JUDGMENT

Zafar Ali, J. - This second appeal arises out of a suit brought by certain inhabitants of Wazirabad with regard to a drinking well situated in that town, claiming that the well was constructed by their ancestors and had been dedicated to the use of the public, and that the defendant had no right to sell it which he intended to do. The trial Court, finding that the plaintiffs had failed to establish their claim, dismissed the suit. On appeal the learned District Judge allowed the plaintiffs to produce additional evidence, documentary as well as oral, and mainly on the strength of an entry in the register of houses that was thus received in evidence he came to the contrary conclusion and decreed the plaintiffs' suit.

2. On behalf of the defendant-appellant it is urged that there was no good ground for admitting additional evidence and that the register in question was inadmissible in evidence not being a public document or a document prepared by a Government officer in the discharge of his official duty. The first objection is untenable. The learned District Judge had a discretion in the matter which he does not appear to have exercised unjudicially.

3. As regards the second: the said register of houses was prepared in 1856 and again in 1866 and in both the well in dispute was shown as "shamilat shahr." Now the question is: Was the register a public document as defined in Section 74, Evidence Act, or was it an official book falling within the purview of Section 35 of that Act? There is no evidence to show that the registers were prepared by a public servant in the discharge of his official duty. The registers are kept in the record room of the Deputy Commissioner's office at Gujranwala, but the mere fact that they are kept in a public office does not lead to the inference that they are public documents. In Nittyanund Roy v. Abdar Raheem [1881] 7 Cal. 76 a Division Bench of the Calcutta High Court held that certain measurement records produced from the Collectorate were not public documents within the meaning of Section 74 where there was nothing to show that they were the record of measurements made by any Government officer. As already stated, there is nothing to show that these registers were prepared by any Government officer, or by any public servant whose duty it was to prepare them. Nor is there anything to show that the entries therein were made after due enquiry so that a presumption of correctness should attach to them. This being so, they are inadmissible in evidence.

4. The learned District Judge based his finding mainly on the said entries. It cannot be divined what his finding would have been if he had excluded them from consideration.

5. I, therefore, accept the appeal, set aside the judgment and decree of the lower appellate Court and remand the case for re-decision of the appeal on the basis of the evidence on the record that is admissible. The costs to abide the event.