JUDGMENT Deoki Nandan, J. - This is a plaintiff, Second Appeal in a suit for a mandatory injunction for removal of a Ghoora shown by the letter-'Ba' from the land shown by the letters 'Cha' 'Chha' 'Ja' 'Jha' and shaded red on the plaint map, and for a prohibitory injunction restraining the defendants from removing the plaintiffs Ghoora at place-'Aa' on the same land, and not to interfere in the plaintiff, possession and use thereof. A decree for recovery of Rs. 10/- as damages was also claimed. 2. The main question in the suit was whether the land 'Cha' 'Chha' 'Ja' 'Jha' was the Sehan Darwaza of the plaintiffs house shown by the letter 'Ka' and shaded blue to the west of the said land after the 5 feet wide lane which intervened. The plaintiff claimed to have purchased the house and the land in sit from one Chhatra Dhari Singh under a sale deed, dated the 9th September, 1952. Ext. 1. The plaintiff claimed that the land in suit was included in the description of the property sold to him under Ext. 1. The plaintiff has relied upon the eastern boundary, which, according to him included the land now in dispute. It is urged that the eastern boundary of the house sold was the Gali and the Khirki of the house and the Sehan Darwaza, and thereafter the house of Rangi and the Sehan and house of Ram Narain Singh. It is suggested that the Gali, the Khirki and the Sadar Darwaza were parts of the house sold and that the Sadar Darwaza was the land in suit. A closer look at the description of the property sold, however, shows that the length and breadth of the house has been given in the description above the boundaries. It was not established that the land in suit fell within the measurements of the length and breadth of the house. A look at the plaint map shows that the land in suit could not have been possibly included within the said measurements. Moreover, there was a Sehan to the north of the house and also to the south, that are shaded blue in the plaint map, and the descriptions and measurements of both the Sehans are given as items Nos. 2 and 3 of the property sold in the sale-deed (Ex. 1).
Moreover, there was a Sehan to the north of the house and also to the south, that are shaded blue in the plaint map, and the descriptions and measurements of both the Sehans are given as items Nos. 2 and 3 of the property sold in the sale-deed (Ex. 1). It stands to reason that if the land in suit was sold along with the house under Ext. 1 as the Sehan forming part of the house, its measurements would also have been included in the measurements of property sold as given in the sale-deed. Further, the house and Sehan of Rangi are directly to the south of the land in suit and the Sehan and house of Ram Narain Singh are to the further east. It is impossible to say that the house of Rangi was situate to the east of the land in suit. Consequently, the land in suit could not have been the Sehan Darwaza, after which Rangi's house is shown to be situate in the eastern boundary of the houses sold by Ext. 1. It appears that the emphasis is on the fact that there was a Khirki and a door towards the Sehan on the east. The description is ambiguous. The defendant, on the other hand, relied on Ext. A-1. That was a sale deed by Madan Mohan Singh, in which the western boundary of the property sold is given as "Zamin parti Ram Kishan Singh vaghaira badahu makan Suraj Narain Singh" Suraj Narain Singh is the plaintiff, name. Cross-examined about the sale deed, Suraj Narain Singh (P. W. 4) stated that to the east of the land in suit was the house of Madan Mohan and Ram Narain Singh, and Madan Mohan sold that house to Narsingh Lal. In Ext. A-I Madan Mohan is the vendor and Narsingh Lal is the purchaser. 3. Learned counsel for the appellant urged that Ext. A-1 was not admissible in evidence and was not binding on the plaintiff and the eastern boundary of the property sold to the plaintiff under Ext. 1 does include the land in suit. The further objection to the decree under appeal was that the lower appellate court refused to admit a registered document, dated the 2nd August, 1928, which he wanted to file to show that Ext. A-1 was wholly incorrect.
1 does include the land in suit. The further objection to the decree under appeal was that the lower appellate court refused to admit a registered document, dated the 2nd August, 1928, which he wanted to file to show that Ext. A-1 was wholly incorrect. The lower appellate court rejected the application by an order, dated the 4th April, 1968, with the observation that the reasons given for filling the document at this stage were not sufficient, and that the admission of it will reopen the evidence. Another objection raised by the learned counsel to the decree under appeal was that although the land in suit had been inspected by Sri R. M. R. Khanna, Additional Civil Judge, before whom the appeal was pending, on the 28th April, 1967 vide inspection note, dated the 3rd May, 1967, but Sri S. P. Srivastava, the learned Additional Civil Judge, who ultimately heard and decided the appeal, by judgment dated the 4th April, 1968, took no notice of the inspection note. As to the last point, the learned Judge of the lower appellate court, who decided the appeal acted quite properly in not referring to the inspection note of his predecessor-in-office, for, the case had to be decided on the evidence led by the parties, and in the very nature of things, the fact that a door opened in the plaintiff's house to the east or that the Ghoora kept on the land in suit was claimed by the plaintiff to belong to him, could not be decisive for determining whether the land in suit formed part of the property purchased by the plaintiff from Chhatradhari Singh. The question as to who was in possession over the land in suit could not be decided on what was said before the learned Judge who went on inspection. That was a matter of evidence and evidence had already been led before the trial court. Any claim or counter claim made before the learned Judge in the course of an inspection could not be relied upon as evidence in the suit, for, those statements were not made on oath in the course of trial and were not tested by cross-examination.
Any claim or counter claim made before the learned Judge in the course of an inspection could not be relied upon as evidence in the suit, for, those statements were not made on oath in the course of trial and were not tested by cross-examination. Moreover, fresh evidence could be admitted by the lower appellate court only if the conditions of O. 41 R. 27, Civil P. C., were satisfied and after giving the other side an opportunity of rebutting the evidence so admitted. 4. The contention against the admissibility of Ext. A-1 is equally devoid of merit, In the application made under O. 41 R. 27, Civil P. C. before the lower appellate court, the plaintiff himself had stated that the question was whether the land in suit belonged to Chhatra Dhari Singh or Ram Kishan Singh Exhibit A-1 showed that it belonged to Ram Kishan Singh. That may not have affected the plaintiffs title if he had proved that he did purchase the land in suit along with the other property purchased under Ext. 1 from Chhatra Dhari Singh. The contents of Ext. A-1 were surely not binding on the plaintiff, but it was undoubtedly relevant evidence which made the sale of the land is suit by Chhatra Dhari Singh to the plaintiff improbable. The trial court relied upon Mst. Katori v. Om Prakash, AIR 1935 All 351 for holding it to be admissible. The learned counsel for the appellant relied upon the case in P.N. Choudhuri v. K.C. Bhattacharjee, AIR 1924 Cal. 1067 in context. The rule followed in this case that laid down in Brajeswari Peshakar v. Budhanudhi, (1880) 6 Cal. 268. That rule was: "A recital in a deed or other instrument is in some cases conclusive, and in all evidence as against the parties who make it.... But it is no more evidence as against third persons than any other statement would be." 5. It does not lay down that such evidence is inadmissible. What it lays down is that its evidentiary value is that of a statement of a third party for whatever it is worth. 6.
But it is no more evidence as against third persons than any other statement would be." 5. It does not lay down that such evidence is inadmissible. What it lays down is that its evidentiary value is that of a statement of a third party for whatever it is worth. 6. Soney Lal v. Darbdeo, AIR 1935 Patna 167 (FB) was cited by the Learned counsel for the appellant to show that the document was not admissible in evidence The questions referred to the Full Bench in that case were whether statements of boundaries in document of title between third parties are admissible in evil under S. 32 (3), Evidence Act. Are they admissible in evidence under any other provision of the Act if the third parties are dead or outside the jurisdiction of the court and (2) Was the AIR 1916 Pat 416 (Lalu Singh v. Sahdeo Singh) correctly decided? None of these questions arises in the present case. The question is not of admissibility of the deed (Ext. A-1) but of the relevance of the boundaries of the property sold as given therein. The relevancy of facts is dealt with by the Evidence Act in Part 1, Chapter 2, in particular. Section 11, Evidence Act, lays down that "facts not otherwise relevant are relevant, (1) if they are inconsistent with any fact in issue of relevant fact, (2) if by themselves or in connection with other facts they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable." 7. Wort J., who gave the leading judgment of the Full Bench in Soney Lall's case observed : "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 section 11, Evidence Act, can have nothing to do with this matter." 8. It has been seen above that, in the present case, the question was whether the land in suit formed part of the property purchased by the plaintiff from Chhatra Dhari Singh. Exhibit A-1 made that fact improbable by showing that the land in suit belongs to Ram Kishun Singh.
It has been seen above that, in the present case, the question was whether the land in suit formed part of the property purchased by the plaintiff from Chhatra Dhari Singh. Exhibit A-1 made that fact improbable by showing that the land in suit belongs to Ram Kishun Singh. Indeed, the application for admission of fresh evidence before the lower appellate court would seem to indicate that the relevancy of the boundaries of property given in Ext. A-1 was not questioned. The admissibility of Ext. A-I in evidence was not barred by any provision of law. The weight to be attached to the boundaries given therein was a different matter. In Madan Lal v. Durgadutt, AIR 1958 Raj 206 , it was held that the recital of boundaries in a deed between third parties is inadmissible under S. 13, Evidence Act, 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 in such document. That is not the question in the present case. In Bhuriya v. Ram Kali, AIR 1971 Punj & Har 9, it was held that the words "highly improbable" in cl. (2) of S. 11, Evidence Act, are of great importance, and, therefore, the mere reasonable probability of the fact in issue in face of the fact sought to be proved is not sufficient to make that fact relevant under S. 11, Evidence Act. Thus, a recital by a third party relating to the ownership of a house, in which he has admittedly no interest, would not have such probative force about such ownership and does not render such ownership highly probable. As observed above, the question is not of the admissibility of Ext. A-1, but of the weight to be attached to the recital of the boundaries of the property as contained therein. 9. As against the above cases, in Rangayyan v. Innasimuthu, AIR 1956 Mad. 226 , a learned Single Judge (Ramaswami, J.) of the Madras High Court held that a document between a party and a stranger reciting boundaries could be admissible and relevant under S. 32 (3), S. 13 and S. 11, Evidence Act. With respect, I subscribe to the view expressed by the learned Judge in this case, and the view of our court in Mst. Katori v. Omprakash, AIR 1935 All 351 . 10.
With respect, I subscribe to the view expressed by the learned Judge in this case, and the view of our court in Mst. Katori v. Omprakash, AIR 1935 All 351 . 10. At any rate, even if Ext. A-1 were ruled out of evidence, whether as inadmissible, or irrelevant or of little probative value, the question in the present case really was whether the land in suit was purchased by the plaintiff from Chhatra Dhari Singh vide Ext. 1. For the reasons given above, I find it difficult to say that the land in suit was sold by Chhatra Dhari Singh along with the house to the plaintiff vide Ext 1. 11. The lower appellate court has also observed that the oral evidence given on behalf of the defendants proves their continuous possession over the land in suit for more than twelve years. That is a finding of fact and it was not established before me that it suffers from any error of law. 12. There is no merit in this second appeal. It is dismissed with costs.