GURU CHARAN RUDRA PAL Vs. MAFIJUDDIN MOLLA

JUDGEMENT

(1.) In this case the plaintiffs sued for declaration of title and recovery of khas possession of a certain piece of land claiming that they had obtained lease of it from the owners of a certain estate, that they were in possession but were dispossessed by the defendants in Pous 1337 B.S. The defence was that the land did not appertain to touzi no. 5583 as stated by the plaintiffs, but it appertained to another estate adjacent thereto, and under that other estate, the defendants had obtained lease and had been in possession for more than 12 years and the plaintiffs story of possession and dispossession was false. The trial Court appointed a com- missioner, who upon making a relay of the thak map found that the land in suit appertained to touzi no. 5583 as stated by the plaintiffs, that part of the land was as lee land of that touzi, and part was accretion to that touzi by recession of the river. The trial Court decreed the suit. The decree was affirmed in appeal.

(2.) The defendants appeal. The learned advocate appearing for them states that as both Courts found the title with the plaintiffs, he will not question that finding, but urges that the Courts below have gone wrong on the point of limitation. The plaintiffs claimed that they were in possession of the land and were dispossessed shortly before the suit which was instituted in 1932. The case is clearly governed by Art. 142 of Schedule 1, Lim. Act, and the onus is on the plaintiffs to show that they were in possession within 12 years of the suit. It is urged that there was a survey and settlement, and the Record of Bights was finally published in 1911. In that record the suit land was stated to be in possession of the defendants; previous to the record being finally published, there was a proceeding under Section 103A between the plaintiffs and the defendants and the decision of the Assistant Settlement Officer was in favour of the defendants. The Court of Appeal below took note of the fact that the Record of Rights of 1911 was in favour of the defendants, but the Court on considering the evidence came to the conclusion that the entry in favour of the defendants was wrong.

(3.) It is urged that in coming to this conclusion the Court of Appeal below admitted inadmissible evidence. This refers to Ex. 3, a report dated 16 February 1915 by a mukhtar who is dead. It appears that there was a criminal case between the parties and when the case was pending the parties appointed a mukhtar as an arbitrator and agreed to abide by his decision. The mukhtar accordingly made a local enquiry and submitted the report, Ex. 3, to the Magistrate, who thereupon wrote the order "Case compromised." The trial Court admitted Ex. 3, the report of the deceased mukhtar, under Section 32(2) under which a statement made by a deceased person in the ordinary course of business is relevant. The Court of Appeal below took the same view that the report was made by the mukhtar in the ordinary course of business. It is urged by Mr. Gupta that the Courts below committed an error in law in taking this view. The argument that the report is not admissible under Section 32(2) is correct. The expression "statement made in the ordinary course of business" means a statement made during the course not of any particular transaction of an exceptional kind, but of (business or professional employment in which the deceased was ordinarily or habitually engaged : see Ningava V/s. Bharmappa (1899) 23 Bom 63, Sbeonandan Singh V/s. Jeonandan (1909) 13 CWN 712 and Abdullah V/s. Kunj Behari Lal (1912) 16 CWN 252.