Sabran Sheikh v. Odoy Mahto

Coutts, J.:— The plaintiffs in this case are the darpatnidars of a taluk in which the land in dispute lies. They claim that the land is their man land and that they have always been in possession up till the 9th of Aarahan, 1325, when they were dispossessed by the defendant who is a tenant of the village and who claims the land as his jote land. The suit was dismissed in the court of first instance but has been decreed on appeal by the Subordinate Judge of Manbhum. The defendant has appealed.

The sole point before the lower appellate court was whether the land was the plaintiffs' man land or the defendant's jote land and the learned Subordinate Judge based his decision, that the land was the plaintiffs' man land, on an ekrarnama (Ex. 1) as well as on other evidence in the case.

In appeal, before us the contention is that the learned Subordinate Judge was not entitled to use the ekranama as evidence and that consequently his decision is vitiated. If in fact Ex. 1 were not admissible in evidence, as the decision of the Subordinate Judges very largely based on this document, it would be for consideration whether the appeal should not be remanded for rehearing after excluding this document from consideration. If, however, Ex. 1 be evidence the finding of the Subordinate Judge is a finding of fact based on legal evidence with which we cannot interfere. The question then is whether Ex. 1 is evidence or not.

Ex. 1 is an ekrarnama by one Asiroad Mah to addressed to an ancestor of the plaintiffs and in the document the land in suit is described as man land. It is contended, however, that the document is not evidence because it is not inter partes. On the other hand it is contended that the document is admissible under section 13 of the Evidence Act. Section 13 runs as follows:—

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

(a) any transaction by which the right or custom in question was created, claimed, modified, recognized, asserted or denied, or which was inconsistent with its existence;

(b) Particular instances in which the right or custom was claimed, recognized or exercised, or in which its exercise was disputed, asserted or departed from.”

Now in the present case the question is of the existence of a right and the ekrarnama comes both within clauses (a) and (b); it is both a transaction in which the right was claimed and an instance in which the right was exercised. If authority that such a document is relevant were needed there, are the cases of Jones v. Williams, Marquis of Anglesey v. Lord Hatherton, Daitari Mohanti v. Jugo Bundhoo Mohanti and Vythilinga v. Venkatachela. We have, however been referred by the learned Vakil for the appellant to the case of Abdul Ali v. Syed Rejan Ali. I confess that this decision appears to lend support to the contention of the learned Vakil for the appellant, but if it lays down the proposition that in such a case as the one before us a transaction by which a right is claimed or asserted or a particular instance in which the right is exercised is not evidence under section 13 of the Evidence Act, I must respectfully differ from this view. The law appears to me to be perfectly clear both from the section itself and from the decisions to which I have already referred, and in my opinion the ekrarnama, Ex. 1, is evidence. This being so, the decision of the learned Subordinate Judge is based on legal evidence and is a finding of fact with which we cannot interfere in second appeal. I would accordingly dismiss this appeal with costs.

Ross, J.:— I agree. There is direct authority for the admissibility of the counterpart of a lease executed in favour of a third party, in proof of title, in Earl of Egremont v. Pulman and Governor of Magdalen Hospital v. Knotts.

Appeal dismissed.