LALA RAJBALI LAL Vs. PARTAPPUR CO LTD

JUDGEMENT

(1.) This is an appeal by the plaintiffs who claim to have acquired raiyati right in 13 bighas 2 kathas 9 dhurs of land in village Damakia under the defendant company which holds the village on lease from the Hathwa Raj as proprietor. The land claimed in the suit appears to have been entered in the Record of Rights as being in part zirat, in part bakasht thikadar and in part gairmazrua, the last named class being only a small area of 3 kathas 5 dhurs. The substantial contest is with regard to the other two items. It has been held by the Courts below that the lands recorded zirat and the lands recorded bakasht are both zirat or private lands of the proprietor, the finding being that the Record of Rights entries, so far as they are to the contrary, are rebutted by the evidence adduced.

(2.) The suit has been dismissed on the ground that occupancy rights cannot accrue in land leased out in the manner and in the circumstances found in the present instance. Two points are taken in appeal. One contention is that on the finding of the lower Courts that the land is zirat there is an error in law in holding that occupancy right cannot accrue. The second point taken is that the finding that the land is zirat ought not to stand because the lower Appellate Court in arriving at it has relied on evidence which was not admissible for the defendant and against the plaintiffs. I may take the latter point first.

(3.) The Courts below have taken into consideration zamindari papers of the proprietor and of the defendant which are said to have indicated that the land was treated as zirat since at least 12 years before the commencement of the Bengal Tenancy Act. There was other evidence before the Courts but the point taken is that these statements in the zamindari papers are admissions within the meaning of Section 17, Evidence Act, and that under Section 21 of the same they could be proved against the person making them but not by or on behalf of the person making them or his representative in interest.