The Judgment of the Court was as follows:—

The subject-matter of the litigation, which has culminated in this appeal, is a tenure created on the 25th February 1881 by the proprietor of Chuck Ula Kalijuga appertaining to Touzi No. 57 of the Collectorate of Khulna. The proprietary interest, which at that time was vested in Suryyakanta Rai Chaudhuri, has since been transferred to Jogendra Chandra Ghose and others. The case for the Plaintiff is that the tenure was granted to one Idu Sana; while the case for the Defendants is that the grant was made in favour of his son Budhai Sana. The relationship of the parties will appear from the annexed genealogical table:—

Idu Sana left three sons, Niamat, Chand and Budhai who inherited the properties left by him in equal shares. Niamat left a son (Defendant No. 5) and two daughters (Defendants Nos. 8 and 9). Chand left two sons (Defendants Nos. 6 and 7) and two daughters (Defendants Nos. 10 and 11). The daughters are alleged to have relinquished their interest in favour of their respective brothers, and it may be taken for the purposes of this litigation that whatever estate was left by Idu Sana passed to his grandsons alone. On the 14th November 1906, Budhai sold the entire tenure to the first Defendant for a sum of Rs. 1,600, on the assumption that his nephews had no interest therein. On the 26th January 1917, the fifth, sixth and seventh Defendants conveyed a two-thirds share of the tenure to the Plaintiff for a sum of Rs. 3,000, on the assumption that it was the joint property of their respective fathers and of their uncle. On the 6th November 1918, the Plaintiff instituted the present suit for recovery of joint possession on declaration of title by purchase, for partition, and for incidental reliefs. The Plaintiff joined with the prayer for possession an alternative prayer for recovery of the purchase money from his vendors, should the Court ultimately hold against him on the question of title. The brothers and sisters of the first Defendant were brought on the record as Defendants (Defendants Nos. 2-4 and 12-15) in order that they might have an opportunity to oppose the claim and might be bound by any decree in favour of the Plaintiff. The claim was, however, contested by the first Defendant alone, who disputed the title and possession of the Plaintiff as well as of his vendors. The principal issues framed on the pleadings were as follows:—

(1) Did Idu Sana or his son Budhai Sana take settlement of the land in suit?

(2) Is the claim barred by limitation?

(3) Is the conveyance of the Plaintiff a bonâ fide document for consideration?

The Subordinate Judge has dismissed the suit and has disallowed the claim for possession as well as the alternative claim for refund of the consideration money. On the present appeal, the conclusions of the Subordinate Judge have been assailed upon every point.

We have to consider in the first place the fundamental question in the suit, namely, whether the settlement of the disputed land was taken by Idu Sana or by his son Budhai Sana. The oral testimony of the persons said to have been present at the time of the actual settlement has been accurately analysed by the Subordinate Judge, and he has held that the evidence given by the principal witnesses for the Plaintiff, Abdul Sana and Esen Sardar, to establish that the settlement was made with Idu Sana is wholly unreliable. The oral evidence is full of contradictions, and we are not prepared to dissent from the estimate of its value formed by the trial Judge. The unsatisfactory evidence brought forward by the Plaintiff does not gain in strength by the fact that the Defendant has not been able to produce unimpeachable evidence in support of his affirmative case that Idu Sana had died long before 1881 when the settlement took place. The Plaintiff must succeed on the strength of his own title and is not assisted by any weakness, real or apparent, in the case for the Defendant. We may add that some of the witnesses appear to have very hazy notions of time which make it difficult for the Court to place implicit reliance on them; but we feel bound to add that the Subordinate Judge should not have relied upon the statements of ages of witnesses at the head of depositions, which, as pointed out by the Judicial Committee, do not furnish evidence on the subject, Maqbuar v. Amad Hussain (1). In this state of the oral evidence the Plaintiff is driven to rely upon documentary evidence. In this category, we have the plaint in a suit for arrears of rent instituted on the 13th April 1904, by the landlord Suryyakanta Rai Chaudhuri against Budhai Sana. The second paragraph of the plaint recites that Idu Sana obtained the settlement on the 25th February 1881, when an amalnama was granted to him. The terms of the kabuliyat which was executed by the tenant after he had received the amalnama are then set out in detail, and the area is stated to have been 299 bighas by guess. The kabuliyat has not been produced but the amalnama has been received in evidence, subject to objection. This amalnama, it must be mentioned here, purports to be in favour of Budhai Sana and not Idu Sana. In these circumstances, it is not surprising that there has been some discussion at the Bar as to the admissibility of the amalnama and of the plaint.

As regards the amalnama, we are of opinion that it was neither a lease nor an agreement to lease within the meaning of sec. 3 of the Indian Registration Act and that it was consequently admissible in evidence without registration, as explained in Dwarka Nath v. Ledu Sikdar which distinguished the decision of the Full Bench in Syed Sufdar Reza v. Amzad Ali . The document in essence authorised the grantee to take possession, and was intended to be followed by a formal kabuliyat; it does not consequently fall within the scope of such decisions as Choonee v. Chandee , Meherunnessa v. Abdool Gunee , Luchmiswar v. Dakho , Lall Jha v. Negroo , Champaklatika v. Najar and Elahi v. Hukum . We must further remember that apart from sec. 17(2)(v) of the Indian Registration Act, the document, even if deemed compulsorily registerable, is inadmissible only for the limited purpose mentioned in sec. 49(c), namely, as evidence of a transaction “affecting” immoveable property comprised therein. Here the transaction itself is admitted by both sides, the only dispute is, whether it was between A and B or A and C. We need not pause to consider whether the use of the document as an aid for the solution of this question may or may not be called “use for a collateral purpose” within the meaning of such cases of Ulfatunnessa v. Hossein Khan , Bai Gulabbai v. Datagarji , Hope Mill, Ld. v. Readymoney and Vyravan v. Subramanian . If the document be admitted in evidence, there can be no doubt that it militates against the theory put forward by the Plaintiff. Consequently a strenuous endeavour has been made to cast doubt upon its genuineness. We are not impressed by this argument. The original was produced in a previous litigation; the certified copy now on the record was taken from it on the 18th February 1914. The original cannot now be traced, but its custody is satisfactorily proved according to the test formulated in Gudadhar v. Bhoyrab and Trailakha Nath v. Shurno Chongima . In such circumstances secondary evidence was plainly admissible, Ehtisham Ali v. Jamna Prasad and a presumption of genuineness may be made. There is no substance in the suggestion that the terms of the amalnama are not in all respects identical with the contents recited in the plaint dated 13th April 1904. The variations afford no ground for suspicion, as all the terms could not be expected to be enumerated in an amalnama when a more formal document in the shape of a kabuliyat was intended to be drawn up.

As regards the plaint in the suit for arrears of rent, it was plainly admissible in proof of the fact that the landlord did sue on the allegation that the settlement had been made with Idu Sana; but the plaint is not admissible to prove the statement itself, as the conditions prescribed by sec. 32 of the Indian Evidence Act do not exist in this case. The landlord was alive, and no effective attempt was made to secure his attendance as a witness or to examine him on commission. The distinction between the admissibility of a document as evidence of a transaction and the admissibility of a document in proof of a statement contained therein is, if refined, but of a fundamental character and is yet frequently overlooked; see Kashinath v. Jagatkishore , Ram Perkash v. Anand Das , Seethapati v. Venkanm , Baidya Nath v. Alef Jan and Sarada Prasanna v. Umakanta . In our opinion, the plaint cannot properly be used to prove the statement made by the superior landlord, and the same remark applies to the plaint, dated the 18th April 1911, filed by the Ghoses (the present landlords) in a suit for ejectment instituted by them. In this plaint, the Ghoses asserted that the settlement had been made with Budhai Sana. Between the dates of these two plaints, Suiyyakanta Rai Chaudhuri, the former landlord, granted a lease on the 14th December 1905, to Dwarkanath Mandal and Dasarath Mandal, after he himself had purchased the tenure at the sale which followed the decree, dated 13th September 1904 in the suit for arrears of rent. This lease, which subsequently became infructuous by reason of reversal of the rent sale, recites that the original settlement had been made with Budhai Sana. The position, consequently, is that in 1904 the landlord came into Court on the allegation that the settlement had been made with Idu Sana, in 1905 the same landlord granted a lease on the assertion that the settlement had been made with Budhai Sana and in 1911 the new landlords maintained that the settlement had been made with Budhai Sana, The Subordinate Judge has correctly held that these conflicting assertions, even if they were regularly admitted in evidence, could not advance the case of the Plaintiff. We cannot further overlook that in 1908, when Suryyakanta Rai Chaudhuri sued Budhai Sana and others for arrears of lent, the present first Defendant, who was then the second Defendant, promptly repudiated the allegation of the landlord and maintained that Budhai Sana and not his father Idu Sana took the settlement. We must hold that the documentary evidence, like the oral evidence, does not prove the case for the Plaintiff. This view is materially confirmed when we examine the evidence of possession. The Subordinate Judge, on a detailed analysis of the oral evidence, has pronounced against the contention of the Plaintiff that Idu Sana took the settlement, raised the embankments, reclaimed the jungles, brought the lands under cultivation, and that, after his death, his three sons Niamat, Chand and Budhai were in joint possession till the death of Chand. We have closely examined the evidence, and notwithstanding the forcible criticisms of Counsel for the Plaintiff, we have come to the conclusion that the view taken by the trial Judge is correct. Consequently, in so far as possession may be deemed evidence of title, the case for the Plaintiff has completely broken down, and we accept the view that since the settlement of 1881, Budhai Sana was in sole possession up to the time of the sale to the first Defendant in 1906. There is, in our opinion, no escape from the conclusion that the Plaintiff has failed to establish his alleged title. We may add that no solid foundation has been laid in the evidence for a possible theory that the settlement was taken in the name of Budhai for the benefit of the entire family, either during the life-time of Idu or aftfer his death. Such a case would contradict and effectively destroy the theory that the settlement was taken by Idu as the head of the family. But, apart from this, the hypothesis would have no chance of acceptance in view of the decision in Sukur Mahomed v. Asmot Mandal which, notwithstanding the dicta in Assamathen v. Lachmipat and Muttyjan v. Ahmed Ali , followed Abdul Majeeth v. Krishnamacharmr and affirmed the doctrine that in Mahomedan law there is no representation of the family as under the Hindu law.

In view of our decision upon the question of title, we need not investigate the interesting point of limitation raised in course of argument, namely, whether having regard to the character of the lands, which, for many years, formed in the main an unculturable waste, the principles recognised by the Judicial Committee in Trustees and Executors Agency Co. v. Short (26), Radha Gobind v. Inglis (27), Rajkumar v. Gobinda Chandra (28), Secretary of State v. Krishnamani (29) and Basanta Kumar v. Secretary of State (30), and other cases which will be found elaborately reviewed by Chatterjee, J., in Rakhal Chandra v. Durgadas (31) should not be applied. In our opinion, the claim for recovery of possession has been rightly dismissed, as the Plaintiff has failed to establish his alleged title.

We have finally to consider the alternative claim made by the Plaintiff for recovery of the purchase money from his vendors, who, as we have seen, had no title to the disputed property. The Subordinate Judge has directed that the matter be determined in a separate suit, if occasion should arise. He has held that the Plaintiff is a speculative purchaser, who took the conveyance with full knowledge that his vendors were not in possession. He has further held that the evidence does not afford convincing proof of the precise amount, if any, paid by the Plaintiff to his vendors. It is plain that though the alternative claim was put forward in the seventeenth paragraph of the plaint, no issue was raised on the point, and the evidence was not directed to the elucidation of the question, whether there is a covenant for title under sec. 55 of the Transfer of Property Act and whether in the events that have happened the Plaintiff can claim restitution. According to the opinion expressed by Wilson, J., in Hanuman v. Hanuman (32), which was affirmed by the Judicial Committee on a different ground, Hanuman v. Hanuman (33), sec. 43 of the Code of 1882, now superseded by Or. 2, r. 2 of the Code of 1908, would not bar a separate suit; in any event, the claim can, with the leave of the Court, be reserved for investigation in another suit. In view of the course the trial took in the Court below and the stale of the evidence on the record, the Subordinate Judge has, we think, properly reserved liberty to the Plaintiff to institute a separate suit for restitution against his vendors; and we see no reason to vary that order.

The result is that the decree made by the Subordinate Judge is affirmed and this appeal is dismissed with costs in favour of the first Defendant.

S.N.B