Report No. 69
IV. Statements
8.76. Receipts to be boundaries.-
As regards statements to or by third parties, including recitals as to boundaries, the same controversy that has arisen under section 111 has arisen in connection with section 13, namely, whether recitals of boundaries in document not between the same parties may become relevant under section 13, which states that where the question is as to the existence of any right or custom, any transaction by which the right or custom was recognised etc. and particular instances in which the right was recognised etc. are relevant. Emphasis is often laid on the words "by which" and the words "in which"2 in the two parts of the section. But this distinction does not seem to be very material, since a transaction by which the right was recognised is expressly covered, and the relevant wording is not confined to transactions which create a right.
1. See discussion as to section 11.
2. Venkotaraya Gopala v. Narsayya, AIR 1915 Mad 746.
8.77. We are of the 'view that such statements should not be relevant under section 13. In the first place, it will not be right to hold a party as bound or affected by a recital as to the making of which he could have no control whatever, and which has been completely behind his back. In the second place, such third parties have no particular reasons to be accurate as to who is the owner of the land adjoining their own,1 and, therefore, a mistake may easily creep in, in the mentioning of such boundaries. Boundaries may often be mentioned on imperfect knowledge, or merely on hearsay information. There is no reason why the ordinary rule2 that recitals in a deed are not evidence against third parties, should be departed from.
1. Karuppanna v. Rangaswami, AIR 1928 Mad 105 (107).
2. Shri Nivas Das v. Meheybar, AIR 1916 PC 5.
8.78. Recommendation.-
To remove the obscurity on the subject, we recommend that a suitable Exception should be added below section 13.
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