A draft Khatian is not admissible as a public document or under Section 35 of the Evidence Act.

1. This revision petition has been preferred against the order dated 25.9.2000 passed by Sub-Judge VIII, Patna in Title Partition suit No. 648/1988 whereby and whereunder the prayer made by the petitioners to call for the original revisional survey Khatian from the Revisional Survey Officer was rejected.

2. The only point involved in thisv revision petition is whether a draft Khatian is to be construed as an inadmissible document or not whether the same can be construed as a public document. The petitioners were the defendants in the suit for partition. On previous occasion also draft khatian prepared was tried to be admitted as a public document. That was earlier rejected vide order dated 21.8.2000. According to the petitioners counsel the learned court below had committed error in not accepting the prayer of the petitioners that the draft Khatiyan is a public document as contemplated under Section 74 of the Evidence Act and it has again been submitted that even if it cannot be considered to be a public document then also the same should be construed to be as admissible as per section 35 of the Evidence Act. On the other hand it has been submitted on the face of the document and the name signifies it being a draft khatiyan the same is inadmissible for all purposes and no question of construing the same as a public document or an admissible document under Section 35 of the Evidence Act. By referring to Section 74 of the Evidence Act and under Sub-section (2) it is submitted that the present document comes as public records kept of private documents. It is submitted that under the B.T. Act such khatiyans are being prepared for discharge of official duties and for preparation of public records and in that way even if the khatiyan has not been finalised as the provisions of the B.T. Act provide, it requires to be published in Gazette which signifies that it has got the. nature of public document. I am not at all convinced with such submission. A public records of private documents kept in any state are admissible as a public documents but here the public documents are not finalised. A khatiyan after finalisation becomes a public document and its admissibility cannot be questioned. But during the process of making khatiyan or publicising the same a draft prepared in no way can be construed as a public document. In that way there is no scope of applying section 74 of the Evidence Act regarding draft khatiyan to be a public document.

3. Now coming to Section 35 of the Act a reference has been made to a Single Bench Calcutta High Court judgment as reported in 1979 Calcutta 50 (Roy & Co. V/s. Nani Bala) wherein it was held that under section 32 (sic-35?) of the Evidence Act entries made in the draft records of right may be made admissible. Such observations by the learned Single Juge of the Calcutta High Court is only an observation which can be construed as per-incuriam. An entry in a draft khatiyan or draft records of right is only for the purpose of preliminary preparation for publicising records of right. When such drafts are being prepared by the Field Officers of the Revenue Department then the same is published inviting objections and after objections being heard then and then only the same becomes final and published as a final document as records of right. The entry in the draft khatiyan cannot be admissible as such entries has got no finality. Even final records of right cannot be published if a suit becomes pending between the parties regarding the rights and in that way there remains no scope to hold the same as admissible or the entries made as relevant to be entered into the public record. It has not yet become public records on the face of it so such entries get no relevance. If a document is inadmissible then the question of proving the same by way of primary or secondary evidence does not arise at all. Hence I do not find that the learned court below has committed any error of law in dismissing the prayer of t