Ram Labhaya, J.
1. This is a second appeal by the plaintiffs. Their suit for the recovery of a sum of Rs. 2000 was decreed by the trial Court. The defendant appealed from the decree. On appeal, the decree was modified, and the decretal amount was reduced to Rs. 600. Plaintiffs have appealed to this Court. The defendant has put in cross-objections. This order will dispose of both the appeal and the cross-objections.
2. The case for the plaintiffs in brief was that they were the Dolois of the Kamakhya Temple and were in charge of the management of the Temple Estate. In 1942, the military authorities were in need of stone metal for roads in the vicinity of Gauhati. They approached the plaintiffs to permit their contractor to remove stone metal and boulders from the Kamakhya North Quarry on such terms as may be agreed upon between the plaintiffs and the contractor. The plaintiffs agreed. In consequence the arrangement made between the plaintiffs and the contractor was that he would take out stone metal and boulders from the quarry for his military contracts and on the completion of his extraction of boulders and stone metal, he would pay to the plaintiffs royalty at the rate of Rs. 2 per 100 cft. of the total quantity of stone metal and boulders removed. According to this arrangement, plaintiffs claimed that 78,000 cft. of stone metal and 9500 eft. of boulders were extracted up to 9-2.1945, which is stated as the date of the cause of action. The amount of royalty claimed comes to RSECTION 1750. The plaintiffs admitted having received Rs. 306. The balance claimed on account of royalty is RS. 1450. A sum of RS. 550 is claimed as compensation for delay in making the payment for which repeated demands were alleged to have been made.
3. The defendant came forward with a total denial of the oral contract with the plaintiffs which forms the basis of the suit. He further alleged that he never extracted any stone metal or boulders from the Kamakhya North quarry. He admitted that he had the lease of the south quarry for about 6 years and paid Rs. 300 as lease money. Of the other defences, we are concerned with only two at this stage. One of these was that the suit was barred by limitation and the other was that the Government was a necessary party to the suit.
4. The learned Subordinate Judge found that there was an oral contract between the plaintiffs and the defendant according to which defendant was permitted to extract stone metal and boulders from the North quarry. The royalty payable was fixed at Rs. 2 per 100 cft. He further found that the quantity alleged to have been removed had been proved. He further found that the Government was not a necessary party to the suit. No issue was framed on the question of limitation and therefore there was no finding given on it. It appears that this point, though raised in the written statement, was not pressed and no issue was asked for on it,
5. The learned Sub-Judge agreed with the Court below that the defendant extracted and removed stone metal, etc., from the North quarry under an arrangement made with the plaintiffs. On the question of the quantity that was removed, the learned Judge was of the opinion that there was suppression of facts from both the sides and the best evidence was not before him. He, therefore, thought that the parties should suffer equally and held that the quantity removed should be taken to be half of what was alleged by the plaintiffs, (viz., 39,000 cft. of stone metal and 4750 cft. of boulders), to have been removed. He also agreed with the learned Munsiff that the Government was not a necessary party. The question of limitation was also taken up before him on behalf of the defendant-appellant. The learned Judge came to the conclusion that Article 52, Limitation Act, would apply and that the amount claimed for the quantities covered by the first two memos was barred by time. The claim for compensation was also reduced. He allowed 6 per cent, per annum on the amount found due.
6. On behalf of the plaintiffs-appellants it is urged that the finding on the question of the quantity of stone metal and boulders has been arrived at arbitrarily and in disregard of the relevant documentary evidence on the record. The documentary evidence consists of memos, EXS. 4-8. These were supplied to the plaintiffs by p. w. 4. p. w. 4 as a witness deposed that he handed over the memos to Priyanath and that the memos were written by him. From the evidence it appears that he was appointed as a Supervisor to watch the operations of the contractor. He was also keeping accounts of the metal and boulders removed.
The necessity for his appointment arose from the tendency of the contractor to extract metal from the main rock which under the terms of the arrangement with the plaintiffs he was not en. titled to do. The memos given to the plaintiffs according to P. w. 4, were on the basis of the entries in the books though they were not in the form in which the entries were made in the books. Each of these memos related to one separate contract between the defendant and the M. E. S. The books of account from which the memos were prepared have not been produced before the Court. The learned Sub-Judge observed that he had grave doubts about the admissibility of these papers in evidence. He also doubted the genuineness of the memos.
So far as the question of admissibility is concerned, no objection was raised at the time these memos were admitted in evidence in the trial Court. At the argument stage, it appears that objection was raised to their admissibility. The learned Hunsiff observed that plaintiffs did call for the account books. But p. w. 1 expressed his inability to produce these books. In these circumstances he felt justified in treating them as relevant.
7. When no objection was raised to their admissibility when they were tendered in evidence, defendant should not have been permitted to raise the objection at a later stage. If the objection had been raised at the proper time, plaintiffs could have insisted on the production of the account books. The documents were allowed to be admitted without objection. There is the additional circumstance noted by the learned Munsiff which has been referred to above. The plaintiffs did ask for the account books and these could not be produced. The case thus would be covered by Clause (c) of Section 65, Evidence Act. The admissibility of the documents, therefore, cannot be questioned.
8. We do not see any basis for doubting the genuineness of these memos. (After discussing the evidence, the judgment proceeded :)
We have no hesitation in holding that the claim has been fully proved. There is no rebuttal, worth the name of plaintiff's evidence. The finding of the learned Subordinate Judge does not rest on any legal basis. We, therefore, hold that the defendant did remove from the North quarry 78,000 cft. of stone metal and 9500 cft. of boulders.
9. The learned Counsel for the appellants has also assailed the correctness of the finding that the first two items of the claim are barred by time. We think this contention must prevail. The case for the plaintiffs was that the royalty was payable when the supplies of stone metal and boulders came to an end and when the process of extraction was finished. The learned Subordinate Judge found that Article 52, Limitation Act, would govern the case. Before this article could be applied the question whether the plaintiffs had succeeded in proving that the royalty was to be paid on the completion of the extraction has to be determined.
The learned Subordinate Judge stated that he considered the law on the point and in his opinion the suit came under Article 52 and not under Article 115, for tbe contract had not been proved. The language used is very vague. It may possibly mean that the stipulation relied on by the plaintiffs that royalty was payable on the completion of the extraction had not been proved. If this is what the learned Subordinate Judge meant, then his finding is opposed to the evidence on the record, which apparently escaped his consideration. (After discussing the evidence the judgment proceeded:)
We think the alleged stipulation as to the time of payment should be regarded as proved. The finding of the learned Subordinate Judge on this point cannot be maintained as he failed to consider available evidence on the point. The claim for the first two items covered by the first two memos is not time-barred as the cause of action arose when the extraction was completed, viz., on 9-2-1945. The period of limitation would thus commence to run from this date and the claim for the entire amount would be within time. (His Lordship then discussed the question of compensation payable to the plaintiffs and held that the total amount they were entitled to, was RSECTION 1689-4-0. The judgment then proceeded:)
The learned Counsel for the respondent urged that the Government was a necessary party in the case. This contention has been examined by the Courts below. They have concurrently found that the Government was not a necessary party. We have found that the royalty was payable by the defendant under a contract between him and the plaintiffs. The claim is for the royalty due and compensation for the non-payment of the amount due to the plaintiffs at the proper time.' The plaintiffs have not asked for any relief against the ' Government ; nor could any relief be claimed against the Government appropriately. The Government is not in any other way interested in the controversy. It has not been contended that the royalty was payable by the Government and not by the defendant (contractor).
In these circumstances the Government cannot possibly be regarded as an interested party and the contention raised by the learned Counsel must be overruled. This is the only point that the learned Counsel has placed before us from his cross-objections. The result is that the cross-objections must be disallowed.
10-12. For reasons given above, the appeal is allowed ; the claim of the plaintiffs is decreed to the extent of RSECTION 1689-4-0 with proportionate costs throughout. The cross-objections are disallowed.
13. I agree.