- (1.) REVISION Nos. 129 and 185 of 1954 District Jaipur arise out of a case commenced upon the application of Kanhaiyalal and Bala Sahai for allotment of the land in dispute under the Jaipur State Revenue Standing Order No. 7 and will be disposed of by this judgment.
(2.) PUT briefly the facts of the case are that Bala Sahai and Kanhaiyalal applied for allotment of the land in question before the tehsildar Jamwa Ramgarh on 8. 6. 1951. For the sake of convenience this land may be divided in three pieces, one lying to the north, the other lying to the south and third in between these pieces, will be referred to in this order as the northern, southern and the middle plot. In the northern plot Durga Prasad preferred an objection that it belonged to him. He produced a certified copy of a sale been of this plot executed in his favour by Phool Chand, deceased, whose son Ram Gopal was examined to testify to the signatures of the deceased executant. In this sale deed middle plot, which is situated to the south of this plot, was described as belong to Ram Pratap S/o Badri Narain who had preferred an objection about it. Krishna Kumar raised an objection about the southern plot. The Tehsildar accepted Durga Prasad's objection on the basis of the sale deed and that of Ram Pratap S/o Badri Narain on the ground of a recital in the sale deed mentioned above that the plot covered by a dilapidated shop belonged to the objectors. Thus these two objections were allowed while that of Krishna Kumar in respect of the southern plot was rejected. He went up in appeal before the Additional Collector, Jaipur, and so did Kanhaiya Lal and Bala Sahai Both these appeals were rejected by the Additional Collector Hence these two revisions. We have heard the parties and have gone through the record as well. The learned counsel appearing for Kanhaiyalal and Bala Sahai his frankly conceded before us that he is not prepared to seriously challenge the validity of the finding of the Tehsildar upholding Durga Prasad's objection. A feeble attempt was, however made to show that the land mentioned in the sale deed is not identical with the northern plot. On an examination and comparison of the description of boundaries of both the pints with the plans prepared by patwari we have no hesitation in holding that the plot mentioned in the sale deed is the same as claimed by Duraga Prasad in the present case. As regard the middle plot the Tehsildar has placed reliance upon the recital contained in the sale deed of the northern plot as regard the ownership of the plot. Legally speaking this is untenable. It is settled law that such recitals are neither admissible under sec. 11 nor under sec. 13 of the Indian Evidence Act. Only in some cases where the executant could not be produced as a witness the recitals would be admissible under sec. 32 (3) but the tendency of the recent decisions is to hold that even sec. 32 (3) of the Indian Evidence Act is inapplicable to such recitals. As was remarked by Jackson J. "it cannot be said that a statement of boundaries is against the proprietary interest of the person making it except on the assumption that every person must be presumed to own the universe until he makes a statement circumscribing his title". The general principle is that a party is not bound by the recital in an instrument to which he was not a party and hence the document (containing the recital) will not be allowed to affect his right in any way. But leaving this legal aspect aside, we on a consideration of the other circumstances of the case, are of the opinion that the decision of the Tehsildar in respect of the middle plot as well, is not open to any challenge. It has been frankly conceded by Kanhaiyalal and Bala Sahai that no evidence was led on their behalf to show that the land in dispute is unoccupied or parat abadi land. It may be observed here that Under rule 17 of the Jaipur State Revenue Standing Order No. 7, only unoccupied i. e. parat abadi, land can be sold to the highest bidder. The evidence led in the case on behalf of Ram Pratap clearly proves that a shop belonging to, these persons stood in tact on this plot till Svt. 1980 when it fell down on account of excessive rains. At present a dilapidated shop exists there with walls about 2, 3 ft. high.) Merely because a full fledged shop does not exist it cannot be held that the land is unoccupied. Even a fallen down shop can be the subject of occupation of the owner. The same remarks would apply to the objections preferred by Krishna Kumar. The evidence led for both the plots-the middle and southern plots - is the same and we find no reasons to disbelieve it. Ruined shops are still to be found on site and what-so-ever evidence, in the absence of documentary testimony, could be available, has been produced in the case. Respectable residents of the village have testified to the fact that both these plots have owners. Not a single person has come forward excepting of course Jagdish Prasad son of Bala Sahai, to depose that the land in question is unoccupied. Looking to the circumstances of the case we are of the opinion that all the three plots can not be regarded as unoccupied and hence no action as regards their allotment can be taken under Jaipur State Revenue Standing Order No, 7. We would, therefore, reject the revision application filed by Kanhaiyalal and Bala Sahai (No. 129) and allow that filed by Krishna Kumar (185) and direct that the allotment order made by the Tehsildar in respect of the southern plot shall be cancelled. .;