BRAJA MOHUN DAS ADHIKARI Vs. GAYA PROSAD KARAN

JUDGEMENT

(1.) IN the suit from which this appeal arises the plaintiffs sought to establish their title to the eastern half of the Cadastral Survey Dag No. 5/48. Their case is that the defendant and one Padrna Lochan Das were brothers, that on partition the land in suit was allotted to Padma Lochan who mortgaged it to plaintiffs father and being unable to redeem finally-sold it to him. The defendant, on the other hand, contends that the land in suit was allotted to him on partition. The Record of Rights is in favour of the defendant. The onus that lies upon the plaintiffs becomes heavier on account of this entry in the record. Both the Courts have passed a decree in favour of the plaintiffs. The lower Appellate Court was not satisfied in the evidence on either side that there was any partition. It thereupon proceeded to decide the question by subsequent possession of the land in suit. IN considering the evidence it relied mainly upon certain documents between strangers to the suit, viz., Exs. 5 to 8 in which one of the boundaries of the lands dealt with thereby is described as the land in suit of which the plaintiffs father is stated to be the owner. IN this connection the finding of the learned Subordinate Judge is thus recorded: "Considered along with these deeds the oral evidence adduced by the plaintiffs is worthy of credit in spite of certain contradictions. I find that the evidence, oral and documentary, produced by the plaintiffs fully rebuts the presumption arising from the entry in the Settlement Record". It is, therefore, necessary to examine the question relating to the admissibility of those documents. The learned Subordinate Judge is of opinion that the documents are admissible under Section 32, Clause (3) of the Evidence Act. Exhibits 5, 6 and 8 are kobalas and Ex. 7 is a mortgage-deed. According to the view that has been taken of this question which has frequently come up for decision before this Court there is hardly any room for further argument. But the learned Advocate appearing for the defendant has tried to present another aspect of the question before us. His submission is to the effect that a deed of sale is a statement made by the seller against his interest as he parted with his interest in the land sold. It is, therefore, admissible under Section 32, Clause (3); and the document having thus come in, any statement made therein in describing the boundaries of the land sold comes in as evidence whatever may be its evidentiary value. This argument is fallacious and cannot be accepted, for any statement made against the interest of the person making it is not as such admissible as against the rest of the world. Such a statement is admissible in connection with a relevant fact under the Evidence Act. It is said that such statement is relevant in this case under Section 9 of the Evidence Act. That section apparently has no bearing upon the present question. It deals with relevancy of facts which are introductory of facts in issue or explanatory thereof and necessarily such facts must be connected with facts ins issue. There was undoubtedly at one time some divergence of opinion upon this matter. So long ago as 1680 it was held by Garth, C.J., in Brajeshware Peshakar v. Budhanuddi 6 C. 268 : 7 C.L.R. 6 : 3 INd. Cas. (N.S.) 175 that "recital in a deed or other instrument is, no doubt, in some cases conclusive, and in all cases evidence, as against the parties who make it; and it is of more or less weight, or more or less conclusive, against them according to circumstances. It is a statement deliberately made by those parties, which, like, any other statement, is always evidence against the persons who make it. But it is no more evidence as against third persons, than any other statement would be." The learned Chief Justice referred in the course of his judgment to the case of Radhanath Banerjee V/s. Jodoonath Singh 7 W.R. 441 and observed that if a recital in a deed was admissible in evidence as against third parties who were in no way privy to the deed, the propriety of the decision seemed to be extremely doubtful. IN Dwarka Nath Bakshi V/s. Mukundu Lal Chowdhury 5 C.L.J. 55 such statements were held admissible against third parties under Secs.11(6) and 13, Evidence Act. IN Abdul Ali V/s. Rajan Ali 21 INd. Cas. 618 : 19 C.W.N. 468 the view taken in the above case was disapproved. The view taken in Dwarka Nath Bakshis case 5 C.L.J. 55 was adopted by Mookerjee, J., in the case of Bisheswar Dayal V/s. Harbans Sahay 6 C.L.J. 659 : 3 M.L.T. 38. IN the later case of Abdullah V/s. Kunja Behari Lal 12 INd. Cas. 149 : 16 C.W.N. 252 : 14 C.L.J. 467 the same learned Judge resiled from the position taken in the earlier case and held that such statements, though not admissible under Section 11 or Section 13 of the Evidence Act, was admissible under Section 32, Clause (3). The same view was taken by that learned Judge in Imrit Chamar V/s. Sridhar Panday 13 INd. Cas. 120 : 17 C.W.N. 108 : 15 C.L.J. 7. I had occasion in certain recent cases to dissent from this view and to hold that Section 32, Clause (3) does not make the statement in a document between third-parties admissible against a party in suit. Saroj Kumar Acharji V/s. Umed Ali 63 INd. Cas. 954 : 35 C.L.J. 19 : 25 C.W.N. 1022 : A.I.R. 1922 Cal. 251, Chooni Lal Khemani V/s. Nil Madhab Barik and Radha Kishan Marwari V/s. Sarbeswar Nag . Saroj Kumar's case 63 INd. Cas. 954 : 35 C.L.J. 19 : 25 C.W.N. 1022 : A.I.R. 1922 Cal. 1034 has been recently considered and followed in the case of Pramatha Nath Chowdhuri V/s. Krishna Chandra Bhattacharjee . Greaves and Chakravarti, JJ., held on an examination of the authorities on this point that recitals of boundaries of other lands in documents between third parties are not admissible in evidence either as regards the description of the boundary or as to the nature of the land. It is not, therefore, necessary to examine minutely the position taken by Mookerjee, J., in the case of Abdullah V/s. Kunja Behari Lal 12 INd. Cas. 149 : 16 C.W.N. 108 : 15 C.L.J. 7 and other cases. Section 32(3) of the Evidence Act makes the statement made by a person against his pecuniary or proprietary interest admissible in evidence. It is argued that the recital of the boundaries put a limit to the extent of the interest of the person making it and, therefore, it is a statement against the pecuniary interest of that person. As has been observed in the case of Pramatha Nath Chowdhuri V/s. Krishna Chandra Bhattacharjee such a statement might have been made with an ulterior object in view. IN fact it might have been made not in order to restrict or limit the right of the maker but to extend or enlarge it. It seems to me that it must be a great straining of the language of the law to hold such a statement as a statement against the pecuniary or proprietary interest of the person making it. The view that such a statement made by a person cannot be made admissible in evidence against a stranger is supported by the principle of the decision of their Lordships of the Judicial Committee in Shrinivasdas Bavri V/s. Meherbai 39 INd. Cas. 627 : 41 B. 300 : 21 M.L.T. 236 : 32 M.L.J. 175 : 19 Bom. L.R. 151 : (1917) M.W.N. 258 : 21 C.W.N. 558 : 25 C.L.J. 311 : 44 I.A. 36 (P.C.). I am accordingly of opinion that the documents, Exs. 5 to 8, are not admissible, in evidence and should have been excluded from consideration in deciding the issue on the plaintiffs title. As there is other evidence also on the record which requires consideration by a Court of fact, this case must be remanded to the lower Appellate Court for a re-hearing of the appeal after excluding the documents, Exs. a to 8, from its consideration. Costs will abide the result. Graham, J.

(2.) THE only point argued in this appeal is that certain documents (Exs. 5 to 8) three kobalas and a usufructuary mortgage-deed, were wrongly relied upon as evidence in the Courts below. THE documents in question contain the statements of third parties as to boundaries of other lands and have been relied upon by the Courts below as corroborations. THE learned Subordinate Judge has held that the documents are good evidence under Section 32(3) of the Evidence Act. In my opinion, he has erred in so holding. THE question whether recitals of boundaries of other lands in documents between third parties are admissible in evidence or not has been considered in numerous cases, and there has been some divergence of opinion upon the subject. THE trend of recent decisions in this Court has, however, been against treating such recitals as evidence, and I think that we should follow those decisions. In my judgment the law on the point was correctly laid down in the case of Saroj Kumar Acharji v. Umed Ali 63 Ind. Cas. 954 : 35 C.L.J. 19 : 25 C.W.N. 1022 : A.I.R. 1922 Cal. 251 which was followed in Pramatha Nuth Chowdhuri V/s. Krishna Chandra Bhattacharjee . Greaves, J., in the latter case quoted with approval the judgment of Chief Justice Sir Eichard Garth in Brajesh- ware Peshakar V/s. Budhanuddi 6 C. 268 : 7 C.L.R. 6 : 3 Ind. Dec. (N.S.). 175 to the following effect: "A recital in a deed or other instrument is, no doubt, in some cases conclusive and in all cases evidence as against the parties who make it.... But it is no more evidence as against third persons than any other statement would be" It appears to me that this correctly lays down the law on the point. In the result, therefore, the appeal must be allowed, the decree of the lower Appellate Court set aside and the case sent back to that Court for a re-hearing of the appeal after excluding Exs. 5 to 8 from consideration.