C.P Sinha, J.:— The plaintiffs have filed this appeal. They had brought the suit for recovery of possession and in the alternative for assessment of fair and equitable rent. The suit land is situated in village Gobindpur which is a part of the town of Laheriasarai, and is comprised in survey plot No. 961, khata No. 247, having an area of 1 bigha 2 kathas 4 dhurs. Formerly, plaintiffs 1 to 6 who had an eight annas share, had instituted this suit, and the Maharajadhiraja of Darbhanga had been impleaded as defendant second party. Later on, the said Maharajadhiraja of Darbhanga was added as a plaintiff. The plaintiffs' case was that the aforesaid plot was parti up to the time of the last earthquake in 1934, but, after the earthquake, with the permission of the plaintiffs, the Government had built temporary sheds over & portion of the plot. When things became normal, the Government sold the materials of the temporal sheds on the suit land in their existing condition and they were purchased by the defendant first party. The plaintiffs asked defendant 1 to vacate the land and remove the materials, but, instead of doing so, he started making alterations in the structures and did not vacate. There was also a prayer for mesne profits from 1937 to 1944.

2. Defendant 1 contested the suit mainly on two grounds (1) that the suit was barred by limitation, estoppel, waiver and acquiescence, and (2) that plot No. 961, the land in suit, besides other plots, were given as a rent-free fakirana grant to the ancestors of Akal Sah and others a long time ago by the then maliks. It is the second ground of defence with which we are concerned in this second appeal.

3. The first Court came to the following findings:— (1) that several documents, namely, Exa. F.G to G. 3 and L to L-14, which date from as far back as 1905, show that the predecessors-in-interest of the defendant dealt with the suit land, and the documents mentioned this land as a rent-free fakirana grant; (a) that there stands a substantial building which must have taken at least a year to complete and that its appearance and other evidence on record left no room for doubt that it had been constructed more than 20 years ago; (3) that Mr. T.A Freston I.C.S, the then District Magistrate of Darbhanga, sought the permission of the defendant to build temporary huts on the suit land after the earthquake (exhibits E series); (4) that respectable witnesses were examined on behalf of the defendant to show that they resided in the house on the land in suit as tenants more than 12 years ago; and (5) that in the Colleetorate partition of the tauzi, which took place in 1939, the Batwara Deputy collector found the possession of the defendant over the suit land and recorded his possession over it and disallowed the objection of the plaintiff second party, namely, the Maharajadhiraja of Darbhanga (Exhibit L). After having found the possession of the defendant over the suit land, the learned 3rd Additional Subordinate Judge held that the defendant had acquired an indefeasible right to remain in possession of the suit land and that the plaintiffs' claim for possession was barred by time, estoppel, waiver and acquiescence. In regard to the question whether the suit land was a fakirana rent-free grant, the learned Subordinate Judge found that the defendant claimed a rent free grant to the knowledge of the plaintiffs for the first time in the year 1939 during the Colleetorate partition and that, therefore, the suit having been brought within 12 years of that date, the plaintiffs' claim for assessment of fair and equitable rent was not barred and, in that view of the matter, a fair and equitable rent was assessed at the rate of Rs. 5 per katha. It is to be mentioned that the document filed by the defendant did not mention the plot number as 961, the plot in suit, but they mentioned plot Nos. 957 and 958, and the plaintiffs contended that those documents did not relate to the land in suit. But it was found on a comparison of the boundaries mentioned in those documents with the boundaries of the land in suit that those documents did in fact relate to plot No. 961. Against the judgment and decree of the trial Court, the defendant preferred an appeal to the Court of the District Judge of Darbhanga and the plaintiffs filed a cross-objection with a prayer that the plaintiffs should be given a decree for ejectment against the defendant. The appeal and the cross-objection were heard by Mr. uma-kanta Prasad Sinha, Additional District Judge of Darbhanga, and, after having decided the question of onus which lay heavy on the defendant, he came to the conclusion that the land in suit was an old rent-free fakirana grant. He also affirmed the judgment of the 1st Court to the effect that the documents filed by the defendant, namely, the patta (exhibit F) dated 14-8-1905, by Akal Sah and Juman Sah in favour of Abdul Hakim, and the sale deed (Exhibit G-2) by Akal Sah and Juman Sah in favour of Moqim and Sadiq, the sons of Abdul Hakim and the predecessor-in-interest of the defendant, dated 28-2-1922, related to the land in dispute, namely, plot No. 961. The learned Additional Judge also dealt with documents subsequent to the documents mentioned above by which Abdul Moqim had mortgaged portions of the land in suit with the house thereon and also certain other lands to several persons from 17-2-1925 to 20-4-1929. It was also found that Abdul Hakim, since the date of the patta in 1905, continued in possession of the land in suit in his own right as fakiranadar and that prior to that year it was in possession of the fakiranadars Akal Sah and Juman Sah. There was a further finding that the defendant was all along in possession of this land and that the plaintiffs were never in possession at least since 14-8-1905, and the defendant is a purchaser from the sons of Abdul Hakim by the sale deed of the year 1929. Upon his findings mentioned above, the learned-Additional Judge held that the plaintiffs were not entitled to an assessment of fair and equitable rent and, in that view of the matter, allowed the appeal, rejected the cross-objection and dismissed the suit with costs.

4. Two second appeals were filed in this Court — one by the Maharajadhiraja of Darbhanga and the other by the plaintiffs 1 to 6. The Maharajadhiraji of Darbhanga, however, did not press his appeal (second Appeal 127 of 1948) and, therefore, it was dismissed.

5. The only point pressed in this second appeal is that the documents Exhibits P. and G 2, namely, the patta of the year 1903 and the sale deed of the year 1922 in favour of the predecessor in interest of the defendant, and other documents relied on by the Court below mentioning the suit land as a rent free fakirana grant, were not admissible in evidence and, therefore, the judgment of the Court below was vitiated and unsustainable in law because these documents were not inter partes and the plaintiffs had no concern with any of these documents.

6. These documents were admitted into evidence without objection and in the lower appellate Court also no objection was taken to the admissibility of these documents by the plaintiffs. The finding of the Court below, however, to the effect that the land in suit is rent-free fakirana grant, being an inference of law from the facts found, and the question whether the documents are admissible in law both being questions of law, can be taken in second appeal.

7. It has been urged on behalf of the defendant, respondent that the documents in question are admissible in evidence under Section 13 of the Evidence Act. Section 13 of the Evidence Act, runs as follows:

“Where the question is as to the existence of any right or custom, the following facts are relevant:

(a) any transaction by which the right or custom in question was created, claimed, modified, recognised, asserted or denied, or which was in consistent with its existence, (b) particular instances in which the right or custom was claimed, recognised or exercised, or in which its exercise was disputed, asserted or departed from.”

The question is whether the right of the defendant claiming a rent-free fakirana grant in the land in suit was either claimed or asserted by any transaction within cl. (a) of the section or whether such right was exercised by the defendant within the meaning of cl. (b) of the section. In my view, the language used in the section is wide enough to cover the present case. There is no doubt in my mind that the deed of lease of the year 1905 and the sale-deed of the year 1922 were both transactions by which the rent-free fakirana grant was asserted by the executants of those documents in respect of the land in suit and they are therefore, relevant facts both within the meaning of cls. (a) and (b) of the section. The illustration to the section as given in the Evidence Act; is clear enough to uphold the view I have taken. The lease and the sale were both on the footing that the lesser and the vendor were” transferring their interest in the suit land which, according to them, was a rent free fakirana grant. Learned Counsel for the appellants has relied upon the case of this Court in Jyoti Prashad Singh v. Bharat Shah, 15 Pat. 260. This is a judgment of Agarwala, J. (as he then was) with whom Varma, J. agreed, and relying upon a Bench decision of three Judges of the Calcutta High Court in Brojendra Kishore v. Mohim Chandra, 31 Cal. W.N 32, their Lordships held that the word “claim” in the section indicated “that the right is asserted to the knowledge and in the presence of the person whose right will be affected by the establishment of the claim”, and also relied upon the following quotation from the ??? case: “The mere assertion of a right in a ??? to which the person against whom the right is asserted is not a party and of which he knows nothing is not to claim the right”. In my judgment, the scope and object of Section 13 of the Evidence Act, have been unduly restricted by this judgment although, as I have said, the Legislature by using the language in the section intended the operation of this section to be very wide. Ordinarily, we would have been bound by the Division Bench decision of this Court, but I find that there are other previous Division Bench decisions of this court which were not considered by Agarwala, J. If there is a Division Bench decision in this Court which has not been considered by a subsequent Bench decision of the Court, then, in my view, the authority of the previous Benoh decision is not shaken. I would, however, like to consider the Full Bench case in Brojendra Kishore v. Mohim Chandra, 31 Cal W.N 32 on which this Patna case is based and some other decisions of this Court and other Courts. The facts of this Calcutta case were that the plaintiff in that case had sued for assessment of fair rent for the land in suit in which, he alleged, the defendants had only an occupancy right, and the defense was that the land was held rent-free. In support of their case, the defendants produced in evidence a kebala executed in 1874 whereby one of their predecessors-in-interest had purported to sell the plaint lands with other lands alleging that the lands were his nishkar brahmattar. There was a difference of opinion between Cuming, J. and Mukerjee, J. who heard the appeal in the first instance, and there was a Letters Patent Appeal which was heard by three Judges. It appears that both the Courts below had held that this kebala was a benami document. Cuming, J. made the following observation:

“The Court has found that the sale was a fictitious one. I have considerable doubts whether the execution of a benami document by which nothing really passes can be called a transaction. It is obviously a fictitious transaction and as such would not come within S. 13. I am of the opinion that the kebala Ex. A, is not admissible.”

And Mukerji, J. on this part of the case held as follows:

“Now, whatever may be the correct view as regards the admissibility of the kebala ‘or of its recitals, I do not think it can be ever urged that the recitals contained therein can go ‘in evidence under S. 13 in view of the fact that the transaction was held by the Munsif to be a benami one, and the Subordinate Judge has not dissented from that view …. A transaction contemplated by S. 13 is a genuine and bona fide transaction, but a benami transaction which is one not meant to be acted upon is a fiotitious transaction and in the eye of law is no transaction at all. Such a transaction, in my opinion, cannot be let in a evidence in proof of a right or custom.”

In my judgment it is obvious that in this case the observation of their Lordships in regard to the applicability of Section 13 of the Evidence Act, was no more than obiter because both the learned Judges had held that the kebala was a fictitious document and that, to there, it did not amount to a transacts therefore, do not feel bound by the weight of the decision in this Calcutta case. Even in that Court there is a great difference of opinion as appears from the case reported in Kiran Chandra v. Srinath Chakravarti, 31 Cal. W.N 135. In this case, one of the doouments was Ex. A, a hibanama, executed by the predecessors-in-interest of the defendant which described the land as barhmotter. Another document was Ex. B which was a sale certificate by which the defendants had purchased the land at the sale and there was a third document (Ex. c), the writ of delivery of possession. This appeal had also arisen out of a suit for ejectment and the defence was that it was a rent-free barhmotter. Dealing with the admissibility of these documents, Chakravarti and Panton, JJ. made the following observation:

“As to the second point raised by the learned Vakil, as I have already stated, no objection as to the admissibility of those documents was raised in either of the Courts below. Nor was it raised in the written grounds of appeal before this Court. It is difficult to see on what ground their admissibility as evidence can be questioned. The first document is a piece of evidence which shows the dealing of the property by the descendants of the original grantee as rent-free brahmottar land;…..”

There is a recent Calcutta case, decided by a single Judge, reported as Rasik Lal v. Prasanna Kumar, 60 Cal. L. Jour. 569. In this case also, it was held that the documents in question, which were the title deeds of the defendants and to which the other side was not a party, were admissible in evidence under Section 13 of the Evidence Act.

8. Now, coming to the decisions of our own Court, I find that the earliest case cited before us was the case of Sabran Sheikh v. Odoy Mahto*, 1 Pat. 375 decided by their Lordships Coutts and Ross, JJ. The head-note runs as follows:

“In a suit in which the plaintiffs claimed the land in dispute as their man land and the defendant claimed it as this jote, the plaintiffs produced an ekrarnama addressed by a third person to an ancestor of the plaintiffs in which the land in suit was described as man land, Held, that the ekrarnama was admissible under both clauses (a) and (b) of Section 13 of the Evidence Act, 1872”.

This Bench decision was not placed before their Lordships who decided the case reported in 15 Pat. 260. There is another Division Bench case of this Court Reshava Prasad v. Brahmdev Bai, 13 Pat. 45. The question in this case was whether the recitals in a sale deed to which the plaintiff landlord was not a party were admissible under Section 13 of the Evidence Act. This was a case between landlord and tenant and involved the consideration of the provisions of Section 18-A of the Bengal (Bihar) Tenancy Act, Sas.”

Which contained the following:

“Nothing contained in any instrument of transfer to-which the landlord is not a party shall be evidence against the landlord of the permanence, amount or fixity of rent, area, transferability or any incident of any, tenure or holding referred to in such instrument”. It was contended that under the provisions of Section 18-A of the Bengal Tenancy Act, the recitals in the sale-deed to which the landlord was not a party were not admissible in evidence. This contention was repelled and their Lordships held as follows:

“Section 18A is a rule of evidence which must necessarily apply to all proceedings taken after it came into force and it is applicable to recitals in a sale-deed of a prior date so that they are not evidence of title and cannot be used to prove a grant; it is, however, permissible to use the recitals not as evidence of a grant but to-show the nature of the title that was being asserted and as transactions relevant under Section 13 of the Evidence Act, 1872, by which a right was claimed or asserted on some past occasion”,

And reliance for this proposition was placed upon a Calcutta caae in Banwari Lal Singh v. Dwarkanath Missir, 29 Cal. L. Jour 577. It was further observed that in Bengal S. 18A had been amended and the following words were inserted in Section 18-A of the Bengal Tenancy Act, for Bengal: “notwithstanding anything contained in Section 13 of the Evidence Act”. This decision again was not considered in the 15 Patna 260 case Besides these-Bench decisions, there were other decisions by single Judges of this Court, namely, Kameshwar Singh v. Bamji Misser, A.I.R (20) 1933 Pat. 686 by Dhavle, J. and Thakur Kurmi v. Lalji Missert A.I.R (21) 1934 Pat. 81 by Mohammad Noor, J. two eminent Judges of this Court who had taken the view that documents similar to the documents in the present case were admissible in evidence under Section 13 of the Evidence Act. There is one other decision of this Court in Ram Kishun v. Niranjart Pande, 14 Pat. L. Tim. 575 by Wort and James, JJ. in which it is held that the right mentioned in S. 13 refers only to an incorporeal right. In this case, again the earlier decisions of this Court, were not referred to.

9. The documents to which exception has been taken by learned counsel on behalf of the-appellants are no doubt documents to which the plaintiffs were no parties. But upon an interpretation of the language of the section and upon consideration of the authorities of this Court as also of the Calcutta High Court, I must hold that these documents were admissible in evidence and the Courts below were right in admits thing those documents into evidence. The Calcutta case on which the 15 Pat. 260 case was based, in my judgment, takes a very narrow view of the meaning of the word “claimed” used in S. 13,. Evidence Act. The claim need not necessarily be made in the presence and to the knowledge of the person to be affected thereby A claim can very well be made in the absence and without the knowledge of the person to be affected. That a claim can be made in the absence and without knowledge of the person to be affected thereby is well illustrated by the ceremonies connected with the right of pre-empiton. The first ceremony is called ‘talab-i-mua-thibat’ or assertion or claim immediately on getting information of sale the second is called ‘tala-i-ishhad’ or confirmatory demand made on the land in presence of witnesses. It is clear, therefore, that ‘claim’ need not be made in presence of the persons affected thereby or in his presence.

10. These documents in question are again documents of title of the defendant or his pre-decessors-in-interest, and I see no reason why these documents should not be admitted into evidence.

11. No other point was urged before us, and, having rejected the only contention made in this court on behalf of the appellants, I must hold that there is no merit in this appeal and it must, therefore, be dismissed with costs.

12. Das, J.:— I agree that the recital in the documents in question was admissible in evidence under Section 13 of the Evidence Act. The finding that the land in dispute was rent free is an inference of law from the facts proved, and can be agitated in second appeal.

13. But in view of the facts proved in the case, I think that the Court of appeal below correctly drew the inference.

V.S.B

14. Appeal dismissed.