Soney Lall Jha and another vs Darbdeo Narain Singh and others

Wort, J.—This appeal has been referred to this Bench and its decision depends upon the answers to two questions of law which form part of the reference. These questions are: (1) Whether statements of boundaries in documents of title between third parties are admissible in evidence under S. 32 (3), Evidence Act. Are they admissible under any other provision of the Act if the third parties are dead, or outside the jurisdiction of the Court ? and (2) Was the case of Lalu Singh v. Sahdeo Singh, 1916 Pat 416 = 36 IC 610, correctly decided ?

There is another subsidiary question which arises in the appeal. That comes under S. 167, Evidence Act, and with that I propose to deal in a moment. The action out of which this appeal arises was for price of timber; and the substantial question in both the Courts below, and the only question in this Court, was whether the action was barred by limitation. The defendants contended that if the timber had been cut it was cut in the year 1316 Fs. about the year 1909, whereas the plaintiffs'' case was that it was cut in the year 1331, about the year 1924. The learned Judges in the Courts below decided this issue as all other issues in favour of the plaintiffs. In coming to their decision they not only placed reliance upon the oral evidence in the case, but also on certain documents amongst which was a sale-deed between persons who were not parties to the action relating to a plot which was numbered 159. In the sale-deed there was as usual, description of the boundaries, and the eastern boundary was described as the orchard of Soney Lal Jha who was a defendant in this action.

It was contended, when the case came before Mohamad Noor, and Luby, JJ., that that document was not admissible in evidence; and on that point the matter was referred to this Bench is I have said. The question of whether recitals in deeds between third parties are admissible under the Evidence Act has been discussed in a number of authorities, and they are conflicting. There have been attempts from time to time to admit such documents under S. 11, S. 13 and S. 32, Evidence Act; but in this case the argument is limited to Ss. 11 and 32. I think the argument as regards S. 11 can be disposed of in a sentence. S. 11 deals with relevant facts; to quote the first part of the section:

facts not otherwise relevant are relevant, if they are inconsistent with any fact in issue or relevant fact.

We are not in this case concerned with whether a fact is relevant, but whether the method of proof is admissible under any provision of the Evidence Act. It seems therefore in my judgment quite clear that S. 11, Evidence Act, can have nothing to do with this matter. A greater part of the argument of Mr. Ghosh who appears on behalf of the plaintiff-respondents, has been with regard to S. 32 (3). As a part of his argument he contended that the recital as regards the boundaries were admissible u/s 32 (2) as being a statement made by a person in the ordinary course of business. That question has been dealt with in the Bombay High Court in Ningawa v. Bharmappa, (1899) 23 Bom 63, the decision being against the argument that a recital of the description with which we have to deal was a statement made in the ordinary course of business. In my judgment there seems to be no answer to the decision of the Judges of the Bombay High Court in this respect: and it is difficult to see how a statement in a deed of sale, which may be an isolated transaction in the course of a person''s life-time, can be described as made by such a person in the ordinary course of business. The later part of the sub-section in my judgment, although perhaps not governing the earlier part, gives some indication of what the legislature intended by the words used in the earlier part, the later part of the section being:

and in particular when it consists of any entry or memorandum made by him in books kept in the ordinary course of business.

It seems to me quite clear that what was intended by the legislature was a statement by a person whose duty it was to make such a statement or whose business was such that statements of the kind were to be expected in the ordinary course of things. The law in India in this respect is rather wider in this connexion than the Common Law in England, but with that we have nothing to do.

The most serious part of the argument is however as I have indicated, with regard to sub-S. (3), S. 32, Evidence Act. It is contended that the statement of the boundaries of this holding was a statement made against the pecuniary or proprietary interest of the person making it. It seems to me there is a short answer to the argument with regard to the admissibility of the document in this case an argument which, as far as I can see, has been referred to in only one case and that is the case of Brojo Mohan v. Gaya Prosad, 1926 Cal 948 = 97 IC 265. It is to be noticed that S. 32 makes admissible or relevant a statement of relevant facts made by such person and then, to quote the sub-section, which are made against the proprietary interest of the person. Therefore the statement in order to be admissible must be a statement of a relevant fact and must be against the proprietary interest of the person making it. The answer to the admissibility of the document in this particular case seems to me to be that the mention of the nature of the boundaries as being Soney Lall''s orchard is not a statement of a relevant fact, and indeed if it is a statement of relevant fact it is not a statement against the proprietary interest of the person making it. It will be seen from the authorities that those cases which have held that recitals of this kind are admissible, have held that they are admissible on the ground that the transaction itself was against the proprietary interest of the person entering into it and therefore the connected statement in which the recital of boundaries was would also be admissible. To repeat myself I would say that apart from the other considerations to which I shall presently refer, it seems to me that in this case at any rate the document would not be admissible for the reason that the statement which is sought to be proved is not, in the first instance, a statement of relevant facts. I propose however to deal with the general proposition contended in connexion with the question put before the Court:

Whether statements of boundaries in documents between third parties are admissible under S. 32(3)?

One of the earlier cases, by no means the earliest, which dealt with this questions that of Abdullah v. Kunj Behari Lal, (1912) 12 IC 149, a decision of Mookerji, and Carnduff, J. After a discussion of the point as to whether recitals of this kind were admissible under S. 11 or S. 13, Evidence Act, Mookerji, J., came to the discussion of the question of whether such recitals were admissible under S. 32 (3), having held against a former view held by him that they were admissible under S. 11 or S. 13. The statement of the learned Judge in the Course of his judgment was:

Now the statement in these deeds that the transferor was owner of the fend conveyed or mortgaged and that he was either extinguishing his interest in the land by an absolute sale or placing a restriction on it by way of a mortgage, was undoubtedly one against the pecuniary or proprietary interest of the person making it. Consequently the statement as a whole would be admissible in evidence.

Later:

When a person in the position of the vendor or the mortgagor in the deeds mentioned transfers the property, and describes that the property conveyed or mortgaged is limited by certain boundaries he makes a statement as to the limited extent of that property.

The learned Judge admits the document on two grounds: one that the transaction itself which was against the proprietary interest of the person making it; and, secondly, that the statement of the boundaries being also against the proprietary interest in the sense that it was limited to the property which was the subject-matter of the conveyance. The same learned Judge discussed the question in Imrit Chamar v. Sibdhari Pandey, (1913) 13 IC 120, but although Mr. Ghosh on behalf of the respondents relied upon that decision is support of his contention, it will be seen by an analysis of the judgment that the real question which was there decided was whether a document in dispute came u/s 90 Evidence Act. We then come to the decisions of the same Court which are against the admissibility of those recitals and against the decisions of Mookerjee, J., to which I have just referred. The first case is that of Pramatha Nath v. Krishna Chandra 1924 Cal 1067 = 84 IC 420. In this case the decision in Abdullah v. Kunj Behari Lal, (1912) 12 IC 149, was referred to in these words by Greaves, J.:

It only remains to refer to a passage in Abdullah v. Kunj Behari Lal, (1912) 12 IC 149 where Mookerjee, J., seems to think that although such a document is not admissible under the provisions of Ss. 11 and 13, Evidence Act, it may be admissible under the provisions of S. 32 of that Act. But, with great respect to that learned Judge, the reasoning by which he arrives at this view does not seem to mo at all conclusive and I find great difficulty in seeing how a mere description of boundaries in a document between third parties can be said to be a statement against the proprietary interest of the person making it. It may well be that for some ulterior purpose boundaries may not be correctly described in a document, and, if this is so, how a statement of that nature can be said to be against the proprietary interest of the person making it, it is somewhat difficult to ascertain.

Then again in Brojo Mohan Das Adhikari Vs. Gaya Prosad Karan and Others, , to which I have already made a passing reference, the learned Judge discussed the matter in some greater detail and the importance of that judgment is, in my opinion, in connexion with the point to which I have just made reference namely, that in order to be admissible a statement must be one of relevant facts. The learned Judge in the course of his judgment has relied upon a judgment or Sir Richard Garth in Brajeshware Peshkar v. Budhanuddi, (1881) 6 Cal 268 = 7 CLR 6, where the learned Chief Justice said:

A recital in a deed or other instrument is no doubt in some cases conclusive, and in all cases-evidence, as against the parties who make it; and it is of more or less weight, or more or less conclusive against them according to circumstances. It is a statement deliberately made by those parties, which, like any other statement, is always evidence against the persons who make it. But it is no more evidence as against third persons, than any other statement would be.

The learned Judge also goes on to state that although there had been difference of opinion in the Calcutta High Court as regards the matter, the trend of recent cases was to dissent from the view expressed by Mookerjee, J., in the first case which I have quoted. It is unprofitable to mention every case that has dealt with this matter for the reason that some have not discussed in detail the question which arose or that they followed the other decisions in the Court in which they were sitting. However the Bombay High Court specifically dealt with this question in the case which I have already quoted when referring to section 32 (2). Although dissenting from the view that such recitals were admissible as statements made in the ordinary course of business u/s 32 (2), they have come to a definite conclusion that they were admissible under S. 32 (3) in Ningawa v. Bharmappa, (1899) 23 Bom 63. The Madras High Court have expressed a view on this matter in the case to which I have made reference on a former occasion when dealing with the point and to which I again wish to make reference: the case of Karuppanna Konar v. Rangaswami Konar, 1928 Mad 105 = 107 IC 293, an unofficial report, in which Jackson, J., in dealting with the question of whether the statement of boundaries limited to the property, the subject-matter of the deed, was against the proprietary interest of the person making it, made this observation:

It is now argued that the documents come under sub-Cl. (3), S. 32 .... It cannot be said that a statement of boundaries is against the proprietary interest of the person making it except on the assumption that every person must be presumed to own the universe until he makes a statement circumscribing his title. On the contrary a person may be presumed to own nothing until he brings into existence an effective deed evidencing his title to property and such a deed with the boundaries stated therein, is a document not against but in his proprietary interest.

To revert to the decision, of the Calcutta High Court in a later case, the case of Kumuda Kumari Dasi v. Dilsook Roy, 1927 Cal 918 = 101 IC 542 a decision in which Duval and Mitter, JJ. came to the conclusion that such recitals wore not admissible under S. 32 (3). In 3 Ch D 605 (10) the Master of the Rolls deciding that certain entries in the books relating to interest were admissible made this statement:

I adopt the view of Mr. Baron Parke in the case of Taylor v. Witham (1876) 3 Ch D 605 = 45 LJ Ch 798 = 24 WR 877, that it must be prima facie against his interest, that is to say, the natural meaning of the entry standing alone must he against the interest of the man who made it.

I quote that decision not as a decision on the, proper interpretation of an Indian Act, but as stating the principle of interpretation which in my judgment must be applied in construing the Evidence Act. A fact to be relevant or the method of proof to come within any particular section in my judgment must be or do so prima facie. Its relevancy must not and cannot depend upon the proof of other facts and it cannot be such a matter capable of more than one interpretation on the face of it. In this case it may be said that a person may be enlarging his proprietary interest or he may be restricting it, and applying the principle to which I have referred, it does not pass the test. In coming to the decision on the question, apart from the authorities to which I have referred, I think I can do no better than to repeat the language of Jackson J., of the Madras High Court when he says that such a statement can be construed as against the proprietary interest only on the assumption that there are no boundaries to the property of the person who is the maker of the deed and he is the owner of the universe. There must of necessity be some boundary to a man''s land; and the statement that there is a certain boundary of the land which is the subject-matter of the deed, namely, circumscribes the interest which he is selling and therefore circumscribes the interest which the purchaser obtains in a sense that the vendor says: "I sold you this much and no more" and that if that is a true statement of the boundaries, it seems to me it is rather in favour of the person who makes it than against his proprietary interest.

After a careful consideration of the authorities although as I have already said I have by no means quoted them all I have conic to the conclusion that the statement of boundaries such as this is not admissible under S. 32 (3), Evidence Act. I do not wish to be understood as stating that in no circumstances can recitals relating to boundaries be inadmissible. Statements as regards boundaries may be couched in such language and relating to such matters as to comply with both the parts of the section to which I have referred; statement of relevant fact and statement made in such a manner as to he statement against the proprietary interest of the person making it. But in my judgment as a general-question it cannot be said that boundaries stated in a deed between third parties are necessarily and prima facie against the proprietary interest of the person making it; and for the reasons which I have already stated and do not propose to repeat, in this particular case in any event the statement does not comply with the provisions of S. 32. In those circumstances I would answer the first question which is submitted to this Bench in the negative and the second question also.

There remains however for the purposes of the disposal of the appeal the other matter which arises under S. 167, Evidence Act; that is to say, whether apart from this inadmissible evidence there was sufficient evidence to justify the finding. On an analysis of the judgment of the learned District Judge in my opinion there was such evidence. The learned Judge in the first instance in addressing himself to the question of limitation sets our the oral and the documentary evidence of both parties; it must be remembered in this connexion that the onus was on the defendants to show that the action was barred by limitation. The learned Judge having stated the evidence of the plaintiff then devils with the evidence of the defendants and after dealing with this oral evidence makes this statement:

The defendants'' case of the trees having been cut in 1316 Fs has not at all been proved. They have examined three witnesses including defendant 2 and they have made most contradictory and inconsistent statements in their evidence.

Then the kabala, the subject-matter of discussion in this case was referred to. Then later reference was made again to the plaintiff''s evidence. The learned Judge says:

The plaintiffs have also examined other witnesses to prove that the defendants sold the trees to Sujaet Ali and others and that they were cut in Baisakh 1331 Fs.

Then he refers to another document which went to prove that these trees were actually sold to Sujaet All. It seems to me therefore quite clear that these considerations that there was evidence, which quite clearly appears on the face of the judgment of the learned Judge himself, in law justified the conclusion come to that the plaintiffs'' case was a true one that the trees had been cut in the year 1331 Fs. For these reasons I would hold that the appeal fails and it must be dismissed with costs.

Mohammad Noor, J.

I agree. As a member of the Bench which referred this case to a Full Bench I would like to add a few remarks of my own. The two questions referred for the decision of this Bench are: (1) Whether statements of boundaries in documents of title between third parties are admissible in evidence under S. 32 (3) of the Evidence Act. Are they admissible under any other provision of the Act if the third parties are dead, or outside the jurisdiction of the Court. (2) Was the case of Lalu Singh v. Sahdeo Singh, 1916 Pat 416 = 36 IC 610, correctly decided ?

The Evidence Act deals with various topics. Among others it describes what facts are relevant and also how a relevant fact can be proved. S. 32 of the Act in my opinion describes what class of statements of relevant facts made by persons who cannot be called as witnesses can be proved. The section says that if a statement of a relevant fact has been made by a man who is dead or whose evidence cannot be procured under the circumstances of the case the statement can be used in evidence if it comes under a certain head specified. All the eight clauses of the section are in my opinion based upon the principle that the statements are of such a nature or were made under such circumstances as to guarantee their being true. The section is an exception to the general rule of evidence that a statement of a 3rd person is not admissible unless the man is called to give evidence in the case.

Coming now to the question before us, I adhere to the view which I expressed while sending the case to the Full Bench that the Statement about the boundaries is not admissible as such under S. 32 (3). One of the earliest cases in this connexion, as my Lord has said is that of Abdullah v. Kunj Behari Lal, (1912) 12 IC 149. I shall confine myself to this case, because the other cases in which it has been held that the statement of boundaries is admissible in evidence, are either based upon this case or adopt the same reasoning as was adopted in this case. The learned judges of the Court there observed:

Now the statement in these deeds that the transferor was owner of the land conveyed of mortgaged and that he was either extinguishing his interest in the land by an absolute sale or placing a restriction on it by way of a mortgagee was undoubtedly one against the pecuniary or proprietary interest of the person making it.

Later on they observed:

When a person in the position of the vendor or the mortgagor in the deeds mentioned transfers the property, and describes that the property conveyed or mortgaged is limited by certain boundaries he makes a statement as to the limited extent of that property.

It seems therefore that the learned Judges of the Calcutta High Court held that the description of the boundaries was admissible under S. 32 (3), Evidence Act, on two grounds: first, that the sale itself of the property is against the proprietary interest of the maker of the statement; and, secondly, on the ground that when he says that the property which he was selling or mortgaging is circumscribed by certain boundaries, the statement is against his proprietary interest. With my profoundest respect to the learned Judges, I think that neither of those grounds are good. The Statement by a man that he was selling his own propery, assuming that it was a statement against his proprietary interest, was not a statement of a relevant fact, and therefore though complying with one of the conditions of the section, it does not comply with the other, namely, that the statement must be of ft relevant fact.

Regarding the second ground, I cannot do better than to quote, as my Lord has done the observation of Jackson J., of the Madras High Court that a statement by a man that his land is circumscribed by certain bounds arise can only be said to be against his proprietary interest if it can be assumed that he is master of the whole universe. Every man''s land is circumscribed by some boundaries. Every man has a limit to his land. When he says that a certain person has got land north or south or east or west of his land he does no more than describe his own laud. How it can be said that he is making a statement against his proprietary interest I cannot comprehend. I do not wish to dilate on this topic any longer as I entirely agree with the view which was taken in the two later cases of the Calcutta High Court itself, namely, those of Pramatha Nath v. Krishna Chandra 1924 Cal 1067 = 84 IC 420 and Brojo Mohan v. Gaya Prosad, 1926 Cal 948 = 97 IC 265. The statement is not admissible under any section. I would therefore answer both the questions in the negative.

Coming to the facts of the present case, the statement about the boundary is made up of two parts. It is said that on the east of the land which was being sold by Mt. Makia there was the orchard of Soney Lal Jha. That the land east of the land being sold was that of Soney Lal Jha was not disputed. The only thing in dispute was whether at that time there was an orchard in it. Therefore assuming for the sake of argument, that the statement in Makia''s deed that cast of her land was the land of Soney Lal can by any stretch of imagination be treated as one against her proprietary interest, the fact that there was an orchard can in no sense be said to be so. Once she described her land by stating that east of it was the land of Soney Lal Jha it was not against her interest to state whether it was an orchard or uncultivated land or any other kind of land. This did not in any way affect her proprietary interest. The learned advocate for the appellants referred us to a very old England decision in Higham v. Ridgway, 10 East 109 as an authority for the proposition that when portion of a statement is admissible in evidence, the whole of it is admissible; and he has referred us to a decision of this Court in Sitaram Singh v. Khub Lal Singh, 1926 Pat 255 = 94 IC 13 = 5 Pat 168 where a statement by a widow to the effect that she had borrowed money from certain persons for legal purposes was held to be admissible though only one part was against the interest of the widow, namely, that she owed money to certain persons. In my opinion, the English Law in this respect goes much beyond what the Indian law is. Under S. 32, Evidence Act a statement, in order to be admissible under any of the sub-clauses of that section, must fulfil two conditions; first, that the statement itself should be of a relevant fact; and secondly that the statement must come within any one of the eight sub-clauses. In the decision of this Court to which I have just referred the entire statement was taken in evidence as the question of the taking of the money also was a matter in issue in that suit. I doubt, if a case similar to Higham v. Ridgway, 10 East 109 had come before a Court in India, the statement of date of birth would have been held to be admissible under S. 32 (3), Evidence Act. Perhaps it may be held to be admissible under S. 32 (2) as a statement made in ordinary course of business in books of account. Therefore I am clearly of the opinion that the statement as to the boundaries in the document in question was not admissible in evidence. I am however of opinion that the admission of this document has not vitiated the finding of fact.

The learned advocate for the appellants has drawn our attention to the case of Mt. Sumitra Kuer v. Ram Kair Chowbey, 1921 All 61 = 57 IC 561 = 5 Pat LJ 410, where having held that a certain piece of evidence was not admissible, the learned Judges observed as follows:

The second point urged before us was that apart altogether from this document there was sufficient evidence in the case to justify the findings of the lower appellate Court, and had the document been rejected altogether it would in fact have made no difference to the decision, and that therefore under S. 107, Evidence Act we ought not to remand the case for a fresh decision merely on the ground of the improper admission of the evidence. Were we a Court of appeal with a power to go into the evidence and arrive at an independent judgment upon the evidence itself we would then be in a position to say whether or not the evidence justified the finding of the learned Subordinate Judge, but in second appeal the Court is not in possession of all the evidence or in a position to be able to weigh it and see whether in fact, apart from the objectionable evidence, the lower Court has rightly come to its decision. It is impossible for us here to say exactly how far the mind of the Subordinate Judge was influenced by this document.

It is obvious that it was a piece of evidence which was very largely relied upon by the defendant. The learned judges say:

We find in the judgment of the Munsif that the states that the defendant relies principally upon the heba deed executed by Mt. Morha.

Now, this decision was given in the year 1920. Since then the Civil Procedure Code, has been amended and the powers of the High Court in dealing with second appeals have been enlarged and this Court can now itself determine an issue of fact if it finds that it was wrongly determined on account of any error of law and a remand is not always necessary.

In my opinion S. 167, Evidence Act, provides that if a Court finds that a certain piece of evidence has been wrongly admitted, the decision need not be reversed on that ground provided that the Court holds that there is sufficient evidence on the record to justify the finding. Therefore in second appeal if this Court finds that the lower appellate Court has based its judgment partially upon a piece of evidence which was not admissible, it cannot, by that reason alone, reverse that finding or remand the case if it can come to the conclusion that there was sufficient evidence on the record to justify the finding. How this Court is to satisfy itself about the sufficiency of evidence is a matter which must depend upon the facts of each case. There may be cases in which this conclusion cannot be arrived at unless the whole of the evidence be gone into, and in that case it will be for the Court to decide whether that evidence should be gone into in this Court or the case should be remanded for a fresh hearing of the appeal to the lower appellate Court. In this particular case I am satisfied that there was plenty of evidence on the record on which the Court could have come to the same conclusion namely, that the defendants had failed to prove that the orchard was cut by them in the year 1316.

Therefore I agree that the appeal be dismissed with costs.

Agarwala, J.

The landlords, who are the plaintiffs, sued to recover the price of trees alleged to have been cut by their tenants, the defendants, from plot No. 159 in 1331 Fs. The defence was that the trees were not cut in 1331, but in 1316 Fs., and that therefore the suit, which was instituted on 9th April 1927, was time-barred.

On the question at issue between the parties the plaintiffs relied inter alia on a Kabala by which a plot adjacent to No. 159 was sold in 1321. In this kabala the eastern boundary of the plot sold was described as "the orchard on Soney Lal." Soney Lal is defendant 1. This description of the eastern boundary, it was contended by the plaintiffs, proved that in 1321 there were trees standing on the defendants'' land and therefore that the defence that the trees had been cut in 1316 was necessarily false. On this contention two questions arose: first, whether the description of the eastern boundary in the kabala of 1321 was admissible; and secondly, if it was admissible, what weight should be attached to it. The lower appellate Court, which was the final Court of fact, held that the description of the boundary was admissible. For my own part. I may say that, even if it were admissible, it was evidence to which very little weight could be attached, for the mere description of plot No. 159, which is the plot on the eastern boundary of the plot sold in 1914, as the orchard or Soney Lal, is no guarantee that trees were standing on it in 1914. A piece of land is often known by a name which however apt it may have been at the time when it first acquired that name, may have long since lost the character indicated by the name. This however was a matter for the Court of fact.

The appellants'' grievance in the present appeal is that the statement in the kabala was altogether inadmissible in evidence. The plaintiffs-respondents contend that it was admissible by reason of the provisions of the third clause of S. 32, Evidence Act, as a statement contrary to the pecuniary or proprietary interest of the person who made it. The cases on the point only serve to show the divergence of opinion which exists. Speaking for myself, I am reluctant to adopt a view of law which results in shutting out evidence which might assist a Court of fact in coming to a correct conclusion, except in these instances in which the legislature has clearly made a particular matter inadmissible. I therefore propose to examine the contention in the present case strictly in reference to the issue in respect of which the statement was sought to be used. The issue was, whether the trees were on the defendants'' land in 1321 ? If the answer was in the affirmative, the defence to the plaintiffs'' claim failed. The statement in the sale-deed of 1914 which the plaintiffs rely on to refute the defence is the description given of the eastern boundary, namely, "the orchard of Soney Lal." This description contains two declarations: first that the eastern boundary was an orchard; and, second that the orchard belonged to Soney Lal. S. 32, Evidence Act so far as it is relevant to the present discussion is as follows:

Statements of relevant facts made by a person who is dead are themselves relevant facts when those statements are against the pecuniary or proprietary interest of the person making it.

It will be observed that the statement relied on must, in order to come within the third clause of S. 32, not only be against the pecuniary or proprietary interest of the person making it but it must also be a statement of relevant facts. In so far as the description of the eastern boundary in the kabala of 1914 relates to the proprietorship of Soney Lal, it is irrelevant in the present case, as the ownership of plot No. 159 has no hearing on the matter in dispute and nothing turns on that ownership. The other part of the description that what was on the eastern boundary was an orchard, is the only part of the description relevant to the present case, and I am unable to appreciate how that statement is against the interest pecuniary, proprietary or otherwise of the person who made it. I would therefore answer the first question referred to us by saying:

that a statement of boundaries in a document of title between third persons who are dead at the time the statement is sought to be put in evidence is admissible in evidence under S. 32 (3), Evidence Act, only when, in the particular case, it is shown first, that at the time the statement was made it was contrary to the interests of the maker, and, secondly, that at the time it is sought to be used it is a statement of a relevant fact.

With regard to the second question, the facts of the case of 1816 Lalu Singh v. Sahdeo Singh, 1916 Pat 416 = 36 IC 610, do not appear from the report; but if it decides anything contrary to the opinion I have expressed with regard to the first question referred to us, I would say that that case was wrongly decided.

There remains the question: What course should be followed in view of the decision that the kabala of 1914 was inadmissible ? Under S. 167, Evidence Act, the improper admission of evidence is not a ground of itself for reversing any decision if it appears to the Court before which the objection is raised that, independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision. Now, in the present case, the lower appellate Court has set out and discussed at length the evidence on the only material issue of fact which arose, namely, whether the defendants'' allegation that the trees were cut in 1316 was true or false. The onus lay on the defendants. The Court was not impressed by the evidence for the defence and disbelieved it. It has referred to the fact that, the defendants alleged that the trees were sold in 1316 to one Sujaet Ali. Sujaet Ali was examined as a witness by the plaintiffs and Sujaet Ali deposed that he and his son-in-law, Kamluddin purchased the trees from the defendants in 1316, and not in 1331 and that they cut the trees in that year. The evidence of Sujaet Ali was corroborated by his son-in-law, Kamluddin and this evidence the lower appellate Court found itself unable to reject remarking that defendant 1, who had sold the trees to Sujaet Ali had not come into the witness-box to deny the latter''s assertion that the transaction had taken place in 1931. That evidence, if believed, was conclusive as to the falsity of the defence put forward in the case and, quite apart from the evidence afforded by the statement in the kabala (Ex. 1), must have resulted in the decision arrived at in the Court below.

I therefore agree that this appeal must be dismissed with costs.