or it might be that his guardian knew the head master and preferred to send the boy to that school. We are unable to draw any inference on this circumstance. The next circumstance on which great stress was laid was that the plaintiff Mahendra Singh was able to produce five documents: (1) a mortgage-deed of 1884; (2) a mortgage-deed of 1897; (3) a copy of a report of was ilbaqi navis; (4) a copy of an order of a Revenue Court and (5) another copy of an order sheet of a Revenue Court, which according to the plaintiffs were in some way connected with the deceased Ram Lochan Singh.
6. The third and fourth documents might possibly not relate to any affair of Ram Lochan Singh as the name in the copies is ambiguously written and has been read by the translator as Ram Bakhsh Singh. But even assuming that these documents were obtained by Mahendra Singh from Ram Lochan Singh that fact would only show some connection between the two and would not necessarily have any bearing on the question whether the defendant is the daughter's son, or not Mahendra Singh has stated in his evidence that he obtained these documents during the life-time of Ram Lochan Singh. The plaintiffs' case rests exclusively on the oral evidence which was produced by them and which has been disbelieved by the learned Subordinate Judge who heard that evidence. (The judgment then discussed the plaintiff's evidence and proceeded). Now all these witnesses were seen and heard by the learned Subordinate Judge and they did not at all impress him. (The judgment then discussed the defendant's evidence and proceeded). The evidence of these witnesses was specific and direct. The plaintiff's' evidence merely at best would come to this; that their witnesses did not know the existence of the daughter of Ram Lochan Singh who must have been married some time towards the close of the last century and might have been living mostly with her husband, whereas the defendant's witnesses depose that they actually saw the daughter and the daughter's son living with Ram Lochan Singh. In a case of this kind when there is a simple question of fact involved we cannot differ from the view taken by the learned Subordinate Judge who heard and saw the witnesses unless there is something to show that he has not weighed the evidence fairly and properly. We must accept the finding of the learned Subordinate Judge that it is established that the defendant Shankar Dayal is the son of Mt. Murti who was the daughter of the deceased Ram Lochan Singh and that accordingly he has a preferential right to succeed. The appeal is dismissed with costs.