BELA RANI Vs. MAHABIR SINGH

JUDGEMENT

(1.) This appeal arises out of a suit for possession of immovable property. The property originally belonged to one Beni Ram who died in the year 1866. He was succeeded by his wife, Musammat Mathuri, who died in the year 1878. After her death, Musammat Dasodri, daughter of Beni Earn, was in possession. The plaintiffs are more or less speculative purchasers from the persons who would be entitled to the property on the death of Musammat Dasodri, assuming that she had made no valid transfer. The defendants are transferees or the representatives of Musammat Dasodri. The main defence was that the suit was barred by limitation; and the learned Subordinate Judge found that the suit was barred.

(2.) It is common ground that the right to bring the present suit arose on the death of Musammat Dasodri. It is also admitted that neither the plaintiffs, nor their predecessors in title, have ever been in possession of the property in dispute. There can be no doubt, therefore, that it lay upon the plaintiffs to establish their case and to show that Musammat Dasodri died within the twelve years before the institution of the suit. I also think that it is very just and equitable that the plaintiffs should be held to strict proof. A very long time has elapsed since the transfers were made. The reversioners did not attempt themselves to challenge the transfer, and it is not easy for the transferees to bring forward proof of legal necessity. The suit was instituted on the 4th of March, 1910. In the plaint it was alleged that Musammat Dasodri died on the 28th of March, 1898. In appeal here the date of her death is alleged to be the 16th of March, 1898. It will, therefore, appear that on the plaintiff s own case the suit was not instituted until the period of limitation had almost expired.

(3.) The learned Subordinate Judge considered that the oral evidence adduced by the plaintiffs was almost worthless, and in this I quite agree. It is, however, contended on behalf of the appellants that there was certain documentary evidence to which great weight should be attached. It appears that on the death of Musammat Dasodri applications were made for mutation of names in respect of some of the property in the possession of which she had been. These applications were supported by depositions of the reversioners, two of whom were sons of the Musammat, and the date of her death was stated to be the 16th of March, 1898. There is no doubt that, if these depositions are admissible in evidence, they supported the case of the plaintiffs. They are not necessarily conclusive, but, having regard to the date at which they were made and the persons who made them they would be important. The persons who made the depositions are dead and the depositions accordingly are simply the statements of relevant facts by persons who are dead. Such statements are not relevant facts, unless they come under some one or more of the sub-Sections of Section 32 of the Evidence Act. It has to be admitted that under the circumstances of the present case the depositions in question are not admissible under Section 32. The learned advocate for the appellants ingeniously argues that while the depositions cannot be admitted under the provisions of Section 32 nevertheless the fact that these persons made the statement that Musammat Dasodri died on the 16th of March, 1898, makes it highly probable that she did die on that particular date and that, therefore, the depositions are admissible under Section 11 of the Evidence Act. In my opinion this argument is not sound. I think it impossible to hold that a statement of a relevant fact which would be inadmissible under Section 32 could be admissible under Section 11. If these depositions are excluded, there is practically no evidence as to the actual date of the death of Musammat Dasodri, and I think, that the learned Subordinate Judge was correct in holding that the plaintiffs had failed to prove their case. I would accordingly dismiss the appeal with costs. Banerji, J.