PRAMATHA NATH CHOUDHURI Vs. KRISHNA CHANDRA BHATTACHARJEE

JUDGEMENT

(1.) This is an appeal by the defendants. The suit was one for declaration of title to and for possession of a certain plot of land. Both the lower Courts have decreed the suit in the plaintiffs favour. The judgments of both the Courts are attacked on the ground that it is said that a document between third parties, namely, a kabuliyat, Exhibit 4, was admitted and wrongly admitted as evidence in the suit. This document Exhibit 4 purported to show that the land with which it is concerned was bounded by some of the lands in suit which were therein described as brahmattar lands, another plot being described as Ishan's brahmattar. There is no doubt that, if this document Exhibit 4 is admissible in evidence, it supports the plaintiffs contention, and the judgments of both the lower Courts are correct. But, in our opinion, this document Exhibit 4, which was between third parties, was not admissible in evidence either as regards the question of the boundary or as to the nature of the land, namely, that it was brahmattar a ad Ishan's brahmattar. We agree with the decision in Saroj Kumar, Acharji Choudhuri V/s. Umed Ali Howladar A.I.R. 1922 Cal. 251, where it was decided that a document of this nature was not admissible in evidence under the provisions of either Section 11 or Section 13 of the Indian Evidence Act. The authorities, some of which are conflicting, are discussed at p. 22 of that judgment. Mr. Justice Mookerjee who, in the case of Bisheswar Dayal V/s. Harbans Sahay (1907) 6 C.L.J. 659 had apparently held that a document of this nature was admissible in evidence under the provisions o? Secs.11 and 13 of the Indian Evidence Act, altered his view in the decision in Abdulla V/s. Kunj Behari Lal (1911) 16 C.W.N. 252, where he held that a document of this nature was not admissible in evidence under the provisions of Secs.11 and 13 of the Indian Evidence Act, thus differing from the view which he had previously expressed. Both the cases in Saroj Kumar Acharji Choudhuri V/s. Umed Ali Howladar A.I.R. 1922 Cal. 251 and Abdullah V/s. Kunj Behari Lal (1911) 16 C.W.N. 252 must be taken to overrule the decision in Dwarka Nath Bakshi V/s. Mukunda Lal choudhuri (1906) 5 C.L.J. 55, where it was held that a document of this nature was admissible under the provisions of Secs.11 and 13 of the Indian Evidence Act. It only remains to refer to a passage in Abdullah V/s. Kunj Behari Lal (1911) 16 C.W.N. 252 where Mr. Justice Mookerjee seems to think that although such a document is not admissible under the provisions of Secs.11 and 13 of the Indian Evidence Act, it may be admissible under the provisions of Section 32 of that Act. But, with great respect to that learned Judge, the reasoning by which he arrives at this view does not seem to me at all conclusive, and I find great difficulty in seeing how a mere description of boundaries in a document between third parties can be said to be a statement against the proprietary interest of the person making it. It may well be that, for some ulterior purpose boundaries may not be correctly described in a document, and, if this is so, how a statement of that nature can be said to be against the proprietary interest of the person making it, it is somewhat difficult to ascertain.

(2.) I think that the law is correctly stated, if I may say so, in the decision in Saroj Kumar Acharji Choudhuri V/s. Umed Ali Howladar A.I.R. 1922 Cal. 251 to which I have already referred, and I am not prepared to say that the document Exhibit 4 is admissible in evidence under the provisions of Section 32 of the Indian Evidence Act.

(3.) I wish to say in passing that it does not appear in the case of Saroj Kumar Acharji Choudhuri V/s. Umed Ali Howladar A.I.R. 1922 Cal. 251, whether the executant of the document was dead or not.