1. The appellant is the plaintiff. The Church of Our Lady of Immaculate Conception, Urva, Mangalore town, represented by the Priest and the President of the Board of Administration of the said Church, the present incumbent being Rev. Father V. D’Souza. It is a Roman Catholic Church. The subject-matter of the suit is the land survey No. 57/12 measuring 60 cents situate in Boloor village in Mangalore Town. According to the case of the plaintiff the suit property along with the property lying to its west, namely, survey No. 57/6 was purchased by the plaintiff Church from one Anthony Kamthialias Souza, under a registered sale deed dated 14-2-1869. The patta of the suit land continued to stand in the name of the vendor and the plaintiff was paying the assessment of the suit land into the hands of the vendor for payment to the Government for some years. The suit land was consecrated as a burial ground of the plaintiff-Church and is being used ever since its purchase as burial ground of the Parishioners of the plaintiff-Church, Since it was used as burial ground, the Pattadar was granted remission of assessment in respect of the suit land by the Revenue Authorities, Thus, since about 1900 no assessment was demanded or paid though the suit land continued to be in the exclusive possession and enjoyment of the plaintiff all along. The plaintiff also purchased survey No. 61/1 of Boloor village on 21-7-1890 and likewise consecrated the same as second burial ground of the plaintiff-Church in or about 1897, but even thereafter there have been burials in the ‘A’ schedule property i. e. survey No. 57/12 so late as the year 1961. The graves in the ‘A’ schedule property are alleged to be mostly in a strip of land 35, ft. in width and 65 fit in length running East to West in the northern boundary of survey No. 57/12 which is described as the Plaint ‘B’ schedule property. The second defendant purchased plots of land survey Nos. 57/8-B, 57/7-B and 57/13-B which lie a little distance towards the northwest of the suit property in the year 1960 and built a house thereon. He applied to the Deputy Commissioner of South Kanara for permission to use the northernmost part of survey No. 57/12 as a road in order to provide access to his property from the Government road which lies to the east of survey No. 57/12, He alleged that he had already obtained the previous permission of the plaintiff-Church to go across the northern part of the land survey No. 57/6 belonging to the plaintiff-Church. The Deputy Commissioner passed an order on 2-1-1963 treating the W schedule property, namely survey No. 57/12, as Government land and setting apart as road poramboke a strip of land of the width of 20 feet along the northern portion of the ‘A’ schedule property measuring in all 6 cents in extent and granting permission to the second defendant to form a road on that strip of land with the condition that it must be permissible for the members of the public also to make use of that road. Hence, the plaintiff brought the suit for a declaration that it is the owner of the plaint ‘A’ schedule property, that the order of the Deputy Commissioner dated 2-1-1963 is not valid or binding on the plaintiff and for an injunction restraining defendant-1, the State of Mysore, as well as the second defendant from trespassing into the plaint ‘B’ schedule property.
2. The first defendant pleaded that the suit land belongs to the Government and is registered as a Poramboke burial ground in its records and that the alleged vendor of the plaintiff had no title to the suit land. No assessment was levied on the suit land as it belongs to the Government. The plot survey No. 57/12 was being used very rarely for burying dead bodies of those Christians who were denied religious rites of burial and such burials have taken place in the centre of the land survey No. 57/12 and not on the northern side of the said land. The land bearing No. 61/1 is being used by the Church authorities as regular burial ground attached to the plaintiff’s Church all along since the date its purchase in the year 1890. The second defendant pleaded that he has a right of way through survey No. 57/12, that the said road has been in existence from time immemorial and generally supported the pleas of defendant-1.
3. The trial court held that the plaintiff had established its title by purchase and also by virtue of adverse possession and decreed the suit. Both the defendants filed separate appeals against the said decision before the lower appellate court. The lower appellate court held that the sale deeds between third parties A-4 to A-6 as well as the partition deed, Ext. A-7, and the probate, Ext A-8 were inadmissible in evidence and that the plaintiff had failed to establish the identity of the property purchased under the sale deed of 1869, namely, Ext. A-3. It also held that the plaintiff had failed to establish its title by adverse possession. It accordingly reversed the findings of the trial Court and dismissed the suit.
4. The first question to be decided is whether the lower appellate court was justified in holding that the identity of the properties purchased under Ext. A-3 has not been established. Exhibits A-4 and A-5 are documents between strangers. Hence, the recital with regard to the boundaries in those documents are not admissible in evidence. This finding of the lower appellate court is not challenged by Mr. Holla. But his contention is that the recitals in Ext. A.7 with regard to the boundaries are admissible and, therefore, it must be held that the identity of the proper conveyed under Ext. A-5 is the same as the suit schedule ‘A’ property.
5. The sketch prepared by the Commissioner appointed by the trial Court shows the relative positions of the lands with respect to the suit property. The suit property survey No. 57/12 is bounded on the east by Government road, namely, Kooloor Ferry Road, on the north by survey No. 57/5, on the west by survey No. 57/6 and on the south by survey No. 61/4. According to the case of the plaintiff what was conveyed under Ext. A-3 to & plaintiff is the land composed of both survey No. 57/6 and survey No. 57/12. If both survey Nos. 57/6 and 57/12 are taken as one land, the eastern and northern boundaries are the same as stated above. But the western boundary is survey No. 57/8-C and the southern boundary will be partly survey No. 61/4 and partly survey No. 61/2 which lies to the west of survey No. 61/4. The contention by Mr., Holla, on behalf of the plaintiff, is that the land survey No. 57/5 belonged to Anthony Kamthi alias Souza and that he retained that land when he conveyed the land to the south of it to the plaintiff under the sale deed, Ext. A-3, in the year 1869, that the northern boundary of the land conveyed by him under Ext. A-3 to the plaintiff is described as the land retained him out of the ward No. 26. His further contention is that the land which formed the northern boundary of the property conveyed to the Church fell to the share of Anthony Kamthi’s son Barnard in the partition evidenced by Ext. A.7 of the year 1889 and thereafter it was bequeathed under the will of Barnard under Ext. A-8 to his legatees. By the time of Ext. A-8, i. e. 1939 Survey Settlement had been introduced and the lands bearing survey Nos. 57/5, 57/9 and 57/10 are described as the lands which fell to the share of Bernard son of Antony Kamthi under the partition in the document Ext. A-8. It is the contention of Mr. Holla that survey No. 57/5 originally belonged to Anthony Kamthi, that was the property which is described as the northern boundary of the suit property in Exhibit A-3 and since the suit property is to the south of survey number 57/5, it is the suit property which has been conveyed to the plaintiff under Ext. A-3.
6. The recitals in Ext. A-3 are to the effect that Anthony Kamthi had purchased the land in Mali No. 26 standing in the Varg of Anthe Prabhu and Salu Prabhu bearing an assessment of Rs. 7-14-0 and that he conveyed the property described in the boundaries to the plaintiff-Church. It is also recited that 0-12-0 is the assessment payable in respect of the portion of the property conveyed to the plaintiff, that the said assessment must be paid by the plaintiff into the hands of the vendor and receipts obtained in order that the vendor may pay the assessment of the entire land to the Government. The eastern boundary of the land conveyed under Ext. A-3 is mentioned as the Government road, the southern boundary as the land purchased by Vykunta Prabhu in a court sale, the western boundary as the land in the possession of Bhostu Kamthi and the northern boundary is mentioned as the land retained by the vendor out of the same varg. It is to be noticed that the measurement of the area conveyed is not to be found in the document.
7. The suit property is classified in the revenue records as poramboke and is described as a burial ground. According to paragraph- (2) of Standing Order No. 15 of the Standing Orders of the Board of Revenue, Government of Madras, ‘Poramboke’ is a land prima facie not available for assignment. Under paragraph-5 of the same Standing Order, it is provided that only land the, assignment of which is unobjectionable shall be assigned. The lands acquired for communal purposes shall not be assigned. Grazing ground poramboke shall not be assigned unless there is sufficient grazing ground available to the cattle at the rate of one acre of pasture per head of cattle. Tank-bed lands should on no account be assigned with out consulting the appropriate technical officer. Lands c1ose to village which sites likely to be required for communal purposes or provisions of house-sites should not be assigned. Applications for assignment of lands with dense and valuable forest growth should be rejected. Under clause (ii) to Paragraph (3) of the same Standing Order, the, Collector is empowered to order transfer of poramboke from one bead to another or to assessed waste. Under Paragraph (38) of the same Standing Order, it is stated that the grant of any Land registered as poramboke is prima facie objectionable and that applications for grant of such land shall not be entertained by the Village Officers or Revenue Inspectors but may be received by Tahsildars. A special procedure is prescribed for grant of such land and there must be a publication of the proposal assign it. Therafter, the Tahsildar should obtain the orders of the Collector to transfer it to the head of Assessed Land. Thereafter, if the Collector sanctions the transfer, the Tahsildar then should deal with the land in the manner prescribed for an Assessed Land. In the present case there was such a publication and the objections filed in respect of the proposed road in the suit property were considered before the impugned order was passed by the Deputy Commissioner. The contention of Mr. Holla, learned counsel appearing for the appellant, is that the fact that the suit land is described as poramboke does not show that it below to the Government big that it indicates the fact that the suit property is being used for communal purposes viz., as burial wound of the Roman Catholic community. Hence, according to him, it does not negative the title of the plaintiff to the suit property. He has relied upon the decisions in Secy. of State for India In Council v. Raghunatha Tathachariar (ILR 38 Mad (108) = (AIR 1916 Mad 1085) and Venkataratnam v. Secy. of State (AIR 1938 Mad 565). In ILR 38 Mad 108 = (AIR 1916 Mad 1085), a grant of land by the Government of a whole village consisted of a certain specified area ‘besides poramboke’. It was held in the grant confers an the grantee a tight to all the un assessed waste land in the village including the land between a river bed and the high flood bank of the river though it may not operate to give communal property such as burying grounds, temples sites etc., to the grantee. It was observed that the word poramboke is loosely used in many senses and that whatever land which does not yield revenue to Government usually known as poramboke through several kinds of lands may be included in it. In Ballabh das v. Nur Mohammad (AIR 1936 PC 83), it was held that when a land is described in the Khasra as qabristan or graveyard, this prima facie at all events means that the land is a graveyard in the sense known to the Mohomedan law. It was held that where the khasra itself is the instrument which confers or embodies the right and there is no other document which creates title, the khasra and the map are not merely ‘historical materials’ in the sense in which that phrase is used in 57 Ind App 86 = (AIR 1930 PC 91), but fall within the phrase ‘instruments of title or otherwise the direct foundation of rights. In AIR 1938 Mad 565, the question was whether a tank situate in a village which was granted to a zamindar belongs to the zamindar or to the Government. The tank was within the territorial boundaries of the zamindar’s Village and the Government during a period of over a century never exercised any acts of ownership over the tank. In the Survey and Settlement register the tank was described as ‘poramboke’. Following the decision of the Privy Council in 62 Ind App. 166 = (AIR 1935 PC 115), it was held that merely because in fixing the peishkush certain properties were excluded, it cannot be considered as having been excluded from the grant. It was further held that merely because a tank is called a village tank, it cannot be said that the villagers necessarily own it. It was observed that the word ‘poramboke’ is used in several senses and that though it includes communal property, it cannot be said that it connotes no other kind of property. The learned Additional Government Pleader, has relied upon the decision in Venkatarama Sivan v. Secy. of State (AIR 1919 Mad 765). In that case the dead of grant of a whole inam village recited that the grant was of the entire village on sarvamaniyam ‘besides poramboke’. It was held that the words ‘besides porambake should be construed as excluding burning and burial grounds and other portions required for communal purposes. The decision in ILR 38 Mad 108 = (AIR 1916 Mad 1085), was distinguished. As regards burial and burning ground porambokes and public road porambokes, it was held that the legal ownership of the Government is of a different character from its legal ownership of cultivable waste lands in raiyatwari villages, but that both kinds of land are the subject of the Government legal ownership. It was further held that the legal tight has all along been in the Government in respect of such communal land for the sake of convenience as the custodian of the rights of the public and it could not assign those rights to the inamdar without a violation of its trust to the community to preserve the land for communal use and that it could not be assumed without clear proof that the Government intentionally committed a violation of the trust. Ex. B-I is the objection statement filed by the parish Priest on behalf of the plaintiff objecting to the proposal of defendant-2, Ext. B-2 is the statement made by him recorded by the Tahsildar. In both of them the suit property is referred as Catholic burial ground. In Ex. B-10 which is a lease deed granted by the plaintiff in respect of a neighbouring property belonging to the plaintiff viz. S. No. 57/1, the suit property is referred to as Poramboke. Under Section 2(1) of the Madras Land Encroachment Act, 1905, it is stated that a public road streets etc., and all lands wherever situated except those of the persons including a wargdar in South Canara or m any way subject to the payment of land revenue direct to the Government or of any other registered holder of land in proprietary right etc., are declared to be the property of Government except as otherwise provided b.1 any law for the time being in force subject always to all 16he rights of way and other public Tights and to the natural and easementary rights of other land owners and to all customary rights legally subsisting.
8. It is also the case of the plaintiff according to the plaint that the suit property was being used as a burial ground ever since its purchase, i. e. since 1869, and that there was a remission of the assessment payable to the Government in the year 1900 on that account. Hence, prima facie the suit property must be considered to be the property of the Government though it may be subject to the rights of a section of the public for whose use it is meant as a burial ground. It is in this background that the question whether the plaintiff has made out its title to the suit property has to be examined.
9. The survey settlement took place only in the year 1904 as evidenced by Ex. B-4, the Survey Settlement Register. Hence, the description of the suit property in Ex. A-3 or A-7 is not with reference to its survey number. It is, therefore, necessary to determine whether the boundaries of the suit property as described in Ex. A-3 tally with the boundaries of the suit property bearing S. together No. 57/12 and S. No.57/6 which together are alleged to constitute the plaintiffs properly conveyed under Ex. A-3 The western boundary in Ex. A-3 is stated to be the wall of the plot in the possession of Basthu Kamthi. P. W. 2 Francis Pinto, is a near relative of Basthu Kamthi and is 81 yews of age. He stated in his evidence that Juam Souza was the son of Bosthu Kamthi. He also stated that the property of Bosthu Kamthi went to Gabrial Souza. The western boundary of the property alleged to have been conveyed under Ex- A-3, according to the Commissioners map, is S. No. 57/8. Ex. B-4 shows that the pattadar of this property is John Souza or Juarn Souza. This contradicts the evidence of P. W. 2. It cannot, therefore, be said that the western bound as shown in Ex. A-3 has been shown to tally with the western boundary of the property conveyed to the plaintiff, as it stood in 1904. The southern boundary of the property conveyed to the plaintiff under Ex. A-3, as described in Ex. A-3, is the property belong to Vaikunta Prabhu having been purchased by him in a court sale According to Ex. B-4, the Southern Boundary of the property conveyed to the plaintiff under Ex. A-3 consists of S. No. 61/4 and part of S. No. 61/2. Both these lands stand in the patta of Vaikunta Prabhu. This entry would indicate that Vaikunta Prabhu was die owner of these lands in the year 1904. But according, to the plaintiff’s own case, these two lands as well as S. No. 61/1 and 61/3 had been by that time Purchased by the plaintiff and the plaintiff had become the owner of the same. The relevant documents relating to the purchase of these lands by the plaintiff are Exs. A-4, A-5 and A-6. Ex. A-4 is a, sale deed dated 18-12-1882 under which one BhimaRao residing in Shimoga, has sold the property bearing Muli No, 48 in favour of RamaRao Resident of Mangalore. The recitals in the document show that Nelkai Thimmappaiah had executed a mortgage dead in favour of the father of the vendor and that the Vendor had filed the suit No. 423 of 1877 in the Court of the Munsiff, Mangalore, and that the vender had Purchased the same in execution of his decree on 13-9-1880. No boundaries of the Property sold there under mentioned in Ex.A-4. Thereafter, on 19-1-1889 Rama Rao sold the property purchased by him under Ex. A-4 to Salwador Saladan, under Ex. A-5, the sale deed of the above date. This document gives the boundaries of the property sold. The Eastern boundary is the government to the northern boundary is staked to consist of four properties a voni the plot belonging to Juje Souza, the belonging to Bosthu Souza, and the plot belonging to Church, Thereafter, under Ex. A-6 on 21-7-1890 Salwadors Saladan sold the Property Purchased by him under Ex. A-5 to the plaintiff-Church. No boundaries of the Property sold under this document are mentioned it is not disputed that the property purchased by the plaintiff under A-6 consists of S. Nos. 61/1, 61/2, 61/3 and 61/4. Hence, according to the plaintiff’s own case, the Plaintiff-had become the owner of S. Nos. 61/2 and 61/4 in the year 1890 itself. But according to Ex. B-4. Vaikunta Prabhu is shown as Pattadar of the two lands in the year 1904. It is, therefore doubtful whether the southern boundary of the property conveyed under Ex. A-3 is the, present S. No. 61/4 and part of S. No. 61/2, since there is no evidence to, show that Vaikunta Prabhu was the owner of S. Nos. 61/2 and 61/4 on the date of Ex. A-3
10. In order to establish the identity of the northern property plaintiff relies on Exs. A-7 and A-8. Ex. A-7 in a partition deed dated 31-5-1889.The parties to that deed are Juje Michal Souza son of Anthony Kamthi alias Souza, the widow of Anthony Kamthi and the younger son of Anthony Kamthi, namely, Bernard. The first three items of the properties described as being available for partition are of a different village. The fourth item is described as Muli No. 26 of Bolur village standing in the varg of Sali Prahhu bearing assessment of Rs 7-3-1 and excluding the property left to the church by their elder bearing assessment of Rs 2-4-0, which has to be paid by the Church to the parties to the document. The property under this item is described as consisting of partly mulgeni property and partly in their own possession. There is no description of the property left to the church in this part of the document except as stated above. Later on in the document the description of the properties which fell to the share of Bernard are given with their boundaries. They are items 10 and 11. The boundaries of the property allotted under item No. 10 are given as East: Government Road, South the plot of Urva Church and wall, West: wall of the land belonging to Bosthu Kamthi, and North: the wall and plot of Sale Kamthi. Item No. 11, which also fell to the share of Bernard, is shown as being bounded on the east by the wall of the land belong to Bosthu Kamthi and the Church, on te south the wall of the church plot, on the west voni and on the north, the wall of the church. It is stated that it is a mulgeni property in the enjoyment of Juje Kamthi. The mulgeni right and the Muli right in respect of this property is allotted to Bernard. The other properties allotted to Bernard’s share are of a different village. Under item-14 it is stated that out of item-10 allotted to the share of Bernard, his mother is entitled to enjoy a portion of it for her life time and thereafter it must go to Bernard, There is also recital in the document to the effect that the elder son must collect Rs. 2-4-0 in respect of the property shown as having been left as, the property of the Church and should pay the same to the Government. Ex. A-8 is the will executed by Bernard on 25-8-1939 bequeathing his properties. While describing the properties owned by him he has stated in that will that according to the settlement deed of 31-5-1889 he got to his share the property bearing S. No. 57/5, being the muli property, and the properties bearing S. Nos. 57/9 and 57/10, being the mulgeni properties. The boundaries of these properties are not mentioned in the will. According to the entries in Ex. B-4 the pattadar of S. No. 57/5 is Joseph Michel Souza alias Juje Mingal Souza. The pattadar of S, No. 57/ is a so the same person. In respect of S. No. 57/10 the Pattadar is also the same person but the mulagenidar is shown as Joseph alias Juje. Though in Ex. A-8 S. No, 57/9 is also described as being in the enjoyment of mulgenidar in Ex. B-4 it is shown as if in the enjoyment of the Pattadar himself.
11. The case of the plaintiff is that item 10 allotted to the share of Bernard became later to be indicated as S. No. 57/5 at the time of survey settlement and is so found in Ex. B-4. Since admittedly, according to the sketch of the Commissioner, S. No. 57/5 forms the northern boundary of S. No. 57/6 as well as S. No. 57/12 it is urged that the property conveyed under Ex. A-3 is the property which lies to the south of S, No. 57/5, i. e. the property now indicated by S. No. 57/6 and the S. No. 57/12 put together. Mr. Holla relies on the southern boundary of item-10 mentioned in Ex. A-7 On the other hand, it is contended on behalf of respondent-1 that the statement of boundaries in Ex. A-7 is not admissible in evidence either under Sections 11 or 13 or Section 32(3) of the Evidence Act.
12. Mr. Holla has relied upon the decisions in Ningawa v. Bharmappa ((1899) ILR 23 Bom 63), Ketabuddin v. Nafar Chandra (AIR 1927 Cal 230). Trimbak v. Ganesh (AIR 1923 Nag 22) and in Tika Ram v. Moti Lal, (AIR 1930 All 299) in support of his contention that the statement of boundaries in a document between strangers is admissible in evidence in order to establish the identity of the property. In AIR 1927 Cal 230 the owners of the lands were examined and the statements as to boundaries were considered as corroborative evidence. In AIR 1923 Nag 22, the admission purports to be under Section 32(2) of the Evidence Act. But the persons connected with the document were alive and were examined as witnesses. It cannot, therefore, be said to be a decision under Section 32 of the Evidence Act, In AIR 1930 All 299, the statement as to boundaries were held not admissible under Section 32(3), but were held to be admissible under Section 13(b) of the Evidence Act. The decision in ILR 23 Bom 63 no doubt supports him. In that decision, as the son of the person who executed the document was examined it was held that it constituted independent evidence and admitted on that ground. But in AIR 1927 Cal 918 (Sm. Kumuda Kumari Dasi v. Dilsook Roy) it was held that the recitals as to 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, relying on the decision in AIR 1926 Cal 948. The Calcutta decisions are not uniform.
13. The Full Bench of the Patna High Court in Soney Lall Jha v. Darbdeo Narain Singh (AIR 1935 Pat 167 (FB)), has held that Section 11 of the Evidence Act has no application in determining the question as to whether the recitals as regards the boundaries in documents between strangers are admissible. It was held that, two conditions must be satisfied before a statement is admissible under Section 32(3) of the Evidence Act; firstly, that it must be a statement of a relevant fact and secondly, it must be a statement against the proprietary interest of the person making it. With regard to what constitutes a statement of a relevant fact, it was observed as follows:
“A fact to be relevant or the method of proof to come within any particular section in my judgment must be or do so prima facie. Its relevancy must not and cannot depend upon the proof of other facts and it cannot be such a matter capable of more than one interpretation.”
It was, therefore, held that the statement of boundaries in a document of title relating to a different land between third parties are not admissible under Section 32(3) of the Evidence Act. In Kalappa Shiddappa v. Bhima Govind (AIR 1961 Mys 160) the recital of the boundaries, of another land in a document between him and a third party was considered to be inadmissible in evidence either under Section 11(2) or Section 13 of the Evidence Act, following the Full Bench decision in Brojendra v. Mohim Chandra (AIR 1927 Cal 1) and in Madanlal v. Durgadutt . Mr. Holla has relied upon an observation in that decision to the effect that if the documents in question had been executed by a stranger in favour of another stranger there would have been much force in the contention that great weight should be attached to such recitals, they having no interest in the subject-matter of the recitals. This observation is obiter dicta and appears to be based on the decision in Rangayyan v. Innasimuthu, AIR 1956 Mad 226) which was later overruled in V. A. A. Nainar v. A. Chettiar .
14. In Sm. Savitri Devi v. Ram Ran Bijoy (AIR 1950 PC 1) it has been held that the principle upon which hearsay evidence is admitted under Section 32(3) of the Evidence Act is that a man is not likely to make a statement against his own interest unless true, but this sanction does not arise unless the party knows the statement to be against his interest. In that case it was not shown that a person making the statement knew that he was thereby exposing himself to a suit for damages. Their Lordships held that this statement ought not to have been admitted in evidence. But this decision does not help the respondents since it cannot be said that the parties did not know what they were stating in Ex. A-7 when they say that certain property had been left to the plaintiff-Church y their elders, On behalf of the respondents reliance was placed on the decision in , wherein it has been held that the recitals in a document between strangers, is not a particular instance in which a right was claimed, recognized or exercised or a transaction by which a right was claimed or asserted within the meaning of Section 13 of the Evidence Act and that the recitals of boundaries in documents between third parties are inadmissible to show that any pa to the suit is or is not the owner of an 3joining land which has been mentioned as one of the boundaries in such documents. The principal reasons for this view were stated to be, firstly, that it will not be right to hold a party bound or affected by a recital as to the making of which he could have no control whatever and which has been made completely behind his back and, secondly, that such third parties have not particular reason to be accurate as to who is e owner of the land adjoining their own, and therefore, a mistake may easily creep in, in the mentioning of such boundaries, and that the boundaries may often be mentioned on imperfect knowledge or merely on hearsay information. This decision has been relied on in AIR 1961 Mys 160. In Subudhi Padhan v. Raghu Bhuvan the decision in AIR 1935 Pat 167 (FB), was followed and it was held that the statements of boundaries in documents of title between third parties were not admissible under Section 32(3) of the Evidence Act as such admission cannot be said to be necessarily against the proprietary interests of the person making it. It was further held that it could be admissible only if it is shown that at the time it was made it was contrary to the interests of the maker and at the time it was said to be used it is a statement of a relevant fact. In Chandreshwar v. Ramachandra Singh also it has been held that the recital of a boundary in a document executed by a third party not admissible in evidence. In , a Division Bench considered the question of admissibility of recitals as to boundaries in a document not inter parties relating to a different property other than suit property under Sections 11, 13(a), 32(3) and 32(7) of the Evidence Act, since there was a conflict of opinion in the earlier decisions of the same court. It was held that the decision of the learned Single judge in AIR 1956 Mad 226 was wrongly decided. The decision of the Patna High Court in AIR 1935 Pat 167 (FB) and the decision in were followed. It was held that the recitals in a document not inter parties are not admissible under Section 11 or 13 or 32(3) of the Evidence Act, following the decisions in AIR 1924 Cal 1067 and AIR 1927 Cal 918. Though in this decision the view taken appears to be that there is an absolute bar to the admissibility of the statement regarding boundaries in a document relating to a property other than the suit property between third parties, the correct view appears to be the one stated the Full Bench-in AIR 1935 Pat 167 (FB ), viz., that such a statement would be admissible only in case both the conditions are satisfied i. e., that it must be a relevant fact and that the statement must be against the proprietary interest of the person making it. According to the decision in AIR 1950 PC 1 it is also necessary that the person making the statement must beware of the fact that it is against his interest.
15. The above decision of the Privy Council has been followed in Ramrati Kuer v. Dwarika Prasad, , wherein it is held that a statement can be admissible under Section 32(2) of the Evidence Act only if it is shown that the person making it knew at that time that it was against his pecuniary or proprietary interest and that in most cases such knowledge has to be inferred from the surrounding circumstances. .
16. Mr. Holla also relied on the decision in Bhagawati Prasad v. Rameshwari Kuer , wherein it has been held that the statements of a particular person that he is separated from a joint family of which he was a coparcener and that he has no further interest in the joint property or claim to any assets left by his father, would be a statement made against the interest of such person, and after such person is dead, they would be relevant under Section 32 of the Evidence Act. It has also been have that the assertion that there was separation not only in respect of himself but between all the coparceners would be admissible as a connected matter and an integral part of the same statement and that it is not merely the precise fact which is against the interest that is admissible but all matters that are involved in it and knit up with the statement. But it was not a case relating to the statement of boundaries in a document between third parties, What Mr. Holla contends is that the statement regarding boundaries of item 10 mentioned in Ex. A-7 relating to the share of the properties allotted to Bernard is involved as a connected matter and is an integral part of the statement contained in the earlier part of the same document viz., that the properties divisible between the parties to that document are those excluding the properties left to the Church by their elders. It is his contention that the statement in the earlier part of Ex. A-7 is against the interests of the persons making it in so far as they admit that they have no right to said property, which originally belonged to their ancestors but has been conveyed to the Church. In so far as the right of the Church to the property excluded from division under Ex. A-7 has been recognised, it is a statement of a relevant fact under Section 13 of the Evidence Act and, being a statement contrary to the interests of the persons making it, is admissible under Section 32(3) of the Evidence Act. This part of the statement in Exhibit A-7 in the earlier part of the document must therefore be held to be admissible under sub-section (3) of Section 32 of the Evidence Act. But the argument of Mr. Holla that the statement of boundaries of item-10 in Exhibit A-7 is also admissible in evidence cannot be accepted. The statement regarding the southern boundary of the property allotted to Bernard under Ex. A-7 is made in order to identify the property which fell to his share and is not connected in any way with the earlier recital recognising the right of the Church to some other property. Hence, the statement of boundaries cannot be considered to be an integral part of the statement which is admissible under Section 82(3) of the Evidence Act. It is, therefore, clear that there is no satisfactory evidence as to the northern boundary of the property conveyed under Ex. A-3.
17-18. It is the contention of Mr. Holla that even apart from the recital with regard to the boundaries in Exhibit A-7, the plaintiff has established that the property conveyed under Exhibit A-3 to the plaintiff-Church is the property which is to the South of the present survey number 57/5, namely, the suit property. It is clear from Exhibit A-8 that survey numbers 57/5, 57/9 and 57/10 are the properties which fell to the share of Bernard under the partition evidenced by Ext. A-7. According to the description of the properties which fell to the share of Bernard under Ext. A-7, two of the properties of the three properties situate in Booloor village consisted of Mulgeni properties and only one was muli property. In Ext. A-8 it is only 57/5 which is described as muli property and the other two lands. S. Nos. 57/9 and 57/10 are described as Mulgeni properties. It is therefore his contention that S. No. 57/5 fell to the share of Bernard as part of the property which originally belonged to Anthony Kamthi, the vendor under Ext. A-3. P. W, 4 is the son of Bernard. It is in his evidence that be is in possession of S. No. 57/5 having built a house thereon. The eastern boundary of 57/5 is the Government road. The eastern boundary of the Property conveyed to the plaintiff-Church under Ext. A-3 is also Government road, The eastern boundary of the property retained by Anthony Kamthi under Et. A-3 is also Government road. Since the common boundary on the east of 57/5 is the same as that of the property retained by Anthony Kamthi under Ext. A-3, it is urged that it is the property 57/5 which was retained by Anthony Kamthi under Ext. A-8. Ext. A-3 is of the year 1869. The partition under Ext, A-7 is of the year 1889. Unless it is proved that Anthony Kamthi had no other property which had its eastern boundary as the Government road at the time of the execution of Ext, A-3, it cannot be said that the property which Bernard got to his share under Ext. A-7 was the only property which Anthony Kamthi had bearing Government road as its eastern boundary. The Survey map attached to Ext. D4 shows that the Government road runs north to south and the entire survey numbers 56 as well as 57 had as their eastern boundaries the Government road. The property retained by Anthony Kamthi under Ext A-3 and described as lying to the north of the property conveyed to the plaintiff-Church under that document is part of muli No. 26 as recited in Ext. A-3. From Ext. B-4 it is clear that what was muli No. 26 formerly became survey Nos. 56 and 57. Both 56 and 57 have been divided into a number of sub divisions. Hence, it is possible that more than one part of survey No. 56 as well as of survey No. 57 had its eastern boundary as the Government road on the date of Ext. A-3. There is no evidence to show that Anthony Kamthi did not possess any other property out of what was then muli No. 26 with the Government road as its eastern boundary. It is also not shown that the plaintiff Church did not own any other property in muli No. 26 on the date of Ext. A-8. It is reasonable to expect the plaintiff-Church to maintain the records showing the properties of its ownership. But no such records have been produced. Hence, by the mere fact that that survey No. 57/5 is one of the lands which fell to the share of Bernard, son of Anthony Kamthi, at the partition of 1889, it cannot be infected that it is the only land which Anthony Kamthi possessed out of muli No. 26 having its eastern boundary as the Government road. It can also not be inferred that the land transferred under Ex. A-3 did continue to belong to Anthony Kamthi’s sons on the date of Ext. A-7 i. e., 20 years after the date of Ext. A-3 and that it was part of the properties which were treated as divisible by the heris of Anthony Kamthi. The possibility that Anthony Kamthi might have acquired the property which fell to the share of Bernard subsequent to the date of Ext. A-3 cannot be ruled out an the material placed before the Court. Under the circumstances, therefore, the plaintiff must be held to have failed to establish the identity of the northern boundary of the suit property.
19. The eastern boundary of the suit property is the same as the eastern boundary of the property conveyed to the plaintiff Church under Ext. A-3. But this fact is not of much significance in view of the fact that admittedly the eastern boundary of several other lands sub-numbers of survey Nos. 56 and 57, also have the Government road as their eastern boundary. Hence, the identity of the suit property must be held to have been not established.
20. The plaintiff has also relied on Exhibits A-9 and A-10 in support of its title. They are extracts from the Municipal registers. According to Ext. A-9 municipal tax has been paid in respect of survey No. 57/12, the suit rope for the year 1954-55. Plaintiff is described, as the owner. Ext. A-10 shows that municipal tax has been paid on survey No. 57/12 for the year 1943-44 and the plaintiff has been treated as the person liable to pay the municipal tax.
21. In AIR 1943 Mad 756 (Subbaraya v. Appathurai), relied on by Mr. Holla, it has been held that the fact that the patta has all along stood in the name of the plaintiff and his predecessor-in-title and that they were paying the kist due to the Government constitute prima facie evidence of the title to the land being in the plaintiff more especially in the absence of any claim of original title in the defendants. But 1964 Mys LJ (Supp) 74 (Ramakrishniah v. Madhavakrishniah) it ha; been held that neither the extract from the property tax register maintained by the Municipality nor the receipts of municipal takes are either evidence of tide or possession and that such registers are primarily maintained for the purpose of levy and recovery of taxes and that the column for entry of the name of the persons liable to pay the taxes reads: ‘assessee, owner or occupier’. It was further held that an entry in such a register can have only some corroborative value if independent evidence was adduced to show how it came to be made. But in the present case, there is no evidence to show as to how the entries in Exts, A-7, A-8 and A-9 came to be made. In 1966 (1) Mys LJ 772 (Hazarat Asraruddin v. Hussein Khan) it has been held that a patta is not a document of title or a -deed of grant but that it is a record of demand by the Government that such and such amount is due as land revenue on such and such area. Hence, the entries in the Municipal registers cannot be placed on a higher footing than a patta maintained under the Land Revenue Code.
22. Reliance is next placed on the reports of the Shanbogue and the Health Officer and the Tahsildar. They are Exhibits A-24, A-25 and B-3. dated 3-8-61, 25-11-61 and 8-7-1962. They are made in the course of the enquiry which was originated on the application of defendant-2. The suit property in Exts A-24 is referred to as “Uru va igarji sambandha pattaddagirutte In Ext. A-25 it is stated by the Health Officer of the Municipality that the suit property is now being used exclusively by the Church Authorities. Similar statement is to be found in Ext. B-3. But it cannot be said that these statements amount to an admission of title of the plaintiff to the suit property.
23. It is contended by Mr. Holla that defendant-1, the State has failed to produce the chittas which ought to have been maintained by the Government relating to the year of Ext. A-3, namely, 1869, and that if produced, they would show that Vykunta Prabhu who is described as the owner of the property lying to the south of the property conveyed to plaintiff-Church under Ext. A-3 was the owner of the property which came to bear the survey Nos. 61/1, 61/2, 61/3 and 61/4 under Ext. 4 after the survey settlement and that he ceased to be the owner of the said land prior to the date of Ext. A-4. He has relied on the decision in . (Hiralal v. Badkulal). Therein the contention of the defendants in a suit on amounts that it was not part of the defendants’ duty to produce their account books Unless they were Called upon to do so because the onus rested on the plaintiffs to prove their case was rejected relying on the observations in AIR 1917 PC 6 (Murugesham Pillai v. Gnana Sambandha Pandara Sannadhi). The defendants had signed in the plaintiff’s book an entry which stated that a certain amount was due as balance after the checking of the accounts with the books of the defendants. The first issue in that case was whether defendants did sign that entry after understanding the debit and credit accounts and accepting the Sum therein mentioned as the correct balance due t6 the Plaintiffs. Hence, the observations of the Supreme Court must be understood in relation to the facts of the abovesaid case. In AIR 1923 Cal 247 (Secy of State v. Upendra Narain) the, disputed land was subjected to the action of the river which shifted its bed at various periods for over a period of 30 years. The lands disappeared and reformed from time to time. The most valuable evidence to show whether they were at that time in the bed of a public navigable river and were consequently not only assessed with revenue but were excluded from the permanently settled estate, would have been the papers relating to the decennial settlement and the permanent settlement of the estate. These were in the custody of the officers of the Crown and were not brought before the Court though every effort was made to secure their production, Hence, the adverse comment against the Crown made by die Subordinate judge was held Lo be justified on account of the valuable evidence which had not been produced by the Crown and an adverse inference was therefore drawn against the Crown. But in the present case, no attempt was made by the plaintiff to get the chittas produced. There is also no evidence to show whether those chittas relating to the relevant period were in the custody of the State or not. Hence under the circumstances no adverse inference can be drawn against the Government in the present case.
24. Before the Deputy Commissioner the document Ext. A-3 was produced and on behalf, of the plaintiff, title to the suit property was claimed, but at the time of Exhibits B-1 and B-2, which were much earlier, the plaintiff did not claim title to the suit property. Ext. B-8 is the permission granted by the plaintiff to defendant-2 to pass across the land Survey No. 57/6 and to take vehicles also across the northern part of that land. This permission was anted at the request of defendant-2, since he wanted to, construct a house in his property and wanted access from the Government road which lies on the east of Survey No. 57/12. Though the plaintiff gave permission to defendant_2 to pass across its property Survey No. 57/6, it is significant that the defendant-2 did not ask for any permission to pass across the suit land Survey No. 57/12. The plaintiff-Church also did not raise any objection to defendant-2 passing across the suit land. Ext. B-10 is a lease deed in respect of the northern part of Survey No. 57/6. The lessor is the plaintiff-Church. The eastern boundary of the property leased is the suit property described as poramboke. The lower appellate Court attached importance to this circumstance and held it was improbable that the suit property was owned by the plaintiff Mr. Holla, however, relied on the observations in (Kali Prasad Singh v. Ram Prasad Singh) and urged that the description of the property lying to the east of the property leaser was merely copied from the revenue records. In that case it was agreed that the donor Debi Prasad had 1/6th share in the totality family property comprised in Schedule-B which was transferred into half share in Schedule-C properties and converted into Schedule-F property. The deed of gift left no doubt that the hole property belonging to the donor was transferred by him by Ext. A-7. The non-mention of schedule-C and specific mention of 1/6th share in the properties was held to be due to the fact that in spite of various decrees the revenue records were not corrected by mutation proceedings and the donor, therefore, was required to refer to his 1/6th share to conform with the revenue records, The recitals in the deed were held to make it clear that the donor intended to convey and did convey the whole property owned by him to the donee. Under these circumstances it was held that the description of the property according to the revenue records was immaterial. But in the present case the plaintiff has claimed title to the suit property which forms the eastern boundary of the sub-matter of the lease. Exhibit B-10 is of the-year 1961. If really the plaintiff was the owner of the suit property it is unlikely that he would have referred to it merely as Poramboke in Ex. B-10, After the controversy arose with regard to the suit property, the Board of management of the plaintiff-church passed a resolution agreeing to a road being laid across the northern part of the suit property on condition that the road did not pass over any graves. In this resolution also there is no claim of ownership, in the suit property put forward by the plaintiff. The suit property has been described as burial ground Poramboke in Ext. B-4 of the year 1904. These circumstances show that plaintiff did not put forward its claim title even up to the date of Ext. B-2. The Parish Priest who made the statements under Exhibits B-1 and B-2 had not been examined to show that those statements were made under any mistake. No office-bearer of the plaintiff church has been examined as a witness. The lower appellate Court was, therefore, justified in the observation that the claim put “by the plaintiff is an afterthought.
25. It is urged by Mr. Holla that the land bearing Survey No. 61/1 admittedly belong to the church and is used as a burial ground and since it has been described as Poramboke burial ground in the Survey and Settlement Register Ext. B-4 the description of the suit property as Poramboke burial ground does, not negative the recognition of the plaintiffs title to the suit property by the Government. But what is admitted in the written statement of defendant-1 is that survey No. 61/1 was purchased by the plaintiff. There is no admission that even after it came to be used as a burial ground the plaintiff continued to have a subsisting title to it. D. W. 2 was the Assistant Commissioner and the Headquarters Assistant to the Deputy Commissioner, South Kanara in 1962. He has stated in his evidence that sometimes the owners relinquish their rights in favour of Government, that then it becomes Government land and that Poramboke land is a land left to be used for public purposes. He also stated that survey No. 61/1 is in the enjoyment of the church, it being a public property. Hence, it is probable that the plaintiff church relinquished its title in Survey No., 61/1 at the time of its conversion to a burial ground. Hence, this circumstance does not support the contention of Mr. Holla
26. On behalf of the appellant I. A. II an application under Order 41 Rule 27 of the Code of Civil Procedure, has been filed in this Court for admitting as additional evidence the certified copy of the survey Pan of the lands S. No. 57 of Boloor village. The purpose of seeking admission of this document is to show that the lands bearing Survey Nos, 57/9 and 57/10 do not have as their eastern boundaries at the Government road. This is intended to support the contention of the appellant that it is only S. No. 57/5 out of the properties which fell to the share of Barnard which has its eastern boundary at the Government road. The certified copy which is sought to be admitted in evidence was obtained in the year 1915. There is no explanation as to why it was not produced in the trial Court. Besides the application being highly belated, this is an attempt to fill up a lacuna in the case of the plaintiff. Hence, this application is rejected,
27. The plaintiff also claimed title by adverse possession. As observed already, Exhibits B-1, B-2 and B-10 show that the plaintiff did not claim any title to the suit property till the year 1961. The suit property is not enclosed on its eastern side. Moreover, Survey No. 57/6 which lies on the western side of the suit property, and belongs to the church, is separated from the suit property by the wall of Survey No. 57/6. Similarly the suit property is separated on its southern side by the wall of the land Survey No. 61/4 which also admittedly belongs to the plaintiff. There is also evidence to show that there are roads and pathways running across the suit property as shown in the Commissioners Sketch. Thus, the possession of the suit property by the plaintiff church, if any, as evidenced by the graves found in the suit property by the Commissioner, was neither exclusive nor accompanied by the required animus to establish adverse’ possession, Hence, the lower appellate Court was justified in finding that the plaintiff failed to establish its title by adverse possession.
28.The appeal is, therefore, dismissed with costs.
29. Appeal dismissed.