DAMODAR PODDAR Vs. JADUNATH DUTT

JUDGEMENT

(1.) In this case the plaintiff sued for a declaration that the land of the Cadastral Survey plot No. 321 appertained to his jote of 8-annas held by him under defendants Nos. 1 to 3. The suit was. dismissed by the Trial Court but on appeal that decision was reversed and the plaintiff was granted a decree. Against that decree defendants, Nos. 4 and 5 have appealed. The land in suit is included within the brohmottar land of defendants Nos. 1 to 3 and defendants Nos. 4 and 5 have been granted a lease of this land. The Record of Rights which was finally published in 1914 records the land as being, held by defendants Nos. 1. to 3 through their, bargadar defendant No. 12. The lease to the appellants was granted in 1323 B.S., The first Court held that the presumption arising from the entry in the Record of Rights has not been rebutted. The lower Appellate Court held to the contrary.

(2.) It is contended on behalf of the appellants that in coming to the conclusion favourable to the plaintiff the lower Appellate Court has been directly influenced by the two documents which were not admissible in evidence. These documents are Ex. 3 a chitta and Ex. 4 a kabuliyat. The chitta, Ex. 3, was prepared by an amin under the direction of the superior landlord of the mouza within which these lands are We are asked to hold that, it was admissible in evidence on the ground that no objection was taken in the Trial Court as to its admissibility. This is no ground for allowing a document, to be proved if the evidence is not admissible. It is contended on behalf of the respondents that Clause 2 of Section 32 of the Evidence Act makes this document admissible The lower Appellate, Court has held that this entry in the record is a statement made by a deceased person as to what he found in the spot and which he had to ascertain and record in the usual course of his business. We have some doubt whether the preparation of the chitta on behalf of a private zemindar can be said to be made in the ordinary course of business. But we certainly think that it was no part of the amines business to record the name of the person in occupation of the land. The zemindar thought that he had a right to survey the brahmottar land within his estate and had no concern with the person by whom the holding was actually occupied. We hold that this document should not have been admitted in evidence or taken into consideration in deciding the present case.

(3.) The second document to which an objection is taken on behalf of the appellants is a kabuliyat of Pous 1307, Ex. 4. This document was admitted in evidence because two of these plots are the boundaries of the disputed land. We have recently held in agreement with the decision in Pramatha Nath Choudhuri V/s. Krishna Chandra Bhattacharjee 84 Ind. Cas. 420 : 28 C.W.N. 1092 : (1924) A.I.R. (C.) 1067 that the recitals of boundaries of other lands in documents between third parties are not admissible in evidence either with regard to a question of boundaries or as to the nature of the land. It is suggested that a distinction can be made in the present case because the writer of the document and also the recipient of the kabuliyat were examined as witnesses. But the writer, of the kabuliyat in his evidence stated nothing about Ex. 4 and the plaintiff's witness No. 8 gave no evidence as to the occupation of the land at the time the kabuliyat was executed since he knew nothing about the land for more than 15 or 16 years before he gave his deposition in 1921. It cannot, therefore, be contended that this kabuliyat though ordinarily inadmissible is admissible under special circumstances of this case as corroboration of either of these two witnesses. It is further contended on behalf of the appellants that the view taken by the lower Appellate Court as to the entries in the rent receipts having been proved was a wrong view. That was a matter for decision for a Court of fact and we express no opinion on this point.