The Church of Our Lady of ... vs the State of Mysore and Anr. on 22 August, 1975

8/13/2019 The Church of Our Lady of ... vs the State of Mysore and Anr. on 22 August, 1975

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Karnataka High CourtKarnataka High CourtThe Church Of Our Lady Of ... vs The State Of Mysore And Anr. on 22 August, 1975Equivalent citations: AIR 1976 Kant 75, 1975 (2) KarLJ 468Bench: M S SwamiJUDGMENT

1. The appellant is the plaintiff. The Church of Our Lady of Immaculate Conception, Urva, Mangalore town,represented by the Priest and the President of the Board of Administration of the said Church, the presentincumbent being Rev. Father V. D'Souza. It is a Roman Catholic Church. The subject-matter of the suit is theland survey No. 57/12 measuring 60 cents situate in Boloor village in Mangalore Town. According to the caseof the plaintiff the suit property along with the property lying to its west, namely, survey No. 57/6 waspurchased by the plaintiff Church from one Anthony Kamthialias Souza, under a registered sale deed dated14-2-1869. The patta of the suit land continued to stand in the name of the vendor and the plaintiff was payingthe assessment of the suit land into the hands of the vendor for payment to the Government for some years.The suit land was consecrated as a burial ground of the plaintiff-Church and is being used ever since itspurchase as burial ground of the Parishioners of the plaintiff-Church, Since it was used as burial ground, thePattadar was granted remission of assessment in respect of the suit land by the Revenue Authorities, Thus,

since about 1900 no assessment was demanded or paid though the suit land continued to be in the exclusivepossession and enjoyment of the plaintiff all along. The plaintiff also purchased survey No. 61/1 of Boloorvillage on 21-7-1890 and likewise consecrated the same as second burial ground of the plaintiff-Church in orabout 1897, but even thereafter there have been burials in the 'A' schedule property i. e. survey No. 57/12 solate as the year 1961. The graves in the 'A' schedule property are alleged to be mostly in a strip of land 35, ft.in width and 65 fit in length running East to West in the northern boundary of survey No. 57/12 which isdescribed as the Plaint 'B' schedule property. The second defendant purchased plots of land survey Nos.57/8-B, 57/7-B and 57/13-B which lie a little distance towards the northwest of the suit property in the year1960 and built a house thereon. He applied to the Deputy Commissioner of South Kanara for permission touse the northernmost part of survey No. 57/12 as a road in order to provide access to his property from theGovernment road which lies to the east of survey No. 57/12, He alleged that he had already obtained the

previous permission of the plaintiff-Church to go across the northern part of the land survey No. 57/6belonging to the plaintiff-Church. The Deputy Commissioner passed an order on 2-1-1963 treating the Wschedule property, namely survey No. 57/12, as Government land and setting apart as road poramboke a stripof land of the width of 20 feet along the northern portion of the 'A' schedule property measuring in all 6 centsin extent and granting permission to the second defendant to form a road on that strip of land with thecondition that it must be permissible for the members of the public also to make use of that road. Hence, theplaintiff brought the suit for a declaration that it is the owner of the plaint 'A' schedule property, that the orderof the Deputy Commissioner dated 2-1-1963 is not valid or binding on the plaintiff and for an injunctionrestraining defendant-1, the State of Mysore, as well as the second defendant from trespassing into the plaint'B' schedule property.

2. The first defendant pleaded that the suit land belongs to the Government and is registered as a Porambokeburial ground in its records and that the alleged vendor of the plaintiff had no tit le to the suit land. Noassessment was levied on the suit land as it belongs to the Government. The plot survey No. 57/12 was beingused very rarely for burying dead bodies of those Christians who were denied religious rites of burial and suchburials have taken place in the centre of the land survey No. 57/12 and not on the northern side of the saidland. The land bearing No. 61/1 is being used by the Church authorities as regular burial ground attached tothe plaintiff's Church all along since the date its purchase in the year 1890. The second defendant pleaded thathe has a right of way through survey No. 57/12, that the said road has been in existence from timeimmemorial and generally supported the pleas of defendant-1.

3. The trial court held that the plaintiff had established its title by purchase and also by virtue of adversepossession and decreed the suit. Both the defendants filed separate appeals against the said decision before the

The Church Of Our Lady Of ... vs The State Of Mysore And Anr. on 22 August, 1975

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lower appellate court. The lower appellate court held that the sale deeds between third parties A-4 to A-6 aswell as the partition deed, Ext. A-7, and the probate, Ext A-8 were inadmissible in evidence and that theplaintiff had failed to establish the identity of the property purchased under the sale deed of 1869, namely,Ext. A-3. It also held that the plaintiff had failed to establish its title by adverse possession. It accordinglyreversed the findings of the trial Court and dismissed the suit.

4. The first question to be decided is whether the lower appellate court was justified in holding that theidentity of the properties purchased under Ext. A-3 has not been established. Exhibits A-4 and A-5 aredocuments between strangers. Hence, the recital with regard to the boundaries in those documents are notadmissible in evidence. This finding of the lower appellate court is not challenged by Mr. Holla. But hiscontention is that the recitals in Ext. A.7 with regard to the boundaries are admissible and, therefore, it mustbe held that the identity of the proper conveyed under Ext. A-5 is the same as the suit schedule 'A' property.

5. The sketch prepared by the Commissioner appointed by the trial Court shows the relative positions of thelands with respect to the suit property. The suit property survey No. 57/12 is bounded on the east byGovernment road, namely, Kooloor Ferry Road, on the north by survey No. 57/5, on the west by survey No.57/6 and on the south by survey No. 61/4. According to the case of the plaintiff what was conveyed under Ext.A-3 to & plaintiff is the land composed of both survey No. 57/6 and survey No. 57/12. If both survey Nos.

57/6 and 57/12 are taken as one land, the eastern and northern boundaries are the same as stated above. Butthe western boundary is survey No. 57/8-C and the southern boundary will be partly survey No. 61/4 andpartly survey No. 61/2 which lies to the west of survey No. 61/4. The contention by Mr., Holla, on behalf of the plaintiff, is that the land survey No. 57/5 belonged to Anthony Kamthi alias Souza and that he retainedthat land when he conveyed the land to the south of it to the plaintiff under the sale deed, Ext. A-3, in the year1869, that the northern boundary of the land conveyed by him under Ext. A-3 to the plaintiff is described asthe land retained him out of the ward No. 26. His further contention is that the land which formed the northernboundary of the property conveyed to the Church fell to the share of Anthony Kamthi's son Barnard in thepartition evidenced by Ext. A.7 of the year 1889 and thereafter it was bequeathed under the will of Barnardunder Ext. A-8 to his legatees. By the time of Ext. A-8, i. e. 1939 Survey Settlement had been introduced andthe lands bearing survey Nos. 57/5, 57/9 and 57/10 are described as the lands which fell to the share of

Bernard son of Antony Kamthi under the partition in the document Ext. A-8. It is the contention of Mr. Hollathat survey No. 57/5 originally belonged to Anthony Kamthi, that was the property which is described as thenorthern boundary of the suit property in Exhibit A-3 and since the suit property is to the south of surveynumber 57/5, it is the suit property which has been conveyed to the plaintiff under Ext. A-3.

6. The recitals in Ext. A-3 are to the effect that Anthony Kamthi had purchased the land in Mali No. 26standing in the Varg of Anthe Prabhu and Salu Prabhu bearing an assessment of Rs. 7-14-0 and that heconveyed the property described in the boundaries to the plaintiff-Church. It is also recited that 0-12-0 is theassessment payable in respect of the portion of the property conveyed to the plaintiff, that the said assessmentmust be paid by the plaintiff into the hands of the vendor and receipts obtained in order that the vendor maypay the assessment of the entire land to the Government. The eastern boundary of the land conveyed underExt. A-3 is mentioned as the Government road, the southern boundary as the land purchased by VykuntaPrabhu in a court sale, the western boundary as the land in the possession of Bhostu Kamthi and the northernboundary is mentioned as the land retained by the vendor out of the same varg. It is to be noticed that themeasurement of the area conveyed is not to be found in the document.

7. The suit property is classified in the revenue records as poramboke and is described as a burial ground.According to paragraph- (2) of Standing Order No. 15 of the Standing Orders of the Board of Revenue,Government of Madras, 'Poramboke' is a land prima facie not available for assignment. Under paragraph-5 of the same Standing Order, it is provided that only land the, assignment of which is unobjectionable shall beassigned. The lands acquired for communal purposes shall not be assigned. Grazing ground poramboke shallnot be assigned unless there is sufficient grazing ground available to the cattle at the rate of one acre of pasture per head of cattle. Tank-bed lands should on no account be assigned with out consulting the




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appropriate technical officer. Lands c1ose to village which sites likely to be required for communal purposesor provisions of house-sites should not be assigned. Applications for assignment of lands with dense andvaluable forest growth should be rejected. Under clause (ii) to Paragraph (3) of the same Standing Order, the,Collector is empowered to order transfer of poramboke from one bead to another or to assessed waste. UnderParagraph (38) of the same Standing Order, it is stated that the grant of any Land registered as poramboke isprima facie objectionable and that applications for grant of such land shall not be entertained by the VillageOfficers or Revenue Inspectors but may be received by Tahsildars. A special procedure is prescribed for grantof such land and there must be a publication of the proposal assign it. Therafter, the Tahsildar should obtainthe orders of the Collector to transfer it to the head of Assessed Land. Thereafter, if the Collector sanctions thetransfer, the Tahsildar then should deal with the land in the manner prescribed for an Assessed Land. In thepresent case there was such a publication and the objections filed in respect of the proposed road in the suitproperty were considered before the impugned order was passed by the Deputy Commissioner. Thecontention of Mr. Holla, learned counsel appearing for the appellant, is that the fact that the suit land isdescribed as poramboke does not show that it below to the Government big that it indicates the fact that thesuit property is being used for communal purposes viz., as burial wound of the Roman Catholic community.Hence, according to him, it does not negative the title of the plaintiff to the suit property. He has relied uponthe decisions in Secy. of State for India In Council v. Raghunatha Tathachariar (ILR 38 Mad (108) = (AIR1916 Mad 1085) and Venkataratnam v. Secy. of State (AIR 1938 Mad 565). In ILR 38 Mad 108 = (AIR 1916

Mad 1085), a grant of land by the Government of a whole village consisted of a certain specified area 'besidesporamboke'. It was held in the grant confers an the grantee a tight to all the un assessed waste land in thevillage including the land between a river bed and the high flood bank of the river though it may not operateto give communal property such as burying grounds, temples sites etc., to the grantee. It was observed that theword poramboke is loosely used in many senses and that whatever land which does not yield revenue toGovernment usually known as poramboke through several kinds of lands may be included in it. In Ballabh dasv. Nur Mohammad (AIR 1936 PC 83), it was held that when a land is described in the Khasra as qabristan orgraveyard, this prima facie at all events means that the land is a graveyard in the sense known to theMohomedan law. It was held that where the khasra itself is the instrument which confers or embodies the rightand there is no other document which creates title, the khasra and the map are not merely 'historical materials'in the sense in which that phrase is used in 57 Ind App 86 = (AIR 1930 PC 91), but fall within the phrase

'instruments of title or otherwise the direct foundation of rights. In AIR 1938 Mad 565, the question waswhether a tank situate in a village which was granted to a zamindar belongs to the zamindar or to theGovernment. The tank was within the territorial boundaries of the zamindar's Village and the Governmentduring a period of over a century never exercised any acts of ownership over the tank. In the Survey andSettlement register the tank was described as 'poramboke'. Following the decision of the Privy Council in 62Ind App. 166 = (AIR 1935 PC 115), it was held that merely because in fixing the peishkush certain propertieswere excluded, it cannot be considered as having been excluded from the grant. It was further held that merelybecause a tank is called a village tank, it cannot be said that the villagers necessarily own it. It was observedthat the word 'poramboke' is used in several senses and that though it includes communal property, it cannotbe said that it connotes no other kind of property. The learned Additional Government Pleader, has reliedupon the decision in Venkatarama Sivan v. Secy. of State (AIR 1919 Mad 765). In that case the dead of grantof a whole inam village recited that the grant was of the entire village on sarvamaniyam 'besides poramboke'.It was held that the words 'besides porambake should be construed as excluding burning and burial groundsand other portions required for communal purposes. The decision in ILR 38 Mad 108 = (AIR 1916 Mad1085), was distinguished. As regards burial and burning ground porambokes and public road porambokes, itwas held that the legal ownership of the Government is of a different character from its legal ownership of cultivable waste lands in raiyatwari villages, but that both kinds of land are the subject of the Governmentlegal ownership. It was further held that the legal tight has all along been in the Government in respect of suchcommunal land for the sake of convenience as the custodian of the rights of the public and it could not assignthose rights to the inamdar without a violation of its trust to the community to preserve the land for communaluse and that it could not be assumed without clear proof that the Government intentionally committed aviolation of the trust. Ex. B-I is the objection statement filed by the parish Priest on behalf of the plaintiff objecting to the proposal of defendant-2, Ext. B-2 is the statement made by him recorded by the Tahsildar. In




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both of them the suit property is referred as Catholic burial ground. In Ex. B-10 which is a lease deed grantedby the plaintiff in respect of a neighbouring property belonging to the plaintiff viz. S. No. 57/1, the suitproperty is referred to as Poramboke. Under Section 2(1) of the Madras Land Encroachment Act, 1905, it isstated that a public road streets etc., and all lands wherever situated except those of the persons including awargdar in South Canara or m any way subject to the payment of land revenue direct to the Government or of any other registered holder of land in proprietary right etc., are declared to be the property of Governmentexcept as otherwise provided b.1 any law for the time being in force subject always to all 16he rights of wayand other public Tights and to the natural and easementary rights of other land owners and to all customaryrights legally subsisting.

8. It is also the case of the plaintiff according to the plaint that the suit property was being used as a burialground ever since its purchase, i. e. since 1869, and that there was a remission of the assessment payable tothe Government in the year 1900 on that account. Hence, prima facie the suit property must be considered tobe the property of the Government though it may be subject to the rights of a section of the public for whoseuse it is meant as a burial ground. It is in this background that the question whether the plaintiff has made outits title to the suit property has to be examined.

9. The survey settlement took place only in the year 1904 as evidenced by Ex. B-4, the Survey Settlement

Register. Hence, the description of the suit property in Ex. A-3 or A-7 is not with reference to its surveynumber. It is, therefore, necessary to determine whether the boundaries of the suit property as described in Ex.A-3 tally with the boundaries of the suit property bearing S. together No. 57/12 and S. No.57/6 which togetherare alleged to constitute the plaintiffs properly conveyed under Ex. A-3 The western boundary in Ex. A-3 isstated to be the wall of the plot in the possession of Basthu Kamthi. P. W. 2 Francis Pinto, is a near relative of Basthu Kamthi and is 81 yews of age. He stated in his evidence that Juam Souza was the son of BosthuKamthi. He also stated that the property of Bosthu Kamthi went to Gabrial Souza. The western boundary of the property alleged to have been conveyed under Ex- A-3, according to the Commissioners map, is S. No.57/8. Ex. B-4 shows that the pattadar of this property is John Souza or Juarn Souza. This contradicts theevidence of P. W. 2. It cannot, therefore, be said that the western bound as shown in Ex. A-3 has been shownto tally with the western boundary of the property conveyed to the plaintiff, as it stood in 1904. The southern

boundary of the property conveyed to the plaintiff under Ex. A-3, as described in Ex. A-3, is the propertybelong to Vaikunta Prabhu having been purchased by him in a court sale According to Ex. B-4, the SouthernBoundary of the property conveyed to the plaintiff under Ex. A-3 consists of S. No. 61/4 and part of S. No.61/2. Both these lands stand in the patta of Vaikunta Prabhu. This entry would indicate that Vaikunta Prabhuwas die owner of these lands in the year 1904. But according, to the plaintiff's own case, these two lands aswell as S. No. 61/1 and 61/3 had been by that time Purchased by the plaintiff and the plaintiff had become theowner of the same. The relevant documents relating to the purchase of these lands by the plaintiff are Exs.A-4, A-5 and A-6. Ex. A-4 is a, sale deed dated 18-12-1882 under which one BhimaRao residing in Shimoga,has sold the property bearing Muli No, 48 in favour of RamaRao Resident of Mangalore. The recitals in thedocument show that Nelkai Thimmappaiah had executed a mortgage dead in favour of the father of the vendorand that the Vendor had filed the suit No. 423 of 1877 in the Court of the Munsiff, Mangalore, and that thevender had Purchased the same in execution of his decree on 13-9-1880. No boundaries of the Property soldthere under mentioned in Ex.A-4. Thereafter, on 19-1-1889 Rama Rao sold the property purchased by himunder Ex. A-4 to Salwador Saladan, under Ex. A-5, the sale deed of the above date. This document gives theboundaries of the property sold. The Eastern boundary is the government to the northern boundary is staked toconsist of four properties a voni the plot belonging to Juje Souza, the belonging to Bosthu Souza, and the plotbelonging to Church, Thereafter, under Ex. A-6 on 21-7-1890 Salwadors Saladan sold the Property Purchasedby him under Ex. A-5 to the plaintiff-Church. No boundaries of the Property sold under this document arementioned it is not disputed that the property purchased by the plaintiff under A-6 consists of S. Nos. 61/1,61/2, 61/3 and 61/4. Hence, according to the plaintiff's own case, the Plaintiff-had become the owner of S.Nos. 61/2 and 61/4 in the year 1890 itself. But according to Ex. B-4. Vaikunta Prabhu is shown as Pattadar of the two lands in the year 1904. It is, therefore doubtful whether the southern boundary of the propertyconveyed under Ex. A-3 is the, present S. No. 61/4 and part of S. No. 61/2, since there is no evidence to, show




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that Vaikunta Prabhu was the owner of S. Nos. 61/2 and 61/4 on the date of Ex. A-3

10. In order to establish the identity of the northern property plaintiff relies on Exs. A-7 and A-8. Ex. A-7 in apartition deed dated 31-5-1889.The parties to that deed are Juje Michal Souza son of Anthony Kamthi aliasSouza, the widow of Anthony Kamthi and the younger son of Anthony Kamthi, namely, Bernard. The firstthree items of the properties described as being available for partition are of a different village. The fourthitem is described as Muli No. 26 of Bolur village standing in the varg of Sali Prahhu bearing assessment of Rs7-3-1 and excluding the property left to the church by their elder bearing assessment of Rs 2-4-0, which has tobe paid by the Church to the parties to the document. The property under this item is described as consistingof partly mulgeni property and partly in their own possession. There is no description of the property left tothe church in this part of the document except as stated above. Later on in the document the description of theproperties which fell to the share of Bernard are given with their boundaries. They are items 10 and 11. Theboundaries of the property allotted under item No. 10 are given as East: Government Road, South the plot of Urva Church and wall, West: wall of the land belonging to Bosthu Kamthi, and North: the wall and plot of Sale Kamthi. Item No. 11, which also fell to the share of Bernard, is shown as being bounded on the east bythe wall of the land belong to Bosthu Kamthi and the Church, on te south the wall of the church plot, on thewest voni and on the north, the wall of the church. It is stated that it is a mulgeni property in the enjoyment of Juje Kamthi. The mulgeni right and the Muli right in respect of this property is allotted to Bernard. The other

properties allotted to Bernard's share are of a different village. Under item-14 it is stated that out of item-10allotted to the share of Bernard, his mother is entitled to enjoy a portion of it for her life time and thereafter itmust go to Bernard, There is also recital in the document to the effect that the elder son must collect Rs. 2-4-0in respect of the property shown as having been left as, the property of the Church and should pay the same tothe Government. Ex. A-8 is the will executed by Bernard on 25-8-1939 bequeathing his properties. Whiledescribing the properties owned by him he has stated in that will that according to the settlement deed of 31-5-1889 he got to his share the property bearing S. No. 57/5, being the muli property, and the propertiesbearing S. Nos. 57/9 and 57/10, being the mulgeni properties. The boundaries of these properties are notmentioned in the will. According to the entries in Ex. B-4 the pattadar of S. No. 57/5 is Joseph Michel Souzaalias Juje Mingal Souza. The pattadar of S, No. 57/ is a so the same person. In respect of S. No. 57/10 thePattadar is also the same person but the mulagenidar is shown as Joseph alias Juje. Though in Ex. A-8 S. No,

57/9 is also described as being in the enjoyment of mulgenidar in Ex. B-4 it is shown as if in the enjoyment of the Pattadar himself.

11. The case of the plaintiff is that item 10 allotted to the share of Bernard became later to be indicated as S.No. 57/5 at the time of survey settlement and is so found in Ex. B-4. Since admittedly, according to the sketchof the Commissioner, S. No. 57/5 forms the northern boundary of S. No. 57/6 as well as S. No. 57/12 it isurged that the property conveyed under Ex. A-3 is the property which lies to the south of S, No. 57/5, i. e. theproperty now indicated by S. No. 57/6 and the S. No. 57/12 put together. Mr. Holla relies on the southernboundary of item-10 mentioned in Ex. A-7 On the other hand, it is contended on behalf of respondent-1 thatthe statement of boundaries in Ex. A-7 is not admissible in evidence either under Sections 11 or 13 or Section32(3) of the Evidence Act.

12. Mr. Holla has relied upon the decisions in Ningawa v. Bharmappa ((1899) ILR 23 Bom 63), Ketabuddinv. Nafar Chandra (AIR 1927 Cal 230). Trimbak v. Ganesh (AIR 1923 Nag 22) and in Tika Ram v. Moti Lal,(AIR 1930 All 299) in support of his contention that the statement of boundaries in a document betweenstrangers is admissible in evidence in order to establish the identity of the property. In AIR 1927 Cal 230 theowners of the lands were examined and the statements as to boundaries were considered as corroborativeevidence. In AIR 1923 Nag 22, the admission purports to be under Section 32(2) of the Evidence Act. But thepersons connected with the document were alive and were examined as witnesses. It cannot, therefore, be saidto be a decision under Section 32 of the Evidence Act, In AIR 1930 All 299, the statement as to boundarieswere held not admissible under Section 32(3), but were held to be admissible under Section 13(b) of theEvidence Act. The decision in ILR 23 Bom 63 no doubt supports him. In that decision, as the son of theperson who executed the document was examined it was held that it constituted independent evidence and




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admitted on that ground. But in AIR 1927 Cal 918 (Sm. Kumuda Kumari Dasi v. Dilsook Roy) it was heldthat the recitals as to boundaries of lands other than those in suit contained in documents between third partieswho are strangers to the suit are not admissible and cannot be relied upon in evidence, relying on the decisionin AIR 1926 Cal 948. The Calcutta decisions are not uniform.

13. The Full Bench of the Patna High Court in Soney Lall Jha v. Darbdeo Narain Singh (AIR 1935 Pat 167(FB)), has held that Section 11 of the Evidence Act has no application in determining the question as towhether the recitals as regards the boundaries in documents between strangers are admissible. It was held that,two conditions must be satisfied before a statement is admissible under Section 32(3) of the Evidence Act;firstly, that it must be a statement of a relevant fact and secondly, it must be a statement against theproprietary interest of the person making it. With regard to what constitutes a statement of a relevant fact, itwas observed as follows:

"A fact to be relevant or the method of proof to come within any particular section in my judgment must be ordo so prima facie. Its relevancy must not and cannot depend upon the proof of other facts and it cannot besuch a matter capable of more than one interpretation."

It was, therefore, held that the statement of boundaries in a document of title relating to a different land

between third parties are not admissible under Section 32(3) of the Evidence Act. In Kalappa Shiddappa v.Bhima Govind (AIR 1961 Mys 160) the recital of the boundaries, of another land in a document between himand a third party was considered to be inadmissible in evidence either under Section 11(2) or Section 13 of theEvidence Act, following the Full Bench decision in Brojendra v. Mohim Chandra (AIR 1927 Cal 1) and inMadanlal v. Durgadutt . Mr. Holla has relied upon an

observation in that decision to the effect that if the documents in question had been executed by a stranger infavour of another stranger there would have been much force in the contention that great weight should beattached to such recitals, they having no interest in the subject-matter of the recitals. This observation is obiterdicta and appears to be based on the decision in Rangayyan v. Innasimuthu, AIR 1956 Mad 226) which waslater overruled in V. A. A. Nainar v. A. Chettiar .

14. In Sm. Savitri Devi v. Ram Ran Bijoy (AIR 1950 PC 1) it has been held that the principle upon whichhearsay evidence is admitted under Section 32(3) of the Evidence Act is that a man is not likely to make astatement against his own interest unless true, but this sanction does not arise unless the party knows thestatement to be against his interest. In that case it was not shown that a person making the statement knew thathe was thereby exposing himself to a suit for damages. Their Lordships held that this statement ought not tohave been admitted in evidence. But this decision does not help the respondents since it cannot be said that theparties did not know what they were stating in Ex. A-7 when they say that certain property had been left to theplaintiff-Church y their elders, On behalf of the respondents reliance was placed on the decision in ,

wherein it has been held that the recitals in a document between strangers, is not a particular instance in whicha right was claimed, recognized or exercised or a transaction by which a right was claimed or asserted withinthe meaning of Section 13 of the Evidence Act and that the recitals of boundaries in documents between thirdparties are inadmissible to show that any pa to the suit is or is not the owner of an 3joining land which hasbeen mentioned as one of the boundaries in such documents. The principal reasons for this view were stated tobe, firstly, that it will not be right to hold a party bound or affected by a recital as to the making of which hecould have no control whatever and which has been made completely behind his back and, secondly, that suchthird parties have not particular reason to be accurate as to who is e owner of the land adjoining their own, andtherefore, a mistake may easily creep in, in the mentioning of such boundaries, and that the boundaries mayoften be mentioned on imperfect knowledge or merely on hearsay information. This decision has been reliedon in AIR 1961 Mys

160. In Subudhi Padhan v. Raghu Bhuvan the decision




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in AIR 1935 Pat 167 (FB), was followed and it was held that the statements of boundaries in documents of title between third parties were not admissible under Section 32(3) of the Evidence Act as such admissioncannot be said to be necessarily against the proprietary interests of the person making it. It was further heldthat it could be admissible only if it is shown that at the time it was made it was contrary to the interests of themaker and at the time it was said to be used it is a statement of a relevant fact. In Chandreshwar v.Ramachandra Singh also it has been held that the

recital of a boundary in a document executed by a third party not admissible in evidence. In , a DivisionBench

considered the question of admissibility of recitals as to boundaries in a document not inter parties relating toa different property other than suit property under Sections 11, 13(a), 32(3) and 32(7) of the Evidence Act,since there was a conflict of opinion in the earlier decisions of the same court. It was held that the decision of the learned Single judge in AIR 1956 Mad 226 was wrongly decided. The decision of the Patna High Court inAIR 1935 Pat 167 (FB) and the decision in were followed. It was held that the

recitals in a document not inter parties are not admissible under Section 11 or 13 or 32(3) of the Evidence Act,following the decisions in AIR 1924 Cal 1067 and AIR 1927 Cal 918. Though in this decision the view taken

appears to be that there is an absolute bar to the admissibility of the statement regarding boundaries in adocument relating to a property other than the suit property between third parties, the correct view appears tobe the one stated the Full Bench-in AIR 1935 Pat 167 (FB ), viz., that such a statement would be admissibleonly in case both the conditions are satisfied i. e., that it must be a relevant fact and that the statement must beagainst the proprietary interest of the person making it. According to the decision in AIR 1950 PC 1 it is alsonecessary that the person making the statement must beware of the fact that it is against his interest.

15. The above decision of the Privy Council has been followed in Ramrati Kuer v. Dwarika Prasad, , whereinit is held

that a statement can be admissible under Section 32(2) of the Evidence Act only if it is shown that the person

making it knew at that time that it was against his pecuniary or proprietary interest and that in most cases suchknowledge has to be inferred from the surrounding circumstances. .

16. Mr. Holla also relied on the decision in Bhagawati Prasad v. Rameshwari Kuer , wherein it has been heldthat the

statements of a particular person that he is separated from a joint family of which he was a coparcener and thathe has no further interest in the joint property or claim to any assets left by his father, would be a statementmade against the interest of such person, and after such person is dead, they would be relevant under Section32 of the Evidence Act. It has also been have that the assertion that there was separation not only in respect of himself but between all the coparceners would be admissible as a connected matter and an integral part of thesame statement and that it is not merely the precise fact which is against the interest that is admissible but allmatters that are involved in it and knit up with the statement. But it was not a case relating to the statement of boundaries in a document between third parties, What Mr. Holla contends is that the statement regardingboundaries of item 10 mentioned in Ex. A-7 relating to the share of the properties allotted to Bernard isinvolved as a connected matter and is an integral part of the statement contained in the earlier part of the samedocument viz., that the properties divisible between the parties to that document are those excluding theproperties left to the Church by their elders. It is his contention that the statement in the earlier part of Ex. A-7is against the interests of the persons making it in so far as they admit that they have no right to said property,which originally belonged to their ancestors but has been conveyed to the Church. In so far as the right of theChurch to the property excluded from division under Ex. A-7 has been recognised, it is a statement of arelevant fact under Section 13 of the Evidence Act and, being a statement contrary to the interests of thepersons making it, is admissible under Section 32(3) of the Evidence Act. This part of the statement in Exhibit




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A-7 in the earlier part of the document must therefore be held to be admissible under sub-section (3) of Section 32 of the Evidence Act. But the argument of Mr. Holla that the statement of boundaries of item-10 inExhibit A-7 is also admissible in evidence cannot be accepted. The statement regarding the southern boundaryof the property allotted to Bernard under Ex. A-7 is made in order to identify the property which fell to hisshare and is not connected in any way with the earlier recital recognising the right of the Church to some otherproperty. Hence, the statement of boundaries cannot be considered to be an integral part of the statementwhich is admissible under Section 82(3) of the Evidence Act. It is, therefore, clear that there is no satisfactoryevidence as to the northern boundary of the property conveyed under Ex. A-3.

17-18. It is the contention of Mr. Holla that even apart from the recital with regard to the boundaries inExhibit A-7, the plaintiff has established that the property conveyed under Exhibit A-3 to the plaintiff-Churchis the property which is to the South of the present survey number 57/5, namely, the suit property. It is clearfrom Exhibit A-8 that survey numbers 57/5, 57/9 and 57/10 are the properties which fell to the share of Bernard under the partition evidenced by Ext. A-7. According to the description of the properties which fell tothe share of Bernard under Ext. A-7, two of the properties of the three properties situate in Booloor villageconsisted of Mulgeni properties and only one was muli property. In Ext. A-8 it is only 57/5 which is describedas muli property and the other two lands. S. Nos. 57/9 and 57/10 are described as Mulgeni properties. It istherefore his contention that S. No. 57/5 fell to the share of Bernard as part of the property which originally

belonged to Anthony Kamthi, the vendor under Ext. A-3. P. W, 4 is the son of Bernard. It is in his evidencethat be is in possession of S. No. 57/5 having built a house thereon. The eastern boundary of 57/5 is theGovernment road. The eastern boundary of the Property conveyed to the plaintiff-Church under Ext. A-3 isalso Government road, The eastern boundary of the property retained by Anthony Kamthi under Et. A-3 isalso Government road. Since the common boundary on the east of 57/5 is the same as that of the propertyretained by Anthony Kamthi under Ext. A-3, it is urged that it is the property 57/5 which was retained byAnthony Kamthi under Ext. A-8. Ext. A-3 is of the year 1869. The partition under Ext, A-7 is of the year1889. Unless it is proved that Anthony Kamthi had no other property which had its eastern boundary as theGovernment road at the time of the execution of Ext, A-3, it cannot be said that the property which Bernardgot to his share under Ext. A-7 was the only property which Anthony Kamthi had bearing Government road asits eastern boundary. The Survey map attached to Ext. D4 shows that the Government road runs north to south

and the entire survey numbers 56 as well as 57 had as their eastern boundaries the Government road. Theproperty retained by Anthony Kamthi under Ext A-3 and described as lying to the north of the propertyconveyed to the plaintiff-Church under that document is part of muli No. 26 as recited in Ext. A-3. From Ext.B-4 it is clear that what was muli No. 26 formerly became survey Nos. 56 and 57. Both 56 and 57 have beendivided into a number of sub divisions. Hence, it is possible that more than one part of survey No. 56 as wellas of survey No. 57 had its eastern boundary as the Government road on the date of Ext. A-3. There is noevidence to show that Anthony Kamthi did not possess any other property out of what was then muli No. 26with the Government road as its eastern boundary. It is also not shown that the plaintiff Church did not ownany other property in muli No. 26 on the date of Ext. A-8. It is reasonable to expect the plaintiff-Church tomaintain the records showing the properties of its ownership. But no such records have been produced. Hence,by the mere fact that that survey No. 57/5 is one of the lands which fell to the share of Bernard, son of Anthony Kamthi, at the partition of 1889, it cannot be infected that it is the only land which Anthony Kamthipossessed out of muli No. 26 having its eastern boundary as the Government road. It can also not be inferredthat the land transferred under Ex. A-3 did continue to belong to Anthony Kamthi's sons on the date of Ext.A-7 i. e., 20 years after the date of Ext. A-3 and that it was part of the properties which were treated asdivisible by the heris of Anthony Kamthi. The possibility that Anthony Kamthi might have acquired theproperty which fell to the share of Bernard subsequent to the date of Ext. A-3 cannot be ruled out an thematerial placed before the Court. Under the circumstances, therefore, the plaintiff must be held to have failedto establish the identity of the northern boundary of the suit property.

19. The eastern boundary of the suit property is the same as the eastern boundary of the property conveyed tothe plaintiff Church under Ext. A-3. But this fact is not of much significance in view of the fact thatadmittedly the eastern boundary of several other lands sub-numbers of survey Nos. 56 and 57, also have the




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Government road as their eastern boundary. Hence, the identity of the suit property must be held to have beennot established.

20. The plaintiff has also relied on Exhibits A-9 and A-10 in support of its title. They are extracts from theMunicipal registers. According to Ext. A-9 municipal tax has been paid in respect of survey No. 57/12, thesuit rope for the year 1954-55. Plaintiff is described, as the owner. Ext. A-10 shows that municipal tax hasbeen paid on survey No. 57/12 for the year 1943-44 and the plaintiff has been treated as the person liable topay the municipal tax.

21. In AIR 1943 Mad 756 (Subbaraya v. Appathurai), relied on by Mr. Holla, it has been held that the fact thatthe patta has all along stood in the name of the plaintiff and his predecessor-in-title and that they were payingthe kist due to the Government constitute prima facie evidence of the title to the land being in the plaintiff more especially in the absence of any claim of original title in the defendants. But 1964 Mys LJ (Supp) 74(Ramakrishniah v. Madhavakrishniah) it ha; been held that neither the extract from the property tax registermaintained by the Municipality nor the receipts of municipal takes are either evidence of tide or possessionand that such registers are primarily maintained for the purpose of levy and recovery of taxes and that thecolumn for entry of the name of the persons liable to pay the taxes reads: 'assessee, owner or occupier'. It wasfurther held that an entry in such a register can have only some corroborative value if independent evidence

was adduced to show how it came to be made. But in the present case, there is no evidence to show as to howthe entries in Exts, A-7, A-8 and A-9 came to be made. In 1966 (1) Mys LJ 772 (Hazarat Asraruddin v.Hussein Khan) it has been held that a patta is not a document of title or a -deed of grant but that it is a recordof demand by the Government that such and such amount is due as land revenue on such and such area.Hence, the entries in the Municipal registers cannot be placed on a higher footing than a patta maintainedunder the Land Revenue Code.

22. Reliance is next placed on the reports of the Shanbogue and the Health Officer and the Tahsildar. They areExhibits A-24, A-25 and B-3. dated 3-8-61, 25-11-61 and 8-7-1962. They are made in the course of theenquiry which was originated on the application of defendant-2. The suit property in Exts A-24 is referred toas "Uru va igarji sambandha pattaddagirutte In Ext. A-25 it is stated by the Health Officer of the Municipality

that the suit property is now being used exclusively by the Church Authorities. Similar statement is to befound in Ext. B-3. But it cannot be said that these statements amount to an admission of title of the plaintiff tothe suit property.

23. It is contended by Mr. Holla that defendant-1, the State has failed to produce the chittas which ought tohave been maintained by the Government relating to the year of Ext. A-3, namely, 1869, and that if produced,they would show that Vykunta Prabhu who is described as the owner of the property lying to the south of theproperty conveyed to plaintiff-Church under Ext. A-3 was the owner of the property which came to bear thesurvey Nos. 61/1, 61/2, 61/3 and 61/4 under Ext. 4 after the survey settlement and that he ceased to be theowner of the said land prior to the date of Ext. A-4. He has relied on the decision in . (Hiralal v. Badkulal).Therein the contention of the defendants in a suit on amounts that it was not part of the defendants' duty toproduce their account books Unless they were Called upon to do so because the onus rested on the plaintiffs toprove their case was rejected relying on the observations in AIR 1917 PC 6 (Murugesham Pillai v. GnanaSambandha Pandara Sannadhi). The defendants had signed in the plaintiff's book an entry which stated that acertain amount was due as balance after the checking of the accounts with the books of the defendants. Thefirst issue in that case was whether defendants did sign that entry after understanding the debit and creditaccounts and accepting the Sum therein mentioned as the correct balance due t6 the Plaintiffs. Hence, theobservations of the Supreme Court must be understood in relation to the facts of the abovesaid case. In AIR1923 Cal 247 (Secy of State v. Upendra Narain) the, disputed land was subjected to the action of the riverwhich shifted its bed at various periods for over a period of 30 years. The lands disappeared and reformedfrom time to time. The most valuable evidence to show whether they were at that time in the bed of a publicnavigable river and were consequently not only assessed with revenue but were excluded from thepermanently settled estate, would have been the papers relating to the decennial settlement and the permanent




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settlement of the estate. These were in the custody of the officers of the Crown and were not brought beforethe Court though every effort was made to secure their production, Hence, the adverse comment against theCrown made by die Subordinate judge was held Lo be justified on account of the valuable evidence which hadnot been produced by the Crown and an adverse inference was therefore drawn against the Crown. But in thepresent case, no attempt was made by the plaintiff to get the chittas produced. There is also no evidence toshow whether those chittas relating to the relevant period were in the custody of the State or not. Hence underthe circumstances no adverse inference can be drawn against the Government in the present case.

24. Before the Deputy Commissioner the document Ext. A-3 was produced and on behalf, of the plaintiff, titleto the suit property was claimed, but at the time of Exhibits B-1 and B-2, which were much earlier, theplaintiff did not claim title to the suit property. Ext. B-8 is the permission granted by the plaintiff todefendant-2 to pass across the land Survey No. 57/6 and to take vehicles also across the northern part of thatland. This permission was anted at the request of defendant-2, since he wanted to, construct a house in hisproperty and wanted access from the Government road which lies on the east of Survey No. 57/12. Thoughthe plaintiff gave permission to defendant_2 to pass across its property Survey No. 57/6, it is significant thatthe defendant-2 did not ask for any permission to pass across the suit land Survey No. 57/12. Theplaintiff-Church also did not raise any objection to defendant-2 passing across the suit land. Ext. B-10 is alease deed in respect of the northern part of Survey No. 57/6. The lessor is the plaintiff-Church. The eastern

boundary of the property leased is the suit property described as poramboke. The lower appellate Courtattached importance to this circumstance and held it was improbable that the suit property was owned by theplaintiff Mr. Holla, however, relied on the observations in (Kali Prasad Singh v.

Ram Prasad Singh) and urged that the description of the property lying to the east of the property leaser wasmerely copied from the revenue records. In that case it was agreed that the donor Debi Prasad had 1/6th sharein the totality family property comprised in Schedule-B which was transferred into half share in Schedule-Cproperties and converted into Schedule-F property. The deed of gift left no doubt that the hole propertybelonging to the donor was transferred by him by Ext. A-7. The non-mention of schedule-C and specificmention of 1/6th share in the properties was held to be due to the fact that in spite of various decrees therevenue records were not corrected by mutation proceedings and the donor, therefore, was required to refer to

his 1/6th share to conform with the revenue records, The recitals in the deed were held to make it clear that thedonor intended to convey and did convey the whole property owned by him to the donee. Under thesecircumstances it was held that the description of the property according to the revenue records wasimmaterial. But in the present case the plaintiff has claimed title to the suit property which forms the easternboundary of the sub-matter of the lease. Exhibit B-10 is of the-year 1961. If really the plaintiff was the ownerof the suit property it is unlikely that he would have referred to it merely as Poramboke in Ex. B-10, After thecontroversy arose with regard to the suit property, the Board of management of the plaintiff-church passed aresolution agreeing to a road being laid across the northern part of the suit property on condition that the roaddid not pass over any graves. In this resolution also there is no claim of ownership, in the suit property putforward by the plaintiff. The suit property has been described as burial ground Poramboke in Ext. B-4 of theyear 1904. These circumstances show that plaintiff did not put forward its claim title even up to the date of Ext. B-2. The Parish Priest who made the statements under Exhibits B-1 and B-2 had not been examined toshow that those statements were made under any mistake. No office-bearer of the plaintiff church has beenexamined as a witness. The lower appellate Court was, therefore, justified in the observation that the claim put"by the plaintiff is an afterthought.

25. It is urged by Mr. Holla that the land bearing Survey No. 61/1 admittedly belong to the church and is usedas a burial ground and since it has been described as Poramboke burial ground in the Survey and SettlementRegister Ext. B-4 the description of the suit property as Poramboke burial ground does, not negative therecognition of the plaintiffs title to the suit property by the Government. But what is admitted in the writtenstatement of defendant-1 is that survey No. 61/1 was purchased by the plaintiff. There is no admission thateven after it came to be used as a burial ground the plaintiff continued to have a subsisting title to it. D. W. 2was the Assistant Commissioner and the Headquarters Assistant to the Deputy Commissioner, South Kanara




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in 1962. He has stated in his evidence that sometimes the owners relinquish their rights in favour of Government, that then it becomes Government land and that Poramboke land is a land left to be used forpublic purposes. He also stated that survey No. 61/1 is in the enjoyment of the church, it being a publicproperty. Hence, it is probable that the plaintiff church relinquished its title in Survey No., 61/1 at the time of its conversion to a burial ground. Hence, this circumstance does not support the contention of Mr. Holla

26. On behalf of the appellant I. A. II an application under Order 41 Rule 27 of the Code of Civil Procedure,has been filed in this Court for admitting as additional evidence the certified copy of the survey Pan of thelands S. No. 57 of Boloor village. The purpose of seeking admission of this document is to show that the landsbearing Survey Nos, 57/9 and 57/10 do not have as their eastern boundaries at the Government road. This isintended to support the contention of the appellant that it is only S. No. 57/5 out of the properties which fell tothe share of Barnard which has its eastern boundary at the Government road. The certified copy which issought to be admitted in evidence was obtained in the year 1915. There is no explanation as to why it was notproduced in the trial Court. Besides the application being highly belated, this is an attempt to fill up a lacunain the case of the plaintiff. Hence, this application is rejected,

27. The plaintiff also claimed ti tle by adverse possession. As observed already, Exhibits B-1, B-2 and B-10show that the plaintiff did not claim any title to the suit property till the year 1961. The suit property is not

enclosed on its eastern side. Moreover, Survey No. 57/6 which l ies on the western side of the suit property,and belongs to the church, is separated from the suit property by the wall of Survey No. 57/6. Similarly thesuit property is separated on its southern side by the wall of the land Survey No. 61/4 which also admittedlybelongs to the plaintiff. There is also evidence to show that there are roads and pathways running across thesuit property as shown in the Commissioners Sketch. Thus, the possession of the suit property by the plaintiff church, if any, as evidenced by the graves found in the suit property by the Commissioner, was neitherexclusive nor accompanied by the required animus to establish adverse' possession, Hence, the lowerappellate Court was justified in finding that the plaintiff failed to establish its title by adverse possession.

28.The appeal is, therefore, dismissed with costs.

29. Appeal dismissed.



Documents

The Church of Our Lady of ... vs the State of Mysore and Anr. on 22 August, 1975