Khudiram Ojha vs Sm. Amodebala Debi and Others

Ray, J.—This appeal has been preferred by the plaintiff who brought the suit for a declaration of title and recovery of possession in respect of certain lands appertaining to khewat No. 47 and khewat No. 46. Of the two khewat lands, No. 46 was exclusively the property of late Sadhu Debya, the widow of Ashirbad Missir, the last male holder. Khewat No. 47 is the shamilat between khewat 46 and khewat 3. Khewat 3 was the property of Biraja and was recorded in her name in the latest record of rights.

In this case, two names occur very frequently namely that of Mohini and Biraja. It should be remembered that they are related as mother-in-law and daughter-in-law. Khewat No. 3 belonged to Biraja who inherited it from her husband who was son of Mohini and her husband Lallu Missir. The plaintiffs claimed these properties in suit as reversioners of Ashirbad on the death of Sadhu Debya about he time of whose death there is some controversy which will be dealt with presently. The plaintiffs'' case is that on the death of Sadhu Debya, they related as they were to Mohini, entrusted her with its management. In their ignorance, the property was sold in execution of a certificate decree obtained against Mohini and purchased by defendant 1 who is Mohini''s daughter. An allegation of collusion between Mohini and defendant 1 had also been made by the plaintiffs, but has not been believed by the Courts below. The point has not been re-agitated in this Court, it being a question of fact. The defendant repels the plaintiffs'' claim on two grounds, namely, that they have not been in possession of the properties within 12 years of the suit, and secondly that Mohiiy by her adverse possession since after Sadhu Debya''s death had acquired a title to the disputed lands by the time they were sold in certificate proceedings and in those circumstances defendant 1 acquired a good title to the properties in suit. Lastly it was contended that in any view defendant I was entitled to tack her possession with that of Mohini and defeat the plaintiffs'' claim as barred by limitation. The Courts below have come to the finding that Sddhu Debya died in the year 1328 which is equivalent to 1921-22 if not earlier. They have also found that since then Mohini Debya was openly and continuously in adverse possession of the properties till the time of the certificate sale which took place on 6th August 1934. As I have already stated, it is at that sale that defendant 1 had purchased. The Courts below have, therefore, held that defendant 1 acquired a good title to the disputed properties. It is undisputed that defendant 1 has been in possession since delivery of possession through Court which took place in 1934.

The plaintiffs in second appeal contend that the finding as to the time of Sadhu''s death baaed as it is on an inadmissible document, namely, Ex, D, is vitiated and that this document being ruled out, there were no materials before the Courts below to base a finding on, that Mohini had acquired title by adverse possession by the date of the certificate sale. It is further contended that possession of Mohini and of defendant 1 cannot be tacked as they are independent trespassers. Lastly, it is contended that as the properties appertaining to khewat No. 47 were held in cotenancy between Mohini and Sadhu Debya, the defendant in order to succeed should have established ouster which she has not been able to do. The later contentions are on the basis that it is Article 144 that governs this case and not Article 142, Limitation Act. The contention of ouster can at once be ruled out on the ground that khewat No. 3 with which khewat No. 47 is held in common tenancy, was the property of Biraja who inherited it from her husband, and Biraja''s ownership was exclusive of that of Mohini. Mohini''s possession of Sadhu Debya''s properties, therefore, cannot be said to be the possession of a cotenant. It could be so said with some amount of force with regard to possession by Biraja. This contention is based probably on the misconception of fact that Mohini and Biraja are for the purposes of possession identical persons. In fact they are not so. Not only are they two different natural persons but also their rights and liabilities with regard to the properties of the holder are independent of each other.

A very forceful argument has been advanced with regard to the'' inadmissibility of Ex. D. This document evidences a transaction by which Mohini Debya extended the terms of a usufructuary mortgage on receiving some more money from the usufructuary mortgagee already in possession as such for the purpose of defraying the expenses of Sadhu Debya''s sradh, The learned lower appellate Court relied upon the stat3-ment made in the document by Mohini to the effect that the money was required for the purpose of Sadhu Debya''s sradh and concluded therefrom that Sadhu Debya must have died by that date. It is contended by Mr. E. Section Chatterji that as a statement it is not admissible in favour of defendant 1 who is no other than Mohini''s daughter. It has to be remembered in assessing the value of this argument that she is not claiming the property as an heir of her mother. She is an auction purchaser at a certificate sale held against Mohini, the certificate debtor. The natural relationship, therefore, between defendant 1 and Mohini is quite irrelevant for the purpose of establishing that defendant 1 derives her interest from Mohini. That a statement made by a person cannot be used by him as evidence in his favour nor by his successors-in-interest or legal representatives is well known and is an undisputed proposition. But I do not consider that it applies in the present case. Had defendant 1 purchased the property from Mohini by a private sale, she could be such a person as is contemplated in the rule above cited. She is an auction-purchaser at a court sale. She, there, fore, cannot for all purposes be considered to be a successor-in-interest or a legal representative of Mohini for the purpose of admissibility of the document, Ex. D. I should, however, not rest my decision upon this opinion but would assume that if Ex. D was a mere statement of Mohini by way of an admission it would be irrelevant as a piece of evidence in favour of defendant l. But it has to be examined whether it is admissible under any provisions of law contained in the Evidence Act. The provision that strikes me in support of its admissibility is that contained in Section 82, Clause (7) which reads:

Statements written or verbal of relevant facts made by a person who is dead when the statement is contained in any deed, will or other document which relates to any such transaction as is mentioned in Section 13, Clause (a).

The statement that the loan was required for performing Saclhu Debya''s sradh after her death is contained in a deed or a document. The question arises whether the document relates to any such transaction as is mentioned in Section 13, Clause (a), Section 13, Clause (a) reads:

Any transaction by which the right or custom in question was created, claimed, modified, recognised, asserted or denied, or which was inconsistent with its existence.

It has been strenuously contended that Ex. D does not relate to a transaction within the meaning of Section 13(a) as the plaintiffs against whom it is sought to be used as evidence were not parties to the transaction. I experienced some difficulty in accepting this argument. Section 13(a) standing by itself refers to a transaction as between parties in relation to any right or custom as to the existence of which the question for consideration has arisen, but so far as Clause (7) of Section 32(is concerned it only takes the help of Section 18 (a) in order to indicate the nature of the transaction to which the document containing the statement relates. Not that it will necessarily be in relation to what can be called to be a transaction as between parties for the purpose of its admissibility without the help of Section 82. If a question had arisen between Mohini and Paran Ghunya Ex. D would certainly relate to what can be called a transaction within the meaning of Section 13 either Clause (a) or Clause (b). Therefore even though that very question is not in issue in this case as between the parties, the document did relate to a transaction as between the parties to it. The object, so far as I have been able to understand, of Clause (7) of Section 32 is that the statement must have been made in relation to a transaction where it was necessary to make the statement. Section 32 aims at keeping out gratuitous statements which were either not necessary to be made at the time and on the occasion when they were made or which it was not the duty of the party who made them to make. Understood in that background, it appears to me to be a document within the meaning of Clause (7) of Section 32. The statement in Ex. D, therefore, fulfils the conditions necessary for its admissibility u/s 32(7), namely, (1) that the statement is contained in a document, (2) that it was made by a person who is dead, and (3) that the document related to what can be called a transaction within the meaning of Section 13(a). For the purpose of this clause, Clause (a) of Section 13 has, to be read independently of the other portions of Section 13. The whole of Section 13 is never intended to be read for the purpose of interpretation of this clause. Had that been so, then the Legislature would have simply stated Section 13 which would have necessarily? included Section 13(b) as well. There is certainly a point in referring to Clause (a) but not to (b).

I shall now address myself to the decisions cited by Mr. Chatterji in order to see whether they conflict with the view that I have taken. He has first relied upon the Privy Council decision in Pattabhiram Rao v. Narayana Moorthy AIR 1922 P.C. 102. This has hardly any application as it simply pronounces that no party or his representative can rely upon an admission of his own, a proposition which is neither defied nor disputed. The next case relied upon is Krishna Mohan Ghosh Vs. Surapati Banerjee and Others, . There too the admissibility of a statement in a document u/s 32, Clause (7) did not arise for consideration. The only passage in which Section 82 is mentioned is :

Under Section 21, Evidence Act, an admission cannot be used as evidence in favour of the person making it or any person claiming under him except under some circumstances, one of which is that it may be so used if it is relevant otherwise than as an admission. It is, therefore, necessary to consider if the statement above referred to is otherwise relevant and as such can be proved on behalf of the person making it. It is not seriously contended that the statement is relevant u/s 11, Evidence Act, as it can hardly be said to be a ''fact'' within the meaning of that section, nor is it maintained that it is admissibly under any of the clauses of Section 32, though it appears that Makhan Ray is now dead. But it is attempted to make it evidence u/s 13, Evidence Act.

This makes it clear that the point was neither argued nor came up for decision in this case. Reliance is net placed upon the case in Jyoti Prashad Singh Deo Bahadur Vs. Bharat Shah Babu and Others, . The question that arose for consideration in this case was whether a statement made by a vendor as to the nature of his right in the land sought to be vended is admissible as proving a claim within the meaning of Section 13(b), Evidence Act. It was held that the word "claim" in Section 13(b), Evidence Act indicates that the right is asserted to the knowledge and in the presence of the person whose right will be affected by the establishment of the claim. This also is of no help in this case because, as I have already shown, Section 13(b), Evidence Act, does not come into picture in considering the admissibility of a statement under the provisions of sub" Section (7) of Section 32, Evidence Act. The last case relied upon in which Section 32 has been taken into consideration, though not Sub-section (7), is that in Soney Lal Jha v. Darabdeo Narain Singh AIR 1935 Pat. 167 . There the statement was a recital in a deed of instrument by a person, who was dead at the time. Those statements were sought to be proved as admissible u/s 32(2) and (3) and it was found that the statement did not fulfil the condition of either Sub-section (2) or Sub-section (3) of the section. It did not fulfil the condition of Sub-section (2) because it was a statement which it was not the duty of a person, namely, the vendor to make, the statement being with regard to the boundaries of the lands sold. Secondly, the statement of the boundaries did not fulfil the condition, of Sub-section (3) as it was not against the pecuniary or proprietary interest of the person making it. Whether the statement was admissible as one contained in a document which related to a transaction within the meaning of Section 13(a) was never raised before their Lordships. Mr. Chatterji very seriously contends that any document or statement which is not admissible under some provision of the Evidence Act cannot be admissible under other provisions. The answer to this contention is contained in the passage which I have already quoted from the case reported in Krishna Mohan Ghosh Vs. Surapati Banerjee and Others, . In my view, there-fore, the statement contained in Ex. D is admissible in evidence u/s 82(7), Evidence Act, to prove that Sadhu Debya was dead by the time that document was executed. That being so, her possession must be continuously for 12 years by the time the certificate sale took place.

There is another aspect from which the admissibility of Ex. D can be approached. As submitted by Mr. Mazumdar, quite apart from the statements contained in the document, it is a proof of Mohini''s possession. The fact of Mohini''a possession is not only a fact in issue but also is a fact inconsistent with the other fact in issue, namely, the time of Sadhu Debya''s death. Exhibit D "proves Mohini''s possession in the year 1921 22. This fact would be inconsistent with Sadhu Debya being alive at that time. Therefore, in considering the question when Sadhu Debya died Ex. D becomes a relevant piece of evidence proving the fact of Mohini''s possession. It is contended that Ex. D suffers from the same defect as proof of Mohini''s possession as it does as proof of the statement contained in it as to Sadhu Debya''s death. I fail to understand this contention. Possession is evidenced by acts of the parties in possession and those acts are evidenced by contemporary documents prepared by them in the ordinary course of business. I do not see any reason why ex. d will not be considered as proof of Mohini''s possession at the time when the document came into existence. Proved for this purpose it lends support to the inference drawn by the Court below. Besides, on the point of Sadhu''s death the learned lower appellate Court has relied upon oral evidence of D. ws. 1 and 2 of whom he accepts that D.W. 2 is quite disinterested.

Next it is contended that it has not been proved that Mohini was all along in possession since Sadhu''s death. This contention is based on the circumstances that the documents relied upon mainly relate to periods within 12 years except Ex. D which is beyond 12 years. This argument also cannot be given effect to particularly in view of the defence case. The defendants say that on Sadhu Debya''s death they entrusted the management of the disputed property to Mohini who continued to remain in possession on their behalf. In this view the actual physical possession by Mohini is not denied, rather admitted. The Courts below have disbelieved the story of entrustment on a very cogent ground, namely, that Mohini and the plaintiffs were on terms of litigation even before the final publication of the record of rights. I am, therefore, of opinion that the Courts below have rightly held that Mohini had acquired a right by adverse possession by the time the certificate, sale took place.

The next contention that has been advanced is that the possession of defendant 1 cannot be tacked with that of Mohini as they are independent trespassers. This argument no doubt smacks of inconsistency in the learned counsel''s view. As I have already shown, he has been arguing with great amount of force that defendant 1 derives her interest from Mohini and, therefore, Mohini''s statements cannot be used on her behalf as they are Mohini''s admissions and as defendant 1 derives her interest from Mohini. It is somewhat unusual to contend in the course of the same plea and in relation to the same subject-matter that for certain other purposes they are independent, that is to say, not one deriving interest from the other. At any rate, however, I may disfavour this argument. I will not proceed to consider it because it does not arise for consideration in consideration of the view that I have already taken with regard to the findings arrived at by the Courts below.

The last argument of ouster has already been dealt with. In the result I find no merit in this appeal which is, therefore, dismissed with costs.