1. The above two second appeals are referred by Ismail J., in view of the conflicting decisions of this court on the admissibility of boundary recitals in documents not inter partes. In order to appreciate the reference. it is necessary to set out briefly the facts.
2. Defendants 1 and 2 are appellants in S. A. 1157 of 1963 and the 5th defendant is the appellant in S. A. 19 of 1964. Both second appeals arise out of O. S. 530 of 1960 on the file of the District Munsif Court. Tiruvannamalai. The plaintiff instituted the suit for declaration of his title to the suit site in the village of Kalasapakkam and for possession. The plaintiff's case is that the suite site originally belonged to the Periathambi Chetti, the father-in-law of the 3rd defendant Muniammal and the great grandfather of the 4th defendant minor Kasi Chetti. The said Periathambi was in possession and enjoyment of the site by installing a country oil mill thereon. While so certain enemies of his complained to the Government that he had encroached on the Government land, and that he should be evicted. Periathambi contended that the property in question had been in his possession for over 30 years, and accepting this contention, the Government issued an order dated 24-4-1880 recognising his rights. Periathambi died in or about 1910 leaving his son Annamalai. Annamalai was in possession and enjoyment of the suit site till his death, Thereafter, his widow, the 3rd defendant Muniammal and his son Mannu Chetti were in possession and enjoyment of the suit site. They mortgaged the suit site as well as their house to one Rathinavelu Chetti on 29-5-1946 and subsequently sold the same to the plaintiff on 26-11-1946. The plaintiff's case is that, ever since his purchase, he had been in possession of the suit site and the house, and that in or about March 1952, defendants 1 and 2 trespassed into the suit site and constructed some walls thereon. The plaintiff filed applications before the Tahsildar of Polur and the Revenue Divisional Officer, Tiruvannamalai, complaining about the trespass committed by defendants 1 and 2, and the Tahsildar of Polur directed the plaintiff to establish his righted in a civil court. Thereupon the plaintiff filed O. S. 501 of 1954. The 5th defendant, the State of Madras, took up the plea of want of notice under Section 80, Civil P. C. and the suit dismissed on the preliminary point. Ultimately the order of the trial court was upheld by this court in S. A. 305 of 1957. The present suit has been filed, after the issue of the requisite notice to the Government, for declaration of his title to the suit site and for possession.
3. Defendants 1 and 2 contended that the suit site was a Natham and was not assigned to any one. They denied the continuous possession and enjoyment of the suit site by Periathambi and his descendants. They also contended that the order dated 24-4-1880 relied on by the plaintiff, did not relate to the suit site and that the plaintiff and his predecessors-in-title had not been in possession and enjoyment of the suit site for a period of 12 years prior to the suit.
4. The 3rd defendant remained ex parte. The 4th defendant's mother and guardian filed a written statement disputing the necessity for Mannuchetti the son of Annamalai. to borrow and contending that the alienation by Mannu Chetti was fraudulent.
5. The 5th defendant, the State of Madras filed a separate written statement contending that the suit site was not conveyed to any one, that it was shown as unoccupied waste in the village site plan, that defendants 1 and 2 had encroached on it, that they had been suitably dealt with under the Land Encroachment Act, and that the title to the suit site was still in the Government.
6. The trial court dismissed the suit holding that the order passed by the Tahsildar of Polur dated 24-4-1880 did not relate to the suit property, that there is no proof of plaintiff acquiring title by prescription and adverse possession and that the plaintiff was never in possession, much less in possession within 12 years prior to the suit. The plaintiff filed A. S. 251 of 1962, in the Subordinate Judge's Court, Vellore, and the appellate Court allowed the appeal holding that the plaintiff had acquired title to the suit site by prescription even as against the Government and that the plaintiff has proved his possession within 12 years prior to the suit. As already stated, defendants 1 and 2 filed S. A. 1157 of 1963 and the 5th defendant State of Madras filed S. A. 10 of 1964; subsequent to the filing of S. A. 1157 of 1963 the first appellant therein died and his legal representatives were brought on record as supplimental appellants 1 to
7. Mr. A. Sundaram Iyer, the learned counsel for the appellants in S. A. 1157 of 1963, contends that the plaintiff has no title to the suit property on the following grounds. firstly the order of the Tahsildar, Polur, Ex. A. 1 dated 24-4-1880 does not relate to the suit property. Secondly the documents relied on by the plaintiff to establish his continuous possession and enjoyment of the suit property, namely, Exs. A. 2 to A. 6 are documents not inter partes and the boundary recitals therein are inadmissible in evidence. Thirdly if the aforesaid documents are eschewed, the finding of the appellate court on the question of title by adverse possession cannot be sustained.
8. We shall first take up the second question for consideration. The suit site is situate south of three houses belonging to Periathambi and his two Pangalis, Sadayappa Chetti and Natesa Chetti. The house belonging to Periathambi along with the suit site was purchased by the plaintiff on 26-11-1946. Sadayyappa Chetti sold his house to one Pattabhi Achari who, in his turn, sold it to one Marge Iyer under Ex. A. 4 dated 19-4-1922 Marge Iyer sold the house to the first defendant under Ex. A. 5 dated 12-3-1957. Natesa Chetti sold his house to one Natesa Nainar under a registered sale deed the registration copy of which is Ex. A. 2 dated 30-3-1914. Natesa Nainar, in his turn, sold that house to one Pachiappa Achari under the original of Ex. A. 3 dated 6-2-1917. Pachiappa Achari died. His widow Radha Bahi divided the house into two portions and sold one portion to Manicka Nainar,. Manicka Nainar, in his turn, sold that portion of the house to one Kannappa Achari, under the original of Ex. A. 6 dated 5-4-1948. the other portion in the house was sold by her to the second defendant under the original of Ex. B. 5 dated 24-7-1951. The recitals of the boundaries in Exs. A. 2. to A. 6 (not between parties to the present suit) describe the suit site as lying to the south of these three houses. The contention of the plaintiff is that the description of the suit site in Ex. A. 2 to A. 6 as 'Chekkumedu' of the descendants of Periathambi affords clinching proof of enjoyment of the site 'Chekkumedu' from 1914 to 1948. None of the defendants is a party to Exs. A. 2 to A. 6. The question is whether the recitals as to boundaries in the documents Exs. A. 2 to A. 6 not inter partes are admissible in evidence.
9. Before dealing with the case law on the point, we shall examine the relevant provisions of the Indian Evidence Act, relating to the admissibility of recitals as to boundaries in documents not inter partes. The relevant sections are Sections 11, 13, 32, 155 and 157. We shall first take up Section 11, which deals with facts relevant when a right or custom is in question, one such fact under S. 13(a) being any transaction by which the right or custom in question was created, claimed, modified, recognised, asserted or denied. Even giving the widest interpretation to the word 'transaction' we consider it difficult to bring the recitals as to boundaries in documents not inter partes under any of the verbs "created" "modified" "recognised". "asserted" or "denied". We shall next take up Section 32 which deals with statements written or verbal of facts made by a person who is dead. In order to render a person's statement admissible under Section 32(3), such a statement must be against his pecuniary or proprietary interest. Further what is admissible under Section 32(3) is only the statement and not the document containing the statement. We therefore, consider that the documents in question cannot be brought under Section 32(3). Section 32(7) deals with the statements contained in any deal, will or other document which relates to any such transaction as is mentioned in Section 13(a). In the view that we have taken that such documents are not admissible under Section 13(a), they are not equally admissible under section 32(7). Regarding Section 11 of the Act which also deals with relevancy of facts, there is a distinction between the existence of a fact and a statement as to its existence. See Mt. Naima Khattun v. Basant Singh, AIR 1934 All 406 (FB). The Section makes the existence of facts admissible, and not statement cannot fall under Section 32(3), it cannot equally fall under Section 11. Two other sections which have to be considered in this connection are Ss. 155 and
157. When the executant of the document containing recitals as to boundaries upon which reliance is placed, is himself a witness in the case, the recitals can be put to him under Section 157 as a former statement corroborating the desposition and he can be also confronted with the recitals under Section 155.
10. We shall now consider the decisions of our court on the question whether the recitals as to boundaries in a document not inter partes are admissible in evidence. In Re Poddapaneri Narayanappa. 1910 Mad WN 668, Krishnaswami Ayyar, J. held that recitals as to boundaries in a document not inter partes are not admissible under Section 32 of the Evidence Act. In Venkataraya Gopala Raju v. Fota Narasayya, 1914 Mad WN 779 = (AIR 1915 Mad 746), a Division Bench consisting of Ayling J. and Seshagiri Aiyar, J. considered the question with reference to the admissibility of recitals as to boundaries in a document not inter partes under Section 13(a) of the Act. Ayling, J. observed--
"Ex. G is a sale deed of an adjoining site between strangers which, in specifying boundaries, describes the suit land as belonging to Tangella Ramudu. This is a transaction, but it is not a transaction by which the right of the Thangella people is asserted, claimed or even recognised; it is a transaction in which the said right is incidentally mentioned. It is not admissible under Section 13(a) and I agree with my learned brother following In Re Poddapaneri Narayanappa 1910 Mad WN 668 that it cannot be treated as an admission against interest." In that case the other learned Judge, Seshagiri Ayyar, J. observed:--
"The more difficult question for consideration is whether they can be admitted under Section 13 of the Evidence Act, There is no authority for the position that the recital in order that it may be admissible must have been made by a party to the suit or by a person through whom he claims. The language of the section imposes no such restriction. But I am inclined to think that these documents are not transaction by which the right in question was asserted or recognised; In the case of G, there can be no doubt that the transaction, namely. the sale deed did not assert or recognise the right of the Thengella people."
In Karuppanna v. Rangaswami, AIR1928 Mad 105(2), Jackson J. followed the decision in 1910 Mad WN 668 and 1914 mad WN 779 = (AIR 1915 Mad 746). The learned Judge observed:--
"It is obviously a mere statement of boundary and as such cannot be classed with any of the verbs in Section 13 created, claimed, modified, recognised, asserted or denied; "Mentioned" would be appropriate verb. which means considerably less than asserted. Therefore, it must be held that Exs. E. H. A., & B are not admissible in evidence."
In Rangayyan v. Innasimuthu, AIR 1956 Mad 226 = 1955-2 Mad LJ 687,. Ramaswami, J. held, without referring to the judgments in 1910 Mad WN 668 and 1914 Mad WN 779 = (AIR 1915 Mad 746) that the recitals in a document not inter partes are admissible under Sections 11, 13, 32(3) and 157 of the Evidence Act. The learned Judge, however, held that probative value to be attached to such documents will depend upon the circumstances of each case and may vary all the way from zero to almost clinching evidence. In the unreported judgment in S. A. No. 1036 of the 1956 (Mad) Subbian Konar v. Kayambu Mudaliar,. Subrahmanyam, J. disagreed with the view expressed by Ramaswami J. In AIR 1956 Mad 226. In Thyagarajan v. Narayana AIR 1940 Mad 450 dealing with Section 157, Wadsworth, J. observed:--
"It is, however, contended that when the executant of the document containing a recital of boundary upon which reliance is placed is himself a witness in the case, the recital can be let into evidence under Section 157, Evidence Act. as a former statement corroborating the deposition. The only express decision on this point to which my attention has been drawn is contained in Katabuddin v. Nafar Chandra. AIR 1927 Cal 230. That decision does not discuss the precise terms of Section 157, but proceeds on a concession that the recital of a boundary in a document not inter partes can be admitted to corroborate a witness who himself is the executant of the document. It must however be pointed out that Section 157 does not make all previous statements admissible to corroborate the testimony of a witness but only two classes of statements;
(1) a statement made by a witness relating to the same fact at or about the time when the facts took place and (2) a statement made before any, authority legally competent to investigate the fact. Clearly the second of these categories had no reference to recitals in deeds. But can it be said that a recital of a boundary in a mortgage deed is a statement made at or about the time when the fact took place With some hesitation I think that it can. One cannot of course speak of a boundary as a fact which took place at one time or another. But what is to be got from this statement is not really the effect of the boundary but the fact that land on the boundary was at a particular time in the possession of a particular individual and the statement in the mortgage deed that so and so was in possession of the land on such and such a boundary is in my opinion a former statement made at the time when the fact of possession was taking place--a contemporaneous statement regarding the occupation of land on the boundary. In this view, it is admissible under Section 157, Evidence Act.
11. The above decision was referred to by Kuppuswami Ayar, J. in Komiorineni Rosayya v. Munnamgi Rosayya. 1947-1 Mad LJ 60 = (AIR 1947 Mad 345).
12. We shall now refer to some of the decisions of other High Courts. In P. N. Choudhari v. K. C. Bhattacharjee. AIR 1924 Cal 1067, a Division Bench of the Calcutta High Court disagreeing with judgments of the same court held that recitals as to boundaries in documents not inter partes are not admissible under Section 11 or Section 13 or under S. 32(3). In Brojo Mohandas v. Gaya Prosad. AIR 1926 Cal 948. another Division Bench of Calcutta High Court after referring to the conflict of decisions of that court on the question followed the decision in AIR 1924 Cal 1067 and held that recitals in a document not inter partes are not admissible under Section 11 or S. 13 of under S. 32(3). A third Division Bench of the Calcutta High Court took a similar view in Kumuda Kumari v. Dilsook Roy. AIR 1927 Cal 918. In Soneylal v. Darbdeo., AIR 1935 Pat 167 (FB), a Full Bench of the Patna High Court dealing with the identical question, held that such documents between strangers containing recitals regarding boundaries are inadmissible under Sections 11 and 32(3) of theEvidence Act. In Subudhi Padhan v. Raghu Bhuvan, the Orissa High Court took the same view,
distinguishing the decision of Ramaswami. J. in Rangayyan v. Innasimuthu. AIR 1956 Mad 226. In Kalappa v. Bhima. AIR 1961 Mys. 160, the Mysore High Court followed the decisions of the Calcutta High Court and distinguished the decision of Ramaswami J. in the aforesaid case.
13. On a consideration of the aforesaid decisions, we hold that the decision of the Division Bench of this court in 1914 Mad WN 779 = (AIR 1915 Mad 746) is in accordance with preponderance of authorities in various High Courts that recitals as to boundaries in documents not inter partes are inadmissible in evidence under Sections 11, 13(a) 32(3) and 32(7). As pointed out by Wadsworth, J. in AIR 1940 Mad 450, the only method by which recitals in a document not inter partes could be admitted in evidence is by examinations of the executant of the document are found. In this view we hold that judgment of Ramaswami, J. in AIR 1956 Mad 226 is wrongly decided. The result is that Exs. A. 2. to A. 6 in the present case are inadmissible in evidence.
14. We shall take up the first question for consideration. The lower appellate court has held that possession of Periathambi is amply borne out by the order Ex. A. 1 Applying the presumption under Illustration (d) to Section 114 of the Evidence Act, the lower appellate court came to the conclusion that the plaintiff has established his claim to the suit site by adverse possession from 1880. We see no reason to differ from the conclusion of the lower appellate court.
15. We shall now take up the third question for consideration inasmuch as the two second appeals are referred to us for decision. We have to see whether there is other sufficient evidence to justify the finding of the lower appellate court that the plaintiff has established his claim to the suit site by adverse possession as against the Government also. The learned Subordinate Judge relied upon the oral evidence of P. W. 3, who is aged about 70 years, who stated that there is a Chekku on the suit site belonging to Periathambi and his son Annamalai was having the Chekku in the suit site. The learned Subordinate Judge has held that his evidence deserved credence and weight. We agree with the view of the learned subordinate Judge and hold that this evidence is sufficient to support the finding of the lower appellate court that the plaintiff has established his claim to the suit site against the Government also by adverse possession.
16. In the result the second appeals fail and they are dismissed with costs.
17. Appeals dismissed.