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Ambica Charan Kundu and ors. Vs. Kumud Mohun Chaudhury and ors. - Court Judgment

LegalCrystal Citation
Subject Property
CourtKolkata
Decided On
Reported inAIR1928Cal893,110Ind.Cas.521
AppellantAmbica Charan Kundu and ors.
RespondentKumud Mohun Chaudhury and ors.
Cases ReferredKetabuddin v. Nafar Chandra Pattak
Excerpt:
- mukherji, j.1. this appeal has arisen out of a suit for establishment of plaintiffs' nishkar right to and for possession of 4 1/2 bighas of land which is described in sch. ka to the plaint. the plaintiffs' case was that the land in suit was their ancestral nishkar, that they and predecessors possessed the same for more than 100 years in nishkar right as well as right by adverse possession, that they and their predecessors had paid road-cess and submitted road-cess returns to the bankura colteetorate till 1905, when the collector directed them to pay the cesses to the zemindars, but the latter refused to take the cesses only and insisted on the plaintiffs taking a jamai settlement and that the plaintiffs refused to do so. the defendants resisted the claim by alleging that they had been.....
Judgment:

Mukherji, J.

1. This appeal has arisen out of a suit for establishment of plaintiffs' nishkar right to and for possession of 4 1/2 bighas of land which is described in Sch. Ka to the plaint. The plaintiffs' case was that the land in suit was their ancestral nishkar, that they and predecessors possessed the same for more than 100 years in nishkar right as well as right by adverse possession, that they and their predecessors had paid road-cess and submitted road-cess returns to the Bankura Colteetorate till 1905, when the Collector directed them to pay the cesses to the zemindars, but the latter refused to take the cesses only and insisted on the plaintiffs taking a jamai settlement and that the plaintiffs refused to do so. The defendants resisted the claim by alleging that they had been holding the lands from the time of their father for a period of over 25 years as tenants under the said zemindars and on payment of rent to them.

2. The trial Court dismissed the suit, but the lower appellate Court on appeal by the plaintiff reversed that decision and decreed the suit The defendants have preferred this appeal.

3. The District Judge found that the documents on which the defendant relied in order to show their tenancy right to the land either did not relate to it or were not reliable, having been created for the purposes of the case, and that the entry in the Record-of-Rights was of little value, its presumptive value having been rebutted by the plaintiffs' evidence. He found, on the other hand, on a consideration of the cess challans and certain other documents adduced in evidence on behalf of the plaintiffs to which it is not necessary to refer specifically, that the plaintiffs' father held some land in nishkar right in the mouzah. He found, however, that in support of the plaintiffs' title by nishkar right in respect of the two plots of which the land Schedule Ka consists, there was no documentary evidence in respect of plot 1, and the only documentary evidence that there was as regards plot 2 were a sale-certificate (Ex. 9) and two kabalas (Exs. 6 and 7) relating to adjoining lands. He found also that the oral evidence of possession of the land of Schedule Ka that was adduced on the side of the plaintiffs was immensely superior to that adduced on the side of the defendants. On the oral evidence coupled with the said documents Exs. 6, 7 and 9, he held that the defendants' evidence of possession as to plot 1 was not to be accepted. By this process of reasoning he came to the conclusion that the plaintiffs had succeeded in proving possession of both the plots without payment of rent and from this he inferred that the plaintiffs had a nishkar right to both the plots arid gave the plaintiffs a decree declaring their nishkar right and for recovery of possession.

4. The appellants contend that the documents Exs. 6, 7 and 9 are not admissible in evidence, and that the findings of the District Judge are vitiated as being based on them. It may be mentioned here that the landlords not being parties to the suit a declaration of nishkar right is of very little use to the plaintiff and if the finding of the Judge on the question of adverse possession could be held as not having been affected by the said documents to which the appellants have taken exception the decree of the Judge could have been upheld to the extent of declaring the plaintiffs' title without a determination of its precise character and of giving him khas possession. But as it is, the findings on the question of nishkar right as well as on the question of adverse possession, as already indicated, rest, partly at any rate, on the said documents and it, therefore, becomes necessary to consider the question of their admissibility.

5. Exhibit 9 is a sale-certificate in respect of an adjoining land. In it plot 1 of Schedule Ka is said to lie on the boundary of the lands to which it relates and the said plot is described as plaintiffs' nishkar. The Munsif whose signature the document bears may be and has rightly been presumed to be dead. The learned Judge is of opinion that the document is admissible under Section 32, Clause (2) and also Section 35, Evidence Act. He held that under Order 21, Rule 66, Civil P.C., a duty is cast upon the Court to specify as fairly and accurately as possible the property to be sold in the sale-proclamation and as the description of the property as given in the sale-certificate is a copy of that contained in the sale-proclamation, the entry of boundaries is to be regarded as having been made by the Munsif in the ordinary course of business and in the discharge of his official duty and the said entry, therefore, comes under Section 32; Clause (2), Evidence Act. He held also that the entry an the sale-certificate is an entry made in a public record by a public servant in the discharge of his duty and, therefore, comes under Section 35, Evidence Act, as well. The learned Judge, in my opinion, has entirely misunderstood the meaning of both these sections. Under Section 32, Clause (2) applying that part of the clause which Is relevant, the statement must be one made by a person in the ordinary source of business, or, if it is an entry, it must be an entry made by a person in books kept in the ordinary course of business or in the discharge of his professional duty. Here there is no question of an entry in any book nor is the statement in the sale-proclamation or in the sale-certificate as regards the boundaries of the land covered by them in any sense a statement of the Munsif. It is only a statement of the parties, unless there is a variance between the parties on the point, in which case it may be taken as an entry embodying a decision which may come under some other section of the Evidence Act; but there is nothing to indicate in the present case that the Munsif was ever called upon to decide as to what was the real boundary, and so the statement does not amount to a decision. Equally inapplicable is Section 35. A sale-certificate is not 'a public or other official book, register or record' and is much the same as a certificate of guardianship which has been held not to 'answer the description : Satis Chunder v. Mohendro Lal [1890] 17 Cal. 849, Hara Kumar De v. Jogendra Krishna Ray 0065/1922 : AIR1924Cal526 and Gunjra Kuar v. Albakh Pande [1896] 18 All. 478. Eecitals even in a judgment not inter partes, of a relevant fact is not admissible under Section 35 : Seethapati Rao v. RokKam Venkanna A.I.R. 1922 Mad. 71.

6. As regards the kabalas, Exs. 6 and 7, the learned Judge is of opinion that the recitals of boundaries therein are admissible under Section 32, Clause (3), Evidence Act, the executants thereof being dead. Before us their admissibility is sought to be justified also under Sections 11, 13 and 157, Evidence Act. It will be necessary, therefore, to deal with all the four sections referred to above.

7. Section 11 is very widely worded but the illustrations, as has been ofter pointed out, do not go beyond cases familiar to the. English Law of Evidence and it has been always held that an extensive meaning was not in the mind of the Legistature; per West, J. in B. v. Parbhudas 11 B.H.C.R. 90, Queen-Empress v. Vajiram [1892] 16 Bom. 414 and per Mookerjee, J., in Emperor v. Panchu Das [1920] 47 Cal. 671. As a general rule, this section is controlled by Section 32 where the evidence consists of statements of persons who are dead : and the test whether such statement is relevant, under this section though not relevant under Section 32 is this : it is admissible under Section 11 when it is altogether immaterial whether what was said was true or false but highly material that it was said : Sethna v. Mahomed Shirazi : (1907)9BOMLR1047 . Judged by this test the satement is inadmissible under Section 11, and though there are some eases of this Court which decided to the contrary the more recent decisions are not in favour of that contrary view. As regards Section 13 both my learned brother and myself have in our judgment in the case of Brojendra Kishore v. Mohim Chandra : AIR1927Cal1 expressed our views as to the precise scope of that section. That view has since been endorsed by other learned Judges of this Court and in that view recitals of boundaries in documents evidencing transactions relating to adjoining lands cannot possibly be admitted under that section. As has been pointed out in a later decision of this Court in the case of Ketabuddin v. Nafar Chandra : AIR1927Cal1 such recitals are not admissible either under Section 11 or under Section 13.

8. As regards the admissibility of these recitals under Section 32, Clause (3) there is a clear conflict of opinion so far as this Court is concerned as has been pointed out in the case last cited above. It will serve no useful purpose to discuss at length the long line of cases in which it has been held that such recitals are admissible, but I cannot help pointing out that the judgment of Couch, C.J., in Rajah Leelanund Singh v. Lakhputee Thakoorain 22 W.R. 231 upon which the Bombay High Court purported to rely in earliest case of that Court, viz., the case of Ninqawa v. Bharmappa [1899] 23 Bom. 63 which decided in favour of the admissibility of these recitals on the ground that they are against the proprietary or pecuniary interest of the maker thereof, was not a case of recitals of boundaries of any adjoining land but it was the case of a statement contained in a sannad relating to the land itself. The principle that was laid down in that case was that if as a whole it is against the interest of proprietary right of its author, such parts of it as are in his favour cannot be rejected. With all respect to the learned Judges who decided the case of Ningawa v. Bharmappa [1899] 23 Bom. 63 I find it extremely difficult to extend the principle of Rajah Leelanund Singh v. Lakhputee Thakoorain 22 W.R. 231 to the case of recitals of boundaries unless with the aid of the principle in the leading case of Higham v. Ridgway 2 Sm. L.C. 318 and I am extremely doubtful if the legislature at all intended to incorporate Higham v. Ridgway 2 Sm. L.C. 318 in its entirety in Section 32, Evidence Act. I am inclined to take the view that Higham v. Ridgway 2 Sm. L.C. 318 was taken by the Indian legislature only as illustrative of what is meant by the expression 'ordinary course of business' as used in Clause (2) of that section. These cases form the foundation of the line of cases which are in favour of admissibility of such recitals. In view of the opinion that I hold it would probably have been necessary for us to make a reference to a Full Bench but there is one clear decision at least of this Court to the contrary, and I think I am free to follow it as I agree entirely with what has been said in it mean the case of Pramatha Nath v. Krishna Chandra : AIR1924Cal1067 . I hold accordingly thatl the recitals are not admissible under Section 32, Clause (3).

9. As regards Section 157, I fail to understand how that section can be invoked to let in statements made by somebody else as evidence for the purpose of corroboration of a witness examined in the case and if the case of Ketabuddin v. Nafar Chandra Pattak : AIR1927Cal230 meant to lay down that it can be so invoked I have no hesitation in respectfully dissenting from it.

10. I am of opinion, therefore, that the recitals contained in Exs. 6 and 7 were wrongly admitted in evidence.

11. The result is that the appeal will be allowed and the case will be sent back to the lower appellate Court to re-hear and dispose of the appeal to that Court after excluding the document Exs. 6, 7 and 9.

12. Costs of this appeal will abide the result.

Cuming, J.

13. I agree.


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