Sakaldeep Rai v. Sarjug Rai — 1960 DIGILAW 180 (PAT)

Judgment Tarkeshwar Nath, J. 1. This appeal by the plaintiffs arises out of a suit for a declaration of title and confirmation of possession in respect of 1 bigha 6 dhurs of land appertaining to Survey plot No. 39 as recorded in 1905 or Survey plots Nos. 27, 28 and 29 according to the measurement of 1951. These lands were in the Diara of village Parsotimpur, Tauzi No. 11924. 2. The plaintiffs case was that one Lotan Rai was their ancestor and that of the defendant 5th party. The Government was the proprietor of these lands, and they were being managed by the Khas-Mahal. The lands were being measured from time to time and settlements also used to be made. Lotan Rai took settlement of the lands 1 bigha, 2 kathas and 16 dhurs bearing Survey plot No. 39, and his name was recorded in the measurement papers of 1905. There was a partition between the plaintiffs and the defendant 5th party, and the lands in suit were allotted to the share of the plaintiffs. The plaintiffs ancestors sold 10 kathas out of the said lands to Racheya Rai, defendant 4th party, by a registered sale deed dated the 28th June, 1919. Later on Racheya Rai reconveyed 7 kathas 10 dhurs of land out of the said 10 kathas to the father of plaintiff No. 3 by a registered sale deed dated the 5th August, 1921, with the result that 2 kathas 10 dhurs of land were left in his possession. In the measurement papers of the year 1915 one Shiri Rai was recorded in respect of the disputed lands. The case of the plaintiffs was that the name of the father of defendant 3rd party was Shiri Raj and that of his grand-father was Ramlal Rai, and, similarly, the name of the father of Janak Rai, one of the plaintiffs, was Shiri Rai and that of his grand-father was Ram Singh Rai. The entry in the measurement paper was wrong and taking undue advantage of this, defendant 3rd party transferred the lands in suit in favour of defendant second party and the latter sold the same to defendants 1st party. The plaintiffs were throughout in possession, but the defendants 1st party interfered with their possession. The entry in the measurement paper was wrong and taking undue advantage of this, defendant 3rd party transferred the lands in suit in favour of defendant second party and the latter sold the same to defendants 1st party. The plaintiffs were throughout in possession, but the defendants 1st party interfered with their possession. The plaintiffs tried to get the said entry corrected by the Revenue authorities, but they could not succeed, and hence they instituted the present suit. 3. The defendants 1st party contested the suit on grounds inter alia that it was barred by limitation. Lotan Rai never took settlement of these lands and his name was wrongly recorded in 1905. They averred that the plaintiffs had neither title nor possession in respect of the lands in suit, and the sale deeds executed by defendant 3rd party and defendant 2nd party were valid. Racheya Rai, defendant 4th party was in collusion with the plaintiffs, and he was the shikmidar of defendant 3rd party. Alternatively, they claimed adverse possession in respect of these lands. Defendants 4th and 5th party supported the case of the plaintiffs, but the latter claimed joint possession along with the plaintiffs. 4. The learned Munsif held that the plaintiffs had subsisting title and the suit was not barred by limitation. Accordingly he decreed the suit on contest against defendants 1st party and ex parte against the rest, declaring the title of the plaintiffs and confirming their possession in respect of the lands in suit. 5. Defendants 1st party, being aggrieved by the said decree preferred an appeal, and the plaintiffs filed a cross-objection with regard to costs. The learned Subordinate Judge reversed these findings. He held that the plaintiffs had no title to the lands in suit and they were not in possession of the same. He thus allowed the appeal and dismissed the suit and the cross-objection. Hence the plaintiffs have preferred this appeal. 6. The learned Counsel for the appellants submitted that the finding of the learned Subordinate Judge that the plaintiffs had no title was vitiated inasmuch as he did not draw paper inferences from the fact that the plaintiffs had dealt with these lands from time to time. The documents relied upon by him in support of his contention were Exhibits 2, 3 and 3(b). Exhibit 2 was a sudbharna bond dated the 27th January, 1915. The documents relied upon by him in support of his contention were Exhibits 2, 3 and 3(b). Exhibit 2 was a sudbharna bond dated the 27th January, 1915. Exhibit 3 was the sale deed dated the 5th August, 1921 executed by Racheya Rai in respect of 7 1/2 kathas and Exhibit 3(b) was the certified copy of the sale deed dated the 28th June, 1919, executed by Shri Bhagwat as well, father of one of the plaintiffs, in favour of Racheya Rai. The learned Counsel submitted that these transactions were of a great significance and they indicated the plaintiffs title and possession in respect of the lands bearing Survey plot No. 39. 7. The learned Subordinate Judge referred to these documents, took note of the comment that those documents did not bear khata numbers and Khesra numbers of the lands in suit and came to the conclusion that they did not relate to the disputed lands or portions of such lands. The learned Munsif took the view that the identity of the lands described in Exhibits 2, 3 and 3(b) was fully established with reference to the depositions of D. Ws. 5, 15 and 18, and their testimony indicated that those documents were in respect of the lands in suit. The learned Subordinate Judge took into account this observation of the learned Munsif and pointed out that it was the definite case of the defendants that the plaintiffs or their ancestors had no concern with tile disputed lands, and they never dealt with those lands. They further alleged that these documents were collusive ones. On a consideration of these matters he came to the conclusion that these documents did not relate to the disputed land. The learned Subordinate Judge, before coming to this conclusion, pointed out that the lands were described by boundaries in those deeds, and the witnesses relied upon by the Munsif gave certain boundaries, but there was nothing in the evidence of those witnesses to which he (Munsif) referred in order to show that the lands in suit were dealt with by those deeds; in other words, the Munsif did not indicate the manner in which their testimony established the identity of the lands mentioned in those deeds. There is no error in the approach of the case, and in the conclusions arrived at by the learned Subordinate Judge. There is no error in the approach of the case, and in the conclusions arrived at by the learned Subordinate Judge. No specific ground has been taken that certain boundaries stated by any of the witnesses tallied with those mentioned in any of the deeds, and the learned Subordinate Judge either failed to consider it, or misread it. It has been urged that he did not properly construe those documents. The question was as to whether the lands in suit were included in those deeds, but it does not involve the construction of a document, and as such, it cannot be a valid ground for interference in Second Appeal. It may be pointed out that out of the three documents, Exhibits 2 and 3(b) were executed by members of the plaintiffs family, and even if they were in respect of the disputed lands, the recitals made therein have very little value, as the self-serving statements made in their own favour could not affect the interest of their adversary. The validity of the other deed, Exhibit 3, executed by Racheya Rai, relating to the transfer of 7 1/2 kathas depended upon the question as to whether he himself had acquired a valid title to the said land on the basis of his purchase by the sale deed, Exhibit 3(b). In view of these circumstances, the finding of the learned Subordinate Judge that these documents did not relate to the disputed lands, or portions of such lands, is not vitiated in any manner. 8. The learned Counsel urged that Racheya Rai, having purchased 7 1/2 kathas of lands by the sale deed, Exhibit 3(b), constructed a house on that land which indicated that the sale deed was valid and operative. The Munsif accepted this case of the plaintiffs, but the learned Subordinate Judge pointed out that Racheya Rai was not recorded in the measurament papers, and he believed the case of the defendants that Racheya Rai was the shikmidar of defendant 3rd party. 9. The learned Counsel urged that the Courts below erred in holding that the sale deed (Exhibit 3(a)) executed by Nathuni in favour of Kuldip Rai was not admissible in evidence. The plaintiffs relied upon this deed to show that the recital of the boundary therein indicated that the lands in suit belonged to them. 9. The learned Counsel urged that the Courts below erred in holding that the sale deed (Exhibit 3(a)) executed by Nathuni in favour of Kuldip Rai was not admissible in evidence. The plaintiffs relied upon this deed to show that the recital of the boundary therein indicated that the lands in suit belonged to them. The Courts below, relying on the case of Soney Lall Jha V/s. Darbdeo Narain Singh, AIR 1935 Patna 167 (F. B.), held that the statements of boundaries in documents of title between third parties were not admissible in evidence. The learned Counsel submitted that the documents were admissible under Section 13 of the Evidence Act and cited the case of Ghoghar Raut V/s. Jagamath Prasad Singh AIR 1947 Fatna 475, but in that case the question arose about the admissibility of batwara barawarda papers. It was held that those papers were admisssible under Sec.13 of the Evidence Act to show that a particular right was asserted or recognised, irrespective of who the parties might have been at the time. This decision is not on the point as to whether statements of boundaries in documents between third parties are admissible under Sec.13 of the Evidence Act. Reference has been made to the case of Rangayyan V/s. Innasimuthu Mudali AIR 1956 Mad 226 . It was held that on the wording of Sec.13 of the Evidence Act as it stood, where the existence of a right was in question, it was permissible for the party who relied on its existence, to prove any transaction by which it was recognised and a particular instance in which it was exercised by means of recitals of boundaries in documents not inter partes, but such recitals were admissible in proper cases where the circumstances of the particular case permitted such a course. Dhavle, J. held in the case of Ramnandan Prasad V/s. Tilakdhari Lal, AIR 1933 Pat 636 that the recitals regarding boundaries in a document executed between strangers to the suit relating to lands adjoining lands in suit were not admissible under Sec.13, but might be admissible if the executant was called and deposed to the boundary to corroborate him under Sec.157 of the Evidence Act. A similar question arose in the case of Hari Ahir V/s. Sanghat Chacha AIR 1934 Pat 617 2. A similar question arose in the case of Hari Ahir V/s. Sanghat Chacha AIR 1934 Pat 617 2. The question was as to whether the recitals of boundaries in two documents (Exhibits 1 and 2) relating to properties other than the property in dispute, were admissible in evidence under Sec.13 of the Evidence Act. Wort, J. observed as follows: "I am dealing with this matter on the assumption that the decisions of some of the Indian High Courts to the effect that under Sec.13, Evidence Act, a right is recognised or claimed by the Party executing a deed in which he purports to exercise the proprietary or other right over the property, the subject-matter of the deed. But it cannot be said in this case that a recital in a deed in any way recognises the title to the property by merely reciting that the property, the subject-matter of the deed, is bounded on. one side or the other by property over which some other person purports to exercise proprietary rights. I am fortified in my judgment in this case by the decision of their Lordships of the Judicial Committee in Shrinivasdas Bavri V/s. Meherbai, AIR 1916 PC 5 in which Lord Parker, in delivering the opinion of their Lordships, said that ordinarily recitals in a deed were not evidence against third parties". This decision of Wort J. was referred to in the case of Madanlal V/s. Durgadutt AIR 1958 Raj 206 , and while dealing with the question as to whether recitals of boundaries in documents not inter partes were admissible under Sec.13, it was held that such recitals were not admissible. It will be useful to quote the following passage ; "Where however, the recital is in a document between strangers, it is not a particular instance in which a right was claimed, recognised or exercised or a transaction by which a right was claimed or asserted within the meaning of Sec.13 of the Evidence Act. There was at one time a fairly serious conflict of opinion as to the admissibility of recitals of boundaries mentioned in documents executed between strangers where one of the parties to the suit was mentioned as owner of an adjoining land. There was at one time a fairly serious conflict of opinion as to the admissibility of recitals of boundaries mentioned in documents executed between strangers where one of the parties to the suit was mentioned as owner of an adjoining land. At this date, however, there seems to be a heavy preponderance of opinion that recitals of boundaries in documents between third parties are inadmissible to show that any party to the suit is or is not the owner of an adjoining land which has been mentioned as one of the boundaries an such documents. The principal reasons for this view appear to be two in number. In the first place, it will not be right to hold a party bound or affected by a recital as to the making of which he could have no control whatever and which has been made completely behind his back. In the second place, such third parties have no particular reason to be accurate as to who is the owner of the land adjoining their own, and, therefore, a mistake may easily creep in, in the mentioning of such boundaries. Boundaries may often be mentioned on imperfect knowledge or merely on hearsay information. We are, therefore, of the opinion that recitals of boundaries in documents between third parties should not be held to be admissible in evidence in proof of title of the parties seeking to rely upoa them." with respect I am in agreement with the views expressed bv this Court in the two cases referred to above as well as those in the case of AIR 1958 Raj 206 . There was thus no error in the view taken by the Courts below that the recital of the boundary in the sale deed, Exhibit 3(a), was not admissible in evidence. 10. The case of the plaintiffs was that Lotan Rai took settlement of plot No. 39 and he was recorded in the measurement papers of 1905. The learned Subordinate Judge dealt with this aspect of the case, and pointed out that it was not disclosed in the plaint as to how he had acquired the disputed land and when it became his tenancy land. The learned Subordinate Judge dealt with this aspect of the case, and pointed out that it was not disclosed in the plaint as to how he had acquired the disputed land and when it became his tenancy land. He dealt with the evidence and came to the conclusion that the plaintiffs failed to prove that their ancestor Lotan Rai took settlement of the disputed lands, He dealt with the question of possession as well and came to the conclusion that the rent receipts, Exhibit 1 series, produced by the plaintiffs were highly suspicions documents. He assigned various reasons for discarding the receipts, and the sufficiency thereof cannot be questioned in this appeal. After dealing with the evidence of the plaintiffs witnesses, who deposed on the point of possession, he observed that their testimony did not fit in with the circumstances and the documentary evidence on the record of the case. He ultimately found that the plaintiffs failed to prove the settlement alleged to have been taken by Lotan Rai and their possession of the disputed land. His other finding was that the disputed lands belonged to the ancestor of defendant 3rd party and defendants first party acquired good title on the basis of their sale deed. The various khesras of the year 1915-16 and onwards indicated that Shiri Mahton, ancestor of defendant third party, was recorded in respect of the disputed lands and those entries have been found to be correct. These are essentially questions of fact and the findings arrived at by the learned Subordinate Judge cannot be successfully assailed in this appeal. 11. The learned Counsel urged that the judgment was not in accordance with law and the case should be sent back for a rehearing. I, however, find no justification for that course to be adopted as the findings are based on a consideration of the evidence adduced in this case. 12. The result it that the appeal fails and is dismissed with costs payable to the defendants first party.