RAGHUNATH Vs. BINDESHWARI NANDAN

JUDGEMENT

(1.) THE dispute in this appeal relates to a shop and a house situate in Bindhyachal. THE question for consideration was whether the defendant-appellant occupied the house in question as a parjawatdar or as a tenant on behalf of the plaintiffs; THE plaintiffs are admittedly the owners of the land occupied by the house. THEir allegation was that the defendant occupied the said house as a tenant and was liable to ejectment. THE defendant appellant, however, said that he was only a parjawatdar, holding the land occupied by the house in dispute on rent and that he was not liable to ejectment. He asserted that the shop and the house in dispute were built by his predecessor-in-title. He produced among other papers a deed of gift purporting to have been executed by Musammat Badam in favour of Musammat Chingani on the 18 of May 1862, wherein it was stated that the ancestors of the donor had obtained the land from Bhawani and Sital and built a house which she was conveying to her daughter. THE lower Appellate Court treated this document as an admission by the defendant-appellant in his own favour and as such no proof of his title to the house. An admission may, however, be proved on behalf of the person making it under Section 21, Clause (3) of the Evidence Act (I of 1872), if it is relevant otherwise than an admission. In the case of a house said to have been built over half a century ago, direct evidence as to who constructed it may not be easily available; and old documents mentioning by whom it was built may be admissible in evidence under Section 11, Clause (2) and Section 13, Clause (b) of the Indian Evidence Act for what they may be worth. THE lower Appellate Court refers to a mortgage-deed purporting to have been executed by Bhusi Pande in favour of Badam Panda on the 11 of August 1862, but that document is inconclusive on the point. It refers to Bhawani and Sital as having held three shops, but in what capacity they held the same is not clear. THE lower Appellate Court has evidently made no serious attempt to discuss the documentary evidence adduced in the case and to find whether the plaintiffs were the owners only of the land or also of the shops and the house standing thereon. Before it could be said that there was no evidence to show that the ancestors of the defendant-appellant had built the same, the history of the title to the house as distinct from the land required to be examined in the light of the documentary and other evidence available. Let the lower Appellate Court be, therefore, directed to determine after taking such additional evidence as may be produced whether the shop and the house in dispute were built by the predecessor-in-title of the plaintiffs or the defendant. Two month's time will be allowed for the return of the finding and ten days will be allowed after the return of the finding for filing objections.