Judgement JUDGMENT :- 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. 2. 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. 3. On coming to court the contention raised by the defendants, who are now occupying the property, is that the first defendants father Sevuthi Mudali purchased the suit property from Sadhae Goundan under an oral sale several years prior, that Sevuthi Mudali put up a building and ever since Sevuthi Mudali and alter 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 ever the statutory period. Hence this second appeal by the defeated plaintiffs. 4. 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. 5. Point (a) : Ex. Hence this second appeal by the defeated plaintiffs. 4. 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. 5. 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, P.W. 1, in respect of the house south of the suit property. In that document the northern boundary of the nowise sold is given as Sevuthi Mudalis 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. 6. In regard to recitals of 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 - Radha Krishna v. Sarabeswar, AIR. 1925 Cal 684 (2) (A); - Daulat Shah v. Bishan Das, AIR 1934 Lah 750 (A) - 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; - Ketabuddin v. Nafar, AIR 1927 Cal 230 (B) and see also - Ambicacharan v. Kumud Mohun, AIR 1928 Cal 893 (B) or under S. 155 of the Evidence Act to contradict such evidence : - Dasmal v. Sunder Singh, AIR 1937 Lah 480 (C). (c) When the recital is in a document between strangers. 7. (c) When the recital is in a document between strangers. 7. 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. 8. 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 v. Narayana, AIR 1940 Mad 450 (D), Wadsworth, 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 AIR 1927 Cal 230 (B). That decision does not discuss the precise terms of S. 187, 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 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 and 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 v. Munnamgi Rosayya, AIR 1947 Mad 345 (E) Kuppuswami Aiyar, J. following AIR 1940 Mad 450 (D) 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." 9. These two decisions lay down that a document though not inter partes is admissible to prove the possession and title to the property I if it is used as corroboration for the oral evidence of the executant of the document. In - Mohimchandra v. Kanailal Sana, AIR 1930 Cal 311 (P), Suhrawardy and Carlick, JJ. These two decisions lay down that a document though not inter partes is admissible to prove the possession and title to the property I if it is used as corroboration for the oral evidence of the executant of the document. In - Mohimchandra v. Kanailal Sana, AIR 1930 Cal 311 (P), Suhrawardy and Carlick, JJ. held referring to AIR 1927 Cal 230 (E), "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 S. 157 to corroborate the testimony can also be used under S. 155 to contradict such testimony. 10. 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. 11. 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 : AIR 1940 Mad 450 (D); - Tikaram v. Motilal, AIR 1930 All 299 (G); - Ahmad Shaji v. Jamal Ahmad, AIR 1828 Oudh 248 (H); - Saratchandra v. Sarala Bala, AIR 1928 Cal 63 (I); - Katabuddin v. Nafarchandra, AIR 1927 Cal 230 (B); - Pramatha Nath v. Bejoy Singh, AIR 1927 Cal 234 (J); - "Abdul Rahim v. Jonabah", AIR 1923 Cal 299 (K); - Ambar Ali v. Lutfe Ali, AIR 1918 Cal 971 (L); - 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); - Hajibibi 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 - Karuppanna v. Rangaswami, AIR 1928 Mad 105 (2) (S), 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 tinder 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 (O) : AIR 1940 Mad 450 (D); 14 Cal LJ 467 (O), and, when the deed is a deed of conveyance, on the ground that it amounts to a statement against the vendors 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. Eidgway, (1808) 10 East 109 (T), the document is made evidence nut 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. 23 Bom 63 (Q); 11 Bom LR 409 (P); AIR 1930 All 299 (G); AIR 1923 Nag 22 (R); AIR 1927 Cal 234 (J); AIR 1923 Cal 299 (K); - Kangali Molla v. Beni Madhab, AIR 1916 Cal 278 (W); 13 Ind Cas 120 (Cal) (N); - Ramnandan v. Tilakdhari Lal, AIR 1933 Pat 630 (X); - Lalu Singh v. Sahdeo Sing, AIR 1916 Pat 416 (Y). 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. 12. 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 - Faghupat Tewari v. Narbadeshwar Prasad AIR 1933 Fat 103 (Z); - Term Khan v. Rajani Mohun Das, 25 Cal 522 (Z1); -Ramkishun v. Niranjan Pande, AIR 1933 Pat 285 (Z2). 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 - Faghupat Tewari v. Narbadeshwar Prasad AIR 1933 Fat 103 (Z); - Term Khan v. Rajani Mohun Das, 25 Cal 522 (Z1); -Ramkishun v. Niranjan Pande, AIR 1933 Pat 285 (Z2). 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 mean that which is done - Guija Lall v. Fatteh Lall, 6 Cal 171 (Z3) : - Venkatarayegopala Raju v. Narasayya, AIR 1915 Mad 746 (Z4) - Protapchandra v. Jagadish, AIR 1925 Cal 118 (Z5). 13. 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 crated, 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 emhasised in - Brojendra v. Mohimchandra AIR 1927 Cal 1 (Z6); - Asaddar Ali Khan v. Province of Assam, AIR 1944 Cal 57 (Z7); - Subharayulu v. Vengamma Naidu, AIR 1930 Mad 742 (Z8) etc. But there may be 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. 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 AIR 1928 Mad 105 (2) (3) 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 Iyers 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 ones knowledge whatever comes fresh under our notice. "Websters 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., 3948 Edn., page 1095 : ..... To try a question of fact, to ratify; to adopt to become bound by a recognisance. To admit to consideration, or to a status, as being something. Ballentine Law Dictionary : The Lawyers Co-operative Publishing Co., Rochester, N.Y., 3948 Edn., page 1095 : ..... To try a question of fact, to ratify; to adopt to become bound by a recognisance. 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 AIR 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 been evidence. There is no reason why what the Americans would call the grass-root evidence should be excluded and incur once more the reproach that the growth of the Indian Evid. 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.P. 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. 14. These recitals of boundaries can also become relevant and admissible under S. 11 of the Evidence Act. 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. 14. 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 non-existence 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. R.V. Rege v. Parbudas Ambaram. 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. R.V. Rege v. Parbudas Ambaram. 11 Bom H.C.R. 90 (210) : AIR 1923 Cal 893 (B1); - Emperor v. Vyapoory Moodeliar, 6 Cal 655 (211), Emperor v. Panchu Das, AIR 1920 Cal 500 (FB) (212), Lovelock and Lewes v. Malabar Timber and Saw Mills Ltd. 18 Ind Cas 997 (Mad) (213); - Htin Gyan v. Emperor, AIR 1928 Rang 113 (Z14). Secondly, this section is also controlled by some more specific provisions of the Act, viz., Ss. 17 to 39. In AIR 1927 Cal 230, (B), 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 AIR 1928 Cal 893 (B1) 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. 15. 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. 16. Bearing these principles in mind if we examine the facts of the instant case, we find that Ss. B-1 and B-2 are relevant and admissible under S. 157. But their probative value is practically zero since the recital is consistent both with the possession of Bevuthi Mudali as owner or as lessee. 17. Point (b) : The inconclusive nature of the evidence furnished by Exs. B-1 and B-2 are relevant and admissible under S. 157. But their probative value is practically zero since the recital is consistent both with the possession of Bevuthi Mudali as owner or as lessee. 17. 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 salsi 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 taking proceedings to evict Sevuthi Mudalis 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 toy 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. D.W. 2 states that nobody else was present at the time of the negotiations of the sale toy 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. 18. 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. Appeal allowed.