MAHARAJAH RAJASRI RAJA SAHEB MEHARBHAN DOSTAN RAJA SRI RAO SWETHACHALAPATHI RAMAKRISHNA RANGARAO BAHADUR VARU, THE RAJAH OF BOBBILI SAMASTHANAM Vs. BOMMIREDDIPALLI VENKATA SURYANARAYANA (DECEASED)

JUDGEMENT

(1.) We do not propose to call upon the respondents. The nature of the right which the first defendant possesses, is fully set out in Secretary of State for India v. Maharajah of Bobbili (1919) 37 M.L.J. 724 : L.R. 46 I.A. 302 : I.L.R. 43 Mad. 529 (P.C.) The question here is, whether the plaintiff has acquired as against the first defendant, the right of -easement which he claims. The learned District Judge has fully considered the question and as we agree with his conclusion, it is unnecessary to deal with the matter in great detail. Mr. Govindarajachari for the appellant (the first defendant) has endeavoured to show that the District Judge was influenced by certain judgments in some previous cases, which are in law inadmissible. True, the District Judge has referred to and discussed those judgments in some detail but takes care to observe that in arriving at the finding, he considered the evidence irrespective of them. Section 167 of the Evidence Act provides that the improper admission of evidence shall not be ground of itself for a reversal of the decision in any case, if it appears to the appellate Court that independently of the inadmissible evidence, there was sufficient evidence to justify the decision of the Court below. The judgments referred to may not be admissible as such, but evidence of the alleged right is afforded under Section 13(b) by instances in which the right was claimed by the plaintiff's father or its exercise was asserted by him. The word "assertion" occurring in this clause includes both a statement and enforcement by act. The evidence tendered under this section need not necessarily be evidence of acts done, but a verbal statement not amounting to, and not accompanied by, any act would also be admissible, if it amounted to a "claim" see Woodroffe and Ameer Ali's Law of Evidence, 9 Ed., page 178. Then we have Ex. J, a letter written by the Village Munsif of Narayanapuram. In view of the circumstance which was the occasion for the letter, it is possible to argue that it is admissible under the second clause of Section 32 as containing the deceased's statement made "in the course of business." But it is unnecessary to consider this question as in any event, as has been conceded, it is relevant under the third clause, as a statement against the pecuniary or proprietary interest of the person who made it. As to its genuineness, there is more than sufficient proof, as it has been spoken to not only by the witnesses for the plaintiff but also for the defence. Great weight attaches also to Ex. A written by the Channel Superintendent, who has been examined as P.W. 1. It is of much corroborative value and materially supports the plaintiff's claim. There are several other documents which bear upon the case, to which we think it unnecessary to refer. We are prepared to concur in the lower Court's estimate of the evidence and to uphold its finding. The appeal accordingly fails and is dismissed with costs.

(2.) As to the memorandum of objections, it is not pressed except in regard to one minor matter. In the portion of the decree (see p. 19 of the pleadings paper) pertaining to the injunction that has been granted, the word "inhabitants", it is suggested, may be left out, and to this no objection is taken. That part of the decree may follow the wording of paragraph 6-(b) of the plaint. This is the only order that is necessary.

(3.) The respondents will pay the appellant's costs of the memorandum of objections.