Markhu Mahto and Others vs Saharai Mahto and Others

Fazl Ali, J.—The dispute between the parties has in this appeal been narrowed down to one point only, namely whether the lands set out in Schedule 1 of the plaint, which consist of plots Nos. 750, 751 and 753 to 756 are lands which belonged to one Bhim through whom they are claimed by the plaintiffs or they are lands belonging to defendants 21, 17 and 18. It is common ground that the plaintiffs are the reversionary heirs of Bhim and if these lands belonged to Bhim, they are entitled to a decree in regard to these lands along with the other lands in suit. It is also common ground that these lands have been recorded as the raiyati lands of defendants 21, 17 and 18 in the Record of Rights which was finally published in the year 1922.

Both the Courts below have held in spite of the entry in the Record of Rights that the lands in question belonged to Bhim and they have based their decision wholly upon a deed of gift executed on 29th October 1892, by Bhim''s'' widow, Mt. Jamuna, in favour of her daughter Dulali. In this deed Mt, Jamuna gave a list of the properties which she was giving away to her daughter and the two Courts below have held that the fact that the lands in question were included in this list shows that the belonged to Bhim. The questions which we are asked to decide are--first, whether the deed in question is admissible in evidence; and, secondly, whether it can be used to rebut the entry in the Record of Rights.

On the first point it was contended by the learned advocate for the respondents that the Acts that the lands were given away by Mt. Jamuna by the deed of gift amounted to a statement by her that, they were her property, and this statement is admissible u/s 32, Clause (3) Evidence Act. This clause however makes only such statements admissible in evidence as are against the pecuniary or proprietary interest of the person making it. It is contended that inasmuch as Mt. Jamuna was giving away these lands to her daughter, the requirements of this Section are fulfilled, and it should be held that the statement in question is against Jamuna''s pecuniary interest. The argument appears to be a novel one and cannot be accepted. In order to determine whether a certain statement is against the pecuniary or proprietary interest of the person making it, we must look to the statement itself and not to the nature of the transaction in the course of which the statement is made.

On the respondent''s own showing the statement made by Jamuna amounts to an assertion that it is her property. Such an assertion can by no stretch of reasoning be held to be a statement against the pecuniary or proprietary interest of Jamuna. It is therefore clear that this statement is not admissible u/s 32, Clause (3), Evidence Act.

It is next contended that the statement in question is admissible u/s 13 of the Act. This Section provides that where the question is as to the existence of any right, any transaction by which the right in question was created, claimed, modified, recognized, asserted or denied is a relevant fact; and it may be conceded that under the Section mere assertion of a right may be some evidence of its existence.

The question however still remains whether the assertion made in 1892 can be used as evidence to rebut the entry in the Record of Rights which must be presumed to be correct at the date it was made. In my opinion the answer to this question must be in the negative. As the law stands, the entry in the Record of Rights gives rise to the presumption that in the year 1922 when it was finally published, defendants were the raiyats of the disputed plots. On the Other hand, the utmost that the Courts below were entitled to infer from this assertion made in 1892 was that at that time the land was probably the land of Jamuna, widow of Bhim.

It seems to me to be clear that the statement in the deed of gift cannot be used to rebut the entry in the Record of Rights, because it may well be that both the statement and the entry correctly represented the state of things which prevailed at the time they were respectively made. The learned Courts below have entirely overlooked this aspect of the case and so their decision, does not bind; us in this appeal. It was also contended on behalf of the respondents that inasmuch, as she learned Munsif has believed the oral evidence adduced by the plaintiffs with regard to their possession of the disputed lands till 1339 F., the decree passed in--their favour cannot be interfered with. It appears however that the learned Munsif did not base his decision on the finding on which the respondents rely and the lower Appellate Court did not even refer to the oral evidence relating to the plaintiffs'' possession of the disputed land till 1339 F.

In my opinion therefore this appeal should be allowed in part; and the decrees of the Courts below should be set aside in so far as they relate1 to plots Nos. 750, 751 and 753 to 756 set out in Schedule 1 of the plaint. The parties, will be entitled to proportionate costs; throughout.

Harries, C.J.

I agree