1. The sole issue in this case in the lower Appellate Court was whether or not the wakfnama, dated the 26th November 1896, executed by Chaudhuri Shib Lal was a genuine or fictitious transaction. The Court of first instance, on a consideration of all the fasts and the evidence before it, came to the conclusion that it was genuine. The lower Appellate Court has come to the finding that it is fictitious. It bases its decision on one fast, namely, that though the deed was executed on the 26th November 1895 mutation of names was not applied for until 1902, The only evidence to establish this fact wan a sentence in a judgment passed in the year 1904, in another we, to which the present appellant was also a party. It was not inter parent and had no connection with this case. The learned Judge of the Court below has held that this entry in the judgment is admissible under Sections 42 and 11 of the Evidence Act. Section 42 clearly does not apply. It was a private trust and private property and there was nothing of a public nature in the matter. Over and above that the learned Judge has treated this bit of evidence as conclusive evidence in the teeth of the provision of Section 42 of the Evidence Act, Section 11 palpably does not apply. Therefore, on the face of it this bit of evidence on which the Judge relied is inadmissible and that being removed from the record, there is no evidence whatsoever of the fact on which the Judge relied as conclusive evidence of the nature of this deed. It is clear that there is a mass of evidence on the record which the Judge has not touched. We think that the decision of the Court below is incorrect and it must be set aside, as it is not i based upon the evidence on the record but is really based on what is inadmissible evidence. To shorten time and to save expense we remit this issue again for the decision of the Court below on the evidence, on the record:
Was the waqf of the 26th November 1896 by Chaudhri Shib Lal a fictitious or a genuine transaction.
2. The learned Judge will come to a decision on the evidence on the record. The usual ten days will be allowed for objections on return of the finding.