1. In these six cases the appellants were sued by the respondent for bhaoli rent due in respect of the years 1902 to 1905. In all of them except that brought against Dwarka Mahto and others which will be dealt with separately hereafter, the Court of first instance found that the landlord had signally failed to prove his claim and decreed the suits at the rate of Nakdi rents alleged by the tenants. In its judgment the oral evidence adduced by the plaintiff was shown to be “quite unsatisfactory,” the jamabundis and chittas were discredited and held to be valueless; the teiskhana papers filed were likewise discarded, and the remaining documents relied upon, being Road Cess returns which had been made in 1888 by other tenants of the same mauza in the capacity of ticcadars and, therefore, qua landlords, were rejected as being no evidence whatever against the appellants. The lower appellate Court, however, while leaving untouched all the other findings of the first Court as described above, held that the Road Cess returns, although not binding upon the appellants, were nevertheless “admissions” constituting “valuable evidence as to what the rent was;” and on the strength of them alone the appeals were allowed, the decrees appealed against were reversed, and decrees following the returns were granted.
2. These second appeals are by the tenants: and on their behalf it is contended–(1) that the Road Cess returns ought not to have been taken into account at all, their reception as evidence save against the individual by whom or on whose behalf they were filed, being absolutely barred by Section 95 of the Cess Act, 1880 (Bengal Act IX of 1880), and (2) that, apart from the provisions of the section just quoted and under the general law, the returns in question are no evidence against the appellants in these cases.
3. To the first contention 1 am unable to yield. Section 95 of the Cess Act lays it down that returns made under it “shall be admissible as evidence against such person (i.e., the person by or on whose behalf they were filed), but shall not be admissible in his favour.” It does not enact that such a return shall be admissible only as evidence against the maker, and the first part of the provision is clearly declaratory, but not exhaustive. Moreover it is impossible to argue to the contrary in the face of the judgment of the Judicial Committee in Hem Chunder Chowdhry v. Kali Prosunno Bhaduri 8 C.W.N. 1 (P.C.), which has been referred to by the learned District Judge in the lower appellate Court. But the second contention must, in my opinion, prevail. The Privy Council ruling cited above, although it is a clear authority for overruling the appellants on the first point taken, is no authority for holding that in these cases the returns relied upon had any evidential value; for the facts are easily distinguishable. Admissions made by a defendant’s fellow tenants (especially when they were made by them not qua tenants but qua landlords, and when it is denied that the makers are dead and there is no finding to the contrary) are to my mind no evidence whatever against the defendant; and if that be so, the learned District Judge has–see Shivabasava v. Sangappa 29 B. 1 at p. 12–erred in law, and appeals Nos. 244 and 262 to 265 must be allowed. The decrees of the lower appellate Court in these cases will be discharged; those of the Court of first instance will be restored, and the appellants will be entitled to their costs throughout.
4. The case of the appellants Dwarka Mahto and others (Appeal No. 261) stands in a totally different footing; for the Road Cess return here made the basis of the decree by both the Courts below, was filed by Dwarka himself, and I am concluded by the findings of fact on the record. This appeal will, therefore, be dismissed with costs.