1. This is an action in ejectment, in which the plaintiffs, Shoshi Bhooshun Bose and another, sought to obtain a parcel of land from Girish Chunder Mitter and others.
2. The plaintiffs succeeded in the first Court; but on appeal the learned Subordinate Judge came to an opposite conclusion, and dismissed the suit. In dealing with the case he rejected certain documents; and it is in connection with the rejection of these documents that this case comes before us in second appeal.
3. The first documents in the order of time which have been rejected by the Lower Court may be said to be two kabuliats
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4. The next are extracts from what is called the Collector's register, kept under Bengal Act VII of 1876. Under that Act, the Collector is directed to keep up a register; and the form is set forth at page 28 of the Paper Book. It contains the name of the estate, its towji number, the names of the proprietors or managers, and other particulars regarding the estate, with a statement of their character and extent. In that register there were entries showing that Abdul Rohim and others obtained by inheritance proportionate shares in chuck Boroda Belpara. These extracts were tendered in evidence, and the Judge in the Court below was of opinion that they were not evidence either of possession or of title. It is, however, contended by the appellants that they are admissible under Section 35 of the Evidence Act, but they have been repudiated by the respondents, upon the authority of the case of Saraswati Dasi v. Dhanpat Singh I.L.R. 9 Cal. 431, in which it was held that such entries are not admissible under Section 35 of the Evidence Act. No doubt in that case, before the late Chief Justice and Mr. Justice FIELD, the learned Chief Justice did state that that was his view; but that view was not acquiesced in by Mr. Justice Field, and it is also opposed to a decision of the Privy Council (See Lekraj Kuar v. Mahpal Singh I.L.R. 5 Cal. 744 : L.R. 7 I.A. 63.
5. We also understand that in the Court below the quinquennial papers were considered as not admissible in evidence; but upon the view we take of the matter, it will be necessary for the Court below to consider these also in dealing with the whole case. * * * *
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6. We do not in any way express any opinion as to the value of these several pieces of evidence.
7. The case must therefore be sent back to the Lower Appellate Court for re-trial.
8. Costs will abide the result.