- (1.) PETITIONERS filed a suit under Sec. 229-B of the U. P. Zamindari Abolition and Land Reforms Act (hereinafter referred to as the Act) in 1983 in the Court of the S. D. M. , Sadabad, district Mathura for a declaration that they have perfected their title to the land in dispute by adverse possession. The suit was decreed by order dated 2-6-1984. The respondents being aggrieved filed an appeal in the Court of the Additional Commissioner, Agra, which was allowed on 9-1-1985. The petitioners, thereafter filed a second appeal before the Board of Revenue, which has been dismissed on 16-1-1986 and a review application filed by the petitioners before the Board of Revenue was also dismissed on 8-1-1988. PETITIONERS have now filed this writ petition before this Court against the orders, passed by the Additional Commissioner and the Board of Revenue.
(2.) THE sole point argued before me by the learned counsel for the petitioners is that the report of the Naib Tahsildar is admissible in evidence under Sections 35 and 74 of the Evidence Act and the learned Additional Commissioner and the Board of Revenue were not justified in declaring the report as inadmissible. The Additional Commissioner, while allowing the first appeal filed by the respondents against the order and judgment of the trial Court, after considering the oral and documentary evidence produced by the parties, came to the conclusion that the plaintiffs have failed to prove their title by adverse possession. One of the evidence filed by the petitioner was a report dated 31-7-1976, submitted by the Naib Tahsildar before the Tahsildar, Mathura in a case relating to correction of papers. The Additional Commissioner and the Board of Revenue held that this report of the Naib Tahsildar could not be read in evidence, as it has not been proved and the Naib Tahsildar, who has submitted this report has not been examined. The aforesaid report of the Naib Tahsildar is the expression of his own impression on the basis of the spot inspection. This is not a public document of the nature referred to under Sec. 74 of the Evidence Act and cannot also be admissible under Sec. 35 of the said Act. The report of the Naib Tahsildar contains the result of his investigation and cannot be said to be an entry in the public or official book, register or record contemplated under Sec. 35 of the Evidence Act. A Division Bench of this Court in State of U. P. v. Smt. Ram Sri, AIR 1976 All 121 has held that the Tahsildar's report containing the impression of his investigation is not admissible in evidence. Relevant extract from paragraph 28 of the said decision is quoted below : "further, we are of the opinion that the report of the Tahsildar is an expression of his impression gathered by him on the spot. The report is evidence only of the fact that he had been deputed to make an inquiry and that he came to the conclusion mentioned by him in his report and shown in the map. It will, however, be incorrect to say that the report is admissible under Sec. 35 of the Evidence Act, as submitted by the learned counsel for the respondents. Had the defendant examined the Tahsildar as a witness the report might have become admissible under some other provision of the Evidence Act. "
(3.) IT is admitted that the Naib Tahsildar, whose report is sought to be relied upon by the petitioners was not produced in this case and the respondents had no opportunity to cross-examine him. In such a situation the report of the Naib Tahsildar is not admissible under Sec. 35 or 74 of the Evidence Act. No other point has been argued before me.;