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Calcutta High Court
Sm. Kumuda Kumari Dasi vs Dilsook Roy on 24 November, 1926
Equivalent citations: AIR 1927 Cal 918, 101 Ind Cas 542
Author: Duval


Duval, J.

1. These four appeals arise out of four suits brought by the plaintiff to eject certain persons as being tenant-at-will holding over after notices to quit. The plaintiff’s case is that the lands in these suits are niskar lands of one Gopal Chandra, Mitra and that they have come into the plaintiff’s possession by various deeds of transfer. But they are homestead lauds in which the defendants had no permanent right and, therefore, notices were served on them to quit and as the defendants have not removed, these suits have been brought. The defence is that these lands are not niskar lands at all but are mal lands of the Dighapatia Raj and are held at present under Kumar Sarat Kumar Roy of Dighapatia by the defendants as tenants.

2. The first Court gave a decree in favour of the plaintiff for ejectment and for certain other reliefs. The Subordinate Judge in a most elaborate judgment has confirmed the decision of the Munsif as to ejectment, confirming, but varying his order in respect of back rent claimed. In appeal to this Court three points are taken.

3. The first point which I would take up is, however, the only material one in this appeal. It appears that the learned Subordinate Judge came to his findings on a consideration of a very large amount of evidence, and among that mass of evidence which he considered were two Exs. 13 and 22. Ex. 13 was a kobala by which certain lands to the south of the lands now in s it were purchased by one of the predecessors of the plaintiff from the widow and the son of Debendra Sarkar and in that document the disputed land is described as belonging to Gopal Mitter. Similarly by Ex. 22 which is also a kobala and dated 10th June 1908 one Rameswar Khemaka purchased lands on the boundary of the disputed lands and there the disputed land is described as Gopal’s niskar. Rameswar is examined in the case and he speaks of the lands he purchased as being adjacent to and bordering on the lands in suit; he says tint the land in suit is Gopal Mitter’s and he also supports his evidence by referring to his title deeds, his vendor being dead.

4. Now it is argued in accordance with a long series of rulings the last of which appears to be the case of Braja Mohan Das Adhikary v. Gaya, Prasad Karan A.I.R. 1926 Cal. 948, that recitals of boundaries of lands other than those in suit, contained in documents between third parties who are strangers to the suit are not admissible and cannot be relied upon in evidence. No doubt there are some earlier decisions by which such documents have in certain cases been admitted, but so far as I can see the whole trend of the recent authorities of this Court is that documents of this description cannot be received as evidence in respect of lands to which they do not relate. The question, therefore, arises whether the admission or the consideration of these two documents by the learned Subordinate Judge has vitiated, his decision. It is urged for the defence, however, that even though these two documents “may not have “been rightly admitted, apart from them the learned Subordinate Judge came to an independent decision that these lands were Gopal Mitter’s which have been subsequently purchased by the plaintiff as the niskar lands. Now before he discusses the value of the kobala Ex. 13, he has said that the whole evidence shows that the disputed lands did belong to Gopal Mitter’s and that Gopal’s widow, Kakumoni used to realize rent from the defendants in respect of these lands After that he goes into a long disquisition as to the value of Ex. 13 and discusses its admissibility in evidence. So it is perfectly clear that he did put considerable value on the recitals in these two exhibits. In this view in my opinion this evidence might have seriously influenced the Subordinate Judge in coming to the decision he has arrived at. I consider, therefore, that it is necessary to set aside the judgment of the Subordinate Judge and to remand the case to that Court for rehearing after excluding these two exhibits from its consideration.

5. Two other points are raised with which I shall now deal. It is urged that the defendants summoned production from the Kundu Chowdhury Babus of a certain chitta of 1868. The chitta was produced but the learned Munsif refused to take it into evidence. It is urged that the chitta proved itself and it should have been received in evidence. But the learned vakil for the appellant has been unable to show us that there was any evidence to prove the chitta or what was its value and I do not think that we can say that its rejection was in the circumstances improper. It was merely produced on summons and so far as I can see no further proof was given in support of it, (not even as to who wrote it) in the first Court. I, therefore, consider there is no ground for ordering that in the rehearing of the appeal this document should be taken into consideration.

6. Thirdly, it appears that an application was vide for leave to produce in the appellate Court a certain decree on the ground that this piece of evidence had only been discovered after the decision of the Munsif and before the case came up for hearing before the Subordinate Judge. The Subordinate Judge rejected this application. In my opinion he was perfectly justified in doing so. It was difficult in appeal to test the value of such a document at that late stage and, therefore, the Subordinate Judge was unable to accept it. In this point too I would uphold the decision of the Subordinate Judge.

7. The result then is that the decree of the Subordinate Judge is set aside and the appeals sent back to that Court for a retrial after taking into consideration the observations made above. Costs to abide the result.

8. Let the hearing be expedited in the lower appellate Court. Let the record be sent down at once.

Mitter J.

9. I agree. I only desire to add that the two documents Exs. 13 and 22, which the appellant contends, are not admissible, are documents to which the present defendants were no parties. The inadmissibility of the documents depends on the general principle that if a party is not bound by the recital in an instrument to which he was no party, the document will not be allowed to affect his rights in any way. The general principle is well stated in a passage in Mr. Justice Wood roffe’s well-known treatise on the Law of Evidence at p. 729. The learned author there says:

A recital in a deed or other instrument is in some cases conclusive, and in all cases evidence as against the parties who make it, and those who claim under them and it is of more or less weight or more or less conclusive against them according to circumstances. It is a statement deliberately made by those parties, which like any other statement is always evidence against the persons who make it. But it is no more evidence as against other persons than any other statement would be.

10. As an authority for this proposition the learned author cites the well-known decision of Brojeshware Peshakar v. Budhanuddi [1880] 6 Cal. 268. That was the view which was accepted in this Court for a long time. The case of Imrit Chamar v. Sridhar Pandey [1911] 17 C.W.N. 108, which laid down that recital of boundaries in the lease was admissible against a person not a party took the contrary view. There have been later decisions which have not accepted this latter view and the trend of the recent decisions is not to admit evidence which bas been offered in the case and the reception which in evidence is objected to, viz. Exs. 13 and 22 either under Section 13, Indian Evidence Act, or under any other section of the Act. With reference to Ex. 22 it has been contended on behalf of the respondent that the executants of the document is dead, and if the recital is not admissible either under Section 9, 11 or 13, Evidence Act, it is at any rate admissible under Section 32 Clause (3), Indian Evidence Act. But I fail to see how the statement that certain other, lands lie on the boundary of the lands forming the subject-matter of the document can be regarded as having been made against the pecuniary or proprietary interest of the persons making it within the meaning of Sub-section (3), Section 32, Evidence Act. I am, therefore, inclined to follow the later decisions to which reference has already been made by my learned brother and, therefore, agree in the order of remand which he has just now made.

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