1. The land in suit in this case originally belonged to one Bado Mondol. He died leaving three sons, Kalu, Talewar and Akal. It has been found that they succeeded to equal shares in the property and that the shares of Talewar and Akal have come to the plaintiffs, although within these shares there is one share, namely, one-sixth which the defendants held as under-tenants. The share of Kalu has come to the defendants.
2. The defendants appeal and on their behalf it is argued that the plaintiffs' title has not been proved to the one-third share of Talewar.
3. This contention, in ray opinion, must succeed. It is proved that the share of Talewar came ultimately to Giridhari Lal and it is said that he sold it to the plaintiffs by a registered deed. That deed, however, is not produced and so far as we know, no foundation has been laid for the admission of any secondary evidence with respect to it. It appears to me, therefore, that no evidence of that sale can be adduced under Section 91 of the Evidence Act and that being so, the plaintiffs' title to the share must be regarded as not proved.
4. The Courts below have held that this defect is cured by the fact that Giridhari Lal supports the plaintiffs. That, however, does not justify secondary evidence of the document against the defendants under Section 65, Clause (b), of the Evidence Act.
5. Reference has been made to the case of Lal Achal Ram v. Raja Kazim Husain Khan 9 C.W.N. 477 : 27 A. 271 : 8 O.C. 155 : 15 M.L.J. 197 : 32 I.A. 113. That case, however, has no application. The principle laid down in that case, if I understand it aright, is that when a transaction which is voidable is admitted by the person who is entitled to avoid it, it cannot be questioned by a third party. But certainly that case cannot, in my opinion, be invoked practically to repeal Section 54 of the Transfer of Property Act and Section 91 of the Evidence Act.
6. It has been suggested that we should give the plaintiffs another opportunity of producing this deed. Seeing, however, that the case was instituted in 1909 and that the absence of this deed has been commented on by both the Courts below, I certainly do not think that the plaintiffs should have another chance of producing a document which they were too negligent to file at the proper time. This point, therefore, must, in my opinion, be decided in favour of the appellants.
7. The second point taken is that the plaintiffs are estopped from questioning the defendants' rights. Apparently Akal Lal on the same day sold one-third share to one Gora Lal Sahu under whom the plaintiffs claim and another one-third share to Isak Lal under whom the defendants claim; and the kobala of Isak Lal is recited in that of Gora Lal and vice versa. It is, therefore, contended that the plaintiff who claims under Gora Lal cannot dispute the kobala in favour of Isak Lal. This contention, however, appears to me quite untenable. It is evident from the judgments of the Courts below that this question of estoppel was never put in issue. There appears to be nothing to show that the position of Kalu was in any way affected by the execution of this kobala in favour of Gora Lal. The learned Vakil who appears for the appellants is unable to assure us that there is any evidence that Isak Lal would not have bought the land covered by his kobala if the kobala in favour of Gora Lal had not been executed. The main element, therefore, to justify a plea in estoppel is wanting : and further it is evident that a plea of this nature, which ultimately depends on questions of fact, ought to be put clearly in issue.
8. Thirdly, it is contended that the defendants are entitled to retain possession of the land as raiyats. This, however, does not appear to have been seriously contested in the Court below. The Judge says: 'The defendants Nos. 1 to 4 were also under-tenure-holders, but only in respect of the 2-annas 8-pies share of which they had taken settlement from Mohan Lal under the kabuliat.' It was argued that the position of the defendants with respect to the lands which they cultivated personally was different from their position with respect to the lands which they let to tenants. But this is clearly erroneous. Their title to these lands was precisely the same and if it failed with regard to the tenanted lands, it must also fail with regard to the cultivated lands.
9. The appeal will, therefore, be partly decreed and the suit will be dismissed with respect to the 1/3rd share said to have descended from Talewar. Otherwise the decree of the lower Court will be confirmed. Having regard to the proportion of success, we pass no order as to costs.
10. I agree.