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Alagiri Nayakar and anr. Vs. Perumal Nayakar and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in122Ind.Cas.503
AppellantAlagiri Nayakar and anr.
RespondentPerumal Nayakar and ors.
Cases ReferredNingawa v. Bharmappa
Excerpt:
evidence act (i of 1872), section 13 - recitals in document between third parties as to boundary of neighouring land, whether admissible in evidence. - .....third parties to the effect that the land which formed a boundary of the property dealt with by the document belonged to a particular third person, was not admissible against persons not parties to the transaction evidenced by that document, to prove the ownership of such neighbouring land. in the present case there is the further fact that the learned subordinate judge gives an additional reason for not acting on those documents. he says that parties to those documents exs. a and b have not been examined.2. in the circumstances, i find myself unable to interfere with the finding of fact arrived at by the lower appellate court in this case. i accordingly dismiss the second appeal with costs.
Judgment:

Anantakrishna Iyer, J.

1. The plaintiffs are the appellants before me. The question between the parties was whether two strips of land marked in plaintiffs plan belonged to the plaintiffs and the defendants in common and whether the said persons have been using those strips of land as common path-ways for going from their houses to the street on the west. The first Court found in favour of the plaintiffs whereas the lower Appellate Court has decided both the points against the plaintiffs and dismissed the plaintiff's suit. Both the above questions are questions of fact and the lower Appellate Court had evidence before it on which it was open to it to come to the above conclusions. The learned Advocate for the appellants took me through the judgments of the lower Courts and submitted that there were no real discrepancies in the oral evidence adduced by the plaintiffs and that the lower Appellate Court erred in not accepting the oral evidence which has been accepted by the District Munsif. Sitting in second appeal, I am afraid I cannot go into appreciation of evidence by the lower Appellate Court. It was, however, argued that Exs, A and B documents of 1900 and 1918, evidencing transactions between the plaintiffs and 3rd parties are admissible as evidence in the present case and that the lower Appellate Court was not justified in rejecting the same. There are, however, two decisions of this Court-one by a single learned Judge-Krishnaswami Iyer, J., in In Re: Daddapaneni Narayanappa 8 Ind. Cas. 268 : (1910) M.W.N. 668 : 9 M.L.T. 91 and another, of a Bench of two learned Judges-Ayling and Seshagiri Iyer, JJ. reported in Saripalli Venkatarayagopala Raju v. Fota Narasayya 26 Ind. Cas. 747 : (1914) M.W.N. 779 where the decision of the Bombay High Court in Ningawa v. Bharmappa 23 B. 63 was not followed by this Court, and where this Court held that recitals in a document between third parties to the effect that the land which formed a boundary of the property dealt with by the document belonged to a particular third person, was not admissible against persons not parties to the transaction evidenced by that document, to prove the ownership of such neighbouring land. In the present case there is the further fact that the learned Subordinate Judge gives an additional reason for not acting on those documents. He says that parties to those documents Exs. A and B have not been examined.

2. In the circumstances, I find myself unable to interfere with the finding of fact arrived at by the lower Appellate Court in this case. I accordingly dismiss the second appeal with costs.


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