1. This is an appeal on behalf of the Plaintiff in an actionin ejectment. The case for the Plaintiff is that the Defendants are trespassersand are consequently liable to be ejected. The claim is resisted on the groundthat the Defendants have an occupancy tenancy in respect of the disputed landand are not liable to be ejected so long as that tenancy continues inoperation. The Court of first instance negatived the defence and decreed thesuit. Upon appeal the District Judge has reversed that decision. He has foundupon the evidence that the second Defendant is an occupancy tenant of the landin suit and is therefore not liable to be ejected.

2. The Plaintiff has now appealed to this Court and on hisbehalf the decision of the District Judge has been assailed as erroneous in lawbecause founded upon evidence not legally admissible against the Appellant.This evidence consists of recitals in four documents, namely, first, a deed ofsale executed on the 15th January 1856 by the proprietor of the land towardsthe east of the disputed land in which he described the western boundary of hisparcel as the tenanted land of the predecessor of the present second Defendant,Gopal Tewari : secondly, a mortgage deed executed on the 21st November 1892 inwhich the proprietor of the land towards the east and south of the disputedland described the western and northern boundaries of his parcel as thetenanted land of Gopal Tewari: thirdly, a conveyance executed on the 4th July1903 by the proprietor of the land towards the north of the disputed land inwhich he described the southern boundary of his parcel as the tenanted land ofGopal Tewari: and, fourthly, a conveyance dated the 1st September 1862 whichcontains a similar recital. The District Judge has found that these documentsare genuine and he has relied upon these statements in support of theallegation of the Defendants that Gopal Tewari was in possession of thedisputed land as tenant in respect thereof from 1856 to 1903. On behalf of thePlaintiff it has been argued that he is not a party to any of these deeds andthat consequently the statements in question are not admissible in evidence asagainst him. On behalf of the Defendants-Respondents reliance has been placedupon secs. 11, 13, 32, cl. (2) and 32, cl. (3) in support of contention thatthe statements in question are admissible in evidence.

3. In so far as sec. 11 is concerned, we are clearly ofopinion that it does not assist the Respondents. Stress is laid mainly upon thesecond clause of sec. 11 which provides that facts not otherwise relevant arerelevant if by themselves or in connection with other facts they make the existenceor non-existence of any fact in issue or relevant fact highly probable orimprobable. Now the fact that the proprietor of a neighbouring piece of land indescribing the boundary of his parcel stated that the land of Gopal Tewari wassituated on that boundary is not relevant for the purposes of the presentlitigation. The Respondents cannot succeed unless they get the statement itselfadmitted in evidence, the mere circumstance that the statement was made wouldnot be sufficient for their purpose. Consequently sec. 11 of the IndianEvidence Act is of no avail to the Respondents.

4. In so far as sec. 13 is concerned the Respondents are ina similar difficulty. That section provides as follows : "Where thequestion is as to the existence of any right or custom, the following facts arerelevant:--

(a) Any transaction by which the right or custom in questionwas created, claimed, modified, recognised, asserted or denied, or which wasinconsistent with its existence:

(b) Particular circumstances in which the right or customwas claimed, recognised, or exercised, or in which its exercise was disputed,asserted or departed from.

5. Here the transactions evidenced by the four deedsmentioned were in respect of lands other than the land now in dispute.Consequently it cannot be suggested that there was any transaction orparticular instance by or in which the right now in question was claimed,recognised, asserted or denied. Sec. 13, therefore, is of no avail to theRespondents.

6. The Respondents finally fall back upon the provisions ofsec. 32. Here reference is made in the alternative to cls. (2) and (3) Now cl.(2) provides that when a statement has been made by a person of the characterdescribed in the opening sentence of that section in the ordinary course ofbusiness it is admissible in evidence. It has been contended that when a vendorexecutes a deed of sale or a mortgagor executes a deed of mortgage he is boundto describe the boundaries of the land transferred and that consequently whenhe describes the boundaries he may be taken to have made a statement in theordinary course of business. This interpretation of the expression "in theordinary course of business" is however opposed to the decision of thisCourt in Sheonandan Singh v. Jeonandan Dusadh 13 C. W. N. 71 (1908), where thelearned Judges followed the view accepted in the case of Ningawa v. BharmappaI. L. R. 23 Bom. 63 (1897). As at present advised, we see no reason to dissentfrom the view adopted in the cases just mentioned. We must consequently holdthat the statement in question does not fall within cl. (2) of sec. 32 of theIndian Evidence Act. The question now arises whether cl. (3) is comprehensiveenough to cover the present case. That clause provides that when a statement isagainst the pecuniary or proprietary interest of the person making it, it isadmissible in evidence. It has been argued that this clause does not cover thestatements in question, because they were made by persons who were in no wayconcerned with the land now in dispute and that consequently it was immaterialfor those persons to know who was in occupation as tenant of the land stated tobe lying on the boundary of the lands conveyed or mortgaged. In our opinionthis contention is not well-founded. As pointed out by Sir Richard Couch in thecase of Raja Leelanund Singh v. Lukhpattee Thakoorain 22 W. R. 231 (1974) thestatement must be taken as a whole. Now the statement in these deeds that thetransferrer was owner of the land conveyed or mortgaged and that he was eitherextinguishing his interest in the land by an absolute sale or placing arestriction or it by way of a mortgage, was undoubtedly one against thepecuniary or proprietary interest of the person making it. Consequently thestatement as a whole would be admissible in evidence. This view is supported bythe case of Ningawa v. Bharmappa I. L. R. 23 Bom. 63 (1897) which was acceptedas good law in Haji Bibi v. Aga Khan 11 Bom. L. R. 409 (1908). The case ofAbdul Aziz v. Ebrahim I. L. R. 31 Cal. 965 (1904) also points to the sameconclusion, though the question there was simpler, because there the landlordof a property stated that there was a tenant in occupation of it, a statementclearly in derogation of his proprietary interest. We may add that the view we takemay be supported from a somewhat different standpoint. When a person in theposition of the vendor or the mortgagor in the deeds mentioned, transfers theproperty, and describes that the property conveyed or mortgaged is limited bycertain boundaries he makes a statement as to the limited extent of thatproperty. From this point of view it may fairly be contended that the statementis one against his proprietary interest because it is equivalent to anadmission that his proprietary interest does not extend over any land outsidethe boundaries mentioned. In fact, to take a concrete illustration, in theevent of a dispute between the transferee and the owner of the neighbouringland as to the boundaries between the two parcels, the statement made in the conveyanceor the mortgage would be admissible in evidence as against the maker of it.From this point of view also, we think that the case is covered by cl. (c) ofsec. 32 of the Indian Evidence Act. We are of opinion therefore that the decreeof the Court below cannot be assailed as erroneous in law. The result is thatthe decree of the District Judge is affirmed and this appeal dismissed withcosts.

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Abdullah vs. Kunj Behari Lal and Ors. (17.05.1911 - CALHC)