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Perma Roy and anr. Vs. Kishen Roy and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in(1898)ILR25Cal90
AppellantPerma Roy and anr.
RespondentKishen Roy and ors.
Cases ReferredMohi Chowdhry v. Dhiro Misrain
Excerpt:
evidence act (i of 1872), section 35 - 'butwara khasra'--estates partition act (bengal act viii of 1876), section 54--measurement papers, entry made in--'record.' - .....first being a plaint, the second, an application for the execution of a decree, and the third, a butwara khasra. the first two of these documents are said to be admissible in evidence under the provisions of section 32, clause 7, of the indian evidence act read in connection with section 13, clause (a) inasmuch as it is said that they contain statements by one gulzar, who is dead, to the effect that the plaintiffs' land is to the west of gulzar's land and is bagar land. it must here be noted that the statement of the land being west of gulzar's land, and being in possession of the plaintiff's, is only to be found in the second document, the application for execution of a decree. in the other document, the land is merely described as bagar land.3. now, the learned district judge has.....
Judgment:

Rampini and Stevens, JJ.

1. This is a suit in which the plaintiffs seek to establish their title to and to recover possession of certain land. The Lower Appellate Court has given them a decree for the northern half of the land in suit, but has dismissed their claim to the southern half of it.

2. The plaintiffs now appeal to this Court, and on their behalf it has been urged that the Lower Appellate Court has erroneously excluded from evidence three documents, the first being a plaint, the second, an application for the execution of a decree, and the third, a butwara khasra. The first two of these documents are said to be admissible in evidence under the provisions of Section 32, Clause 7, of the Indian Evidence Act read in connection with Section 13, Clause (a) inasmuch as it is said that they contain statements by one Gulzar, who is dead, to the effect that the plaintiffs' land is to the west of Gulzar's land and is bagar land. It must here be noted that the statement of the land being west of Gulzar's land, and being in possession of the plaintiff's, is only to be found in the second document, the application for execution of a decree. In the other document, the land is merely described as bagar land.

3. Now, the learned District Judge has rejected these documents and has excluded them from the evidence in the case on the ground that, although Gulzar may be dead, yet these documents do not come within the provisions of Section 13, Clause (a), of the Evidence Act, as they are not transactions in which any right of the plaintiffs has been recognised or asserted. We certainly agree with the learned District Judge in this view of the case. There is no recognition of the plaintiffs' right in any land in these documents, and even if there were any such recognition, we do not see how they could have any weight. Such admissions made by a third party as Gulzar was, could hate no weight at all.

4. The third document, which the learned District Judge has excluded from evidence, is a butwara khasra prepared under the provisions of Section 54 of the Bengal Act VIII of 1876, that is, the Estates Partition Act. It is contended that this document is admissible in evidence under the provisions of Section 35 of the Indian Evidence Act, and certain rulings have been cited before us, both for and against this contention, namely, the rulings in the cases of Gopal Chunder Shaha v. Madhub Chunder Shaha (1873) 21 W. R. 29 Mohi Chowdhry v. Dhiro Misrain (1880) 6 C. L. R. 139; Govindrao Deshmukh v. Ragho Deshmukh (1884) I.L.R. 8 Bom. 543 and Taru Patur v. Abinash Chunder Butt (1878) I.L.R. 4 Cal. 79.

5. The only rulings which we think are applicable are Govindrao Deshmukh v. Ragho Deshmukh (1884) I.L.R. 8 Bom. 543 and Mohi Chowdhry v. Dhiro Misrain (1880) 6 C. L. R. 139. But the former case is not on all fours with the present case, inasmuch as it relates to statements by Survey Officers contained in an extract from a village register of lands. The document referred to in that case is not of the nature of the butwara khasra in dispute here. The other case, however, namely, the case of Mohi Chowdhry v. Dhiro Misrain, (1880) 6 C. L. R. 139, seems to us to be exactly in point, and it lays down that measurement papers prepared by a butwara Amin deputed by the Collector to make a partition do not come within Section 35 of the Evidence Act.

6. Applying this ruling to the present case, it is clear that this butwara khasra has been rightly excluded from evidence by the learned District Judge, and independently of that ruling we think that the butwara khasra in question cannot come within the provisions of Section 35, inasmuch as it is not an official book, register, or record, such as is referred to in that section. The 'record,' it is clear, must be ejusdem generis, or of the same class, with the 'official book' and 'register' referred to immediately before, and we do not think a butwara khasra is such a record as is contemplated by Section 35 of the Indian Evidence Act. Moreover, it would also appear that even if it was a record, the entry as to the possession of the plaintiff is not an entry which the Amin had to make under the provisions of Section 54 of Bengal Act VIII of 1876, because all that the Amin, or rather the Deputy Collector, who is referred to in this section, is authorised to make is the measurement of the land comprised in the estate to be divided and a rent roll; but the section, as far as we can see, does not authorize him to make any entry as to the names of the parties in possession of the land which he measures.

7. For these reasons, then, we think that the learned District Judge has not committed any error in law in excluding these three pieces of documentary evidence, and we accordingly dismiss this appeal with costs.


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