BHERA Vs. NETA

JUDGEMENT

(1.) This is the defendants second appeal against an appellate order of the Additional Commissioner, Jodhpur dated 31 -12 -54 confirming the decree of the trial court whereby the respondents suit for recovery of possession over the land in dispute was decreed.

(2.) We have heard the learned counsel appearing for the parties and have examined the record as well. The facts of the case have been set out at length in the judgments of the lower courts and hence they need not be repeated here. The first contention raised on behalf of the appellants is that the entries in the account books produced by Sursingh P. W. 5 having not been proved legally, should have been ignored by the lower courts. Sursingh is a Kamdar in Thikana Kantalia and has produced account books of the Thikana wherein it has been mentioned that Guyawala field was in possession of Neta in Svt.2006 and Svt.2007 and that Bhangada field was in Netas possession in Svt. years 2005 to 2007. As Sursingh is an employee of the Thikana and the account books belong to the Thikana, it does not come within the ambit of sec. 35 of the Indian Evidence Act. It becomes however, relevant under sec. 34 of the Act, but as laid down in the section itself" such statements shall not alone be sufficient evidence to charge the person with liability." It was essential to prove that these books have been regularly kept in the ordinary course of business. "Where the writer of a book of account is alive but is not examined as a witness, the book cannot be said to have been duly proved and is inadmissible." The proper procedure to follow is to call the clerk who has kept the accounts or some person competent to speak to their genuinness to prove that the books have been regulary kept and that they are generally accurate." (Monirs Law of Evidence, page 357, 3rd Edition). In the present case it was pointed out by Sursingh that he had nothing to do with the entries in the account books or with the transactions that took place in relation to them. The scribe of the entries was stated to be alive but he was not produced in the case. Hence it must be held that the entries in the account books produced by Sursingh were not proved legally as pointed out above and are clearly inadmissible.

(3.) But this finding, to our mind, does not tilt the balance in favour of the appellants. In the first place the finding of the lower courts as regards Netas possession in Svt. 2006 is not based exclusively on these entries in the account books. The oral evidence led by Neta in this case was fully examined and was also made a basis for this finding. On behalf of the appellants Bakhtawar Singh D. W. 3 was produced along with some books of account. The entries therein have nothing to say about the field Guyawala. As regards the field Bhangada, the entries produced by the witness are silent for Svt. years 2001 to 2005. As for Smt.2006 it has been clearly admitted by this witness that the field in question was cultivated by Neta. Thus even if the documentary evidence produced by Sursingh is ignored, there is sufficient material on record to prove that Neta was in possession of the land in dispute in Svt. 2006. The finding of the lower court, therefore, cannot be disturbed on this ground.