(1) I. L. R. 11 Cal. 562; (2) I. L. R. 12 Cal. 207; (3) I. L. R. 13 Cal. 352; and concurred in (1) I. L. R. 4 All. 96; (2) I. L. R. 11 Mad. 116; (3) I. L. R. 12 Mad. 9. It has been distinguished in (1) I. L. R. 10 All. 585; (2) I. L. R. 15 Mad. 19.

(b). The plaintiffs, as purchasers of a share of an estate, sued to recover their share of the rent of certain tenures held in that estate by the defendants. The defendants denied being in possession as alleged. Another co-sharer in the same estate had previously brought a suit against the same defendants for the rent of the same tenures and in that suit the present plaintiffs and other co-sharers of the estate were made co-defendants, and the decision in that suit was that the present defendants were in possession and were liable to pay to the then plaintiff his share of the rent. Held (Mitter, J., dissenting) that the decree in the former suit was not admissible as evidence in the present suit-Surendra Nath Pal Chowdhry and others v. Brojo Nath Pal Chowdhry and another, I. L. R. 13 Cal. 352. This Full Bench decision followed Gujju Lal v. Fateh Lal, I. L. R. 6 Cal. 171.

(c). In a suit for rent the plaintiff claimed that he was entitled to payment both in cash and kind; and in order to show that he was entitled to recover rent in kind, tendered two ex parte decrees obtained by his predecessor against the persons registered as tenants of the tenure at the time the decrees were obtained, such decrees being for rent both in cash and in kind. It appeared that the defendant was the owner of the tenure at the time the two decrees were passed, having acquired the tenure by foreclosure although he had not registered the transfer in the plaintiff's books, and that he was not made a party to the suits in which the decree was passed. Held, that as the defendant was not a party to the suits in which the decrees were obtained, and did not claim through the parties against whom they were passed, they were not admissible in the suit as evidence against him—Ram Narain Rai and others v. Ram Coomer Chundra Poddar, I. L. R. 11 Cal. 562. This decision followed Gujju Lall v. Fateh Lal.

(d). In a suit for khas possession of land upon the allegation that the defendant refused to give up possession or to pay rent for it, a decree declaring that the land in suit was liable for rent was tendered in evidence. The decree had been obtained by an auction-purchaser against the defendants, but the plaintiff did not claim title through the auction-purchaser who had in fact been treated as a trespasser and ejected. Held, relying upon the ruling in Gujju Lal v. Fateh Lal, 6 Cal. 171, that the decree was inadmissible in evidence— Mohendralal Khan v. Rosomoyi Dasi and others, I. L. R. 12 Cal. 207.

(e). The plaintiff sued to recover arrears of rent for a certain shop alleging the annual rent to be Rs. 250. The defendant contended that it was only Rs. 60. The defendant and the plaintiffs brother were partners in business, and the plaintiff relied upon the evidence of his brother and on two entries in the firm's books in the writing of his brother. To prove the bona fides of these entries, the plaintiff tendered in evidence a judgment passed against the defendant in a suit brought by the defendant against the plaintiff's brother charging him with having improperly debited their firm with Rs. 250 as the rent of the shop. Held, that the judgment was not admissible under this section or under secs. 13 and 40, as evidence against the defendant in the present suit-Ranchhoddas Krishnadas v. Bapu Narhar, I. L. R. 10 Bom. 439.

Decrees not interpartes when admissible

(a). In the case of Heralal Pal and others v. A. Hills, 11 C. L. R. 528, the plaintiff, who was an auction-purchaser of a share in certain lands, sued for arrears of rent the owners of another share in the same. It was admitted that certain plots of the estate were held in exclusive possession. The defendants claimed these plots as lakheraj. The plaintiff put in evidence certain decrees, not against the defendants, in respect of such plots, in which it was held against the person in possession at the time, that the lands were mal. The decrees were held admissible in evidence, not as showing that the lands were mal or lakheraj but as showing that rent had been successfully claimed in respect of the lands. Field, J., observed: "We take it that these decrees are not evidence of any decision of a Court of Justice, that the land is mal or lakheraj. We regard them as evidence merely of the fact already stated that rent was successfully claimed in respect of lands which are now said to be lakheraj. We do not consider that in so doing we are in any way violating the principle laid down in the Full Bench decision of Gujju Lal v. Fateh Lal, I. L. R. 6 Cal. 171. On the contrary, and in order to prevent there being any misapprehension, we desire to say that we entirely concur in the principle of that decision so far as it was concerned with the facts which were then before the Court. There are exceptions to the general rule that judgments interpartes are not admissible as between persons who were not parties, and do not claim under the parties to the previous litigation. We do not attempt to define the exact limits of any particular exception to the general rule. All we do say is that in this particular case and under the particular circumstances with which we have now to deal, we consider that these decrees were properly admitted as evidence. As to their weight or value we pronounce no opinion."

(b). In a suit for possession of land, the defendants, in order to show the character of their possession, offered in evidence a judgment obtained by them in a suit to which the plaintiff or his predecessors in title were not parties, it was held that the judgment was admissible in evidence to show the nature of the enjoyment which the defendant then had in the land—Peari Mohan Mukerji v. Drobomoi Devi, I. L. R. 11 Cal. 745. This case relied on the authority of Davies v. Lowndes, 1 Bing. N. C. 606, and Rameshar Prasaud Narain Singh v. Kunjo Behari Patack, I. L. R. 4 Cal. 633.

(c). In a suit brought by the plaintiff against several defendants to prevent encroachments by the defendants in a lane which was the common property of himself and the defendants. Held, that the admission of one of the defendants in a previous suit to which the other defendants were not parties, as to the common character of the portion of the lane between his house and the plaintiff's and also a similar statement in a deed put in by another of the defendants to prove his title to his own house, were admissible in evidence to establish the common character of the entire lane as alleged by the plaintiff. The fact of common ownership of other parts of the lane should be treated as relevant to the issue as to the common character of the entire lane on the principle laid down in this section-Naro Vinayak Patrardhan v. Narhari bin Raghunath, I. L. R. 16 Bom. 125.

(d). The statement of a witness for the defence that a witness for the prosecution was at a particular place at a particular time, and consequently could not then have been at another place, where the latter states he was, and saw the accused persons, is properly admissible in evidence, even though the witness for the prosecution may not himself have been cross-examined on the point. Such evidence is admissible under this section as also under secs. 5 and 153, ill. (c) of the ActReg. v. Sakharam Mukundji, 11 Bom. H. C. R. 166.

(e). Where a person charges another with having forged a promissory note, who denies having ever executed any promissory note at all, the evidence that a note similar to the one alleged to be forged, was in fact executed by that person is not admissible, nor even would a judgment, founded upon such a fact, be admissible-Reg. v. Parbhadas, 11 Bom. H. C. R. 90.

12. In suits in which damages are claimed, any fact which will enable the Court to determine the amount of damages which ought to be awarded is

relevant.

In suits for damages, facts tending to enable Court to determine are relevant.

amount

See sec. 55 of the Act.

Facts tending to enhance damages.—(a). In an action for defamation, other libellous expressions by the defendant, whether used before or after the commencement of the suit, are admissible to prove malice and so enhance damages.

(b). In suits for breach of contract, all facts showing the amount of loss occasioned to the plaintiff by the breach, are relevant to determine damages.

(c). In an action for breach of promise of marriage, the plaintiff may give evidence of the defendant's station in life and his means, to show the loss she has sustained.

Mitigation of damages.—(a). In mitigation of damages the defendant may show facts tending to disprove malice, e.g., that rumours of the fact asserted were prevalent in the neighbourhood-Richards v. Richards, 2 M. and R. 557; or that the statement was copied from another paper-Saunders v. Mills, 6 Bing. 213.

(b). The defendant may give evidence that the plaintiff, at the time of the publication of the libel, labored under a general suspicion of having committed the act imputed to him.

(c). In an action for assault, the provocation offered by the plaintiff would be relevant.

(d). In a case for breach of promise of marriage, the defendant may prove that his relations disapproved of the match-Irving v. Greenwood, 1 C. and P. 350; give evidence of the conduct or character of the plaintiff-Leeds v. Cook, 4 Esp. 256.

(e). In the case of action against a Railway Company for injuries received, the position and circumstances and earnings of the plaintiff, the precautions taken by the Company and the contributory negligence, if any, of the plaintiff are relevant facts in determining the amount of damages.

True measure of damages.—The true measure of damages is the amount of compensation to be paid to the plaintiff for the injury he has sustained, and in an action of tort it is immaterial whether the damages come out of a deep pocket or not.

Facts relevant when right or custom is in question.

13. Where the question is as to the existence of any right or custom, the following facts are relevant :(a). Any transaction by which the right or eustom in question was created, claimed, modified,

recognized, asserted or denied, or which was inconsistent with its existence.

(b). Particular instances in which the right or custom was claimed, recognized, or exercised, or in which its exercise was disputed, asserted or departed from.

Illustration.

The question is, whether A has a right to a fishery. A deed conferring the fishery on A's ancestors, a mortgage of the fishery by A's father, a subsequent grant of the fishery by A's father, irreconcilable with the mortgage, particular instances in which A's father exercised the right, or in which the exercise of the right was stopped by A's neighbours, are relevant facts.

Right. There is a conflict of rulings as to the meaning of the word 'right.' It seems that the word 'right' is here used to mean any right of property or any right over property, and is not restricted to incorporeal right only. Sir James F. Stephen has expanded this section into two articles (i.e., 5 and 6) in his Digest of the Law of Evidence. Art. 5 is headed 'title' and runs thus "when the existence of any right of property or of any right over property is in question, every fact which constitutes the title of the person claiming the right, or which shows that he or any other person through whom he claims, was in possession of the property, and every fact which constitutes an exercise of the right, or which shows that its exercise was disputed, or which is inconsistent with its existence or renders its existence improbable, is deemed to be relevant." Art. 6 is headed 'custom' and is worded as follows "when the existence of any custom is in question, every fact is deemed to be relevant which shows how in particular instances, the custom was understood and acted upon by the parties then interested."

(a). In the case of Surja Narain Sanda v. Bisswambhur Singh, 23 W. R. 311, their Lordships held that the right mentioned in this section is not a public right only, it includes private rights also.

(b). In the case of Ranchhoddas Krishnadas v. Bapu Narhar, I. L. R. 10 Bom. 439, their Lordships remarked that "in the absence of qualification such as is to be found in sec. 48 'rights and customs' in sec. 13 must, we think, be understood as comprehending all rights of ownership."