KHEDU MAHTO Vs. KHONKA MAHTO

JUDGEMENT

(1.) This is an appeal by the plaintiffs from a decision of the Subordinate Judge of Purulia reversing a decision of the Munsif. The appeal arises out of a suit to eject the defendants on an allegation that they were under-raiyats of the plain, tiffs. The defence was that the defendants-were not under-raiyats but cosharers with the plaintiffs. The Court below has accepted the defence and dismissed the plaintiffs suit. This decision is challenged by the appellants on the ground that the Court has acted on inadmissible evidence. The evidence objected to is a decision of the Khanapuri officer in the course of the settlement in 1903. In the finally published Record-of-Rights the predecessors of the defendants were recorded as under-raiyats in respect of the disputed land. But in the Khanapuri proceedings which preceded the finally published Record-of-Rights one of the present plaintiffs, Jhari Mahto, is stated in the decision of the Khanapuri officer to have admitted before him that the predecessors-in-interest of the present defendants were cosharers. It is this admission contained in the decision of the Khanapuri officer which is challenged as inadmissible.

(2.) In Parbutty Dassi V/s. Purno Chunder Singh (1883) 9 Cal. 586 the plaintiff who was sued for possession of a fishery sought to put in evidence an admission alleged to have been made in a previous suit by the defendants predecessors-in- title in a written statement filed in that suit. The only evidence of the admission was the recital from the pleadings contained in the preliminary portion of the decree in the final suit. It was held that the statement in the decree was evidence of the admission under Section 35, Evidence Act. The next case on the point is Krishnasami Ayyangar V/s. Rajagopala Ayyangar (1895) 18 Mad. 73. That was a suit for partition of family property in which it became necessary for the plaintiff to prove that his grandfather had been adopted by A. Ha sought to prove this fact by judgments in which it was stated that A's brother who was the grandfather of defendant 1 had sued to recover moneys due to A, alleging that the adopted son was an infant living under his protection. It was held that these judgments were admissible in order to prove the statement made by the predecessor-in-title of the party against whom they were sought to be used.

(3.) This case was referred to by the Privy Council in Collector of Gorakhpur v. Ram Sundar Mal . With reference to the Madras case, their Lordships said: In Krishnasami Ayyangar V/s. Rajagopala Ayyangar (1895) 18 Mad. 73 a statement amounting to an admission which was contained in a judgment was received in evidence under Section 35 as an entry in a record made by a public servant in the course of his duty. There is much to be said for this view of Section 35. In India judgments have to be in writing and signed by the Judge and the original judgments and decrees are records of the Court and retained in the record room the parties being supplied with certified copies only.