1. This is an appeal by the defendant against a decision of the Additional Subordinate Judge at Nadia affirming the decision of the Munsif of Kushtea. The suit was brought for a declaration that the lands appertained to the jote of the plaintiff held by her under one Bama Sandari and that the defendant was a tenant under her at a rent payable in kind. There was a clear and definite finding made by the learned Judge of the lower Appellate Court, quite apart from the question of the chitta and the exchange, that the defendant held on barga the disputed land under the plaintiff. If that finding is not displaced there is nothing to say in the case. The appeal has been argued on two points. First of all there was the point that the exchange had not been proved. I do not know that having regard to the finding of fact it was necessary to prove the exchange. That, in any case, was merely a formal omission and probably, as Mr. Roy Chowdhury said, it was overlooked by everybody, as the learned Judge was trying four cases at one time. I suppose, not only a Judge but everybody else cannot do more than one thing at the same time and when one tries four oases at the same time he is liable to make some such slip. However, I do not think the question of exchange, having regard to the finding as to the relationship of landlord and tenant, is material to the case. If that relationship is established, as the defendant is, in fact in possession of this land in barga the rent being partly in kind, it does not matter whether the plaintiff got the land by exchange or not.
2. The other point is a much more serious point and this is as to the admissibility of what is called a private chitta under the provisions of the Indian Evidence Act. The chitta was, as the learned Judge remarks, a very old one. It is objected that these chittas are not admissible in evidence under any circumstances and, therefore, whatever conduct the appellant might have been guilty of in the lower Courts in arguing the case and in conducting the case both before the Judges and the Commissioner with reference to the chitta, yet as the document is absolutely excluded from evidence under the provisions of the Indian Evidence Act, the matter having been taken into consideration by the learned Judge, his decree cannot stand. Of course, that is putting the ease far too high. It may be that as against the objecting defendant a private chitta cannot be given in evidence without his consent, although the text-book writers suggest that these private chittas can be given in evidence under the terms of Section 13 of the Indian Evidence Act. We all know that Section 13 of the Indian Evidence Act has secured a very wide interpretation, probably in some cases too wide. We may take it substantially that most things that one cannot get in under any other Section of the Indian Evidence Act can be got in under Section 13. Having regard to the authorities it is very difficult to say that the document is not admissible. I am not prepared as at present advised to dissent from Mr. Roy Chowdhury's argument that these documents, although the text-book writers say that they are admissible under Section 13, are not so. I think there are strong reasons for saying so. However, in this case, the document went in without objection. The Commissioner and the two Judges acted on it. It is quite impossible now at this stage to destroy the whole of the proceedings that have taken place on the terms of the chitta and' to say that the whole suit must be tried again from its inception. I think, having regard to the finding about the defendant holding the land in dispute on barga, we should support, although not without some difficulty, the judgment appealed from and dismiss the appeal with costs.
3. I agree.