BRAJABALLAV GHOSE Vs. AKHOY BAGDI

JUDGEMENT

(1.) The Defendant No. 1 is the appellant in this appeal. The appeal arises out of a suit to recover possession of a tank and some paddy land on a declaration of the plaintiff's title thereto. The plaintiff's case was that he had purchased the same from the Bariks who were pro-forma defendants in the suit and that after such purchase he was dispossessed by the principal defendants on the strength of an order obtained by them in their favour in a proceeding under Section 145, Criminal Procedure Code. The defence of the principal defendants was that the property did not belong to the Bariks and neither they nor the plaintiffs were in possession thereof. The Courts below have decreed the suit.

(2.) On behalf of the defendants-appellants two grounds have been urged in support of the appeal. The first ground relates to the reception in evidence of a kobala, dated the 21st Joistha 1326. It is contended on behalf of the appellants that this document requires registration and that inasmuch as it was not a registered document, it was not admissible in evidence. It appears that the document purports to have been executed by the plaintiff's vendor in favour of the defendant, but that for some reason or other it was not completed nor was it registered. The case of the defendant is that negotiations in connexion with this transaction fell through and, therefore, the document was left unregistered. There is some oral evidence on this point and the document, as far as we can make out from the proceedings, was proved in the case for the purpose of corroborating the oral evidence. The value of the property which the document purported to convey was Rs. 99; still a sale of the property, if it was made by a document, could only be made by a registered document under the provisions of Section 51 of the Transfer of Property Act. The sale, however, never took place and the document was proved only to corroborate the plaintiff's story that the defendant negotiated for the purchase of the property from the plaintiff s, vendor, a fact which would suggest that the latter had title to the property. The learned Subordinate Judge states in his judgment that he agrees in the appraisement of the evidentiary value of this document as made by the learned Munsif and the learned Munsif in one part of his judgment states that the kobala is not at all a strong piece of evidence of the plaintiff's vendor's title. The real use therefore that has been made of the document is not to show the plaintiff's vendor's title but to prove the nature and the terms of the transaction which as a matter of fact, was not completed but fell through. This is a legitimate use that may be made of this document. As has been laid down in the case of Sheikh Juman V/s. Mohammed Nobineoaz 21 C.W.N. 1149, such a document does not confer title and is merely evidentiary, but having regard to Section 91 of the Evidence Act, it may be used as evidence of the nature and terms of the transaction. This ground therefore is of no substance and must fail.

(3.) The other ground taken by the learned advocate appearing on behalf of the appellants is of much substance, That ground relates to the reception in evidence of a certified copy of the deposition of one Umapada who was not examined as a witness in the present suit but was examined as a witness in criminal proceedings under Section 145, Criminal P.C., to which I have already referred. Umapada was pro forma defendant in the present suit. In the proceeding under Section 145 Criminal P.C. the Defendant No. 1 (the appellant before us) was the first party and the plaintiff was the second party. Umapada was examined as a witness in those proceedings on behalf of the present appellant. In the present suit, Umapada was cited as a witness by the plaintiff but he did not appear. Subsequently as appears from a hajira to be found on the record, his name was put forward as being present on a particular day as a witness on behalf of the defendant-appellant. He was, however, not examined and at the time of the argument a certified copy of the deposition of Umapada as given by him in the proceedings under Section 145, Criminal Procedure Code, mentioned above, was put in on behalf of the plaintiff and was marked as an exhibit in the case. The appellant contends that the learned Subordinate Judge was wrong in considering this deposition as a piece of evidence in the case. The learned Judge, as appears from his judgment, has relied upon this piece of evidence a good deal and in fact the major portion of his judgment deals with the admissibility and evidentiary value of the deposition of Umapada. He has held that this evidence is admissible under Section 33 of the Evidence Act and that even if it be conceded that it does not come under that section then it may be used in evidence as an admission against the present appellant. Before dealing with those two matters I should like to observe at the outset that whatever view may be taken of them, the deposition has not been proved at all. A certified copy of the deposition of a witness would not come in by itself. In any case it will be necessary to adduce evidence proving the identity of the person who gave the deposition. That does not appear to have been proved in the present case and it was only in the course of the argument that a certified copy was put in and marked as an exhibit. Now turning to the learned Judge's reasoning that the deposition is admissible under Section 33 of the Evidence Act, I find that the learned Judge seems to be of opinion that although it has not been proved that Umapada had been kept away by the defendant-appellant his evidence is admissible under that section because he actually appeared on behalf of the defendant as a witness on one particular occasion and that therefore it should be inferred that it would be useless for the plaintiff to have spent money in order to bring Umapada to Court as a witness. Section 33, however, is perfectly clear on the point. Evidence will be admissible under Section 33 of the Evidence Act, when the witness is dead, when he cannot be found, when he is unable to give evidence or is kept out of the way by the adverse party or if his presence cannot be obtained without an amount of delay or expense which the Court considers unreasonable. The requirements of none of these clauses mentioned in Section 33 of the Evidence Act have been satisfied in the present case. The mere fact that he did not appear as a witness when cited on behalf of the plaintiff or that he appeared as a witness on behalf of the defendant on one occasion but was not examined when it has been distinctly found that he was not kept out of the way by the defendant would not be a ground for admitting the deposition under Section 33 of the Evidence Act. As regards the question of expense what the learned Subordinate Judge says with reference to it does not show that the presence of Umapada could not be obtained without an amount of expense which would be considered unreasonable by the Court. Then again there are three provisos to that section. The second proviso is to the effect: that the adverse party in the first proceeding should have the right and opportunity to cross-examine the witness.