A judgment in another land acquisition reference, not inter partes and relating to another property, is not admissible as evidence to establish the value of the property in question.

JUDGMENT :- The question raised by Mr. Laud is one of importance under the Evidence Act. Mr. Laud urged that the judgment in L. A. Reference Nos. 2, 3 and 4 of 1949 decided by Mr. Justice Tendolkar on 6th July 1953 relating to plots Nos. 66 to 69 situate near the land concerned in this Reference is admissible as evidence to establish (i) the value of those plots and (ii) to regard those plots as Instances and to deduce from the value thereof as determined by Mr. Justice Tendolkar the market value of the plot in question. The learned Advocate General has objected to that judgment being admitted as evidence on the ground that it is not relevant under any of the provisions of the Evidence Act. The question has been argued at considerable length and it being one on which there is hardly any reported precedent, both sides have requested me to give reasons for my decision.

2. Now the parties concerned in those References were different except that one side in all these References is always the Land Acquisition Officer representing Government. The acquisition of those lands took place in January 1946 which was the date as of which the value of those lands had to be ascertained whereas the notification under s. 4 of the Land Acquisition Act in this case is of 19th January 1951. Tendolkar J. valued those plots on several Instances of sale and other evidence led before him. Neither those Instances nor that evidence on which that learned Judge came to his conclusion are before me. The point for consideration therefore is whether a judgment in another Land Acquisition Reference not inter partes and with reference to another property, even if situate in the vicinity of the land in question, is admissible as an Instance from which the market value of the land in question can be deduced.

3. The Advocate General contended that the only provisions under which a judgment in another case is admissible are those contained in sections 40 to 43 of the Evidence Act and that the judgment of Tendolkar J. does not come within anyone of those sections and therefore cannot be admitted. S. 40 enacts that the existence of a judgment which by law i.e. by the provisions of the Code of Civil Procedure or Code of Criminal Procedure constitutes res judicata or autrefois acquit or autrefois convict is a relevant fact. In such cases however, the judgment is inter partes. S. 41 deals with judgments which are called judgments in rem, that is judgments which are conclusive not only against parties thereto but against all persons. S. 42 makes those judgments relevant which relate to matters of public nature, though they are not inter partes. Mr. Laud conceded that none of these three sections would be applicable but be relied on S. 43 which provides that a judgment other than those mentioned in sections 40 to 42 is irrelevant unless the existence of such a judgment is a fact in issue or is relevant under some other sections, e.g. sections 8, 11, 13, 54 (Expl. 2) etc. Sections 8 and 54 (Expl. 2) have obviously no application to the question before me and therefore need not be considered. The question then is whether either S. 11 or S. 13 applies.

4. Section 13 enacts that where the question is as to the existence of any right or custom, any transaction by which that right or custom was created, claimed, modified, recognised, asserted or denied or which was inconsistent with its existence or any particular instance in which such right or custom was claimed, recognised or exercised or in which its exercise was disputed, asserted or departed from is relevant. Now the right or custom referred to in this section is not confined to public right or custom but includes all sorts of rights and customs, though they must relate to property in respect of which a subsequent litigation has arisen. But even where in such subsequent litigation the question of right or custom arises, the view as expressed in Gujja Lall v. Fatteh Lall, ILR 6 Cal 171 (FB), at one time was that a j