HARI AHIR Vs. SRI SANGHAT CHACHA

JUDGEMENT

(1.) This appeal raises a question which at first sight appeared to be of some difficulty. It is only necessary to state certain matters in dispute, and the real question before the Courts below ultimately turned on the question of the plaintiffs title. It is clear from the judgment of the lower appellate Court which was a judgment of reversal, that there was oral evidence on behalf of the plaintiffs to establish their title. The learned Judge seems to have been pressed in accepting that evidence by two documents, Exs. 1 and 2, which it is now contended were not admissible in evidence. The documents related to properties other than the property in dispute, but in the boundaries of the properties which were the subject matter of these deeds, reference was made to the property in dispute in this action; in other words, there were recitals to the effect what the lands the subject matter of the documents themselves were bounded by and then statements were made which, if admissible and accepted, would on their face value have assisted the plaintiff in proving title.

(2.) The Court below has accepted this as admissible evidence and has relied on a decision of this Court in Lalu Singh V/s. Sahdeo Singh 1916 Pat 416. The learned advocate who appears on behalf of the respondents, relies upon this decision as a part of his argument as it is not reported in the official report. The judgment purported to be a judgment of Roe, J., and Jwala Prasad, J., and all that could be said with regard to the matter is that it was not a considered judgment but a judgment which was based upon certain decisions of other High Courts two of which have been clearly dissented from in the Court in which they were pronounced.

(3.) I refer to Abdullah V/s. Kunja Behari Lal (1911) 12 IC 149 and Imrit Chamar v. Sridhar Panday (1912) 13 IC 120. These two cases have been subsequently dissented from in the Calcutta High Court in Braja Mohan Das V/s. Gaya Prasad 1926 Cal 948. There are a number of other decisions including the case of Natwar v. Alkhu (1913) 18 IC 752. Some of the decisions in favour of the admissibility of these recitals are based on the supposition that the recitals were against the interest of the persons making the recital. The most important case in favour of the respondents on this point is the case of Ketabuddin V/s. Nafar Chandra 1927 Cal 230. I refer to that decision as being (as I have said) the most important decision in favour of the respondents, but I fail with great respect, to follow the reasoning of the learned Judges who decided that case, because among other things he stated that a recital of this kind would clearly be admissible in any event and he relies upon the leading case of Higham and Elizabeth 10 East 109.