Raj Kishore Prasad, J.:— This is an appeal by the defendants from a partition suit. The plaintiff brought the suit for partition of the properties in dispute on the ground that defendant 1 was his father, and he has, for a long time, been in the habit of taking ‘bhang’, and smoking ‘ganja’ and is wasting the property, and vexing the plaintiff in several ways, and as such it was not possible for him to remain in joint possession of the properties with defendant 1, and, therefore, he sought partition of his 8 annas share in the properties in suit.

2. The defence of defendant 1 was that the plaintiff was not his son; and that he had only one wife, of whose womb no son or daughter was ever born. His wife died 28 or 29 years ago, and the plaintiff is aged only 19 to 20 years old, and as such he could not be his son. It was further alleged that the plaintiff was the son of one Parikha of village Ghordihi, where the plaintiff and defendant 1 resided. The present suit for partition was filed on 4-4-51, defendant 1 appeared in the suit on 4-5-51, and filed his written statement on 4-6-51, and three days thereafter, that is, on 7-6-51, he executed a deed of gift in favour of defendants 2 to 5 in respect of the entire properties under partition alleging that they were his phuphera cousins, and looking after him, and he was living for the last 7 or 8 years with them in village Gossainpur.

3. Defendant 1 also denied taking intoxication and wasting property. On 8-1-51, defendant 2 appeared and filed a petition asking the Court to make defendants 2 to 5 parties to the suit, and accordingly the Court below by an order dated 10-8-51 added them also as parties to the suit.

4. Mr. S.N Banerji, 2nd Additional Subordinate Judge at Sasaram, who tried the suit, by an order dated 4-9-53, decreed the suit of the plaintiff, holding that he was the son of defendant 1, and was in joint possession of the suit properties with his father, defendant 1, and that the plaintiff had a moiety share in the suit properties, and as such he was entitled to have his share partitioned. Against this judgment and decree all the five defendants have preferred the present appeal.

5. Mr. A.B Saran, appearing for the appellants, contended that there were certain circumstances which proved that the plaintiff could not be the son of defendant 1, and as such the decision of the Court below holding that the plaintiff was the son of defendant 1 was erroneous.

(His Lordship considered some of the circumstances and evidence bearing on those circumstances and continued:)

6. Mr. Saran has referred specifically to the evidence of P.W 2 and submitted that his evidence on the question of Janki being the son of Ramadhar was not admissible in evidence, because his evidence was in the nature of hearsay, being evidence of general reputation. He has submitted that P.W 2 was not a member of the family of Ramadhar and janki, inasmuch as P.W 2 himself admitted that he was not an original resident of Ghordihi, where the plaintiff resides and defendant 1 resided.

7. P.W 2 admitted in cross-examination that he came to village Ghordihi, as he inherited some property of his maternal grandfather, and he came here after his death. P.W 2 was a kurmi by caste, and although he was not a member of the family of the plaintiff and defendant 1, but an outsider, he belonged to the same caste, and to the same village, and as he was living in this village he was connected with all the kurmis of that village, and as such he had special means of knowledge about the relationship of the parties.

8. P.W 2 stated that there were 14 or 15 families of Awadhia Kurmis in his village Ghordihi and they were not related to one another, but there could be no intermarriage among the Awadhia Kurmis of the same village. P.W 2 further stated that he was also an Awadhia Kurmi, and as such there could be no doubt that P.W 2, although an outsider, had special means of knowledge, and his opinion would be admissible in evidence under Section 50 of the Evidence Act.

9. Section 50 runs thus:

“When the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship, of any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact”.

10. There is a proviso also to this section, but that is not material for the purpose of deciding the question at issue. This section enacts that when the Court has to ascertain a question of relationship between two or more parties, the opinion of any person having special means of knowledge, as expressed by conduct, is admissible in evidence.

11. In order to admit evidence under this section three conditions must be fulfilled: (1) The person must be proved to have special means of knowledge; (2)(a) the opinion alone is evidence; (b) the opinion as expressed by conduct only is evidence; or in other words, (i) conduct only can be given in evidence; (ii) from the conduct given in evidence, the Court is to see whether it is the result of any opinion held by the person; and (3) the opinion which is relevant must be the one as to the existence of the relationship. The opinion may be of a member of the family, or an outsider: it is enough if he has special means of knowledge on the subject.

12. But the opinion must be expressed by conduct, that is, external facts of events of the nature indicated in the illustrations to the section, and not a mere statement of an opinion held by the witness, or what another person may have said on the question of relationship. This section makes relevant the evidence admissible in English law as “family conduct”, but evidence of general reputation, which is admissible according to English law to prove relationship, is not admissible under this section.

13. The scope of the section appears to be more restricted than the English rule as it does not contain any provision making the evidence of general reputation admissible as evidence of relationship. The opinion made relevant under this section is “opinion, expressed by conduct”, i.e, a conduct which is the expression in outward behaviour of the opinion entertained as to relationship. Mr. Saran has relied on — ‘Chandu Lal v. Bibi Khatemonnessa’, AIR 1943 Cal 76 (A).

14. In this case in order to establish the factum of marriage the plaintiffs relied, amongst other tilings on the evidence of opinion of certain relations as expressed by their conduct as to the relationship of husband and wife between two persons. In this connection their Lordships of the Calcutta High. Court considered the question as to what is meant by “reputation evidence”, and “belief” or “judgment” of a person.

15. I cannot do better than reproduce below what their Lordships stated in this connection, as to me it appears that the observations made by their Lordships are very apposite and useful and interesting. Their Lordships (Nasim Ali and Pal, JJ.) said as follows:

“Reputation is simply cumulation of ordinary ‘perception testimonies’ heard and gathered and reduced to a single implied assertion, which assertion is now reported to the tribunal by the witness who perceived the cumulative assertions. The special weakness of reputation is the anonymity of the original assertors. All the considerations for hearsay testimony apply here. The other special weakness of ‘reputation evidence’ is the difficulty of checking, the trustworthiness of the witness reporting it.

Where a witness asserts that a reputation existed as to the particular relationship of some particular persons it is ordinarily impracticable to uncover his error, if any. Cross-examination, or other witnesses, may disclose grounds for doubt. But for the most part his assertion is likely to remain simply an assertion, dependent for its value on his own appearance and relationship to the parties. Section 50 of the Evidence Act, is the only provision which to a pertain extent allows evidence somewhat akin to “reputation evidence”.

“Opinion” means judgment or belief—what one thinks on a particular question—a belief, a conviction. So, when a Court has to judge as to the relationship of one person to another, it is permitted to take into consideration the ‘belief or ‘judgment’ of a person provided the requirements of this section are satisfied.

The ‘belief is indeed a state of mind and can be evidenced by (1) external circumstances, calculated by their presence or occurrence to bring about the state of mind in question; and consequently showing the probability that the state of mind subsequently ensured; (2) conduct or behaviour illustrating and pointing back to the state of mind producing it; (3) a prior or subsequent state of mind indicating, within certain limits, its existence at the time in question.

The section allows only ‘conduct’ as evidence of the opinion, a conduct, which is the expression, in outward behaviour, of the belief entertained. The conduct must be the result, the opinion being the moving cause. The results are the traces by which we may infer the moving cause. We are to infer from an observed effect, conduct, the probable cause, a specific mental state.

Conduct may reveal the belief of the actor in so far as the specific act is of a tenor which cannot well be supposed to have been willed without the inner existence of that belief. It should be remembered that in the present case the specific mental state—the opinion—the belief is not of itself material to the issue as a probandum. It is of service only evidentially, as forming a step of inference to some other fact (viz., the relationship) which forms the ultimate object of the trial.”

“The section makes only ‘opinion’ as relevant and enjoins how this opinion itself is to be proved. It is only ‘opinion as expressed by conduct’ which is made relevant. This is how the conduct comes in. The offered item of evidence is ‘the conduct’; but what is made admissible in evidence is ‘the opinion’, the opinion as expressed by such conduct. The offered item of evidence thus only moves the Court to an intermediate decision its immediate-effect is only to move the Court to see if this conduct establishes any ‘opinion’ of the person whose conduct is in evidence, as to the relationship in question.

In order to enable the Court to infer ‘the opinion’, the conduct must be of a tenor which cannot well be supposed to have been willed without the inner existence of the ‘opinion’. When the conduct is of such a tenor, the Court only gets to a relevant piece of evidence, namely, the opinion of a person. It still remains for the Court to weigh such evidence and come to its own opinion as to the ‘factum probandum’ as to the relationship in question”.

16. I respectfully agree with the above observations of their Lordships.

17. On reading the evidence of P.W 2 it is clear that this witness testified to facts observed by him, and stated the opinion he had formed thereon. His opinion is an independent opinion, and not a mere repetition of what he has heard. P.W 2 being himself an Awadhia Kurmi, and residing in this village from a long time, had enough opportunities, as appears from his evidence, to observe for himself, the conduct of the parties, and as such his opinion, expressed by conduct, as to the existence of relationship between the plaintiff and defendant 1, he having special means of knowledge on the subject, was admissible in evidence.

18. The case relied upon, in my opinion, does not support Mr. Saran, because the evidence of P.W 2 comes within the four corners of the principles laid Jown in this case, and on the authority of this very case the evidence of P.W 2 becomes admissible.

19. Their Lordships of the Supreme Court have very recently considered, Section 50 of the Evidence Act in — ‘Sitaji v. Bijendra Narain’, AIR 1954 S.C 601 (B). His Lordship Bose, J., who delivered the Judgment of the Court said as follows:

“A member of the family can speak in the witness box of what he has been told, and what he has learned about his own ancestors, provided what he says is an expression of his own independent opinion (even though it is based on hearsay derived from deceased, not living, persons) and is not merely repetition of the hearsay opinion of others, and provided the opinion is expressed by conduct. His sources of information and the time at which he acquired the knowledge (for example, whether before the dispute or not) would affect its weight, but not its admissibility”.

20. In this case their Lordships were considering the evidence of one of the plaintiffs of that suit, who proved the entire genealogy although he had “no personal knowledge of every step in the sense that he did not know each one of the persons named”. Their Lordships, therefore, said that personal knowledge was not necessary in such cases. What is true about a member of a family is also true of a person, who although not a member of the family, has special means of knowledge about the relationship of the parties.

21. The words “or otherwise” occurring after “of any person who, as a member of the family” in Section 50 of the Evidence Act clearly contemplate such a case. In my opinion, therefore, the observations of their Lordships apply with equal force to the present case. For the reasons given above. I overrule the objection of Mr. Saran, and hold that the evidence of P.W 2 is relevant and admissible in evidence to prove the relationship between the plaintiff and defendant 1. He is rather an independent witness, and as such his evidence is of very great value.

22. The plaintiff is admittedly in possession of the house of Ramadhar at Ghordihi, because defendant 1 himself has said that he was now living in Gossainpur with defendants 2 to 5. The plaintiff has produced the original khatian. Ex. 4 besides some old rent receipts, Exs. 3 to 3d, in respect of the suit lands. If Janki would not have been the son of Ramadhar it is not possible to believe how Janki would have got into possession of the house of Ramadhar, and got the original papers, like Exs. 4 and 3 series.

23. After hearing the appeal for two days, it was adjourned for a compromise, and was again taken up on 5-9-55, when the talk about compromise failed. At the resumed hearing of the appeal, due to the absence of Mr. Saran, the appeal was further argued by Mr. Chandrasekhar Prasad for the appellants. He contended that there were circumstances which proved that the plaintiff was not the son of defendant 1. The first circumstance which he placed in this connection was that when defendant 1 was living admittedly in another village, and the plaintiff was in possession of the house of defendant 1, then what was the necessity of finding a partition suit at all.

24. It is admitted by him, however, that tills question was not put to the plaintiff himself, and as such it is not possible to enter into any conjecture on this point. The next circumstance which he placed was that the natural conduct of a son would be to wait for the death of his father, when he would get the entire 16 annas property of his father, and not to bring a suit for partition in his lifetime.

25. The obvious reply to this is that when the plaintiff found that his father was addicted to ‘ganja’ and ‘bhang’, and he was wasting the joint family property, and selling away the grains, and defendant 1 left Ghordihi about 2 or 2 ½ years ago before the institution of the suit due to some quarrel with the plaintiff and his wife, according to the evidence of the plaintiff's witnesses, which must be accepted, the plaintiff, according to his case was forced to bring the suit for partition, as otherwise, the entire properties would have been disposed of by defendant 1.

26. The conduct of defendant 1 himself amply proved the truth of the plaintiff's apprehension, because soon after the institution of the partition suit, defendant 1 gifted all his properties to his alleged phupera cousins, defendants 2 to 5, in order to deprive the plaintiff of his share. Mr. Chandrasekhar Prasad then relied on a ration card and certain entries; therein, Exs. I, J and K, showing that Ramadhar's family consisted of only one person, and therefore, it was argued that this supported the defendants' case that the plaintiff was not his son, because if the plaintiff had been his son, the number shown therein would have been 2.

27. We locked into the original ration card and the entries therein, and we find that these documents are not genuine documents, inasmuch as there are interpolations in them and there is no doubt that they have been brought into existence for the purpose of the present suit. Mr. Prasad also relied on Exs. M, N and N1, for the purpose of showing that the plaintiff was not the son of Ramadhar, but he was an imposter. Exhibit in is an order passed by the. S.D.O of the Canal Department, in which he mentions that after going through the records produced by the parties and making confidential enquiries from uninterested respectable persons of the locality he was of the opinion that Janki who was personifying himself as the son of Ramadhar, was actually the son of one Parikha.

28. This order is not at all admissible in evidence, because the learned S.D.O himself mentions that his opinion is based also on confidential enquiries, it is not known from what persons he made enquiries, and to what effect, and, therefore, this document has no probative value at all. Exhibits N and N1 are judgments of criminal Courts in two different criminal cases, in which Parikha, Janki and Harihar along with another were the accused.

29. In Ex. N towards the end of the judgment the learned Magistrate observed that “it is clear that Parikha Choudhary took lead in the matter. The other three accused are his younger brothers and sons and as such junior members of his family’. On the basis of this observation it was argued that the criminal Court found that plaintiff was the son of Parikha. I am afraid this contention is not correct. Even assuming that this observation of the learned Magistrate would have been admissible, the learned Magistrate does not say who is the son and who is the brother of Parikha.

30. These judgments are of criminal Courts, and are not ‘inter partes’. The question is if such judgments, or findings therein, are admissible in evidence in civil cases. The Evidence Act itself does not make any distinction between a judgment which is ‘inter partes’, and one which is not ‘inter partes’, except where the judgment is clearly ‘res judicata’. Nor does, the Act make any distinction between a judgment of a Civil Court, or of a criminal Court.

31. Sections 40 to 43 of the Evidence Act deal with relevancy of judgments of Courts of Justice. Section 40 deals with the effect of judgments as barring suits, or trials, by reason, amongst others, of their being ‘res judicata’; section 41 deals with the effect of the so called judgments in ‘rem’, and S. 42 deals with the admissibility of judgments relating to matters of a public nature. Section 43 declares that judgments, orders, or decrees, other than those mentioned in Ss. 40 to 42 are of themselves irrelevant.

32. But this section expressly contemplates cases in which judgments would be admissible, either as facts in issue, or as relevant facts under other sections of the Act. Therefore, a judgment, other than a judgment referred to in Ss. 40 to 42, may be admissible, ‘to prove that a right was asserted, or denied, under S. 13 of the Act, or to explain, or to introduce facts in issue, or to explain the history of the case. But the actual decision, or the findings arrived at in a previous judgment cannot be used as evidence to decide the points which are in issue in a different case, except in cases coming under Ss. 40 to 42.

33. Such a decision may by virtue of specific provisions operate as ‘res judicata’, or be relevant as a pronouncement on matters of public nature, but otherwise it is no better than a mere opinion expressed on the issues involved in a particular case, and it Evidence Act is clear that “opinion” will be relevant in those cases only which are specifically referred to in the Act, and in no others. Section 43, therefore, subject to the exceptions mentioned in the latter part, excludes prior judgments, and so in effect declares that in deciding a question which has been decided in a suit between other parties, the Court shall not be guided by the judgment in the former suit or finding therein contained.

34. The above is the law in respect of judgments of all Courts of justice. In case of judgments of Criminal Courts, such decisions relating to the subject matter of the suit in a Civil suit cannot be relied upon. The general rule is that a judgment is not admissible as evidence against one who is a stranger to the suit. But it is now well settled that orders passed in a nroceeding under Section 145 of the Cr PC, are admissible in evidence. On general principles as well as under Section 13 of the Evidence Act to show the fact that such orders were made.

35. Such orders, are evidence of the following facts, all of which appear from the orders themselves, namely, who the parties to the dispute were; what the land in dispute was; and who was declared entitled to retain possession. The reasonings in the judgment, and the conclusions drawn from them, are not binding or conclusive. Even in civil cases there is no provision in the Evidence Act by which actual decision or the findings arrived at in a previous judgment can be used as evidence to decide the points which are in issue in a case, unless such decision operates as ‘res judicata’, or is relevanl under Ss. 40 to 42 to prove assertion of a right, etc.

36. From the above review of the law on the point we find that a judgment of a criminal Court is admissible to prove only who the parties to the dispute were, and what order was passed. Facts therein stated, or statements of the evidence of the witnesses examined in the case, or the findings given by the Court, are not admissible at all. Technically, such judgments are inadmissible as not being between the same parties, the parties in the prosecution being the State on the one hand, and the prison on the other, and in the civil suit the prisoner and some third party; and substantially, because the issues in a civil and criminal proceeding are not ??? same, and the burden of proof rests in each on different shoulders.

37. Even an admission cannot be proved by a recital in such a judgment. Therefore, a proceeding of a criminal Court is not admissible as evidence; a civil Court is bound to find the facts for itself (See — ‘Dinomoni v. Brojomohini’, 29 Ind App 24 (PC) (C);—‘Purnima Debya v. Nand Lal Ojha’, AIR 1932 Pat 105 (D); — ‘Dundbahadur Singh v. Durga Irasad Singh’, AIR 1953 Pat 346 (E); — ‘Kesho Prasad v. Mt. Bhagjogna Kuer’, AIR 1937 PC 69 (F); — ‘Harihar Prasad v. Mt. Janak Dulari’, AIR 1941 Pat 118 (G); and — ‘Karamutoollah Chowdhry v. Giholam Hossein’, 9 Suth WR 77 (H)). For these reasons the judgments, Exs. N and N1, are not admissible to prove the parentage of the plaintiff, and as such they must be ruled out of consideration.

38. Mr. Prasad then submitted that taking of ‘ganja’ is no ground for disowning one's own son. In this case it has been established by the evidence on the side of the plaintiff that defendant 1 was addicted to ‘ganja’ and ‘bhang’. We get from the evidence on the record that Ramadhar disposed of a portion of his land for the satisfaction of debt incurred by him, one of his houses fell down and he made no attempt to construct it, the present house of Ramadhar is also in a dilapidated condition, and he did not repair it. There is evidence to show that Ramadhar had taken to evil ways and as such the plaintiff and his wife took serious objection to his acts, and in order to save plaintiff's own share in the property he brought the present suit for partition. There is, therefore, no question of disowning one's own son due to taking ‘ganja’, etc.

39. I, therefore, hold in agreement with the Court below that the plaintiff Janki is the son of defendant 1 Ramadhar, and that the plaintiff is in joint possession of the suit properties with his father, defendant 1, and the share of the plaintiff in the suit properties is half and as such he is entitled to partition of his half share, and the suit has been rightly decreed. In the result, the appeal fails and is dismissed with costs, payable by appellants 2 to 5 only, as they alone have contested this appeal.

Rai, J.:— I agree.

V.R.B

40. Appeal dismissed.