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Mulpuru Lakshmayya and ors. Vs. Sir Rajah Varadaraia Apparow Bahadur Zamindar Garu. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported in(1912)23MLJ624
AppellantMulpuru Lakshmayya and ors.
RespondentSir Rajah Varadaraia Apparow Bahadur Zamindar Garu.
Cases Referred(See Raikishori Ghose v. Kwnudinikanta Ghose
Excerpt:
- - sometimes the zemindar was a descendant of a royal family that enjoyed demesne or private lands and remained in possession of them after the family ceased to exercise sovereign powers, but continued to have zemindari rights under the muhammadan rulers. the judgment of the appellate court shows clearly to our minds that the judge did not fail to address himself to the real question between the parties viz. see thayer's cases on evidence page 10 and best on evidence page 176 section 187 where it is observed, but here an important distinction must be borne in mind viz. and the judge was entitled to disbelieve evidence of facts which prima facie required strong proof. as regards the meaning of the word savaram, this word like seri, jeroyati and similar words seem to have different.....sundara aiyar, j.1. these are appeals by ryots in the village of manikonda in the proprietary estate of gannavaram against whom decrees of ejectment were passed by the district court of kistna reversing the decrees of the district munsiff of gudivada who held that the ryots possessed occupancy right in their lands and could not be ejected. the lands in question were asserted by the proprietor to be his private lands in which both the melvaram and kndivaram rights were vested in him. he alleged that both by custom and contract he was the full proprietor and that the tenants had no occupancy rights. the defendants on the other hand, asserted that they were part of the public lands of the estate held by the ryots with occupancy rights. they were undoubtedly known as savaram lands and were.....
Judgment:

Sundara Aiyar, J.

1. These are appeals by ryots in the village of Manikonda in the proprietary estate of Gannavaram against whom decrees of ejectment were passed by the District Court of Kistna reversing the decrees of the District Munsiff of Gudivada who held that the ryots possessed occupancy right in their lands and could not be ejected. The lands in question were asserted by the proprietor to be his private lands in which both the Melvaram and Kndivaram rights were vested in him. He alleged that both by custom and contract he was the full proprietor and that the tenants had no occupancy rights. The defendants on the other hand, asserted that they were part of the public lands of the estate held by the ryots with occupancy rights. They were undoubtedly known as Savaram lands and were described as such in the pattas, muchilikas and leases executed between the parties. The plaintiff contended that the word ' Savaram' itself indicated his full proprietary right in the land. The District Munsiff denied this but the District Judge accepted the interpretation claimed for the plaintiff. We are of opinion that on this point the District Munsiff was right in holding that the word did not necassarily import the absence of kudivaram right in the cultivating ryot. Wilson's and Wilkins' glossaries cited by the District Judge are both opposed to the interpretation accepted by him. Both these learned writers define Savaram as an allotment of lant or of the Government revenue derivable front it held by Zemindars or other Revenue Officers under the Muhammadan Government as personal compensation for services rendered by them. Mr. Grant, the author of the Survey of the Northern Circars, no doubt describes it as a grant of land. Seepages 7 and 155 of Vol. II of the Fifth report of the Parliamentary Committee. The word is supposed to have the same meaning as 'Nankaron' Bengal. The latter wordis defined by Baden Powell as a ' money allowance'(or free land). In Maclean's Manual of Administration 1893, 'Savaram' is treated as a grant of land. All that is clear, however, is that Savaram was compensation granted to a Zemindar or Revenue Officer under the Muhammadan Government. Sometimes the Zemindar was a descendant of a royal family that enjoyed demesne or private lands and remained in possession of them after the family ceased to exercise sovereign powers, but continued to have Zemindari rights under the Muhammadan rulers. The holder was allowed to retain these private lands as compensation for services rendered by him to the state and partly also in consideration of his being responsible for the collection and payment of the state revenue. The private land in his own occupation was itself exempt from the payment of any revenue. But the Zemindar was sometimes a mere renter under Government holding his office at its pleasure. In such cases some land was sometimes granted to him and exempted from the payment of any revenue. But if no land was available the grant to the Zemindar would consist merely of the revenue on a portion of the lands for the assessment of which the Zemindar was responsible to the State. This is the view taken both by Wilson and Wilkins. The materials available for the interpretation of the word do not justify the judge's view that Savaram necessarily conveys the idea of full proprietary right in the Zemindar. In second appeals 994 to 1024 of 1902 relating to the same estate certain Savaram lands were held not to be the Zemindar's private property. In second appeals 518 and 519 of 1910 also which came up from the same District 'Savaram' lands were held not to be the same as private lands. Mr. Seshagiri Aiyar, the learned vakil for the appellants, contends that the finding of the District Judge against his clients is completely vitiated by the judge's interpretation of the word ' Savaram.' This argument is not without foundation. The judge observes ' starting then with this finding (i.e., that savaram was the actual grant of land and not of land revenue) we have to see whether the lands claimed now as Savaram by the appellants were the original lands granted to him by the original sovereign or were so accepted by the permanent settlement or have so long been treated as savaram as to justify their acceptance as original savaram.' There was, however, no serious dispute between the parties before the District Munsif that the lands in question were designated as 'Savaram' in the documents relating to them. In appeal an attempt was made to show that in two cases, lands not originally described as Savaram in the Zemindar's accounts were so designated in the accounts or subsequent years. But these variations were found by the District Judge to be easily explicable. The judgment of the appellate court shows clearly to our minds that the Judge did not fail to address himself to the real question between the parties viz., whether the evidence was sufficient to establish that the Zemindar was the owner of both the melvaram and the kudivaram in the lands. The discussion is not directed to the point whether the lands in this suit were proved to be Savaram in ancient times or at the time of the permanent settlement. The judge first shows that Savaram lands were treated in the accounts of the estate as different from the Seri or public cultivable lands, that they were held by the ryots on rates of rent different from the serilands and that Government by collecting water rates on Savaram lands from the Zemindar, while it levied it from the ryots in the case of Seri lands apparently treated the former as belonging to the Zemindar. He then refers to evidence showing that from the year 1892 the Zemindar asserted and the ryots admitted that the full proprietary right in the lands belonged to the former. He finds that in 1896 and 1897 the Zemindar let these lands definitely as his own private lands and that in 1898 and subsequently he substituted grain rents for money rents and put up the lands for auction to the ryots who offered the highest bids of rent. These are points directly relating to the question whether the kudivaram right belongs to the Zemindar or to the ryots and have no bearing on the identity of the lands with these belonging to the Zemindar as Savaram in olden times. In summing up his conclusions the judge observes that the plaintiff has proved the lands to be private. We are therefore of opinion that the lower appellate court's incorrect interpretation of the word Savaram does not affect the validity of the finding that the lands in question are the Zemindar's private lands.

2. Another objection taken to the finding is that the pattas of the year 1897 in which the lands were let as the private lands of the Zemindar ought not to have been taken into consideration inasmuch as the leases evidenced by them were to operate from 1st July 1898, the beginning of the fasli year 1308. The argument is based on Section 185 of the Estates Land Act which enacts that ' when in any suit or proceeding it becomes necessary to decide whether any land is the landlord's private land, regard shall be had to local custom and to the question whether the land was before the 1st day of July 1898 specifically let as private land and to any other evidence that may be produced; but the land shall be presumed to be private land until the contrary is shown.' We cannot accept this contention. The letting took place before 1st July 1898 although the period of the lease commenced only subsequently. It is the date of the contract that is material in deciding whether the evidence is admissible. The legislature wished to make all contracts made from and after the 1st July 1898 inadmissible against the ryot on the ground that proprietors had been making attempts to convert public lands into their own private lands for sometime before the Act was passed. Suppose a Zemindar made a lease in 1895 for a period of 3 years and at same time gave a lease to another person to come into operation on the expiration of the previous lease, it would be impossible to hold that the letting to the second lessee was after the 1st July 1898. Such an interpretation is not required either by the words or the mischief of the statute, Nilmoni Chuckerbutti v. Bykant Nath Bera I.L.R. (1890) C. 466. Mr. Govindaraghava Aiyar for the respondent asks us to hold that leases granted after 1st July 1898 are not shut out by the section and that it only provides affirmatively that leases prior to that date should be taken into account. This is hardly consistent with the object of the section nor is it easy to see why there should be any provision to making a letting before 1st July 1898 admissible if leases both before and after that date were regarded as equally admissible. The appellants also contend that subsequent dealings after 1st July 1898 ought not to have been taken into consideration by the judge for any purpose. But he was certainly entitled to take them into account for deciding whether they had not been held as private lands by the Zemindar for a period of 12 years prior to the commencement of the act. Moreover it cannot be held that when a Zemindar has proved that he let certain land as private land before 1st July 1898, subsequent letting of the land in the same character cannot be proved to show that it was treated in the same manner after July 1898 as in the letting previous to July 1898. The act does not lay down any rule as to all the kinds of evidence that may be produced to prove that the land in question is private land and it connot be held that all evidence subsequent to 1st July 1898 is shut out altogether. See Akhju Singh v. Jagannath Prasad Singh (1911) 13 I.C.L.

3. The third objection to the finding of the appellate court is that the Judge's opinion that the khats of 1896 which contained a statement that the tenants had no occupancy right were not executed by the ryots with a knowledge of the contents of the documents was based by him on his own personal knowledge and that he acted illegally in importing his own private knowledge in deciding the question whether the plaintiffs' witnesses who stated that the ryots had a talk over the terms of the khat and raised no objection to them or the defendant's witnesses who denied all knowledge on the part of the ryots of the terms, should be believed. There is no doubt that a judge is not entitled to rely on specific facts not proved by the evidence in the case but known to him personally or otherwise. See Hurpurshad v. Sheo Dyal I.L.R. (1909) A. 259 and the cases cited in Amir Ali and Woodroffe on Evidence at pages 115 and 806. But at the same time it is quite clear that a judge may use and cannot help using his general knowledge and experience in determining the credibility of evidence adduced before him and applying it to the decision of the specific facts in dispute in the case. See Thayer's cases on Evidence page 10 and Best on Evidence page 176 Section 187 where it is observed, 'but here an important distinction must be borne in mind viz., the difference between general information and particular personal knowledge.' Wigmore in his treatise on Evidence says (see Section 2570 Vol. iv) that ' a jurior is entitled to use his knowledge of the conditions affecting various kinds of values (of land)' The date on which legal inference is based are not all proved by evidence. Very often, though not always, what may be said to be of the nature of a major permise has not got to be proved. The Judge is entitled to act upon his own knowledge of the conditions of society including the history of its economical progress. It is not necessary to prove that population has increased and that there is great demand for land on the part of the cultivators now in parts of the country while in former times land was plentiful and cultivators were scarce. The dividing line is not easy to fix in all cases. What the judge has done in this case is to use knowledge gained by him from his own experience that in 1896 there was no such scarcity of land for cultivation as to induce ryots to sign any muchilika that they might be required to execute. That is merely a fact of economical history. The judge has not used his own knowledge as to the conduct either of the particular Zemindar or of his ryots or the relations between them in any particular case or to fix the exact time at which any particular change commenced. He does not use his knowledge of the character of any particular individual which is necessarily of a variable kind (See Wigmore Section 2570 vol. IV). No doubt the private knowledge used by the Judge related to lands in the Nuzvid Zemindari. But that is really an extensive tract of territory and the judge did not import into the the judgment any knowledge of the village in question or even specifically relating to the Gannavaram estate in the Nuzvid Zemindari. We do not think that the judge overstepped the boundary line in this case. The onus was on the ryots to prove that they had no knowledge of the contents of the khats which they executed; and the judge was entitled to disbelieve evidence of facts which prima facie required strong proof. Durgaprasad Singh v. Ram Doyal Chaudhuri I.L.R. (1910) C. 153, does not really help Mr. Seshagiri Aiyar. There the judge was using his knowledge of a fact of a specific character viz., that landlords were deliberately inducing ignorant ryots to sign documents describing themselves as temporary lessees, Ticadars or Ijaradars. The question whether pressure was used in that case undoubtedly required to be proved by evidence relating to the execution of the particular document. In Hurpurshad v. Sheo Dyal I.L.R. (1909) A. 259 the Privy Council merely held that a judge cannot use his knowledge of the character of a particular witness in deciding as to his credibility.

4. The objections taken to the finding of the District Judge on the question whether the Zemindar is entitled to both the varams in the lands must therefore be held to be untenable and the second appeals must be dismissed with costs.

Sadasiva Aiyar, J.

5. The facts of the case have been fully set out in the judgment just now delivered by my learned brother and I need not repeat them. As two of the questions involved in the case are of some importance, I think it is not inappropriate to add a judg ment of my own. As regards the meaning of the word Savaram, this word like Seri, Jeroyati and similar words seem to have different meanings in different parts of the country, but so far as this Presidency is concerned the opinion of Mr. Grant, Dr. Maclean, Baden-Powell and of Sir G.S. Forbes seems to be that the word 'Savaram' when applied to a land in a Zemindari tract indicates usually that the land itself, both melvaram and kudivaram, belongs to the Zemindar free from any obligation to pay revenue to Government on the extent of such land. I do not say that in consequence of a land being known as Savaram it should be presumed to belong (both melwaram and kudivaram) to the Zemindar but I think that courts may presume such land to be of the above character. The learned District Judge in this case seems to have put the presumption rather too strongly but otherwise his judgment which has gone very carefully into the evidence seems to be not open to criticism.

6. As regards the other important question as to how far a judge could use his own knowledge when arriving at a conclusion on the evidence adduced before him, the authorities are by no means clear. In the case in Hurpurshad v. Sheo Dyal I.L.R. (1909) A. 259 the judge in the lower Court imported into the case his own knowledge of the fact that the family of the parties had recognised the division which one Chandan had made prior to his demise though there was no evidence let in about such recognition by the family. Their Lordships of the Privy Council held that this ought not to be done as the judge's knowledge might have depended on mere rumour or hearsay. Their Lordships in the next sentence (page 286) state ' But even if the commissioner's statement of facts from his own knowledge be taken as evidence '--this shows that their Lordships did not finally decide that if the judge's knowledge was not based upon mere rumour or hearsay but was the impression made directly on his own senses and if such knowledge had been communicated to the parties for criticism and comment, such knowledge could not be used by him in arriving at conclusion on the evidence before him. In Lakmidas Khusal v. Bhaiji Khushel I.L.R. (1909) L.A. 259 a Subordinate Judge decided the suit after local inspection in which he found that a passage for rain water spoken to by the plaintiff's witnesses as existing did not really exist. It was contended, before the High Court that the Subordinate Judge acted illegally in importing his knowledge obtained at the local inspection in deciding the case and the appellant's vakil relied on the oft-quoted and as often misunderstood case of Kessowji Issur v. G.I.P. Ry. Co. I.L.R. (1907) B. 381. But one of the learned Judges (Chandavarkar J.) easily distinguished that case on the ground that all that the privy Council decided was that the learned High Court Judge's personal knowledge obtained on an inspection of the locality on a different day amidst possibly different surroundings was no safe criterion in deciding the question in issue in that particular case. The learned Judge (Chandavarkar J.) in Lakmidas Khusal v. Bhaiji Khusal I.L.R. (1911) B. 317 clearly held that the Subordinate Judge did not act illegally in using bis knowledge of the non-existence of the rain-water-passage in deciding the case before him. In Bourne v. Swan Edgar, Ltd. (1903) 1 Ch. D.225 Farvvell J. said that two classes of cases must be distinguished in these matters and while in one class of cases the Judge's direct knowledge can be used only for the purposes of enabling him to understand the questions that are being raised, to follow the evidence and to apply the evidence there are cases of a different kind where it is the eyesight of the Judge that is practically the ultimate test. In cases of infringement of patent rights or infringement of trade-marks and in cases of ' passing off the defendant's goods as plaintiff's, the Judge has mostly to rely upon the evidence of his own senses. As regards the demeanour of witnesses, the Judge has to depend upon the knowledge and the impression brought to his mind by his eyes and ears. Even as regards the credibility of witnesses, let us suppose that a person known to the Judge as of the highest character is produced as a witness before the Judge. Is it possible for him to put out of his mind his knowledge of the character of the witness in coming to a conclusion upon the evidence? It is simply asking the Judge to perform an impossible feat. As to using the observations made by the Judge at a local inspection merely to understand the evidence, I shall here quote the remarks of Bissel J. in an American case. ' We are very frank to say we do not appreciate the refined distinction which is drawn by some authorities wherein it is held that the jury are not at liberty to regard what they have seen as evidence in the case but must utterly reject it otherwise than as an aid to the understanding of the testimony offered. The folly of it is apparent from the constitution of the human mind and the well-known processes by which juries arrive at conclusions. If a dozen witnesses should testify that there was no window on the north side of the house from which one had sworn that he had viewed the affray and the jurors on view should see the window, all lawyers would know that it would be futile on the argument to insist on the jury that their verdict must be based on the non-existence of the window since the point had been sustained by a vast preponderance in the number of witnesses' (11 Colo. App. 41). I know that there are old dicta to the effect that a Judge should decide only on the evidence before him and should not at all use his private knowledge. Wigmore refers (para. 2569 note 2) to a case in Henry IV's time where the Judge allowed a prisoner to be convicted on the evidence but got a pardon for him from the King because the Judge knew of his personal knowledge that the accused was not guilty. This shows the absurd lengths to which the doctrine of not using personal knowledge in coming to a conclusion in the case could be carried and why it is that there is agitation now in this country for village panchayets to be constituted as Judges so that they might use their own knowledge of the facts of the case and the character of witnesses to come to conclusions on facts. I do not of course wish to restore the days of Mariada Raman or Haron-alraschid but a Judge must be allowed to use even his knowledge of concrete private facts, provided he mentions his knowledge to the parties and they do not object to his deciding the case and he must be allowed of course to use his knowledge of general or public facts, historical, scientific, political and otherwise in coming to his conclusions. Let us take the case of a witness who belongs to a hill tribe which is known to the Judge by his past experience as a Revenue Officer as consisting of persons who are generally incapable of telling complicated lies, is not the Judge entitled to use his said knowledge in arriving at a conclusion on the evidence of that witness? Judges and Juries do use and, it seems to me, are entitled to use their general past experience of men and things in arriving at conclusions of fact and such experience is not only not considered as a disqualification but is a very necessary qualification for coming to sound conclusions of fact. I know that English Judges have laid down in some cases the rule as to the using of the Judge's own knowledge in coming to conclusions upon the evidence rather too strictly: (sea London Omnibus Company Ltd v. Lavell (1901) 1 Ch. D. 135 but with great respect,I am inclined to think that the only restriction which can be imposed upon the Judge is that he should not import knowledge obtained by mere rumour or hearsay of concrete facts connected with that particular case before him for arriving at a conclusion. When a Judge is supposed to be reliable enough to come to a conclusion on the evidence of facts deposed to before him as seen or heard by witnesses, it is surely anomalous and even startling to hold that he cannot be relied on to use impartially the facts directly seen and heard by himself. The only result of thus holding would be that Judges would be induced to take some formal evidence of the same facts from much less reliable sources than themselves and to omit all mention of their own knowledge in their Judgments and this course cannot be held as conducive to a satisfactory decision of the cases when they come up on appeal before the appellate Court.

7. When a proposition of fact has to be established before a judicial tribunal, there are two principal heads under which the modes of presentation of the evidentiary facts fall. ' The first is by the presentation of the thing itself as to which persuasion is desired ' (Wigmore Section 24) and this mode is called Immediate or direct real evidence (Pratyaksha Pramana). In case of contempt of Court, committed in the presence of a tribunal ' it has direct real evidence of the fact.' ' The thing which is the source of the evidence is Present to the senses of the tribunal.' The first and best mode of proof (called Pratyaksha in Sanskrit) is sometimes rather pedantically called ' Autoptic preference ' in English. When a Judge sees the demeanour of a witness or observes that a witness is blind or deaf or a prosecutrix who complains of rape is a brazen muscular woman or that an accused charged with running away from custody is a lame man it is surely open to him to use such direct knowledge in coming to his conclusions as to the rights and wrongs of the parties before him without having these facts proved by the statements of others as witnesses. The second principal head of proof (Inference or Anummana) falls under two sub-heads viz., (a) the evidence given by a human being heard or read by the tribunal and called testimonial or direct evidence and (b) other connected facts called circumstantial or indirect evidence (see Starkie 1-13).

8. When a tribunal knows a fact by direct real evidence, that fact is necessarily established much more satisfactorily than by the other kinds of evidence. It may be necessary to provide that when a fact is known to the Judge in this way, he should make a note of it in writing during the course of the trial and read it out to the parties so that the parties might be aware that the Court has knowledge of that fact and so that arguments and comments might be based and explanations offered by both sides on such fact so stated by the Judge as known to him before the Judge decides on the rights and liabilities of the parties. This is the principle of the rule enunciated in some Indian cases, that the Judge who has made a local inspection should place on record the evidence and impressions gathered by him (See Raikishori Ghose v. Kwnudinikanta Ghose (1910) 15 C.L.J. 138. In England and America juries are mostly the Judges of fact and the jury are presumed not to be able to arrive at proper conclusions without a pretty exhaustive summing up of the evidence by the Judge. Further, if one of the jarors has previous private knowledge of a fact, the others might not know it. Hence there is the rule that that juror must testify as witness in the case though his said private knowledge and his having testified as a witness do not; make him incompetent to sit on the jury as one of the Judges of facts, as his knowledge after he gives his evidence is commented upon by the Judge in his summing up. The system of trial by juries who are returned 'of the Vicinage whence the cause of action ariseth' was originally based on the circumstance that ' the law supposeth them hence to have sufficient knowledge to try the matter in issue though no evidence were given on either side in Court.' If such evidence of witnesses is given, the jury 'may have evidence from thir own personal knowledge by which they may be assured and sometimes are that what is deposed in Court is absolutely false ' and ' the jury may know the witnesses to be stigmatized and infamous ' (Vaughan C.J. in Bushell's case 1670). But between 1650 and 1700 ' the necessity of controlling the jury in some further way under the changed' and changing conditions of society was felt and hence, the Judges who were guided by such motives gradually laid down a new rule. From 1702 the new rule has been established that a juror should give evidence and be subjected to the test of cross-examination before he could use the facts in his own direct knowledge and communicate them to his fellow-jurors, if those facts are not ' notorious' or 'unquestioned' facts or facts deducibls from the common fund of experience and knowledge of which anybody could reasonably take ' notice ' without proof and are not ' matters of mere private interest.'

9. If a Judge has knowledge of some particular concrete fact which is a matter of mere ' private interest' peculiar to the particular case before him which fact is not an existing natural fact (of relative permanence like the existence of a stream or a tree) but one that has already happened and which fact is a matter of strong controversy between the parties, he should no doubt retire from the case as Judge so as to be able to give his evidence for one side or the other before another Judge. But where a Judge has no personal or pecuniary interest in a case and merely uses his knowledge of human nature or his general opinion of large classes of people based on his previous experience or the testimony of his own senses in respect of things and persons observed by him in the course of the proceedings before him after he had given notice to the parties (or even outside the proceedings, provided he mentions such knowledge to the parties), I do not see how he could be prevented (except by asking him to do the impossible feat of forgetting everything and even not to be led sub-consciously by facts within his knowledge) from using such knowledge. I cannot even bring myself to understand why he should be so prevented, especially if he has special technical learning, knowledge and general information which gives him very useful materials for arriving at a proper conclusion. A judge is appointed presumably for the reason that his learning, impartiality and trained powers of observation are superior to and more reliable than the average learning etc., of the litigants and witnessess before him. In systems of law where the Judge has very little to do with findings on facts, a judge might be made merely to sum up the evidence before him impartially (without asking the jury to consider what he knows) and leave it to the jury to come to their own conclusions. But where (as in India in all civil cases and most criminal cases) the judge is a Judge of both facts and law, it is impossible to ask him not to use his knowledge of particular classes of people and other like circumstances when arriving at a conclusion on facts. Of course if an appellate Court finds that a lower Court has unduly pressed such general knowledge (say, by unduly suspecting the genuineness of an unregistered document because it was executed in a town notorious for forgeries or because the writer was of a particular caste or profession), the appellate tribunal would use its own presumably sounder knowledge of human nature to set right the inferior court and give advice to the lower Court not to be led too much away by such considerations. It has been sometimes laid down that a judge must as Judge 'ignore what he knows as a private man' and he 'may have to ignore ' as a private man what he knows as Judge. I respectfully dissent from such observations. In some old cases (collected in foot note 4 in Wigmore para. 2569), it was held that the Judge's personal knowledge of a witness's lack of credit should not be used. In a later case however the trial Judge's ' great familiarity with that portion of the state ' was considered as a ground for not reversing his judgment and a Judge's personal knowledge of the services of a counsel (obtained as Judge sitting in the previous case) was allowed to be used by the Judge in fixing the remuneration of that counsel in an action brought by the counsel for such services. I think the only practical rule which can be laid down in these cases is that if a Judge knows of his own knowledge as an individual observer of a past relevant concrete private incident and that fact cannot be subjected to ocular proof at the time of trial (such as a person's colour, resemblance of features, appearance, behaviour, chemical experiments on the present condition of the object) and if the truth of such incident is contested between the parties, he should mention his private knowledge of such incident to the parties and he should refuse to be the Judge in that case, unless both the parties after he so mentions to them his said personal knowledge of that particular incident, state that they have no objection to his continuing as Judge. That the Judge was competent to give evidence in the witness-box and to subject himself to cross-examination and then to decide the case was the old rule but this has been discountenanced for obvious reasons in modern times and, in my opinion, should not be allowed. All that can be permitted is that the Judge's personal knowledge should (as in cases of proceedings for contempt) be recorded and be allowed to be commented upon in a moderate manner. In the case of concrete particular facts, the Judge who uses his own knowledge should only be obliged to state whether he knows it by direct knowledge or by rumour or hearsay and should not be subjected to cross-examination. General knowledge of the tenures in a particular area or of the character of certain populations as also direct knowledge gained by his own senses and mind--it is impossible to prohibit the Judge from using such knowledge in drawing inference from the evidence before him and in coming to conclusions as to the rights of parties before him. In the present case, the learned Judge has not gone further than using the general knowledge which he had acquired as a past revenue officer and as a revenue Court of experience in the course of the performance of his duties in Zemindari tracts; and I hold that he was entitled to use such knowledge in coming to a conclusion on the facts after the consideration of the evidence let in this case. One other short point has to be noticed, viz., whether evidence as to leases granted after 1st July 1898 are wholly shut out as evidence by Section 185 of the Estates Land Act. I am inclined to hold that they are so shut out if sought to be used for the purpose of proving the character of the tenure of the land and even if such leases are sought to be proved merely in order to show that a land was treated in the same manner after July 1898 as before July 1898. I agree however, with my learned brother that leases granted before 1st July 1898, though they were to come into force only after 1st July 1898 are admissible in evidence and in the result, I agree that these second appeals should be dismissed with costs.


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