Jhobali Rai and others vs Sakhi Rai and others

Das, J.—The properties in dispute in this litigation are 52 bighas of kasht lands described in Schedules A, B and C of the plaint. According to the Plaintiffs, these kasht lands belonged to three brothers of a Joint Mitakshara family, Bhola Rai, Mahabir Rai and Bihari Rai and upon the death of Bhola Rai and Bihari Rai, Mahabir Rai, as the sole surviving member of the joint Mitakshara family, took possession of these lands. The Plaintiffs assert that they are the heirs of Mahabir Rai and they became entitled to succeed to these kasht lands left by Mahabir Rai at his death which took place over 30 years ago. As to the question of delay in enforcing their claim, the Plaintiffs say that they allowed the properties to remain in the possession of Musst. Lakhpati Kuer, the widow of Bhola Rai and Musst. Ramlochan Kuer, the widow of the predeceased son of Bhola Rai and they maintain that their cause of action arose on the 15th Baisak 1318, the date of the death of Musst. Lakhpati Kuer. The Defendants in their written statement alleged that they were the heirs of Mahabir Rai, but in their evidence they completely repudiated their own written statement and put forward the case that they were in possession of the kasht lands in their own rights. They also rely upon limitation and adverse possession to defeat the Plaintiffs'' claim. It is only necessary to add in this connection that the record-of-rights is completely in favour of the defendants.

The learned Subordinate Judge has taken the view that the oral evidence in the case is not of any value: and on a consideration of the circumstances, he has come to the conclusion that the Plaintiffs have not established their case that they are the heirs of Mahabir Rai. In this Court it was strongly contended on behalf of the Plaintiffs by Mt. Sultan Ahmed that upon the finding of the Court below that the Defendants have no sort of title to these properties, the Court should not have required such strict proof of the Plaintiffs'' title as it would have been justified in requiring had there been a competition between the Plaintiffs and the Defendants on the question of heirship. With this contention. I do not agree. The Defendants are in possession of the properties, and the record-of-rights is in their favour; and the question of their title does-not fall to be considered until the Plaintiffs have established their title to the properties. The important evidence in favour of the Plaintiffs is the genealogical table which has been produced by the witnesses Jagdeo Rai. In my opinion it is doubtful whether the document was properly admitted in evidence. The evidence upon this point is that of Jhubali Rai and Jagdeo Rai. Jhobali Rai, the Plaintiff says in his evidence that the genealogical table produced by Jagdeo Rai was written by one Thakur Rai who died 22 or 23 years ago. He adds that Thakur Rai gave it to Jagdeo Rai saying "it would be of use in future." Jagdeo Rai''s evidence is that Thakur Rai wrote the genealogy in his house in his presence and that it was written by him 26 or 27 years ago. He admits that there was an old genealogy from which it was copied and he says that the old genealogy was worn out and that it no longer exists. How the only section under which the genealogy could be admitted is S. 32, cl. 5, which provides that statements written or verbal, made by a person who is dead or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts when the statement relates to the existence of any relationship by blood, marriage, or adoption between persons as to whose relationship by blood, marriage or adoption the person making the statement has special means of knowledge, and when the statement was made before the question in dispute was raised. It will be noticed that the section requires that it must be shown that the statements contained in the pedigree were made by a person who had special means of knowledge of the relationship to which the statements relate. Now whose statement is contained in the genealogical table? Not the statement of Thakur Rai, for it is admitted by Jugdeo Rai that Thakur Rai merely copied the statements from an old genealogical table which was in his possession and which is no longer in existence. In my opinion, before the pedigree could be admitted in evidence, the Plaintiffs should have shown who was responsible for the old genealogical table. The evidence might indeed be hearsay, but where the witness is stating from hearsay, he must show that his knowledge comes from a person whose statements are admissible under S. 32 of the Act. In this case it is not shown by the Plaintiffs that the statements contained in the genealogical table are the statements of any person whose statements are admissible in evidence under S. 32 of the Act. If it were the case of the Plaintiffs that Thakur Rai wrote out the whole genealogical table from his own knowledge as to the relationship of the different parties, the document would undoubtedly be admissible in evidence under S. 32, cl. 5 of the Act; but that is not the case of the Plaintiffs. The case of the plaintiffs, on the other hand, is that there was an old genealogical table in the possession of Thakur Rai and that Thakur Rai merely copied from the old pedigree which was in his possession. Since it is not shown who was responsible for the old pedigree which was in possession of Thakur Rai. I very much doubt whether the genealogical table was properly admitted in evidence.

But I do not desire to decide this case on this narrow ground. In my opinion the learned Subordinate Judge was right in not relying upon the genealogical table. The learned Sub-ordinate Judge in his judgment says that the document was produced at a very late stage. In this Court it was argued that the learned Subordinate Judge should have made a distinction between a document which is produced by a party and a document which is produced by a witness and that since this document was produced not by a party but by a witness, he should have come to the conclusion that no question arose as to its late production. In order to determine this question it is necessary to see whether Jagdeo Rai is in fact a witness or a party. In my opinion the evidence of Jagdeo Rai establishes that he is a partisan witness and not an independent witness; for instance, he supports the case of the plaintiffs that Bharosa Rai got possession of these lands after Mahabir''s death and that the ladies asked Bharosa Rai to be allowed to enjoy the produce and that Bharosa Rai agreed to this. Now Jhobali Rai undoubtedly made himself responsible for this portion of the case, but he admitted that no one was present when he and Bharosa gave the lands to the Mussammats for their maintenance. In order then to see whether Jagdeo Rai should be accepted as a witness of truth, it is necessary to consider whether it is possible to accept that part of his evidence in which he gives support to the plaintiffs in regard to their case that the ladies were in possession of the disputed lands with the permission of the plaintiffs. In my opinion it is only necessary to state the facts to reject it entirely. The plaintiffs were, neither of them, in affluent circumstances. Jhobali Rai, one of the plaintiffs, states that he had only about t4 bighas of land in his possession which he inherited from Chaturi. It appears that Bharosa had about 15 bighas of kasht lands. Now the properties in dispute in this litigation are kasht lands having an area of 53 bighas. It is impossible to accept the case that these two persons, each having between 12 to 15 bighas of kasht lands, should have consented to the ladies holding possession of no less than 52 bighas of kasht lands for their maintenance. Now if this portion of the case is rejected, it is impossible to resist the conclusion that Jagdeo Rai is a partisan witness. In other words, he is really in the position of a party and not in the position of a witness. That being so, there is no explanation why the pedigree should have been produced at a late stage of the case. Mr. Sultan Ahmed on behalf of the Appellants has argued before us that the pedigree has received strong corroboration from some admitted circumstances in the case; for instance, he relies upon the fact that the pedigree shows that Uma Rai was the father of Bhola Rai, Behari Rai and Mahabir Rai. That may be so. Nobody disputes that the pedigree is correct in certain matters; but the question is whether the pedigree ought to be accepted as a genuine document in so far as it shows that the Plaintiffs are the heirs of Mahabir Rai. Mr. Sultan Ahmed also relies upon Ex. 4, the batwara hhasra, which shows that Plot No. 1220 was the khand of Mahabir Rai, Bharosa Rai and Sarabjit Rai. In my opinion it is quite impossible to found an argument upon Ex. 4 for it may well be that Mahabir Rai, Bharosa Rai and Sarabjit Rai were co-sharers and not members of the same family. On the whole I agree with the learned Subordinate Judge that the pedigree is not a reliable document and should not be accepted.

The question really is a short one and it is this-Why have the plaintiffs delayed in putting forward their case for over 30 years? Their only answer is that they allowed the ladies to appropriate the profits arising out of these lands. For myself I am unable to accept the explanation. I have shown that neither of the Plaintiffs was in affluent circumstances, and it is impossible to accept the explanation that they allowed the ladies to remain in possession of the lands to which they were entitled by right of inheritance. It follows therefore that the basis of their claim must be scrutinized with care. Their evidence is unconvincing and the genealogical table upon which they rely is unacceptable. That being so, it is quite immpossible to say that the conclusion at which the learned Subordinate Judge has arrived is incorrect.

I would accordingly dismiss this appeal with costs.

Macpherson, J.

I agree.