1. This appeal, which has been preferred by the plaintiff, arises out of a suit in which the plaintiff claimed paddy-rent from the defendant and the defendant contended that the rent that he had to pay was not paddy-rent but money-rent at Rs. 2. per year. The suit was decreed by the Court of first instance and that decree has been upheld by the lower Appellate Court.
2. Two points that have been urged on behalf of the appellant : Firstly, that the learned Subordinate Judge in arriving at his finding on the question as to whether the rent that was payable for the holding was paddy-rent or rent at Rs. 2 per year, as alleged on behalf of the parties, relied on a recital contained in a document Ex. 3 which is not admissible in evidence as against the present plaintiff; and secondly, that in arriving at the said finding the learned Judge has omitted to take into consideration the evidence that there is on the record relating to the payment of produce rent by the defendant to the plaintiff.
3. So far as the first point is concerned, the document, Ex. 3, is an order for delivery of possession. The statement to which an objection is taken appears, in the schedule attached to that order in which after describing the jama it is stated that the rent for it is Rs. 2 per year. In support of this contention reliance has been placed upon the case of Pramatha Nath Choudhuri v. Krishna Chandra Bhattacharjee 84 Ind. Cas. 420 : 28 C.W.N. 1092 : (1924) A.I.R. (C.) 1067 The whole law on the subject has been fully discussed in that case and although the document the subject-matter of that decision is different from the one with regard to which an objection has been taken in the present case and in that respect that case is distinguishable from the present one, it cannot be said that the present document comes under the provisions of the Indian Evidence Act relating to the admissibility, of documents. The circumstances under which the statement came to be made in that document do not appear and it is not possible to say either that the statement amounts to an admission or that it is such that it comes either under Section 11 or Section 13 of the Indian Evidence Act. In our opinion the statement is not admissible in evidence in the present case.
4. So far as the second ground urged on behalf of the appellant is concerned it appears that there is some evidence to the effect that the paddy-rent was paid by the defendant or his predecessor to the plaintiff. What the value of that evidence is it is not for us to assess; but the learned Subordinate Judge was certainly wrong in observing in his judgment, as he has observed, that there is no evidence to prove that Askar or after him the defendant delivered produce to the plaintiff. The judgment of the learned Subordinate Judge must, therefore, be set aside and we accordingly do set it aside and send the case back to his Court in order that the document, Ex. 3, be excluded as being inadmissible and the appeal dealt with afresh after taking into consideration the evidence to which I have referred. Costs will abide the result.
5. I agree.