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Ambar Ali and ors. Vs. Lutfe Ali and ors. - Court Judgment

LegalCrystal Citation
Decided On
Reported in41Ind.Cas.116
AppellantAmbar Ali and ors.
RespondentLutfe Ali and ors.
Cases ReferredPriya Nath v. Mahendra Kumar
evidence - record of bights, entry in draft of--admission of irrelevant evidence, whether vitiates judgment admission of co-party, whether admissible against others--evidence act (i of 1872), section 32 (3)--recital in document of conveyance as to boundaries of land sold, admissibility of--document admitted in evidence without objection--appeal, objection in. - .....a---recital contained in a conveyance of an adjoining piece of land executed by the fourth and fifth defendants in favour of a stranger on the 7th october 1894. the subordinate judge has relied upon both these documents, and the question for consideration is, whether they are admissible in evidence against the defendants.3. as regards the entry in the draft record of rights to the effect that the tank is known by the name of laskar gazi, there can be no room for controversy that it was not admissible in evidence. gulab kuer v. ram ratan pandey 27 ind. cas. 229 : 18 c. w. n. 806. no reference should, conaeqaently, have been made to the entry in the draft record, specially as it transpires that the entry was omitted from the record finally published on the 7th december 1898, to which.....

Asutosh Mookerjee, J.

1. This is an appeal, under Clause 15 of the Letters Patent from the judgment of Mr. Justice Newbould in a suit for recovery of possession of a tank on declaration of title. The plaintiffs alleged that the disputed tank had been excavated by their ancestor Laskar Gazi Mozumdar about a century ago, that it had always been known by his name and had been owned and possessed by members of the family from generation to generation and that they themselves were in peaceful possession when they were forcibly dispossessed by the defendants in 1911. They accordingly instituted this suit on the 27th November 1911 for recovery of possession on establishment of title. The defendants contended that the tank was not known by the name of Laskar Gazi and was never held by his descendants. They asserted that it had been abandoned by the previous owners, had become silted tip and had ultimately been settled with them on the 24th October 1911 by the proprietor of the estate, the Maharaja of Tipperah. The Trial Court held that the plaintiffs had failed to establish their alleged ancestral right to the tank and that their claim, even if well founded, was barred by limitation. Upon appeal, the Subordinate Judge reversed the decision as upon the question of title as also of possession he found in favour of the plaintiff. On second appeal to this Court, the decree of the Subordinate Judge was assailed on the ground that he had based his conclusion upon two pieces of evidence not admissible in law. Mr. Justice Newbould overruled this contention and dismissed the appeal. The objections urged before him have been reiterated in this Court.

2. One of the substantial points in controversy between the parties was, whether, as alleged by the plaintiffs, the tank was known by the name of Laskar Gazi. Besides oral testimony, the plaintiffs relied upon two pieces of documentary evidence, namely, first, an entry in a draft Record of Rights and secondly, a---recital contained in a conveyance of an adjoining piece of land executed by the fourth and fifth defendants in favour of a stranger on the 7th October 1894. The Subordinate Judge has relied upon both these documents, and the question for consideration is, whether they are admissible in evidence against the defendants.

3. As regards the entry in the draft Record of Rights to the effect that the tank is known by the name of Laskar Gazi, there can be no room for controversy that it was not admissible in evidence. Gulab Kuer v. Ram Ratan Pandey 27 Ind. Cas. 229 : 18 C. W. N. 806. No reference should, conaeqaently, have been made to the entry in the draft record, specially as it transpires that the entry was omitted from the record finally published on the 7th December 1898, to which alone the presumption of correctness applies. The circumstance mentioned, however, does not vitiate the judgment of the Subordinate Judge, because it is plain that the lower Appellate Court arrived at the conclusion on the merits independently of the evidence improperly admitted [Womes Chunder Chaterjee v. Chundee Chum Boy Chowdhry 7 C 293 : 3 Ind. Dec. (N. S.) 737. As regards the recital in the conveyance, the position is somewhat different and requires closer examination. On the 27th August, 1894, the fourth and fifth defendants acquired title by purchase to a parcel of land on the border of the tank now in dispute. On the 7th October 1894 they sold that land to one Hamidunnessa Bibi. In the schedule of boundaries in that conveyance they stated the land then transferred was bounded by the ,tank of Laskar Gazi. The conveyance was produced at the trial by the scribe, was duly proved and was admitted in evidence without objection. The Subordinate Judge has used the recital as valuable evidence, not only against the fourth and fifth defendants who executed the conveyance; but also against the other defendants who were not parties to that transaction. There can be no room for controversy that the admission is good evidence against the makers of the conveyance, but the question arises whether it is admissible against the other defendants. These defendants, it will be observed, are [jointly interested in the land now in dispute, along with the fourth and fifth, defendants; [in fact, they claim under a common lease from. the landlord and have, on basis thereof, taken a common defence to defeat the suit of the plaintiffs. But these defendants were not joint owners of the property covered by the conveyance of 1894, and were strangers to that transaction. They consequently press the view that an admission made by the owners of that property cannot be received in evidence against them merely because since the date of the alleged admission they have jointly acquired the property now in suit. In our opinion, this contention is well founded, as Section 18 of the Indian Evidence Act is of no assistance to the plaintiffs. The principle which regulates the reception in evidence of an admission by one defendant as against another defendant, was formulated in the oases of Kowsulliah Sundari Dasi v. Mukta Sundari Dasi 11 C. 588 : 10 Ind. Jun 66 : 5 Ind. Dec. (N. S.) 1151.; Chalho Singh v. Jharo Singh 18 Ind. Cas. 61 : 39 C. 995. and Meajan Matbor v. Alimuddin Mea 34 Ind. Cas. 571 : 44 C. 130 : 20 C. W. N. 1217 : 25 C. L. J. 42. The principle is that when several pers$oAns are jointly interested in the subject-matter of the suit, an admission of any one of these persons is receivable not only against himself but also against the others whether they be all jointly suing or sued, provided that the admission relates to the subject-matter in dispute and be made by the declarant in his character of a person jointly interested with the party- against; whom the evidence is tendered. The requirement of the identity in legal interest between the joint owners is of fundamental importance. Blenkinsopp v. Blenkinsopp (1846) 10 Beav. 143 : 2 Phillips 607 : 16 L. J. Ch. 88 : 11 Jun 721 : 50 E. R. 537 : 78 R. R. 216. On this principle, the position has been maintained that the joint ownership must have existed at the time the statement was made. Thus, in Blakeney v.; Fergusson 14 Ark. 641., it was ruled that the admissions of one person cannot be admitted in evidence against another on the ground of a joint interest in the subject, unless the interest is a subsisting one at the time of the admission, and where the interest is derivative, it must have been acquired after the admission was made. To the same effect is the Rule enunciated in Kilburn v. Ritchie 2 California 145 : 56 Am. Dec. 326 that the declaration of one of two joint owners is admissible against the other, if made at a time after the joint interest came into existence; if made before they became joint owners, the declaration is not admissible. The distinction is based upon obvious good sense. The admission of one co-plaintiff or co-defendant is not receivable against another, merely by virtue of his position as a co-party in the litigation; if the Rule were otherwise, it would in practice permit a litigant to discredit an opponent's claim merely by joining any person as the opponent's co party, and then employing that person's statements as admissions. Consequently, it is not by virtue of the person's relation to the litigation that the admission of one can be used against the other; it must be, because of some privity of title or of J obligation [see the observations of Erskine, L. C, in Morse v. Royal (1806) 12 Ves. (Jun.) 355 at p. 361 : 33 E. R. 134 : 8 R. R. 338. and Ellenborough, O. J., in R. v. Hardwick (1809) 11 East 578 at p. 585 : 103 E. R. 1129. The vital point for consideration accordingly is whether there is such privity of obligation or title between two persons as to justify the use of the admission of one against the other; and plainly this must be determined by reference to the relation between the parties at the time the admission is made. As a matter of probative value, the admission of a person (such as one joint owner) having precisely the same interest at stake as another (his co-owner), will, in general, be likely to be equally worthy of [consideration; there being an identity of legal liability, the two persons may be deemed one so far as affects the propriety of I discrediting one by the statement of the other. This reason., however, ceases to be applicable where, as in the case before us, the admission was made, at a time when the parties had no community of interest. The inference is thus irresistible that the recital in the conveyance of 1894, though admissible against the fourth and fifth defendants, is not admissible as admissions against the other defendants under Section 18 of the Indian Evidence Act.

4. The question next arises whether the recital in the conveyance is admissible against these defendants on 'any other principle. The decisions in Abdullah v. Kunja Behari Lal 12 Ind. Cas. 149 : 14. C.L.J. 497 : 16 C.W.N. 252.; lmrit Chamar v. Sirdhar Panday 13 Ind. Cas. 120 : 15 C. L. J. 7 : 17 C. W. N. 108. and Natwar v. Alkhu 18 Ind. Cas. 752 : 11A. L. J. 189 show that the statement is admissible under Section 32 (3) of the Indian Evidence Act. The statement by the vendors, that their land then conveyed was limited by certain boundaries, was an admission that their proprietary interest did not extend over any land outside the boundaries mentioned. The entire statement was, consequently, admissible Higham v. Bidgway (1808) 10 East 109 : 103 E. R. 717 : 2 Smith L. C. 301 : 10 R. R. 235.; Connor v. Fitzgerald 11 L. R. Ir. 106.; Percival v. Nanson (1851) 7 Ex. 1 : 21 L. J. Ex. 1 : 86 R. R. 547 : 155 E. R. 830.; Smith v. Bldkey (1867) 2 Q. B. 326 : 8 B. & S. 157 : 36 L. J. Q. B. 156 : 15 W. R. 492.; Reg. v. Exeter Guardians (1869) 4 Q. B. 34 at p. 344 : 10 B. & S. 433 88 L. J. M. C. 126 : 20 L. T. 693 : 17 W. R. 860. The principle is that the statement is accepted, not merely as to the specific fact against the interest, but also as to every fact contained in the same statement. Here, however, the plaintiffs have to face an unexpected difficulty. The statement can be made admissible under Section 32 (3) only if the conditions mentioned in the introductory words of the Section are fulfilled, and those conditions admittedly have not been fulfilled in this case. Consequently, the plaintiffs cannot avail themselves of Section 32 (3) and there thus seems at first sight no escape from the position that while the appeal must be dismissed so far as the fourth and fifth defendants are concerned, the case must be remitted for re-consideration at the instance of the other defendants after exclusion of the recital in the conveyance. On careful consideration, however, of all the circumstances of the case another aspect of the matter emerges for examination.

5. It is plain that if the plaintiffs had cited the fourth and fifth defendants as witnesses, the recital in the conveyance executed by them could have been received in evidence to impeach their credit under Section 155 (3) or to corroborate their testimony under Section 157. Now in the case before us no objection was taken to the reception of the conveyance in evidence by any of the defendants. If such objection-had been taken, it would? have been open to the plaintiffs to avoid the difficulty by citing the fourth and fifth defendants as witnesses and by proceeding under Section 155 (3) if they repudiated their admissions. It is perfectly, true, as pointed out by Sir Richard Couch in Miller v. Babu Madho Das 23 I. A. 106 : 19 A. 76 : 7 Sar. P. C. J. 73 : 9 Ind. Dec. (N. S.) 50. that an erroneous omission to object to evidence, which is irrelevant and consequently inadmis-Bible under any, circumstances, does not make it admissible. But it is equally well settled that the Court will not entertain for the first time in appeal an objection that % document, which perse not inadmissible in evidence, has been improperly admitted in evidence. Girindra Chandra Ganguli v. Rajendra Nath Chatterjee 1 C. W. N. 530.; Priya Nath v. Mahendra Kumar 10 Ind. Cas. 376 : 14 C.L.J. 578 : 160. W. N. It is plain that the case before us falls within the latter, principle. Assume for a moment that we accede to the contention of the appellants other than the fourth and fifth defendants, we shall have to confirm the decree of the Subordinate Judge in favour of the plaintiffs against those defendants, and to set aside his decree as regards the other defendants; we shall then have to remit the case in part to the Subordinate Judge, allow the plaintiffs an opportunity to make the conveyance legally admissible in evidence, and if they fail to do so, to take the chance of success upon the balance of evidence. The plaintiffs will forthwith proceed to cite the fourth and fifth defendants as witnesses and they will be in a position to do so, with reasonable safety, as the Claim of these defendants will have been finally negatived by our decree. When these defendants are examined as witnesses the plaintiffs will be free to introduce the conveyance into evidence to corroborate or contradict them as the contingency may require. The Court will then have to re-consider the case upon practically the same evidence as had formed the basis of the decision now under appeal. No useful purpose is likely to be served by the adoption of such a course in a litigation which has already lasted for nearly six years. We are consequently of opinion that in these circumstances the decree of Mr. Justice Newbould should be confirmed and this appeal dismissed with costs.

Beachcroft, J.

6. I agree.

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