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Radha Krishna Marwari Vs. Sarbeswar Nag and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1925Cal684a
AppellantRadha Krishna Marwari
RespondentSarbeswar Nag and anr.
Cases ReferredRamadin Rai v. Dhunwanti Koer
Excerpt:
- .....virtue of a lease, dated 14th chaitra, 1306, from defendants nos. 2 and 3 to whom they assert the land in suit belongs. they further deny plaintiff's possession within the statutory period and also claim title by adverse possession. on these pleadings two principal issues were raised as to title and limitation. in the trial court the learned munsif found both the issues against the plaintiffs and dismissed the suit, on appeal by the plaintiffs the learned subordinate judge set aside the decision of the trial court and decreed the suit. hence this appeal by the defendants. it is admitted that none of the parties has been able to produce any document showing title in their respective lessors: the question of possession therefore assumes paramount importance. the learned subordinate judge.....
Judgment:

Suhrawardy, J.

1. Plaintiff No. 1 along with his lessee plaintiff No. 2 brought this suit for establishment of title and recovery of possession of a plot of land alleging dispossession by the defendants in 1918. Plaintiff's claim is based on a lease from the alleged owners of the land Makhan Ray and Ananta Ray, dated 14th Ealgun, 1306. The defendants resist the plaintiff's claim by virtue of a lease, dated 14th Chaitra, 1306, from defendants Nos. 2 and 3 to whom they assert the land in suit belongs. They further deny plaintiff's possession within the statutory period and also claim title by adverse possession. On these pleadings two principal issues were raised as to title and limitation. In the trial Court the learned Munsif found both the issues against the plaintiffs and dismissed the suit, On appeal by the plaintiffs the learned Subordinate Judge set aside the decision of the trial Court and decreed the suit. Hence this appeal by the defendants. It is admitted that none of the parties has been able to produce any document showing title in their respective lessors: the question of possession therefore assumes paramount importance. The learned Subordinate Judge in finding possession of the plaintiffs has relied among other pieces of evidence, on a statement made by Makhan Ray, one of plaintiff's lessors in pattah, Exhibit 4. The pattah is a lease granted by Makhan in 1305 to another person of a plot of land adjoining and to the east of the disputed land. In giving the boundaries of the plot leased out by the pattah the western boundary is given as the plot in suit which he described as belonging to the lessor. The learned Sub-ordinate Judge has attached great impotence to this statement in the pattah by the plaintiff's lessor made a year before the plaintiff's lease and at a time when there was no dispute about the land in suit. It is argued before us- and that is the only point urged in the appeal-that the above statement in the pattah cannot be used as evidence against the defendants as it is in the nature of an admission which cannot be used in favour of the person making it or any other person claiming through him.

2. Under Section 21 of the Evidence Act an admission cannot be used as evidence in favour of the person making it or any person claiming under him except under some circumstances, one of which is that it may be so used if it is relevant otherwise than as an admission. It is therefore necessary to consider if the statement above referred to is otherwise relevant and as such can be proved on behalf of the person making it. It is not seriously contended that the statement is relevant under Section 11, Evidence Act, as it can hardly be said to be a ' fact' within the meaning of that section, nor is it maintained that it is admissible under any of the clauses of Section 32; though it appears that Makhan Ray is now dead. But it is attempted to make it evidence under Section 13 of the Evidence Act. It is said that the pattah was evidence of a transaction or a particular instance in which the right to the land or possession thereof was claimed or asserted by the plaintiff's lessor. It may not be a transaction as the pattah did not relate to the land in suit, Bansi Singh v. Mir Ameer Ali (1907) 11 C.W.N. 703, but great stress is laid on Clause (b) of that section. That clause is in these words:-'Particular instances in which the right or custom was claimed, recognised or exercised or in which exercise was disputed, asserted or departed from.' This sub-section is divided into two parts: the first part deals with particular instances when the right was claimed, the second part speaks of particular instances when the exercise of the right was asserted. In the present case there was no assertion of an exercise of the right. Assertion indicates some act or deed which may or may not follow a statement. It remains therefore to consider whether in the present case the right to the land in suit was 'claimed' by the plaintiff's lessor by describing it as belonging to him in giving the boundaries of a contiguous plot of land let out under Exhibit 4. The word 'claim ' has not been defined in the Act nor, so far as we are aware, has it received judicial interpretation. In the Oxford Dictionary the verb 'claim' is said to mean: ' (1) To demand as one's own or one's due; to seek or ask for on the ground of right; (2) to assert and demand recognition of an alleged right, title, possession, attribute, acquirement or the like; to assert one's own to affirm one's possession of: Sense (1) claims delivery of a thing; sense (2) the admission of an allegation.' The word therefore denotes a demand or assertion in relation to a thing or attribute as against or from some person or persons, showing existence of a right to it in the claimant. A bare statement may or may not be a claim according to the attending circumstances in which it is made. It may amount to a claim or be a mere statement of claim. There is a distinction, not too subtle between a statement of a claim and a claim; though in some circumstances a statement may amount to a claim. The latter is made with reference to a right in a thing which was at that time being dealt with or directly in contemplation, the former may be casual or made with reference to some other right or thing. The illustration under Section 13 affords some indication of the meaning to be attached to the words used in the section. To give 'claim' a wider meaning will practically neutralise the effect of Section 21 and make all statements wherein a right is stated to exist provable on behalf of the person making them, however recent they may be. I make a note in my note-boot that I have lent Rs. 1000 to A: thereafter I bring a suit against A, and put in my note book to prove the entry I had made therein. If this evidence is admissible in my favour I do not know what statement Section 21 seeks to exclude. In my judgment the statement made in Exhibit 4 that the land to the west of the land demised under that pattah belonged to the plaintiff's lessor is a mere recital and doss not amount to a claim and cannot be proved on behalf of the plaintiff and hence that document is inadmissible In evidence. In this connection attention may be drawn to the cases of Ramadin Mai v. Dhunwanti Koer (1912) 17 C.W.N. 1016 and Ramani Pershad N. Singh v. Mahanth Adaya Gossain (1903) 31 Cal. 380.

3. In these cases similar statements were hold inadmissible but without sufficient discussion of the law. In the case of Ramadin Rai v. Dhunwanti Koer (1912) 17 C.W.N. 1016 even a statement made by the predecessor of the defendants while daaling with the property claimed was held inadmissible against the plaintiff. It is not necessary to go so far but it shows the anxiety of the Court to uphold the salutary principle of disallowing proof of statements in favour of a party making it or his representatives-in-interest and thus not permitting a party to take advantage of his own act.

4. The finding of the learned Subordinate Judge on oral evidence of possession adduced by the parties is vague and indefinite though it seems, from his comments on the defendant's evidence, that he prefers the oral evidence on behalf of the plaintiff. But as I have stated there is no documentary evidence of title on either side and as the learned Subordinate Judge has relied upon the pattah Exhibit 4 in proof of plaintiff's possession, we cannot, in second appeal say that excluding the pattah he would have arrived at] the same conclusion on the question of possession. The learned Subordinate Judge has not also entered any finding on the issue of limitation.

5. We are therefore constrained to allow the appeal and send the case back to the lower Appellate Court for a re-examination of the evidence on record excluding the pattah, Exhibit 4, from consideration and we order accordingly. The costs will abide the result.

Cuming, J.

6. I agree.


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