Bhuriya vs Ram Kali

This regular Second Appeal is directed against the decree dated the 21st of October, 1963, of Shri Om Parkash Sharma, Additional District Judge, Rohtak, accepting the defendant''s appeal challenging the decree of the trial Court by virtue of which the plaintiffs claim for possession, by partition, of half share of a house situated within the municipal limits of Ferozepore Jhirka, was accepted.

The following pedigree table is of assistance in appreciating the facts leading to this Regular Second Appeal :

KURE | Goddar | -------------------- | | Bhondu Mal Jawahar Lal | | Hari Parshad = Ram Kali (Defendant) Bhuria Mal (Plaintiff )

The suit of the plaintiff, which was instituted on the 28th of August, 1961, was based on the allegations that the house in dispute originally belonged to his grand-father, Goddar, from whom it had descended to the parties who owned it in equal shares. The correctness of these allegations was denied by the defendant who asserted that she was the sole owner of the house as a result of the gift from her father-in-law who had built a potion thereof in 1931. The parties went to trial on the following issues :-

(1) Is the property in dispute joint of the parties ? If so, in what shares ?

(2) Relief.

The finding of the learned trial Judge on issue No. 1 went in favour of the plaintiff and was based mainly on the reason given hereunder :

(a) Bhondu Mal and Jawahar Lal were brothers and it is very natural to infer that the house came from their father Goddar. (b) Khasra Paimaish (Exhibit Plaintiff-2) and Shajra Paimaish (Exhibit Plaintiff-3) pertaining to the abadi of Ferozepore Jhirka were documents about 60 years old and indicated that at the time of their preparation. Kure, grant-father of the plaintiff, lived in the house, which then belonged to Bhikari son of Gokal. Kure subsequently became owner of the house by lapse of time and by acquiescence on the part of the said Bhikar whose collateral Ganeshi (P.W. 3) stated in the witness box that the house in dispute was once onwed by Kure and that he had been Goddar living therein.

(c) Sukhdev, son of Paiman, the owner of a house adjoining the house in dispute on the east, made an application . (Exhibit PX) to the Ferozepore Jhirka Municipal Committee on the 24th of June, 1930, requesting for permission to build his house. In plan Exhibit PY he mentioned that the western boundary of his house was the wall of the residential house belonging to Mukandi son of Daula, and Jawahar and Bhondu, sons of Goddar. This means that Jawahar and Bhondu were having a joint house. Sukhdev being dead, the document is admissible in evidence o the authority of Ghulam Mohammad v. Kalim Ullah AIR 1928 Lah 428.

(d) In the registered gift-feed (Exhibit D-3) executed on the 3rd of September, 1934, by the father-in-law of the defendant in her husband''s favour, the gifted property is described as a kothir, a sahpa and half portion of a dalan and a staircase. This would not have been the description of the property if the gift had been of the whole house.

It was in these premises that the learned trial Judge decreed the plaintiff''s suit. His finding on issue No. 1, however, was reversed by the learned Additional District Judge chiefly for the reason that according to Khasra Exhibit Plaintiff-2 and Shajra Exhibit Plaintiff-3, it was not Kure who was in occupation of the house in dispute, when those documents were prepared but one Kote, that the plaintiff was admittedly in exclusive possession of the house since before the institution of the suit which indicated that the title thereto lay in her, and there was no other satisfactory evidence in proof of the assertion of the plaintiff that the house was the joint property of the parties. The appeal filed by the defendant, therefore, was accepted and the suit of the plaintiff was dismissed.

Learned counsel for the appellant has vehemently urged that the learned Additional District Judge seriously erred in ignoring important oral and documentary evidence in respect of the plaintiff''s claim. He has drawn my attention in the first instance to application Exhibit PX and plan Exhibit PY in which Sukhdev, a neighbour, shoed the western boundary of his house to be the wall of a haveli belonging to Mukandi, Jawahar and Bhondu. These documents are, however, of no assistance to the case of the plaintiff. It is not known whether the wall aforesaid pertained to a single building owned by three different persons, or to three buildings, each one of them being owned by one of the three persons just above mentioned, or, again whether it pertained to two houses one of which was owned by Mukandi and the other jointly by the sons of Godder. If the description of the boundary is taken at its face value, it would indicate that by it was meant a single house owned by Mukandi, is nobody''s case. In any event, it is not possible for me to read the entry as meaning for certain that only two houses lay adjoining Sukhdev''s house on the west, one of them belonging to Mukandi and the other jointly to Jawahar and Bhondu.

Besides, I am clearly of the opinion that the recital in plan Exhibit PY about the western boundary of Sukhdev''s house is wholly inadmissible in evidence and must on that account be ruled out of consideration. Learned counsel for the appellant has drawn my attention to the provisions of Section 11 of the Indian Evidence Act which runs thus -

"11. Facts not otherwise relevant are relevant -

(1) if they are inconsistent with any fact in issue or 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."

It is urged that the recital in question is covered by clause (2) of Section 11. The words ''highly probable'' in clause (2) of S. 11 are of great importance. Only such facts are made admissible by this clause as would carry great weight with the Court in reaching a conclusion either way with regard to existence or non-existence of a fact in issue or relevant fact. It is not mere reasonable probability that is contemplated; on the other hand a high degree thereof is envisaged. 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. That this clause does not cover recitals of this type has been laid down in a chain of authorities to which I may now refer. In Abdullah v. Kunj Behary Lal (1913) Cri LJ 467, Mookerjee and Carnduff, JJ., held that the fact that in describing the boundaries of a parcel of land its proprietor stated that the adjoining property belonged to one of the contending parties in a subsequent litigation was not relevant u/s 11 of the Indian Evidence Act. This authority was followed by Chattterjee and Suhrawardy, JJ., in Saraj Kumar Acharji Chowdhury and Others Vs. Umed Ali Howladar and Others and Gopal Chandra Saha and Others, . In Chooni Lall Khemani Vs. Nilmadhab Barik and Others, , it was observed by Suhrawardy and Cuming, JJ.-

"There was at one time a conflict of opinion upon the admissibility of documents between strangers, where one of the parties to the suit was mentioned as owner of the boundary land; but recent decisions have finally settled the point. At one time it was attempted to make such documents admissible in evidence, u/s 11, clause (2) of the Indian Evidence Act. In some cases the admissibility of such documents was made to rest on Section 13 and in some other cases on Section 32. Clause (3) of the Indian Evidence Act. It is not necessary to go in detail into all those decisions. We are of opinion that a document between strangers to the suit in which mentioned is made of one of the parties or three predecessors as holding the land lying on the boundaries of the lands belonging to the executants of the documents is not admissible in evidence."

These observations were quoted with approval by Shadi Lal. C.J., and Zafar Ali, J., in Lajpat Rai v. Faiz Ahmad, AIR 1927 Lah 448, which was followed in AIR 1928 Lah 428 (supra), and which appears to have been misapplied to the facts of the present case by the learned trial Judge under a misapprehension of its import probably because of the misleading head-note :

"Recitals in documents regarding boundaries executed by third parties in favour of the plaintiffs are not admissible in evidence if the executant is not dead and does not come to corroborate them."

It was not so held by Harrison, J., who decided the case in so many words although it does appear that the executant of the dead, in which the recital in question occurred, was alive. All that Harriron, J., did was to follow AIR 1927 Lah 448 (supra) and to hold that the recitals regarding boundaries and documents executed by third parties were wholly inadmissible in evidence. It is true that Shadi Lal, C.J. and Jafar Ali, J. while deciding AIR 1927 Lah 448, did observed :-

"As the exectuants were not produced in the present case, nor were stated to be dead, the documents were not shown to be admissible in evidence."

These observations, however, cannot be construed to mean that such documents would be admissible in case their executants were dead. In fact, the adoption of the observations quoted above from Chooni Lall Khemani Vs. Nilmadhab Barik and Others, by Shadi Lal, C.J., and Zafar Ali, J., clearly leads me to the inference that they fully concurred therewith and a perusal thereof would show that not only clause (2) of Section 11 of the Indian Evidence Act was held to be inapplicable to recitals of the type in question whether they were made by persons living at the time of the controversy or by such who were dead, but also that recitals made by the latter category of persons were held not to fall under clause (3) of Section 32 of the Indian Evidence Act either. Those observations are all embracing and make no exception in the case of recitals made by persons who are found to be dead by the time of recitals are sought to be produced as evidence in a Court of law in connection with litigation between third parties.

The same view of the law was taken in Pramatha Nath Choudhuri and Others Vs. Krishna Chandra Bhattacharjee and Another, , where a recital of boundaries of his property was made by a person who was found to be dead at the time of the litigation and on the basis of this fact it was contended that the recital was admissible in evidence under the provisions of Section 32 of the Indian Evidence Act. This contention was repelled in no uncertain terms.

Following the above authorities, I hold that the recital contained in plan Exhibit PY is not admissible in evidence and the learned appellate court did not fall into any error of law in excluding it from consideration.

Reliance has next been placed by the learned counsel for the appellant on Khasra Exhibitant Plaintiff-2 and Shajra Exhibit P-3 which, according to him, relate to Kure the common ancestor of the parties. I may, however, state at once that the documents have been misread by the learned trial Judge and were very rightly thrown out as irrelevant by the learned Additional District Judge. According to Khasra Exhibit P-2, Bhikari, son of Gokal, was the owner of the house in dispute, which then bore Khasra No. 681. The person in occupation of it was shown as Kote, son of Khube. There is no evidence at all as to how this Kote was to be equated with Kure, the grant-father of the plaintiff. These two documents must therefore, be held to have been rightly interpreted by the learned Additional District Judge as irrelevant and being of no evidentiary value in so far as the present litigation is concerned.

Exhibits P-4 to P-9 are six extracts from the registers of births ad deaths pertaining to Ferozepore Jhirka. According to three of them, namely, Exhibits P-5, P-6 and P-8, Bhuria, son of Jawahar, son of Godder, and Bhondu son of Godder were residents of Mohalla Mandir Sita Ram from which fact learned counsel for the appellants wants me to draw the inference that the descendants of Kure were joint owners of the house in dispute. I fail to see how the inference follows on the contents of the documents, which merely go to show that the three descendants of Kure mentioned therein were living in the Mohalla aforesaid, there being no indication that they were all living in a single house or that such house was jointly owned by them.

The only other point raised on behalf of the appellants that the oral evidence should not have been ignored by the learned Additional District Judge according to whom it was not satisfactory. However, he had not been able to convince me that the view so taken by the learned Additional District Judge was in any manner unjustified. On the other hand, after being taken through that evidence by learned counsel, I am myself of the same view, as was also the learned trial Judge.

No other point has been urged before me, and for all the reasons stated above, I dismiss the appeal but leave the parties to bear their own costs.

Appeal dismissed.