Hari Ahir and Others vs Sri Sanghat Chacha and Another

wort, J.—This appeal raises a question which at first sight appeared to be of some difficulty. It is only necessary to state certain matters in dispute, and the real question before the Courts below ultimately turned on the question of the plaintiffs title. It is clear from the judgment of the lower appellate Court which was a judgment of reversal, that there was oral evidence on behalf of the plaintiffs to establish their title. The learned Judge seems to have been pressed in accepting that evidence by two documents, Exs. 1 and 2, which it is now contended were not admissible in evidence. The documents related to properties other than the property in dispute, but in the boundaries of the properties which were the subject matter of these deeds, reference was made to the property in dispute in this action; in other words, there were recitals to the effect what the lands the subject matter of the documents themselves were bounded by and then statements were made which, if admissible and accepted, would on their face value have assisted the plaintiff in proving title.

The Court below has accepted this as admissible evidence and has relied on a decision of this Court in Lalu Singh v. Sahdeo Singh 1916 Pat 416. The learned advocate who appears on behalf of the respondents, relies upon this decision as a part of his argument as it is not reported in the official report. The judgment purported to be a judgment of Roe, J., and Jwala Prasad, J., and all that could be said with regard to the matter is that it was not a considered judgment but a judgment which was based upon certain decisions of other High Courts two of which have been clearly dissented from in the Court in which they were pronounced.

I refer to Abdullah v. Kunja Behari Lal (1911) 12 IC 149 and Imrit Chamar v. Sridhar Panday (1912) 13 IC 120. These two cases have been subsequently dissented from in the Calcutta High Court in Braja Mohan Das v. Gaya Prasad 1926 Cal 948. There are a number of other decisions including the case of Natwar v. Alkhu (1913) 18 IC 752. Some of the decisions in favour of the admissibility of these recitals are based on the supposition that the recitals were against the interest of the persons making the recital. The most important case in favour of the respondents on this point is the case of Ketabuddin v. Nafar Chandra 1927 Cal 230. I refer to that decision as being (as I have said) the most important decision in favour of the respondents, but I fail with great respect, to follow the reasoning of the learned Judges who decided that case, because among other things he stated that a recital of this kind would clearly be admissible in any event and he relies upon the leading case of Higham and Elizabeth 10 East 109.

If reliance is placed on that case for the proposition that statements by a person which is against his interest may be used in evidence after his death, there can of course be no doubt about it. But by what stretch of imagination it could be said that a recital in a deed relating to property A and in a deed relating to property B is a recital against the interest of the person executing the deed is beyond my comprehension. As one of the learned Judges in the Madras High Court who has dealt with this question has stated, it can only be held a statement against the interest of the party making it on the assumption that that party possessed the whole of the universe.

The statement in the deed to the effect that the land is bounded on the north, south, east or west by the property of another person in my judgment can by no stretch of language be brought within Section 32(3), Evidence Act. It was sought however by the learned advocate for the respondents to be brought within Section 32(7). That section refers to a statement contained in a deed, will or other statements which relate to any such transaction as is mentioned in Section 13(a), Evidence Act, which refers to a transaction in which a right or custom is created, claimed, modified or recognised.

I am dealing with this matter on the assumption that the decisions of some of the Indian High Courts to the effect that u/s 13, Evidence Act, a right is recognised or claimed by the party executing a deed in which he purports to exercise the proprietary or other right over the property the subject matter of the deed. But it cannot be said in this case that a recital in a deed in any way recognises the title to the property by merely reciting that the property, the subject matter of the deed, is bounded on one side or the other by property over which some other person purports to exercise proprietary rights. I am fortified in my judgment in this case by the decision of their Lordships of the Judicial Committee in Shrinivasdas Bavri v. Meherbai 1916 PC 5 in which Lord Parker, in delivering the opinion of their Lordships, said that ordinarily recitals in a deed were not evidence against third parties.

Even assuming I come to that decision, it brings me to a point which is of almost equal difficulty, namely, whether there was other evidence in this case upon which the learned Judge in the Court below could come to the conclusion at which he arrived. It is true that he has placed reliance upon these documents and placed reliance upon them in order to support the plaintiffs'' oral evidence. As I understand Section 167, Evidence Act, if there was sufficient evidence upon which the Judge could come to the conclusion, I am precluded from remanding the case for rehearing. It is not a question whether the Judge would or would not believe the evidence other than the inadmissible evidence but whether it was possible for him to come to such conclusion as he did in the absence of that inadmissible evidence.

It is quite clear from the judgment of the learned Judge in the Court below that there was sufficient evidence. Therefore, in my judgment, although I decide the first point in favour of the appellants, I have to hold that the appeal fails on the second point. It is therefore dismissed with costs.