BRINDABAN CHANDRA DE Vs. KRISHNA MOHAN DE

JUDGEMENT

(1.) IN this case the plaintiffs sued for a declaration of title and for khas possession of certain land, of which they alleged they had taken settlement from the maliks, known as the Chhoto Taraf of the 8-annas share of Kismat Bennouri. IN the Court of first instance the plaintiffs obtained a decree. IN appeal that judgment was reversed and the plaintiffs suit was dismissed. At the outset of his judgment the learned Subordinate Judge considered the admissibility in evidence of two exhibits tendered on behalf of the plaintiffs, a map (Exhibit 1) and a chitta (Exhibit 2). They were put in to prove that the land in dispute was allotted on a partition in 1318 to the Zemindars of the Chhoto Taraf of Delduar. The learned Subordinate Judge held that these documents were inadmissible in evidence under the provisions of Section 49 of the Registration Act. This decision of the learned Subordinate Judge is, in our opinion, clearly erroneous. These documents could not be said to be instruments falling within the purview of Section 17 of the Registration Act and thus requiring registration, for one was a map and the other a chitta or memorandum of the allotments made to the proprietors. Both documents, as we understand, were signed or alleged to be signed by the Amins who made the survey at that time. The documents were denied by one of the Amins who was called in the first Court, but the first Court held that they were signed by these Amins and were genuine documents. That question was not gone into in the lower Appellate Court. Having regard to the decision of the learned Subordinate Judge as to their admissibility, it is impossible for us to say what effect the consideration of these documents as evidence might have had upon the judgment of the learned Subordinate Judge. If the respondents had been able to assure us that they had no bearing on the case and could not have affected that judgment in any way then only could we have ignored the fact that they were shut out in appeal. That is not the case. It appears that in the map there is a plot which is recorded in the name of the plaintiffs and the same occurs in the chitta. As to the value of these documents as evidence, we can of course say nothing. But, if they were improperly excluded, it can hardly be said that the learned Subordinate Judge has properly considered all the evidence in the case. We, therefore, set aside the decree of the lower Appellate Court and remand the case to that Court for a re- hearing of the appeal and for a fresh judgment on consideration of the whole of the evidence including these two documents. Costs of this appeal will abide the result.