Patna High Court
Ram Lakhan Upadhya vs Jai Upadhya And Ors. on 18 August, 1929
Equivalent citations: 123IND. CAS.387, AIR 1929 PATNA 749
JUDGMENT James, J.
1. This is an appeal under Clause 10, Letters Patent, from the decision of Macpherson, J., affirming the appellate decree of the District Judge of Shahabad. The suit was for declaration of title and confirmation of possession of certain land which was entered in the Record-of-Rights as low-lying gair-mazrua land in possession of the defendant. The District Judge held that the plaintiffs had proved that they had been in possession of the disputed land for more than twelve years and that the defendant had not proved either title or possession. He, therefore, decreed the suit. Prima facie, the appeal would appear to have been concluded by findings of fact but Mr. Lakshmi Narain Sinha on behalf of appellant argues that the learned District Judge committed errors of law in failing to place the burden of proof upon the plaintiffs, and in failing to give due weight to the presumption of ness which attaches to the finally published Record of Rights under Section 103-B, Bengal Tenancy Act. So far as the question of onus is concerned, it is sufficient to say that both parties entered into evidence. The learned District Judge regarded the evidence on the plaintiffs' side as better than that on the side of the defendant The same considerations apply to the finding that the presumption under Section 103 B, Bengal Tenancy Act, had been rebutted by the other evidence in the case.
2. A point on which great stress is laid by Mr. Lakshmi Narayan Sinha is that a decree of 1877 which was not inter partes was treated by the learned District Judge as admissible in evidence. He cites the decision of a Full Bench of the Calcutta High Court in Gujju Lal v. Fateh Lal 6 C. 17l : 6 C.L.R. 439 (F.B.) to the effect that a former judgment, which is not a judgment in rem nor one relating to matters of a public nature is not admissible in evidence in a subsequent suit, either as a res judicata or as proof of the particular point which it decides unless it was between the same parties or those claiming under them. But it is clear that this decree has not been used to prove that the plaintiffs are entitled to this land. The learned District Judge remarks that the decree was put in to show that one Barah Upadhya had at one time claimed one and a half bighas out of the disputed six bighas as his own, that the plaintiffs set forth their own right and the suit was dismissed.
3. Mr. Lakshmi Narain Sinha suggests that it has not been proved that the land covered by that decree is identical with any portion of the land in dispute but the learned District Judge found as a fact that the land was identical, relying upon the oral evidence. The decree was admissible under Section 13, Evidence Act, as corroboration of the oral evidence of Chandrika Upadhya to the effect that the plaintiffs bad asserted a claim over the land fifty years before. Macpherson, J., accepts the view that the decree is admissible to show that the claim was then asserted remarking that the value to be attached to the evidence was a question for the final Court of fact. If the learned District Judge had treated this decree as affording proof that the plaintiffs were entitled to the land in suit he would have committed an error of law, but he admitted the decree merely as evidence to show that a claim to the land was made by the present plaintiffs' father in 1877, and the question of the value which is to be attached to the fact that the claim was made is a question for the Court of fact. The learned District Judge has certainly mentioned this decree, but as Macpherson, J., has pointed out, his decision is by no means based upon the decree and it is impossible in view of the provisions of Section 167, Evidence Act, to say that even if the decree had not been admissible for any purpose, the learned District Judge's decision should have been reversed on this ground. But I do not consider that the decree has been used for any purpose for which it could not be properly used, and I would affirm the decision of Macpherson, J., and dismiss this appeal with costs.
Courtney-Terrell, C.J.
4. I agree.