Baldeo Singh vs Sheoraj Kueri

Das, J.—This appeal is directed against the judgment of the Additional Subordinate Judge of Saran. The plaintiff, who is the appellant before me, instituted the suit for declaration of his title to, and for confirmation of possession, or in the alternative for recovery of possession, of a holding bearing Survey No. 280/ 980. His case is that one Bhakole was in possession of this holding and that he purchased the holding at a sale in execution of a decree for rent. The Court of first instance decreed the plaintiff''s suit but the Court of Appeal below, disagreeing with the Court of first instance, has dismissed the plaintiff''s suit.

The final entry in the Record of Rights is in favour of the plaintiff. The learned Judge recognises that presumption is in favour of the plaintiff, but relying very greatly upon a confidential inquiry conducted by the Assistant Settlement Officer at the time of the Revisional Settlement, the learned Judge has come to the conclusion that the holding in dispute never formed part of the holding of Bhakole. He says that the Assistant Settlement Officer writes that he made a confidential inquiry and ascertained that the holding belonged to the defendant. Being of opinion that the confidential inquiry made by the Assistant Settlement Officer deserves mash consideration and also considering that the evidence of possession advanced by defendant was better than that adduced by the plaintiff, he dismissed the plaintiff''s suit. In my view, the judgment of the learned Judge is wrong. If he had found on a consideration of the evidence that was adduced before him that the evidence adduced on behalf of the defendant was better than that adduced on behalf of the plaintiff, he would have been within his rights in dismissing the plaintiff''s case. But he, no doubt, took into consideration certain matters which, in my opinion, were not properly admissible in evidence. He ought cot to have relied upon the confidential inquiry conducted by the Assistant Settlement Officer.

Mr. Nirsu Narain Sinha on behalf of the respondent urges that the confidential inquiry conducted by the Assistant Settlement Officer was admissible in evidence u/s 35 of the Evidence Act. In my view, this is not correct. Section 35 of the Evidence Act provides that "an entry in any public or other official book, register or record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register or record is kept, is itself a relevant fact." But in my view the opinion of the public officers formed on an ex parte investigation is not made admissible u/s 35 or under any other section of the Evidence Act.

Mr. Nirsu Narain Sinha next urges that the lower Appellate Court considered the oral evidence of both the parties and thought that the evidence adduced on behalf of the defendant was better than the evidence adduced on behalf of the plaintiff. That is so, and if the lower Appellate Court had merely relied on his finding of the oral evidence in the case, I would be powerless to interfere with his decision in appeal. But since he relied, and vary strongly relied, upon a document which, in my view, was not properly admissible in evidence, it is impossible to say to what conclusion he would have come had he excluded from his consideration the result of the confidential inquiry conducted by the Assistant Settlement Officer. It may be that he would have come to the opposite conclusion. In any case, the matter must be reconsidered by the learned Judge. I would allow this appeal and remand the case to the Court below for decision according to law.

There is another point which ought to be mentioned. The learned Judge has disposed of the case on his finding as to possession. This is not quite correct. The plaintiff as the auction purchaser has brought his suit within 12 years from the date of purchase. Even if he is but of possession, he is entitled to recover if otherwise he proves his tibia to the land in dispute. The appellant is entitled to the costs of this appeal. The costs incurred in the Courts below will abide the result and will be disposed of by the lower Appellate Court.