B.K. Patra, J.
1. Jayakrushna Das, Respondent No. 1 brought the suit giving rise to this appeal for declaration of his title to and for confirmation of his possession over, or, in the alternative, recovery of possession of A.O. 78 acre of land as detailed in the plaint schedule and for permanent injunction restraining the appellants who were defendants 1 and 2 in the Court below from disturbing his possession. The disputed property admittedly belonged to one Satyabadi Rath whose son was Ramchandra Rath. After Saryabadi's death Ramchandra possessed the disputed properties. According to the case of the plaintiff, Ramchandra Rath died unmarried about 15 years before the institution of the suit leaving behind him his mother Shara-dha Dibya and his sister Gelhi Dibya (defendant No. 4). Sharadha then possessed the disputed properties and she died about ten years before the institution of the suit leaving behind her daughter GelhiDibya as her sole surviving heir. Gelhi possessed the properties thereafter and on 7-4-1964 sold the same to the plaintiff by the registered sale deed Ext. 1 and put him in possession thereof. This is how the plaintiff claims title to and possession over the disputed properties.
2. According to the contesting defendants 1 and 2 (appellants in this appeal) Satyabadi Rath had uterine brother called Bidyadhar. Bidyadhar's son was Ganga-dhar. After the death of Satyabadi and Bidyadhar, Ramchandra and Gangadhar lived jointly, and after the death of Ramchandra, which, according to the defendants, took place about 35 years before the suit, Gangadhar became exclusively entitled to the disputed properties. After Gangadhar's death, his widow defendant No. 3 became the owner of the disputed lands and remained in possession thereof in her own right for more than twelve years till she sold the same to defendants 1 and 2 by the registered sale deed Ext. A dated 31-1-1964 and put them in possession thereof. According to the defendants, Gelhi defendant No. 4 is not the sister of Ramchandra and is in no way related to him and she never acquired any title to tile disputed lands and she was never in possession thereof. The sale deed Ext. 1 executed by defendant No. 4 in favour of the plaintiff is accordingly invalid and plaintiff has not acquired any title to the disputed properties.
3. Roth the Courts below concurrently held that Satyabadi had no brother called Bidyadhar and that there is no relationship at all between Satyabadi's family and the family of Bidyadhar. Accordingly, they held that defendant No. 3 Sharadha Dibya, the widow of Gangadhar had no right to the disputed properties and that the sale deed Ext. A which she executed in respect of the same in favour of defendants 1 and 2 conferred no title on the latter. Regarding the question whether theplaintiff had discharged the onus which ly upon him to establish that Gelhi is the sister of Ramchandra, both the Courts below considered the evidence let in on the plaintiff's side and were not satisfied that such evidence by itself was sufficiently strong to enable the plaintiff to discharge the onus. But they took into consideration the fact that defendants on their part have not been able to indicate whose daughter Gelhi defendant No. 4 was if she was not the daughter of Satyabadi as alleged by the plaintiff. Therefore, taking an over-all view of the evidence on both sides, the Courts below considered that the onus which lay on the plaintiff to prove that Gelhi is the sister of Ramchandra must be deemed to have been duly discharged.
4. Discussing next about the question of possession of the disputed lands, they found that the evidence on both sidesis evenly balanced and though not satisfactory is not absolutely unworthy of credence. In the circumstances, therefore, they relied on the theory that possession follows title, and having already found that plaintiff had acquired a title to the disputed properties, held that he was in possession thereof. In the result, the trial Court passed a decree in favour of the plaintiff declaring his title to the disputed properties and confirming his possession thereof, and this judgment was upheld in appeal by the learned Subordinate Judge. Defendants 1 and 2 have filed this appeal.
5. The only point that is canvassed on behalf of the appellants by Mr. B. Mohapatra, learned Advocate appearing for them is that the evidence of the witnesses on the plaintiff's side who spoke about the relationship of Gelhi defendant No. 4 with Ramchandra is not admissible in evidence, and the finding that Gelhi had become the owner of the disputed properties and consequently was entitled to convey the same to the plaintiff under the Kabala Ext. 1, cannot be sustained Gelhi although a defendant in the suit has not been examined by the plaintiff on the ground that she is mentally deranged and is not in a position to be examined in Court. The plaintiff who was 62 years old by the time he deposed in Court stated that Gelhi is older to him by about two years. All the other witnesses examined on the plaintiff's side who have deposed that Gelhi is the sister of Ramchandra, are less than fifty years old. None of them was therefore in existence when Gelhi was born, and consequently, they are not in a position to give any direct testimony that Gelhi is the daughter of Satyabdai. The Evidence Act does not contain any express provision making evidence of general reputation admissible as proof of relationship. Opinion evidence about the existence of such relationship, however, is admissible provided such evidence satisfies the tests laid down by Section 50 of the Evidence Act. Section 50 so far as is material may be quoted :
'50. When the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship, of any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact : x x x x x'
The essential requirements of this sectionare-
(1) there must be a case where theCourt has to form an opinion as to the relationship of one person to another;
(2) in such a case, the opinion expres-sed by conduct as to the existence of such relationship is a relevant fact;
(3) but the person whose opinion expressed by conduct is relevant must be a person who as a member of the family or otherwise has special means of knowledge on the particular subject of relationship; in other words, the person must fulfil the condition laid down in the latter part of the section. If the person fulfils that condition, then what is relevant is his opinion expressed by conduct. Opinion means something more than mere retelling of gossip or of hearsay; it means judgment or belief, that is, a belief or a conviction resulting from what one thinks on a particular question. The 'belief' or conviction may manifest itself in conduct or behaviour which indicates the existence of the belief or opinion. What the section says is that such conduct or outward behaviour as evidence of the opinion held is relevant and may, therefore, be proved.'
(See AIR 1959 SC 914 -- DolgobindaParida v. Nimai Charan Misra.) It is only 'opinion' as expressed by conduct which is made relevant. The offered item of evidence is 'the conduct', but what is made admissible in evidence is 'the opinion', the opinion as expressed by such conduct. Section 50, however, does not state as to how the conduct or external behaviour which expresses the opinion of a person coming within the meaning of Section 50 has to be proved. For this purpose, we are to turn to Section 60. If the conduct relates to something which can be seen, it must be proved by the person who saw it; if it is something which can be heard, then it must be proved by the person who heard it. If it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says that he perceived it by that sense or in that manner; and if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of such person who holds such opinion on those grounds. The portion of Section 60 which provides that the person who holds an opinion must be called to prove his opinion does not necessarily mean that it must be proved only by the person whose conduct expressed the opinion. It can be proved either by the testimony of the person himself whose opinion is evidence under Sec. 50 or by some other person acquainted with the facts which express such opinion.
6. Judged in the light of tests laid down in Section 50 of the Evidence Act, I find that the evidence of none of the witnesses examined by the plaintiff is admissible in evidence to prove that Gelhi is the daughter of Satyabadi. Every one of them has merely made a bare statement that Gelhi is either the sister of Ramchan-dra or that she is the daughter of Satyabadi. None of them has given evidence about the conduct on the basis of whichthat opinion has been formed. None of them has indicated that he had any special means to know the existence of such relationship. True it is, that on these points, there was no cross-examination, but it appears to me, that having regard to the language of Section 50, it was the duty of the Counsel appearing for the plaintiff to put all material facts to the witness in examination-in-chief to elicit answers with a view to bring the evidence within the ambit of Section 50 without leaving the matter to the chance of cross-examination.
I, therefore, find that apart from the fact that the evidence of the plaintiff's witnesses on the question of relationship between Ramchandra and Gelhi is unsatisfactory as noticed by the Courts below, the testimony of these witnesses so far as it goes is also inadmissible in evidence. It is no answer to this lacuna in the plaintiff's case to say that the contesting defendants on their part have failed to indicate definitely whose daughter Gelhi is, if she is not the daughter of Satyabadi. This to my mind appears to be very queer logic. So long as Gelhi (sic) is not possible to sustain the findings of the Courts below that Gelhi is the daughter of Satyabadi and that consequently she acquired a title to the disputed properties which she could convey under the sale deed Ext. 1. As the Courts below have not even found possession with her on the basis of the evidence let in on that point, but found possession with her only on the ground that she had title, the finding on the issue of possession is also cannot be sustained.
7. In the result, I would allow the appeal, set aside the judgments and decrees passed by the Courts below, and dismiss the suit, but, in the circumstances, without costs either here or in the Courts below.