1. This is an appeal by the plaintiffs tenants in a suit instituted by them against their landlord under Section 106 of the Bengal Tenancy Act. The plaintiffs seek an amendment of the Record of Rights in so far as an entry has been made therein to the effect that they are liable to pay Rs. 32-1-4gundas as rent in respect of an area of 47 bighas and odd. The Special Judge has held that the rent payable by the plaintiffs is, as alleged by them, Rs. 18-9-12 gundas, but that they are also in occupation of land not comprised within their tenancy. On behalf of the tenants, it is contended that the Special Judge had no jurisdiction to hold that they are in occupation of excess lands and that the entry, as made by the Settlement Officer, should be amended by the substitution of Rs. 19-9-12 gundas for Rs. 32-1-4 gundas On behalf of the landlord respondent, it is contended, by way of cross-appeal, that inasmuch as it has been found that the tenants are in occupation of excess lands, the inference follows that there has been an amalgamation of the lands of two tenancies as alleged by him and that consequently the entry made by the Settlement Officer should be maintained. In our opinion there is no foundation for the contention of either the landlord or the tenants.
2. The Special Judge has found that the tenants are in occupation of tend not originally comprised within their tenancy, but he has not been able to determine the precise area of such excess land. It has been argued on behalf of the appellant that the Special Judge had no jurisdiction to add a note to the effect that the tenants are in occupation of excess land and that when he found that, the entry, as made by the Settlement Officer, was erroneous, the only course open to him was to amend that entry by substituting for the rent stated by the Settlement Officer the rent alleged by the tenants. There is clearly no force in this contention. The plaintiffs have satisfied the Court that the entry made by the Settlement Officer is erroneous, it is, consequently, incumbent upon the Court to correct that entry. But there is no authority for the proposition that it is obligatory upon the Court to substitute in lieu of the entry made by the Settlement Officer another entry equally erroneous. If the contention of the plaintiffs were to prevail, the result would be that the entry in the Record of Rights would be to the effect that for 47 bighas in the occupation of the plaintiffs they are liable to pay only Rs. 18-9-12? gundas as rent. This entry, if made, would be erroneous because contrary to the facts found by the Special Judge. It was, consequently, open to the Special Judge to amend the entry and to add a note as he has done.
3. It has finally been argued on behalf of the plaintiffs that there is no legal evidence on the record to show that they are in possession of excess lands. The Courts below have relied upon a sale certificate in support of their conclusion that the tenants are in occupation of excess lands. The sale certificate was granted to the respondent landlord on the 21st January 1892 when he purchased this holding at a sale in execution (if a decree for money obtained by him against the then tenants. It has not been explained how, notwithstanding this sale, the tenants are in occupation of the lands of the holding. But it has been suggested on behalf of the landlord that possibly the landlord relented, and did not evict the tenants, in other words, that they have been allowed to continue in occupation notwithstanding the sale of their property. Whatever the true explanation may be, the sale certificate recites that the area of the holding is 20 bigha and odd. The Courts below have taken this to indicate that the tenants, when they are in occupation of 47 bighas and odd, must be in occupation of excess lands on behalf of the tenants. It has been contended that the sale certificate is not admissible in evidence against them and in favour of the landlord, because the statement of area in the sale certificate must be taken to have been based on the statement in the sale proclamation furnished by the landlord decree-holder. The argument substantially is that when the landlord relies on the entry in the sale certificate in his favour, he really takes advantage of an admission made by himself in his own favour. In support of this contention reliance has been placed upon the decision in Ramani Pershad Narain Singh v. Mahanth Adaiya Gossain 31 C. 380, which is, however, clearly distinguishable. In that case, the question in controversy was, whether the rent payable was Rs. 30-6 as alleged by the landlord or Rs. 13-8 as asserted, by the tenant. The landlord sought to use in his favour the statement in a sale certificate which, if admissible, supported his contention. It was ruled by this Court that the sale certificate could not be used for the purpose by the landlord, because the entry therein was based on an admission in his own favour by himself. In the case before us, the statement by the landlord that the tenants held under him 20 bighas of land was really not a statement in his own favour. It was a statement against his proprietary interest within the meaning of Clause (3) of Section 32 of the Indian Evidence Act. It was a statement by him in derogation of his own proprietary interest in the property. Consequently the case is covered by Sub-clause (1) of Section 21 of the Evidence Act which provides that admissions are relevant and may be proved as against the person, who makes them or his representative-in-interest, but they cannot be proved by or on behalf of the person who makes them or by his representative-in-interest, except where, amongst other cases, the admission is of such a nature that if the persons making it were dead, it would be relevant as between third persons under Section 32. In our opinion the entry in the sale certificate has been rightly used in evidence in favour of the landlord. On the merits, therefore, the contention of the plaintiffs entirely fails.
4. The cross-appeal by the landlord respondent is equally unfounded. The Special Judge has found that the tenants are in occupation of excess lands, but he has not been able to find upon the evidence in what precise manner this excess land came into their possession. He could not consequently hold that there was an amalgamation of the lands of two tenancies as alleged by the landlord. The cross-appeal thus fails equally with the appeals.
5. We may add that a preliminary objection was taken to the competency of the appeal on behalf of the landlord respondent on the ground that the decision of the Special Judge was a decision settling rent within the meaning of Clause (3) of Section 109A of the Bengal Tenancy Act and was consequently not liable to be challenged by way of an appeal to this Court. The nature of tie decision of the Special Judge makes it manifest that it was not a decision settling a rent, but rather a decision on the question of the quantity of land comprised in the tenancy. In a case of this character an appeal lies to this Court. [Akbar Ali Mian v. Musammat Hira Bibi 15 Ind. Cas. 332 : 16 C.L.J. 182]. The result is that the appeal and the cross-appeal are both dismissed and the decree of the Special Judge affirmed. There will be no order for costs.