1. In this case the plaintiff, as representative of her late husband, claims to hold a three annas, eighteen and three-fourth gundahs share in a certain julkur called Noa Bawarkati as appertaining to a patni mehal purchased by her husband at a sale held under Regulation VIII of 1819.
2. The defendants deny that the disputed julkur appertains to the plaintiff's taluk, and assert that it appertains to Jote Gossain appertaining to Mouzah Narainpore.
3. The Moonshi decreed the suit. He based his judgment partly oh a Civil Court Decree, No. 617 of 1818, and, interpreting it with the light of an Ameen's report in a former case, decided that the plaintiff was entitled to the property, and accordingly gave her a decree.
4. On appeal the Subordinate Judge decided that that decree could not be admitted in evidence between the parties to the present suit. He then went on to say that even if one of the parties to that suit, namely Rashmoni, could be considered as the predecessor in title of the present defendants, her admission entered in the decree was not admissible in evidence and could only be proved by production of the original. Further, he decided that the Ameen's report in the former case could not be treated as evidence in the present suit.
5. Against that decision the plaintiff has appealed to this Court, and it has been contended that the Subordinate Judge has committed an error in law in rejecting the decree and admission, and in not taking cognizance of certain other decrees on the record.
6. The present plaintiff is a purchaser of the taluk for arrears of rent. She therefore holds it free from all encumbrances created by previous talukdars and cannot be bound by any act of theirs. The decrees to which she refers could not be used as evidence against herself; and it seems to us clear that if they could not be used as evidence against her, she cannot use them as evidence against the defendants; but in regard to the point whether the plaintiff was bound to prove the admission by production of the original, we differ from the view taken by the Subordinate Judge. There can be no doubt that production of the original was impossible. If there was any original it was destroyed years and years ago. By Section 35 of the Evidence Act an entry in a public record stating a fact in issue, or relevant fact, and made by a public servant in the discharge of his official duty, is admissible in evidence. In this case the admission in the decrees is no doubt a relevant fact; and the only question for decision is whether it falls within the other portion of Section 35. At the time that these decrees, were recorded it was the universal practice in Lower Bengal to write all proceedings on one side of a long roll of paper. This practice is referred to in Circular No. 131, dated 3rd May 1851. Previous to the issue of that Circular the Sudder Dewany of the Lower and Western Provinces issued a Circular on the 12th February 1847, from which it appears that it was the duty of the Court, and indeed had been the practice, to enter in the decree an abstract of all the pleadings. So far there seems no reason to doubt that these entries were made by the officers of the Court in discharge of their official duties. The question as to the effect of Section 35 of the Evidence Act was lately before the Judicial Committee of the Privy Council in the case of Lekraj Kuar v. Mohpal Singh I.L.R. 5 Cal. 744. In that case the question arose whether a statement made in a settlement rubokari, recorded in the province of Oudh, in which place officers were directed to be guided by the spirit of the Settlement Regulations, but were not bound by them, was admissible in evidence under this section. It was there argued that the precise information in the rubokari was not directed by any particular regulation, and that the settlement records were prepared and attested by subordinate officers and could not be accepted as in any way invalidating the records themselves. But their Lordships of the Privy Council in overruling these objections said as follows: 'It is necessary to look at the precise terms of this section, and for the present purpose it may be read: 'an entry in any official record stating a fact in issue, or relevant fact, and made by a public servant in the discharge of his official duties, is itself a relevant fact.' There can be no doubt that the entries in question supposing them to bear the construction already given to them, state a relevant fact, if not the very fact, in issue, viz., the usage of the Bahrulia Chur. If so, then the entry having stated that relevant fact, the entry itself becomes by force of the section a relevant fact, that is to say, it may be given in evidence as a relevant fact, because, being made by a public officer, it contains an entry of a fact which is relevant.' In the present case it not contended, and indeed could not be contended, that the admission in these decrees is not relevant. Following the words of their Lordships of the Judicial Committee we think that the admission made in these decrees could be proved by the production of the decrees; and that it is not necessary that the plaintiff should be placed in the position of doing what everybody knows is impossible for him to do, namely, to produce the original decrees.
7. In this view of the case we think that the Subordinate Judge was, wrong in saying that so much of the decrees was not admissible as legal evidence. Whether the defendants are bound by the statements of Rashmoni depends on the question whether Rashmoni was their predecessor in title; and this, point has not been decided by the Subordinate Judge. If he holds that the defendants do not represent Rashmoni, neither the decrees nor the admission can be admissible against them. On the other hand if he holds that the defendants do represent Rashmoni, then, in our opinion, so much of the decrees as purports to give the statement of Rashmoni is admissible in the present case. The amount of weight to be given to such statement is a matter to be decided by the Court below.
8. The costs of this appeal to follow the result of the case.