(1.) Defendants 1 and 2 are in appeal against a confirming judgment of the learned Subordinate Judge, Jajpur in a suit for title and possession.

(2.) The disputed property admittedly belonged to one Balakrushna whose wife was Hema. The plaintiffs claimed title to the disputed property on the basis of a sale deed taken in the name of plaintiff No. 1 from one Radha Dei (defendant No. 4) on 19/1/1960 (Ext. 2). Radha in her turn had purchased the said property from one Jagannath (defendent No. 3) by a registered sale deed dated 20-6-1959 (Ext. 5). Jagannath, defendant No. 3, is the son of Malati. Malati claims to be the sole daughter of Hema. After Balakrushna, Hema had made a gift of the property in favour of Malati on 23/9/1936 (Ext. 1).

(3.) Defendants 1 and 2 who are brothers lay claim to the property on the basis of a registered sale deed dated 24-2-1960 executed by Bhama in favour of Jaladhar, defendant No. 1. According to them, Bhama is another daughter of Hema. It thus appears that the plaintiffs and the contesting defendants claim under two competing sale deeds. The plaintiffs purchase is ultimately from defendant No. 3 who is admittedly the son of Malati. The defendants purchase is from Bhama who claims to be the daughter of Hema, but whose daughtership, is in dispute.

(4.) The real point that arose in this background for determination in the courts below was as to whether Bhama was the daughter of Balakrushna and Hema. Issue No. 9 in the suit was "Is Bhama daughter of Hema and did she inherit Hema" The learned Munsif returned the finding negativing Bhamas daughtership. The appellate court has now affirmed it. The alienee-defendants on the basis of their sale deed from Bhama are the appellants.

(5.) Ext. 1 is Hemas deed of gift in favour of Malati. There is a clear recital therein by Hema that Malati was her only daughter. This certainly is a very strong piece of evidence against the defence claim. Hema was most competent to state as to whether Bhama was her daughter. By 1936 there was certainly no dispute and Hema was not supposed to take side with Malati derogatory to the interest of Bhama. There is no explanation for Hemas conduct in making such statement in Ext. 1, except what is advanced by Mr. Dasgupta in this Court, namely, that Malati and her husband had been living with Hema and Malatis husband had been a domesticated son-in-law. This does not appear to be a sufficient explanation and the unequivocal statement of Hema in Ext. 1 cannot be brushed aside on the basis of this explanation.

(6.) The Choukidari Hat Chitha Book has been marked as Ext. C series. One entry is Ext. C of 1908 and the other is Ext. C/l of 1911. On the basis of these two entries from the defence side it was contended that Balakrushna had two daughters born to him through Hema - one was born in 1908 and the other in 1911. The learned Appellate Judge refused to attach importance to these entries mainly on account of the fact that the names of the daughters were not mentioned. That certainly is a very improper reason. By the time birth is reported normally a child is not named. The learned Appellate Judge should have been alive to the normal practice obtaining in these parts of the country that at least until the 21st day a name is not given to a son and for a month from the date of birth ordinarily a daughter is not named.

(7.) There was, however, a serious objection in law about the evidentiary value of these documents which both the courts below seem to have overlooked. The learned Appellate Judge instead of applying his mind to that aspect of the matter brushed aside these entries by saying that the names of the daughters had not been given.

(8.) These entries have been exhibited on the basis of evidence of D. W. 8. He has stated,

"Ext. C is the writing of Gopal Samal and Ext. C/l is the writing of Gajendra Samal. I know their respective writings. ........ The writers of Exts. C and C/l wrote in my presence."

On the basis of this evidence these two entries in the Hat Chitha Book could not be admitted as evidence.

(9.) A case of this type came for examination before their Lordships of the Supreme Court in AIR 1965 SC 282 [LQ/SC/1964/31] , Brij Mohan v. Priya Bhat. Das Gupta, J., as he then was, speaking for the Court stated, "In our opinion, this document is genuine and is the book that was maintained by the Chowkidar for noting the births in his Haka during the years 1934 to 1936. The entry therein showing the birth of a son to Sarjoo Singh on October 15, 1935 can however be of no assistance to the appellant unless this entry is admissible in evidence under the Evidence Act. If this entry had been made by the Chowkidar himself this entry would have been relevant under Section 35 of the Evidence Act. Admittedly, however, the Chowkidar himself did not make it. Mr. Agarwal tried to convince us that when an illiterate public servant is unable to make an entry himself and he gets the entry made by somebody else this should be treated as an entry made by the public servant. This argument must be rejected. The reason why an entry made by a public servant in a public or other official book, register, or record stating a fact in issue or a relevant fact has been made relevant is that when a public servant makes it himself in the discharge of his official duty, the probability of its being truly and correctly recorded is high. That probability is reduced to a minimum when the public servant himself is illiterate and has to depend on somebody else to make the entry. We have therefore come to the conclusion that the High Court is right in holding that the entry made in an official record maintained by the illiterate Chowkidar, by somebody else at his request does not come within Section 35 of the Evidence Act. It is not suggested that the entry is admissible in evidence under any other provision of the Evidence Act."

In the present case the statement of the deceased choukidar is not on record. Admittedly the entries are in the hands of a person other than the choukidar. In the circumstances, the entries are not admissible in evidence for any purpose. I would, therefore, rule out Exts. C and C/l for consideration. purpose. I would, therefore, rule out Exts. C and C/l for consideration.

(10.) Mr. Dasgupta strenuously contended that the learned Appellate Judge has not analysed the matter as a final court of fact. I was taken through the entire judgment from beginning to end. My own impression is that the comment of Mr. Dasgupta is justified. In an appeal of this type where the only question for determination is the daughtership of Bhama, the learned Appellate Judge should have pointedly come to discuss the materials. The burden certainly lay on the defendants to establish Bhamas daughtership. Ext. C series should have been ruled out. Ext. 1 should have been duly considered to find out whether it was to be accepted and acted upon. Thereafter the learned Appellate Judge should have immediately gone into the oral evidence to find whether the fact in issue had been established. An analytical process has not been adopted by the learned Appellate Judge.

(11.) The defendants rely upon the evidence of D. Ws. 2, 3, 4, 5, 8 and 10 to establish the daughtership. D. W. 2 is a son of Bhama. Admittedly Bhama has a horoscope, but it has not been produced. D. Ws. 3 and 4 claim to be the bhagchasis. D. W. 5 is not sought to be relied upon seriously as from his statement in cross-examination his source of knowledge seems to be hearsay. D. W. 8 is the attesting witness to the deed of gift Ext. 1 D. W. 10 is the father of defendant No. 1 and brother of defendant No. 2. The evidence of these witnesses must necessarily satisfy the test under Section 50 of the Evidence Act in order to be relied upon for the purpose. In AIR 1959 SC 914, Dolgobinda v. Nimai Charan, their Lordships have laid down,

"Under Section 50, 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 has special means of knowledge on the subject of that relationship is a relevant fact. The essential requirements of the section are : (1) there must be a case where the Court has to form an opinion as to the relationship of one person to another; (2) in such a case, the opinion expressed by conduct as to the existence of such relationship is a relevant fact; (3) but the person whose opinion expressed by conduct is relevant must be a person who as a member of the family or otherwise has special means of knowledge on the particular subject of relationship; in other words, the person must fulfil the condition laid down in the latter part of the section. If the person fulfils that condition, then what is relevant is his opinion expressed by conduct. Opinion means something more than mere retailing or gossip or of hearsay; it means judgment or belief, that is, a belief or a conviction resulting from what one thinks on a particular question." Thereafter they proceeded to indicate the manner of proof of such conduct. In the aforesaid standard, little reliance can be placed on D. Ws. 3, 4 and 8. They are certainly not members of the family, nor is there any special source of knowledge. D. Ws. 3 and 4 claim as bhagchasis. A bhagchasi cannot be imputed with knowledge of relationship. Similarly D. W. 8 has no such special means. D. W. 2 is Bhamas son. He is very young. That apart, Bhama being the vendor he is bound to support the vendors title. For that purpose he is interested to support the defence claim of Bhamas daughtership of Hema. D. W. 10 is absolutely interested. He also does not satisfy the test of being a relation or having any special means of knowledge. In the circumstances, on the basis of the oral evidence led by the defendants a finding in the positive on the dispute relating to Bhamas daughtership cannot be given.

(12.) On the aforesaid analysis, I would hold that the defendants have failed to establish the title of their vendor whereas on the admitted position the plaintiffs have acquired title under a valid sale deed from the holder of the title to the disputed property. The plaintiffs suit has been rightly decreed in the courts below. The appeal fails and is dismissed. There would be no order as to costs of this court. Appeal dismissed.