Rangayyan and another vs Innasimuthu Mudali and others

Ramaswami, J.—This is a second appeal which has been preferred against the decree and judgment of the learned Subordinate Judge of

Coimbatore in A. S. No. 50 of 1953, confirming the decree and judgment of the learned District Munsif of Gobichettipalayam in O. S. No. 543 of

1950.

The facts are: The first plaintiff purchased the suit property, a vacant site with a Salai thereon, along with other properties from his sisters, who

are the widows of one Madhae Goundan under Ex. A-1 dated 4-4-1934. The plaintiffs'' case is that after the purchase the disputed property

remained vacant, that the first plaintiff put up a salai thereon in 1936 and after that his farm servants used to be housed therein.

The first defendant occupied the property in 1945 as one of the farm servants. Subsequently, he left the service of the first plaintiff. He did not

vacate the salai and site. Therefore, this suit has been filed for a declaration, possession and mesne profits. The first plaintiff died pending suit and

his legal representatives have been brought on record as plaintiffs 2 and 3 by order dated 9-4-1952.

On coming to court the contention raised by the defendants, who are now occupying the property, is that the first defendant''s father Sevuthi

Mudali purchased the suit property from Madhae Goundan under an oral sale several years prior, that Sevuthi Mudali put up a building and ever

since Sevuthi Mudali and after him the defendants have been living there.

The evidence in this case consisted of (a) two documents, Exs. B-1 and B-2, and (b) other documentary and oral evidence. Both the courts below

came to the conclusion that the evidence on record did not make out the case for the plaintiffs, viz., that they were in possession of the property

within 12 years prior to the filing of the suit and that on the other hand the defendants have shown that they prescribed their title by adverse

possession and limitation for over the statutory period. Hence this second appeal by the defeated plaintiffs.

The two points for consideration before me are (a) the relevancy and mode of proof and the probative value to be attached to Exs. B-1 and B-

2; and (b) the conclusions to be drawn from the other evidence.

Point (a): Ex. B-1 is a registration copy of a sale deed dated 14-1-1933 executed by Sankaran Chetti in favour of Arumugham Pillai, D.w. 1, in

respect of the house south of the suit property. In that document the northern boundary of the house sold is given as Sevuthi Mudali''s house and

the eastern boundary as the Government natham.

Ex. B-2 is a registration copy of the mortgage deed dated 11-5-1929 of the same property executed by Sankaran Chetti in favour of D.W. 1. This

document also contains the same description as in the subsequent sale deed. In regard to these documents the question which arises first is whether

they are relevant and admissible in evidence.

In regard to recitals or boundaries in documents, cases falling under this head may be divided into three classes:

(a) When the recital is in a document ''inter partes.'' In such a case the recital is a joint statement made by the parties to the document and

therefore, relevant against all of them as an admission.

(b) When the recital is in a document between a party and a stranger. In such a case, the recital is relevant against the party as an admission but is

not admissible in his favour - Krishna Mohan Ghosh Vs. Surapati Banerjee and Others, ; - AIR 1934 750 (Lahore) - unless the fact recited is

deposed to in court by the executant of the document, in which case the recital will become admissible under S. 157 of the Evidence Act to

corroborate the evidence of the executant; Sheik Ketabuddin and Others Vs. Nafar Chandra Pattok and Others, and see also Ambica Charan

Kundu and Others Vs. Kumud Mohun Chaudhury and Others, or under S. 155 of the Evidence Act to contradict such evidence: - AIR 1937 480

(Lahore) .

(c) When the recital is in a document between strangers.

Now it is well settled that a recital as to boundary in documents between third parties is not ordinarily admissible to prove possession or title as

against a person who is not a party to the document. But that rule is subject to exceptions which again can be classed under four heads viz., if

those documents come within the relevancy and admissibility contemplated under (a) Ss. 157 and 155 of the Evidence Act; (b) S. 32(3) of the

Evidence Act; (c) under S. 13 of the Evidence Act; and (d) under S. 11 of the Evidence Act,

In regard to the relevancy and admissibility of documents between strangers reciting boundaries under S. 157, the line of decisions can be

summarised as follows : In Thyagarajan Chetty and Another Vs. Narayana Thevan, , Wads-worth J. held as follows:

It is however contended that when the executant of the document containing a recital of boundary upon which reliance is placed is himself a witness

in the case, the recital can be let into evidence under S. 157, Evidence Act, as a former statement corroborating the deposition. The only express

decision on this point to which my attention has been drawn is contained in Sheik Ketabuddin and Others Vs. Nafar Chandra Pattok and Others, .

That decision does not discuss the precise terms of S. 157, but proceeds on a concession that the recital of a boundary in a document not ''inter

partes'' can be admitted to corroborate a witness who himself is the executant of the document. It must however be pointed out that S. 157 does

not make all previous statements admissible to corroborate the testimony of a witness but only two classes of statements:

(1) A statement made by a witness relating to the same fact at or about the time when the fact took place and (2) a statement made before any

authority legally competent to investigate the fact. Clearly, the second of these categories has no reference to recitals in deeds. But can it be said

that a recital of a boundary in a mortgage deed is a statement at or about the time when the fact took place? With some hesitation I think it can.

One cannot of course speak of a boundary as a fact which took place at one time or other. But what is to be got from this statement is not really

the fact of the boundary but the fact that land on the boundary was at a particular time in the possession of a particular individual, and the statement

in the mortgage deed that so and so was in possession of the land on such and such a boundary is in my opinion a former statement made at the

time when the fact of possession was taking place - a contemporaneous statement regarding the occupation of land on the boundary. In this view,

it is admissible under S. 157, Evidence Act.

In - Komirineni Rosayya and Another Vs. Munnamgi Rosayya, Kuppuswami Aiyar J. following Thyagarajan Chetty and Another Vs. Narayana

Thevan, held;

That if a statement that a particular property was in possession of a particular person in a particular period is relevant evidence of a fact that had

taken place, the recital that the person owned it, also is a statement of fact that had taken place at the time when it was made. Possession is a legal

conception as also ownership.

If a particular statement about a particular individual that he was in possession of a property is relevant evidence of a fact that had taken place, then

the fact he owned it is also a similar recital of a fact that had taken place. The statement in the document in question was therefore relevant as

corroborative evidence being a statement made by the witness on a previous occasion.

These two decisions lay down that a document though not ''inter partes'' is admissible to prove the possession and title to the property if it is

used as corroboration for the oral evidence of the executant of the document. In Mohim Chandra Basak and Others Vs. Kanailal Saha and

Others, Suhrawardy and Carlick, JJ. held referring to Sheik Ketabuddin and Others Vs. Nafar Chandra Pattok and Others,

In a suit for possession of land if the opposite party disputes the boundaries of the land in suit, it is open to the plaintiff to produce documents

relating to neighbouring lands in which there is recital as to particular boundaries of the land in suit, and ''such documents will be admissible to

prove the plaintiffs'' title if the persons in whose favour the documents are executed are examined and admit the correctness of the boundaries.

I need not point out that a recital which becomes admissible under 157 to corroborate the testimony can also be used under S. 155 to contradict

such testimony.

The matter, however, does not stand merely with the relevancy and admissibility. The probative value to be attached will depend upon the

circumstances of each case and may range from zero to almost clinching proof.

In regard to S. 32(3) of the Evidence Act, in the following cases where the executant could not be produced as a witness the recitals were

admitted: Thyagarajan Chetty and Another Vs. Narayana Thevan, '', Tika Ram Vs. Moti Lal AIR 1928 248 (Oudh) Sarat Chandra Rakhit Vs.

Sarala Bala Ghosh and Others, '', Sheik Ketabuddin and Others Vs. Nafar Chandra Pattok and Others, '' Pramatha Nath Roy Chowdhury and

Others Vs. Rajah Bejoy Singh Dhudhuria and Another, Abdul Rahim Kazi and Another Vs. Jonabali Sardar and Others, - ''Natwar v. Alkhu'', 18

Ind Cas 752 (All) (M); - ''Imrit Chamar v. Sridhari Pandey'', 15 Cal LJ 7 (N); - ''Abdullah v. Kunjabeharilal'', 14 Cal LJ 467 (O); - ''Hajlbibi v.

The Aga Khan'', 11 Bom LR 409 (P); - ''Ningava v. Bharmappa'', 23 Bom 63 (Q); - ''Trimbak v. Ganesh'', AIR 1923 Nag 22 (R). There has

been a decision of Jackson J. in - Kandasami Goundan Vs. Marudachala Goundan and Others, to the effect that it cannot be said that a statement

of boundaries Is against the proprietary interest of the person making it excepting on the assumption that every person must be presumed to own

the universe until he makes a statement circumventing his title.

But with respect to Jackson J. his observation seems to miss the real point. Section 32(3) states that when the statement is against the pecuniary or

proprietary interest of the person making it, it is relevant when the person making it is dead, or cannot be found or 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.

First of all, recitals of boundaries of property, contained in deeds not ''inter partes'' have been held to be admissible to prove the ownership or

possession of adjoining property, on the ground that, when the deed is a mortgage deed, it amounts to a statement against the pecuniary or

proprietary interest of the mortgagor, inasmuch as he admits therein that he is indebted in a certain sum of money and that this money is a charge on

his property; 23 Bom 63 (Q); Thyagarajan Chetty and Another Vs. Narayana Thevan, ), and, when the deed is a deed of conveyance, on the

ground that it amounts to a statement against the vendor''s interest, inasmuch as he admits therein that he is extinguishing his interest in the property

conveyed.

The mortgage deed or the deed of conveyance having thus been held to be a statement against the pecuniary or proprietary interest of the

executant of the deed, on the authority of - ''Righam v. Bidgway'', (1808) 10 East 109 (T), the document is made evidence not only of the precise

fact against interest, but of all the collateral facts mentioned therein, and consequently of the possession or ownership of persons who are

mentioned in the deed as possessing or owning the land adjoining the property mortgaged or conveyed. - ''Rejabaddi Sarkar v. Ganga Charan'',

AIR 1919 Cal 499 (U); AIR 1918 Cal 971 (L); 12 Ind Cas. 149 (Cal) (O) (supra); - ''Ramsarup v. Bhagwat Prosad'', AIR 1920 Pat 696 (V).

Another ground on which recitals of boundaries of the land conveyed is held to be against interest is that a statement by the vendor that his land is

limited by certain boundaries is an admission that his proprietary interest does not extend over any land beyond the boundaries mentioned in the

deed. Tika Ram Vs. Moti Lal Pramatha Nath Roy Chowdhury and Others Vs. Rajah Bejoy Singh Dhudhuria and Another, Abdul Rahim Kazi and

Another Vs. Jonabali Sardar and Others, 13 Ind Cas 120 (Cal) (N); - ''Ramnandan v. Tilakdhari Lal'', Ram Nandan Prasad and Another Vs.

Tilakdhari Lal,

To my mind, therefore, there will be no impediment in regard to the relevancy and admissibility of a document between strangers reciting

boundaries under this section provided in the circumstances of the case the other requirements of S. 32(3) are complied with.

Recitals of boundaries In documents not ''inter partes'' may also become relevant and admissible under S. 13 which states ""where the question

is as to the existence of any right or custom... (a) 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, (b) particular instances in which the right or custom was claimed,

recognised or exercised, or in which its exercise was disputed, asserted or departed from"" are relevant.

This section supplies to all kinds of rights, whether rights of full ownership, or falling short of ownership, e.g., rights of easement, etc. A right may

be public, or general, or private. Further, a right may be incorporeal, e.g., a right of way; or corporeal e.g., right of ownership. - Raghupat Tewari

and Another Vs. Pandit Narbadeshwar Prasad Tewari and Another, - ''Tepu Khan v. Rajani Mohun Das'', 25 Cal 522 (Z1); - Ram Kishun and

Others Vs. Niranjan Pande,

A transaction is a business or dealing which is carried on or transacted between two or more, persons; it is something which has been concluded

between persons by a cross or reciprocal action; and, in the largest sense, it means that which is done - ''Gujja Lall v. Fatteh Lall'', 6 Cal 171 (Z3);

- ''Venkatarayagopala Raju v. Narasayya'', AIR 1915 Mad 746 (Z4); - Protap Chandra Deo Dhanbal Deb Vs. Sri Raja Jagadish Chandra Deo

Dhabal Deb, .

On account of the governing qualification ""by which"" in regard to any transaction if it is a case which is sought to be made admissible on the

ground of the right being created, claimed, modified, asserted or denied, then it must be shown to be not apart from the transaction by which it was

created, claimed etc. Instance of creation or modification of a right would be inconceivable apart from the transaction ""by which"" it was created or

modified.

This distinction between the expression ""by which"" and the expression ""in which"" has been emphasised in Brojendra Kishore Roy Chaudhuri Vs.

Mohim Chandra Bhattacharji and Others, - Asaddar Ali Khan Waqf Estate by Mutwali Gajanfor Ali Khan and Another Vs. Province of Assam

and Others, - Subbarayulu Naidu and Others Vs. Vengama Naidu, etc. But there may he a transaction by which there has been a recognition of a

right or the exercise of a right which can be proved by recitals in a document not ''inter partes''.

In other words, a transaction in which there is a recognition by mere assertion and a recognition of the exercise of a particular instance of the same,

as distinct from a transaction by which the right or custom is created, claimed, modified or denied, has got to be distinguished. The reason for this

distinction is the word ""claimed"" denotes a demand or assertion in relation to a thing or attribute, as against or from some person, showing the

existence of a right to it in the claimant.

A mere assertion of a right in a document to which the person against whom the right is asserted is not a party and of which he knows nothing, is

not to claim the right. The word ""assertion"" indicates some act or deed which may or may not follow a statement. It is on that foot that Jackson J.

held in Kandasami Goundan Vs. Marudachala Goundan and Others, that a mere statement of boundary as such cannot be classed with any of the

verbs in S. 13. But in doing so, with respect, the learned Judge went too far and did not give full effect to the verbs ""recognised"", ""exercised"".

In the Concise Oxford Dictionary the word ""recognised"" is defined as

acknowledge validity or genuineness or character or claims or existence of, accord notice or consideration to, discover or realise nature of, treat

as, acknowledge for, realise or admit that.

In Ramanatha Iyer''s law lexicon (M. L. J. publication) at page 1089 it is mentioned: The word ""recognise"" according to the best lexicographers,

signifies to admit; to acknowledge something existing before, recognise, acknowledge. To recognise is to take cognizance of that which comes

again before our notice; to acknowledge is to admit to one''s knowledge whatever comes fresh under our notice.

Webster''s Dictionary: To admit the fact, truth or validity. To avow knowledge of; to consent to admit, hold or the like; to admit with a formal

acknowledgment; as to recognise an obligation; to recognise a consul.

Murray Dictionary : To acknowledge by special notice, approval or sanction; to treat as valid; as having existence or as entitled to consideration;

to take notice of (a thing or person) in some way. To admit to consideration, or to a status, as being something.

Ballentine Law Dictionary: The Lawyers'' Co-operative Publishing Co., Rochester, N. Y., 1948 Edn., page 1095 :... To try a question of fact, to

ratify; to adopt to become bound by a recognizance .

There is no impediment therefore on the wording of S. 13 of the Evidence Act as it stands, where the existence of a right is in question, it is

permissible for the party relying on its existence to prove any transaction by which it was recognised a particular instance in which it was exercised

by means of recitals of boundaries in documents not inter partes. The narrower construction that is sought to be placed upon S. 13 has no merit

even otherwise because as laid down by Lord Hardwicke in ''Omychund v. Barker'', (1744) 1 Atk 21 (Z9), ""The Judges and Sages of law have

laid it down that there is but one general rule of evidence the best that the nature of the case will admit.

In many cases unimpeachable documents. of neighbours who would be the best persons in our country where people are rooted for generations to

the same place about the possession and title of their adjoining properties would constitute the best evidence. There, is no reason why what the

Americans would call the grass-root evidence should be excluded & incur once more the reproach that the growth of the Indian Evidence Act has

been exercised under the influence of English precedents and Indian Lawyers by so much restrictiveness that the law of evidence has become more

remarkable for what it shuts out than what it lets in.

The object of a judicial investigation seems to have become more the obscuring of the truth rather than the discovery of it. I would in this

connection refer to a brilliant exposition of this aspect by the late Mr. C. F. Arnold, I. C. S. in his ""Psychology applied to legal evidence and other

constructions of law"" (Thancker Spink and Co. Calcutta 1913). Therefore, the recitals of boundaries in documents not inter partes would be

admissible under S. 13 in fitting cases where the circumstances of the particular case permit such a course.

These recitals of boundaries can also become relevant and admissible under S. 11 of the Evidence Act. According to this section a fact is

relevant when by itself or in connection with other facts it makes the existence or nonexistence of any fact in issue or relevant fact highly probable

or improbable. The Section attempts to state in popular language the general theory of relevancy and may, therefore, be described as the residuary

section dealing with the relevancy of facts.

The words of S. 11 are very wide, and it may be safely laid down that all evidence which would be held to be admissible by English law would be

properly admitted under this section of the Act. Collateral facts which, by way of contradiction, are inconsistent with a fact in issue or another

relevant fact, i.e., which makes the existence of a fact in issue or a relevant fact impossible or highly improbable, or which, by way of corroboration

are consistent with existence of a fact in issue or a relevant fact, i.e. tend to render the existence of a fact in issue or a relevant fact highly probable,

are themselves made relevant by the present section.

The only two limitations on the use of these documents under S. 11 are: The Court must exercise a sound discretion and see that the connection

between the fact to be proved and the fact sought to be given under S. 11 to prove it must be so immediate as to render the co-existence of the

two highly probable. The section makes admissible only those facts which are of great weight in bringing the court to a conclusion one way or the

other as regards the existence or the non-existence of the fact in question. The admissibility under this section must, in each case, depend on how

near is the connection of the facts sought to be proved with facts in issue and to what degree do they render facts in issue probable or improbable

when taken with the other facts in the case.

Ambica Charan Kundu and Others Vs. Kumud Mohun Chaudhury and Others, - ''Emperor v. Vyapoory Moodeliar'', 6 Cal 655 (Z11), Emperor

v. Panchu Das, AIR 1920 Cal 500 (FB) (Z12), Lovelock and Lewes v. Malabar Timber and Saw Mills Ltd. 18 Ind Cas 997 (Mad) (Z13); -

''Htin Gyan v. Emperor''. s (Z14). Secondly, this section is also controlled by some more specific provisions of the Act, viz, Ss. 17 to 39. In Sheik

Ketabuddin and Others Vs. Nafar Chandra Pattok and Others, it was held that where the executants of a document containing recitals of

boundaries of land are alive and do not give their evidence, such documents are not admissible under Section.

In Ambica Charan Kundu and Others Vs. Kumud Mohun Chaudhury and Others, Cuming and Mukherji JJ. held that as a general rule S. 11 is

controlled by S. 32 when the evidence consists of statements of persons who are dead and the test whether such statement is relevant under S. 11,

though not relevant under S. 32, is that it is admissible under S. 11 when it is altogether immaterial whether what was said was true or false but

highly material that it was said.

The net result of this analysis is that recitals of boundaries in documents not inter partes will be relevant and admissible under Ss. 157, 32(2),

13 and 11 of the Evidence Act, the particular circumstances of the case determining the particular section applicable to the facts of that case. The

probative value to be attached will also equally depend upon the circumstances of each case and may vary all the way from zero to almost

clinching evidence.

Bearing these principles in mind if we examine the facts of the instant case, we find that Exs. B-1 and B-2 are relevant and admissible under S.

But their probative value is practically zero since the recital is consistent both with the possession of Sevuthi Mudali as owner or as lessee.

Point (b): The inconclusive nature of the evidence furnished by Exs. B-1 and B-2 and which is also consistent as I have just now said, with the

case of the plaintiffs of Sevuthi Mudali being in possession as a farm servant, has to be coupled in the case of the plaintiffs with the other evidence

adduced by them. It Is in the probable and natural course of conduct that Sevuthi Mudali might have been allowed by Madhae Goundan to occupy

the vacant site and put up a salai therein.

This is usual in the case of a landlord and pannai servant. The sale deed in favour of the first plaintiff is as early as 1934 and there is no reason why

at that stage when the first plaintiff had purchased several properties worth Rs. 3,000, he should have got included falsely a site which did not

belong to Madhae Goundan and his widows.

It also stands to common sense that if he had deliberately inserted such a false recital he would not have refrained from talcing proceedings to evict

Sevuthi Mudali''s family till 1952. On the other hand, it is consistent with the first plaintiff allowing this pannaiyal to continue to occupy and put up a

salai which has got to be renewed often. On the other hand, there is no evidence whatsoever regarding the oral sale alleged by the defendants.

It is easy to assert such oral sales and difficult to refute them and therefore the evidence regarding the same must be carefully scrutinised. Out of the

three witnesses examined by the defendants, D. W. 3 is the first defendant himself and an interested party. D. W. 1, the ex-karnam of the village,

does not know under what right Sevuthi Mudali was enjoying the suit house. D. W. 2 states that nobody else was present at the time of the

negotiations of the sale by Madhae Goundan to Sevuthi Mudali.

D.W. 3 states that he was present at the time of the talks and that he knew about the oral sale in favour of his father. The learned District Munsif

came to the conclusion that the defendants have not placed before the court sufficient evidence to prove the oral sale by Madhae Goundan in

favour of Sevuthi Mudali as alleged by them. On the other hand, on the side of the plaintiff five witnesses were examined and they are all

neighbours occupying respectable stations in life and there is no reason why they should falsely support the plaintiffs'' version.

It is unnecessary to multiply these details to show that not only are the recitals of boundaries in Exs. B-1 and B-2 consistent with the plaintiffs'' case

but the other circumstances set out above make out the plaintiffs'' version.

In the result, the plaintiffs have shown that they have been in possession of the property within 12 years prior to the filing of the suit and the

defendants have not shown that they have prescribed their title by adverse possession and limitation for over a period of 12 years. The issues are

accordingly found in favour of the plaintiffs and against the defendants and the suit, is decreed for the plaintiffs with costs throughout. In regard to

future mesne profits this is relegated for enquiry in execution proceedings. No leave.