JAGADISH CHANDRA DE Vs. HARIHAR DE

JUDGEMENT

(1.) This is an appeal under Clause 15 of the Letters Patent from the judgment of Mr. Justice Walmsley in a suit for recovery of possession of land on declaration of title, for establishment, of a right of way and for other incidental reliefs. The suit was decreed in part in the trial Court. On appeal by the defendants their objections were overruled and the cross-objections of the plaintiffs we re-allowed with the result that the Subordinate Judge decreed the claim in full. That decree has been affirmed by Mr. Justice Walmsley. On the present appeal, which has been preferred by three of the-defendants, it has been urged that the-judgment of the Subordinate Judge is based upon inadmissible evidence and cannot be supported. We are of opinion that this contention is well founded and must prevail.

(2.) It appears that in 1900 there was a litigation between the predecessors-in-interest of the parties to this suit. The first and second defendants in that suit were the predecessors-in- interest of the first seven defendants in this suit, and the third, fourth and fifth defendants in that suit, then minors, are now appellants. A consent decree was made in that suit as between parties other than the present appellants and the suit was decreed ex parte against them. They have contended in the present litigation that they are not bound by that decree because they were not effectively represented for the purposes of that suit by their mother whose names appeared as their guardian ad litem, though she never consented to act in that capacity; as a matter of fact, she did not enter appearance on behalf of her minor children. This contention is supported by the decision of this Court in Krishna, Chandra Mondol v. Jogendra Narain Rai (1914) 20 C.L.J. 469, where the principle was enunciated that a Court is not competent to appoint the mother of the infant defendants as their guardian ad litem without her express consent.

(3.) In view of the difficulty mentioned, an attempt was made in the Court below to utilise the consent decree under the provisions of Section 32, Clause (3) of the Indian Evidence Act. That section provides that statements, written or verbal, made by a person who is dead, are relevant facts, when the statements are against the pecuniary or proprietary interest of the person making them The Subordinate Judge has held that recitals in the consent decree are statements within the meaning of Section 32 and he has relied upon those recitals in various portions of his judgment. We are of opinion that the recitals in the consent decree are not statements within the meaning of Section 32. There are no recitals in the consent decree as to the previous rights of the respective parties in the subject-matter of the litigation. On the other hand it is stated at the outset that, regardless of the rights of the parties, they had come to an arrangement that in future their rights would be regulated in the manner specified. In substance, the decree sets out the terms of the arrangement between the parties and does not embody the statements of the parties as to their rights in the subject-matter of the- litigation Consequently, the recitals in the decree cannot be used as evidence under Section 32.