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Satindra Kumar Chaudhury and anr. Vs. Krishna Kumari Chaudhurani and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in36Ind.Cas.882
AppellantSatindra Kumar Chaudhury and anr.
RespondentKrishna Kumari Chaudhurani and ors.
Cases ReferredKashi Nath Pal v. Jagat Kisore Acharjee Chowdhury
Excerpt:
evidence art (i of 1872), sections 13(a), 32(1), 43 - judgment not inter partes, recital in, if evidence--will, statement by deceased testator in, on title, admissibility of. - .....and the recital in the judgment exhibit x in the claim case not inter partes is also not evidence. see basi nath pal : kashi nath pal v. jagat kisore acharjee chowdhury 35 ind. cas. 298 : 23 c.l.j. 583 : 20 c.w.n. 643 the finding on the first point, therefore, is not a legal finding. the finding on the second point, however, on the question of possession for more than 12 years is conclusive in second appeal and is sufficient to support the judgment of the lower appellate court. the appeal is, therefore, dismissed with costs.
Judgment:

1. The plaintiffs claimed recovery of possession of certain lands as their niskar brahmatter and also by right by adverse possession. The Court of first instance dismissed the suit: the Court of Appeal has decreed it, holding that the brain mater title is proved and that the plaintiffs had proved possession for about 15 years from 1275 to 1292 Faslis and again 1303 to 130 Faslis and that the defendants intermediate possession from 1292 to 1303 Faslis for less than 12 years was of no avail as against the right of the plaintiffs. The principal defendants appeal, and on their behalf it has been contended that the finding on the first point is vitiated in that it is founded upon inadmissible evidence. The recital of brahmatter title in the Will of the plaintiffs predecessor is not admissible under Section 32(1) of the Evidence Act read with Section 13(a), and the recital in the judgment Exhibit X in the claim case not inter partes is also not evidence. See Basi Nath Pal : Kashi Nath Pal v. Jagat Kisore Acharjee Chowdhury 35 Ind. Cas. 298 : 23 C.L.J. 583 : 20 C.W.N. 643 The finding on the first point, therefore, is not a legal finding. The finding on the second point, however, on the question of possession for more than 12 years is conclusive in second appeal and is sufficient to support the judgment of the lower Appellate Court. The appeal is, therefore, dismissed with costs.


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