Bayley, J.@mdashThese two cases are, its is admitted, to be governed by one and the same decision in special appeal. The plaintiffs sued for declaration of right, on the allegation that the six kanis in suit were their ancestral lakhiraj property, and had been in their possession from generation to generation; and that the defendants having obtained pattas from them at a mokurrari jumma, have all along paid rents to them of those lands. The defendants denied the lakhiraj title of the plaintiffs in the lands in dispute, and alleged that they were rent-paying lands appertaining to the zamindari of the Raja of Tippera, and were held in izara by them (defendants). The first Court dismissed the plaintiffs'' case, holding that the plaintiffs did not prove their title or possession as lakhirajdars. The lower appellate Court reversed that decision, and held that the plaintiffs had proved both their title and possession as lakhirajdars. The lower appellate Court first states: "In this case it is not necessary to refer to, and adjudicate upon, the documents regarding the validity of the lakhiraj tenure." It then goes on to say. "The plaintiffs in both the cases, in order to prove the fact of their possession as lakhirajdars, have adduced several witnesses and filed the kabuliats of the ryots, and they have also produced several letters, bearing the seal of Raja Kishen Deb and Mussamat Chandra Kalla, and the signature of Ram Kamal Thakur, the talookdars, dated in the years 1221, 1237, and 1244, Tippera; as well as a "terij" bearing the seal of Raja Kishen Deb, talookdar, dated in the year 1222, Tippera. These documents being more than thirty years old, are not, according to law, subject to proof and attestation by the evidence of witnesses. The fact of these documents being old is evident from their very appearance, and they are not open to any suspicion. The Talookdar Ram Kamal Thakur was cited as a witness by the plaintiff, and his residence being within the hills of the Raja of Tippera, steps were taken for his examination by means of a commission. But before his deposition was taken down, the said Thakur died; hence the seals and signatures on the letters could not be attested. It would however appear that the above documents are legally admissible in Court. The Moonsiff observes that the said documents do not set forth any boundaries, and that they cannot therefore be said to relate to the lands in suit. I find however that in the letters above alluded to, a mention is made of 1 dhur and 9 kanis of ancestral lakhiraj land belonging to the appellants, and the name of the mauza is also mentioned therein. It is contended by the plaintiffs that the lands in dispute in the two cases, viz., the 6 kanis of land involved in each of the two eases, form part and parcel of the 1 dhur and 9 kanis of land mentioned in the above letters. This must be held from the oral evidence adduced by the plaintiffs to be the true state of things, for both the plaintiffs appear to have all along held possession of the disputed land by receiving rents from the respondents." The lower appellate Court then refers to certain kabuliats on which it relies, and to a terij put in by the plaintiffs. On these documents, and on the oral testimony to which the lower appellate Court refers, it holds, that the plaintiffs'' possession is proved and it concludes by stating that in this case the validity or otherwise of the lakhiraj tenure need not be determined.
2. The substance of the contention of special appellant in special appeal is, that the letters, kabuliats, and the terij are not legally proved or attested, and are not therefore legal evidence in the case; and that this being so, the oral testimony of witnesses standing by itself might not possibly, in the judgment of the lower appellate Court, have been thought sufficient to prove the plaintiffs'' title, the declaration of which is sought for in this suit.
3. We think that these objections are valid.
4. The first argument in support of the lower appellate Court''s judgment, that because the documents are thirty years old they prove themselves, is entirely untenable, when it is not proved that those documents come from proper custody. The plaintiffs in these cases were prima facie the persons who bad knowledge of the place from which the documents come, but they have not come forward to prove the custody of the documents. The letters are not attested by their writers or by any one who could swear that they were written or sent by those who purported to be the writers thereof. The kabuliats are not attested, and the lower appellate Court appears to have committed an error in law in relying on the facts that the signature of Imamuddin on the kabuliat appeared to correspond with his signatures on the vakalatnama and the answer. It also erred in denying that the fact that the stamp for the kabuliat was purchased by Bholanath, the son of the grantor of the two kabuliats, was legal evidence per se. It is not alleged that the best evidence to the kabuliats was not available. Those who gave or those who received them, or those who saw them given or received, would give naturally the best evidence to those kabuliats, but no attempt has been made to adduce such proof. The terij is without any attestation at all, nor is the seal purporting to be that of the Raja of Tipperaon that document deposed to be such. It is just possible that the oral testimony of the witnesses deposing to the plaintiffs'' possession as lakhirajdars might be sufficient evidence of their lakhiraj title irrespective of the documentary evidence produced in the case; but looking to the judgment of the lower appellate Court as given above in full, it is impossible to Bay that the lower appellate Court has based its decision upon the oral testimony only, on the contrary, a reasonable interpretation of the judgment of the lower appellate Court taken as a whole, must lead to the conclusion that it was the strength which the lower appellate Court considered the documents gave to the plaintiffs'' case, which, taken together with the oral testimony, induced the lower appellate Court to give the plaintiffs a decree; but still as there is some oral testimony on the record in support of the plaintiffs'' case, the plaintiffs have a right to obtain the benefit of the lower appellate Court''s judgment on that testimony. The cases are therefore remanded to the lower appellate Court to try whether on the oral testimony on the record the plaintiffs have proved their title, the declaration of which they sue for, either directly or by reason of any possession held for upwards of 12 years as lakhirajdars.
