P L D 1958 Dacca 490 (PLP)

No one for Respondents. KHAN, J.‑This appeal arises out of a suit for recovery of possession on declaration of title.

2. The land in suit is CA. Plot No. 42 of Xhatian No. 928 of mauza Pangaon. It belonged to one Jonab Ali who executed a mortgage bond in respect of it in favour of the plaintiff on the 17th Asar, 1,327 B. S., for a loan of Rs.

65. Jonab Ali died leav ing behind him three daughters, a widow and four sons including Saijuddin and Reajuddin.

3. It is the plaintiff's case that on the 18th Agrahayan, 1331 B. S., Saijudin on behalf of himself and his minor brothers Reaj uddin surrendered the suit land in favour of the plaintiff by execut ing a istafanama, Exh. 2, in full satisfaction of the mortgage debt, and since then the plaintiff possessed the, suit land until 17th Kartick, 1348 B. S., when the contesting defendant who was a transferee from Saijuddin and Reajuddin dispossessed him. The plaintiff thereafter brought a suit under section 9 of the Specific Relief Act on the 29th April 1943, but the suit was dismissed. Hence the plaintiff instituted the present suit on the 4th August 1943.

4. Defendant No. 2 alone contested the suit. His defence was that there was no martgage and no istafa as alleged by the plaintiff and that defendant No. 2 acquired title to the suit land by purchase from Saijuddin and Reajuddin. It was further con tended that alleged istafa, if any, was a spurious document and was never executed by Saijuddin as alleged by the plaintiff and the plaintiff never possessed the suit land as alleged: by him and the story of possession and dispossession was false.

5. The trial Court accepted the defence case fully and dis missed the suit. Thereupon the plaintiff preferred an appeal. In that appeal, the lower Appellate Court held that the istafanama, Exhibit 2, was a genuine document and accepted the plaintiff's story of pssession and dispossession and decreed the suit in favour of the plaintiff holding that the plaintiff acquired no title to the suit land on the strength of the alleged istafanama but that he acquired title to the suit land by adverse possession for more than the statutory period. There was an appeal to this Court and the appeal was remanded for rehearing by the first Appellate Court after excluding some inadmissible evidence. Hence the appeal was again heard by the lower Appellate Court which reversed the judgment and decree of the trial Court and decreed the suit in favour of the plaintiff holding that the plaintiff has acquired title to the suit land by adverse possession for more than the statutory period. The Court of Appal below has further held that the istafanama was a genuine document and that on the basis of this document the plaintiff came into possession of the disputed land. Hence this Second Appeal by the defendant.

6. Mr. Basu, the learned Advocate for the appellant, has contended that the judgment of the Court of Appeal below is not a proper judgment of reversal inasmuch as he has not reversed the material findings of the trial Court and has not taken into consideration the facts and circumstances which formed the basis of that judgment. He has further contended that the lower Appellate Court has erred in law in relying on the inadmissible evidence, Exh. 1 (a), and coming to his finding on the question of adverse possession in favour of the plaintiff and that his finding on the question of adverse possession is based on no legal evidence.

7. In my judgment, the contentions of the learned Advo cate for the appellant have considerable force. It has been found by the Court of Appeal below that the istafanama, Exh. 2, is no evidence of title although he has found the said document to be a genuine one executed by Saijuddin, one of the heirs of Jonab Ali, on his own behalf and on behalf of his minor brother Reaj uddin. Admittedly, the suit land devolved, on the death of Jonab Ali, to his three daughters, widow and four sons including Saij uddin and Reajuddin. It appears that the learned Subordinate Judge found plaintiff's title by adverse possession and, in coming to his finding, he has mainly relied upon the recital of boundary in a mortgage deed, Exh. 1 (a), executed by deceased Ram Chandra in favour of two other persons. In this mortgage deed, Ram Chandra described the suit land as the khas land of the plaintiff which is to the contiguous west of his dag No. 47 which he mortgaged. The learned Subordinate Judge has observed that this recital of boundary in the mortgage deed, Exh. 1 (a), has corroborated the evidence of Ram Chandra which he gave in section 9 suit and which has been put in as evidence in this case. The learned Subordinate Judge clearly fell into error in admitting this Exh. 1 (a) in evidence to prove that the plaintiff is the boundary man of the land of this mortgage, that is, the plaintiff owns the suit plot which is to the contiguous west of the mortgage land belonging to Ram Chandra. In Pramatha Nath Chowdhuri and others v. Krishna Chandra, Bhattacharjee and another (28 C W N 1092), it has been held that a mere description of boundaries in a document between third parties cannot be said to be a statement against the proprietary interest of the person making it and it is not admissible under section 32 (3). The same view has been taken in Radha Krishna Marwari v. Sarbeswar Nag and another (29 C W N 469), where it has been held that such a statement is not admissible under any of the clauses of section 32.

8. Defendant's predecessor's were not parties to this docu ment, Exh. 1 (a). The executant of Exh. 1 (a), namely, Ram Chandra did not claim any interest in the suit land and the statement in the recital that the land in suit was the land of the plaintiff was not against his interest, either pecuniary or proprietary. He could not have gained anything by not making this statement. I am entirely in agreement with the view taken in these decisions referred to above and I hold that the recital of boundary in Exh. 1 (a) is not admissible in evidence under section 32 (3) of the Evidence Act, and, that being so, the Court of Appeal below committed an error in law in appraising the value of the evidence of Ram Chandra holding that it was corroborated by the recital of boundary in Exh. 1 (a), so far as the possession of the suit plot is concerned. Further the Court of Appeal below has committed an error in law in appre ciating the findings of the learned Munsif as to the question of the possession of the suit land by the defendant's predecessors. The definite finding of the learned Munsif is that "the defendant's story of possession, as described in the written statement proved before the Court, seems to be more reasonable, natural and plau sible and fits in more with the facts and circumstances of the case than the story of possession of the plaintiff". But the learn ed Subordinate Judge has misquoted his finding, and observed that the learned Munsif was not apparently satisfied with the evidence of possession adduced on the side of the defendant. The question of adverse possession is a mixed question of fact and law and this Court in Second Appeal is competent to say whether the inference of adverse possession which is a question of law can be drawn from the facts found by the Court of Appeal below. It appears from the judgment of the Court of Appeal below that the facts found by him do not lead to the inference that there was adverse possession by the plaintiff. The finding of the learn ed Subordinate Judge has been influenced by the inadmissible evidence, Exh. 1 (a), on the basis of which he accepted the evidence of deceased Ram Chandra which has not been corroborated by any other independent and reliable evidence.

9. Be that as it may, the finding of the learned Subordinate Judge on the question of plaintiff's title by adverse possession id not based on any legal evidence. It appears that the trial Court rightly discarded the inadmissible evidence and gave good reasons for accepting the possession of the defendants and rejected the story of possession set up by the plaintiff. As the finding of the learned Subordinate Judge as to the plaintiff's title by adverse possession is not based on legal evidence, it cannot be sustained, and, as such, the judgment and decree of the learned Subordinate Judge must be set aside.

10. In the result, the appeal is allowed. The judgment and decree of the lower Appellate Court are set aside and those of the trial Court restored and the suit be dismissed.

11. As none has appeared on behalf of the respondents, I make no order as to costs. Z. A. S. Appeal allowed.