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Kangali Molla Vs. Beni Madhab Biswas and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in34Ind.Cas.534
AppellantKangali Molla
RespondentBeni Madhab Biswas and ors.
Cases ReferredAbdullah v. Kunja Behari Lal
Excerpt:
evidence act (i of 1872), sections 18, 32(3) - sale--statement by vendor as to ownership of lands mentioned as boundaries--admissibility--statement against interest--evidence, failure to object to relevancy, effect of, in appeal. - .....exhibit l. that document contains a statement of the plaintiff's vendor who is not a party to this suit, a statement which was made before the plaintiff had any interest in the jole of ramdhupi. any statement made by his vendor as to the ownership of the land on the west of the land sold would be a matter of the utmost indifference to the plaintiff. it would not matter to him whether this land belonged to a or b or c. the question is, whether this statement of his vendor is either admissible or relevant in this suit. as regards admissibility it has been said that it was admitted without any objection in the trial court and the plaintiff cannot now object to its being on the record. that is a correct view of the position as to admissibility: see shahzadi begam v. secretary of state 34 c......
Judgment:

1. The plaintiff purchased a piece of land in 1898 by Exhibit L, and his vendor described the land sold as bounded on the west by the land of Jagat Biswas, the predecessor of the defendants. In 1902 the plaintiff purchased the jote of Ramdhupi in execution of a rent-decree. The plaintiff says the land appertains to Ramdhupi's jote and is within his purchase, the defendant says it is his land in another jote. The Record of Rights being in favour of the defendants, the plaintiff had to rebut the presumption in favour of the record. The Trial Court held that the plaintiff had succeeded in rebutting the presumption. But the lower Appellate Court says the plaintiff has failed to rebut the presumption. This is obviously a question of fact and would ordinarily be final. It is contended, however, that in arriving at this finding the lower Appellate Court has made use of evidence which is not relevant and otherwise erred in applying the law of evidence, and we cannot say how far or how much the lower Court has been influenced by this piece of evidence in arriving at its finding. This piece of evidence is Exhibit L. That document contains a statement of the plaintiff's vendor who is not a party to this suit, a statement which was made before the plaintiff had any interest in the jole of Ramdhupi. Any statement made by his vendor as to the ownership of the land on the west of the land sold would be a matter of the utmost indifference to the plaintiff. It would not matter to him whether this land belonged to A or B or C. The question is, whether this statement of his vendor is either admissible or relevant in this suit. As regards admissibility it has been said that it was admitted without any objection in the Trial Court and the plaintiff cannot now object to its being on the record. That is a correct view of the position as to admissibility: see Shahzadi Begam v. Secretary of State 34 C. 1059 (P.C.) : 2 M.L.T. 439 : 9 Bom. L.R. 1192 : 6 C.L.J. 678 : 34 I.A. 194. But is it relevant? In the case of Miller v. Babu Madho Das 19 A. 76 at p. 92 : 23 I.A. 106 : 7 Sar. P.C.J. 73 their Lordships of the Privy Council say that the erroneous omission to object to the admission of a certain piece of evidence in the lower Court did not make it relevant. That was, however, in respect of a document which could not have been proved by the party who was allowed to prove it, the document was per se irrelevant under the Evidence Act. See Girindra Chandra Ganguli v. Rajendra Nath Chatterjee 1 C.W.N. 530. We have to see, therefore, whether Exhibit L is per se irrelevant or could it have been proved against the plaintiff if he had objected to it. The learned Judge has in one place referred to it as an admission. Statements of a person from whom the parties to the suit have derived their interest in the subject-matter of the suit are admissions under Section 18 of the Evidence Act. But the land conveyed by Exhibit L is not the subject-matter of this suit and, therefore, the statement of the plaintiff's vendor cannot go in as an admission. The statement though not relevant as an admission may, however, be relevant under Section 32, Clause 3, as a statement against interest which has been held to be evidence against strangers. It was so held in the case of Leelanund Singh v. Musammat Lakh-puttee Thakoorain 22 W.R. 231 and lately in the case of Abdullah v. Kunja Behari Lal 12 Ind. Cas. 149 : 14 C.L.J. 467 : 16 C.W.N. 252. ' If it is relevant we have no concern in second appeal with the question of the weight to be attached to the document. It is true the learned Judge in one part of his judgment says of the document that it 'proves conclusively that this land was never Ramdhupi's' etc., but later on he says 'which goes a very long way in disposing of the plaintiff's case.' The use of the words 'proves conclusively', therefore, must be considered as a wrong use of a legal expression which is defined in the Evidence Act.

2. In this view of the matter, we would dismiss the appeal but without costs in this Court, as the misuse of the words 'conclusive' and 'admission' may have encouraged the appeal.


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