037-NLR-NLR-V-27-CHARLIS-APPU-v.-ADRIS-APPU-et-al.pdf
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Present: Jayewardene A.J.CEARLIS APPU v. ADRIS APPU ei at.
185—G. R. Chile, 4,833.
Grain Tax Register—Evidentiary value of entries—Evidence. Ordinance,s. 35.
The entry in a Grain Tax Register of a person’s name r,s ownerproves that such person claimed title to the land as owner, andasserted it to the satisfaction of the Commissioners. Such an entryis admissible in evidence under section 35 of the EvidenceOrdinance.
The dictum of Hutchinsoq C.J. in Jayasekere v. Wanigaratna 1considered.
A
PPEAL from a judgment of the Commissioner of Requests,Galle. The facts appear sufficiently from tbe judgment.
J. S. Jayewardene for first defendant, appellant.
Schokman for plaintiff, respondent.
November 2, 1925. Jayewardene A.J.—
At the conclusion of the argument of this case I -dismissed theappeal. I, however, stated that I would give my reasons in writingin view of the contention of learned Counsel for the appellant that» (1909) 12 N. L. R. 361 (366).
1925-
1926.
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Jayewar-DENE A. J.
CharlieAppu v.Adrie Appu
the entry in the Grain Tax Register of the name of a person asowner was of no value as evidence, except under certain circum-stances which were not present in the case, on the authorityof the dictum of Hutchinsou C.J. in Jayasekere v. Wanigaratna(supra).
In the present case one Juwanis Silva purchased in execution ashare of the field in dispute in the year 1879. He obtained noFiscal’s transfer, but his successors claimed to have acquired a 'title by prescription to this share. In proof of their possessionthey produced inter alia certified extracts from the Grain TaxCommutation Register of theTalpe pattu, where the field is situated,for the years 1882 and 1889 in which Juwanis Silva’s name is givenas one of the owners. The learned Commissioner accepted these inevidence and upheld the claim by prescription. It is contendedthat the Judge was wrong in doing so. Counsel cited in supportof his contention the following passage from the judgment of thelearned Chief Justice in the case referred to :—
“ He (the District Judge) places too much reliance on the factof the entry of the respondents’ .names in the.Grain TaxRegister …. The fact is that these registers areof no value at all as evidence of the title of thepersons entered in them as owners, without evidence as tothe persons by whom and on whose information and thecircumstances under which the names were entered. Theentry of A’s name by an officer proves nothing in itself,but if it was done on B’s request or information it wouldbe strong evidence against any claim by B.”
Now these Grain Tax Registers were registers kept under therepealed Grain Tax Ordinance, 1878. Under that Ordinance itwas lawful for the Governor to appoint an officer or officers, notexceeding three in number, to be called “the Grain Commissioners,”ahd these Commissioners had to enter in a register to be kept foreach district inter alia “ the name or names of the reputed owneror owners of such field or parcel of land” and the amount of annualcommutation or crop commutation payable in respect of each field.The Commissioners or persons duly authorized by them wereempowered to summon and examine witnesses on oath or affirma-tion, to enter in or upon any land, and to compel the productionof documents. The register was to be kept in the English languagewith each English word translated into its equivalent in the nativelanguage most prevalent in the district, and was to be open forinspection at the Kachcheri by all persons interested therein. Theright was given to parties interested to obtain the correction ofany error or defect in the register by appealing to the Governor inExecutive Council.
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If the ownership of a land was in dispute or doubtful, the Com-missioners had to determine who was the owner of the land for thepurposes of the Ordinance, and such determination was regarded asfinal.
The entries in the register were to be conclusive evidence for thepurposes of the Ordinance of all the facts entered therein.
Thus the Grain Tax Register being an official register kept by apublic servant under the provisions of a Statute, the provisions ofsection 35 of the Evidence Ordinance would apply to it. Thatsection declares th at—
An entry in any public or other official book, register, or recordstating a fact in issue or relevant fact, and made by apublic servant in the discharge of his official duty, or byany other person in performance of a duty especiallyenjoined by the law of the country in which such book,register, or record is kept, is itself a relevant fact.
If such entries contain relevant facts they are clearly admissible inevidence. The weight to be attached to them as evidence is,however, a different matter.
“ Though the register may be prima facie evidence of mattersdirected or authorized to be inserted therein, yet the personrelying on the register may, by offering other evidence,displace the presumption which the register affords. Aperson who is not a party to the making of the entry isnot bound by the statements in it, in the sense of beingestopped or concluded by them. They are only receivedas evidence and are open to be answered, and the state-ments in them may be rebutted.1 ”
Under the Grain Tax Ordinance the Commissioners had to decidethe question of ownership of land for the purposes of the Ordinance *(section' 8). The fact that a person’s name was entered in thisregister as owner would not- be evidence that he was in fact theowner or that someone else was not the owner: Bhagoji v, Bapuji.2But it would prove that such person did claim title to the land as ownerand became subject to the statutory duties and obligations, thathe asserted it to such good effect that he convinced the Commissionerof his title to the land. If the Grain Tax Register stood alone itmight be that the evidence of'possession afforded by it is not .verystrong, but if it is supported by other facts, the entry might be. regarded as a piece of evidence of considerable value. There issuch evidence in the present case. Further, it must be rememberedthat until the Civil Procedure Code came into operation in theyear 1890, it was thought that purchasers at Fiscal’s sales acquiredtitle to property sold in execution immediately on the sale thereof,
1 Ameer AU and Woodrojfe's Law of Evidence, p. 352 (6th Edition).
* (1888) 13 Bom. T5.
JA YEW Alt-
DENE A.J.
CharlieAppu v.Adria Appu
,1925.
J A YE WAR-DENS A.J.
CharlisAppu v.Adris Appu
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and that the issue of a Fiscal’s transfer was not essential to passtitle. A copy of the sale report was relied on as in this case inproof of the sale. But this view was shown to be erroneous inSilva v. Nona Hamine1 by a Bench of three Judges of this Court.As the Grain Tax Register is an official register kept under the pro-visions of a statute I do not think that it is necessary to haveevidence as to the persons by whom and on whose information andthe circumstances under which the names were entered, or that theentry of a person’s name by an officer proves nothing and that it isevidence only against the person at whose instance the entrywas made. The Commissioners had power to examine witnessesand to compel the production of documents for the purpose ofascertaining the facts required to be entered in the register. Theywere acting judicially or gwosi-judicially. The value to be attachedto public registers as evidence has been discussed in many Englishcases. I would only refer to the leading case of Sturla v. Frecciu 2where Lord Blackburn in the course of his speech in the House ofLords cited the following -passage from the judgment of BaronParke in The Irish Society v. The Bishop of Derry 3 :—
“ In public documents made for the information of the Crownor all the King’s subjects who require the informationthey contain, the entry by a public officer is presumed tobe true when it is made, and is for that reason receivablein all cases, whether the officer or his successor may beconcerned in such cases or not.”
The Privy Council in the case of Lehraj Kuar v. Mahpal Singh 4was called upon to construe section 35 of the Indian Evidence Act,which is the same as section 35 of our Ordinance, and the JudicialCommittee said—
It is necessary to look at the precise term of this section; andfor the present purpose -it may be read : ‘ An entry in anyIofficial record stating a fact in issue or relevant fact and
made by a public servant in the discharge of his officialduties is itself a relevant fact.’ There can be no doubtthat the entries in question, supposing them to bear theconstruction already given to them, state a relevant fact,if not the very fact, in issue, viz., the usage of the Bahruliaclan. If so, then, the entry having stated that relevantfact the entry itself becomes by force of the section arelevant fact; that is to say, it may be given in evidenceas a relevant fact, because, being made by a public officer,it contains an entry of a fact which is relevant. 1
1 (290$) 10 N L. B. 44.
# {1880) L. B. 5 App. Gas. 623.
3 {1846) 12 Cl & F. 641.* {1879) 5 Cal. 745. .
1925.
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As I have already stated Juwanis Silva asserted title to the sharebought by him in execution and succeeded in convincing theCommissioners that he was one of the owners of the land. This isa relevant fact and is admissible in evidence and due weight mustbe given to it.
In my opinion, therefore, the extracts from the Grain TaxRegister were rightly admitted in evidence although there was noevidence as to the persons by whom or on whose information andthe circumstances under which Juwanis Silva’s name was enteredin the register.
Javbwab*DENIS AJ.
CharUsAppuv.Adria Appu
Appeal dismissed.