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Pramatha Nath Choudhuri and ors. Vs. Krishna Chandra Bhattacharjee and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1924Cal1067,136Ind.Cas.140,84Ind.Cas.420
AppellantPramatha Nath Choudhuri and ors.
RespondentKrishna Chandra Bhattacharjee and anr.
Cases ReferredBrajeswari Peshakar v. Budhanudhi
Excerpt:
- .....was not admissible in evidence under the provisions of either section 11 or section 13 of the indian evidence act. the authorities, some of which are conflicting, are discussed at p. 22 of that judgment. mr. justice mookerjee who, in the case of bisheswar dayal v. harbans sahay (1907) 6 c.l.j. 659 had apparently held that a document of this nature was admissible in evidence under the provisions o sections 11 and 13 of the indian evidence act, altered his view in the decision in abdulla v. kunj behari lal (1911) 16 c.w.n. 252, where he held that a document of this nature was not admissible in evidence under the provisions of sections 11 and 13 of the indian evidence act, thus differing from the view which he had previously expressed. both the cases in saroj kumar acharji choudhuri v......
Judgment:

Greaves, J.

1. This is an appeal by the defendants. The suit was one for declaration of title to and for possession of a certain plot of land. Both the lower Courts have decreed the suit in the plaintiffs' favour. The judgments of both the Courts are attacked on the ground that it is said that a document between third parties, namely, a kabuliyat, Exhibit 4, was admitted and wrongly admitted as evidence in the suit. This document Exhibit 4 purported to show that the land with which it is concerned was bounded by some of the lands in suit which were therein described as brahmattar lands, another plot being described as Ishan's brahmattar. There is no doubt that, if this document Exhibit 4 is admissible in evidence, it supports the plaintiffs' contention, and the judgments of both the lower Courts are correct. But, in our opinion, this document Exhibit 4, which was between third parties, was not admissible in evidence either as regards the question of the boundary or as to the nature of the land, namely, that it was brahmattar a ad Ishan's brahmattar. We agree with the decision in Saroj Kumar, Acharji Choudhuri v. Umed Ali Howladar A.I.R. 1922 Cal. 251, where it was decided that a document of this nature was not admissible in evidence under the provisions of either Section 11 or Section 13 of the Indian Evidence Act. The authorities, some of which are conflicting, are discussed at p. 22 of that judgment. Mr. Justice Mookerjee who, in the case of Bisheswar Dayal v. Harbans Sahay (1907) 6 C.L.J. 659 had apparently held that a document of this nature was admissible in evidence under the provisions o Sections 11 and 13 of the Indian Evidence Act, altered his view in the decision in Abdulla v. Kunj Behari Lal (1911) 16 C.W.N. 252, where he held that a document of this nature was not admissible in evidence under the provisions of Sections 11 and 13 of the Indian Evidence Act, thus differing from the view which he had previously expressed. Both the cases in Saroj Kumar Acharji Choudhuri v. Umed Ali Howladar A.I.R. 1922 Cal. 251 and Abdullah v. Kunj Behari Lal (1911) 16 C.W.N. 252 must be taken to overrule the decision in Dwarka Nath Bakshi v. Mukunda Lal choudhuri (1906) 5 C.L.J. 55, where it was held that a document of this nature was admissible under the provisions of Sections 11 and 13 of the Indian Evidence Act. It only remains to refer to a passage in Abdullah v. Kunj Behari Lal (1911) 16 C.W.N. 252 where Mr. Justice Mookerjee seems to think that although such a document is not admissible under the provisions of Sections 11 and 13 of the Indian Evidence Act, it may be admissible under the provisions of Section 32 of that Act. But, with great respect to that learned Judge, the reasoning by which he arrives at this view does not seem to me at all conclusive, and I find great difficulty in seeing how a mere description of boundaries in a document between third parties can be said to be a statement against the proprietary interest of the person making it. It may well be that, for some ulterior purpose boundaries may not be correctly described in a document, and, if this is so, how a statement of that nature can be said to be against the proprietary interest of the person making it, it is somewhat difficult to ascertain.

2. I think that the law is correctly stated, if I may say so, in the decision in Saroj Kumar Acharji Choudhuri v. Umed Ali Howladar A.I.R. 1922 Cal. 251 to which I have already referred, and I am not prepared to say that the document Exhibit 4 is admissible in evidence under the provisions of Section 32 of the Indian Evidence Act.

3. I wish to say in passing that it does not appear in the case of Saroj Kumar Acharji Choudhuri v. Umed Ali Howladar A.I.R. 1922 Cal. 251, whether the executant of the document was dead or not.

4. In the present case the executant of the document is dead; but even so, for the reasons which I have already stated, I do not think that the document is admissible in evidence under the provisions of Section 32 of the Indian Evidence Act.

5. This disposes of the matter. The appeal is accordingly allowed, the decree of the lower Appellate Court is set aside, and the case is sent back to that Court in order that the learned Judge may deal with the appeal upon the evidence on the record excluding Exhibit 4 from consideration. Costs will abide the result.

6. I may add that it seems to us that the law was correctly laid down many years ago in Brajeswari Peshakar v. Budhanudhi (1880) 6 Cal. 268, where the learned Chief Justice Sir Richard Garth in deciding a difference of opinion between two other learned Judges stated:

A recital in a deed or other instruments is in some oases conclusive, and in all oases evidence as against the parties who make it. But it is no more evidence as against third persons than any other statement would be.

Chakravarti, J.

7. I agree.


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