1. This was a suit for redemption of a mortgage. The plaintiffs pleaded that they were unable to produce any written instrument of mortgage. They tendered certain evidence to prove that, in the year 1869, in the District of Mirzapur, certain parties had mortgaged certain land with possession to certain other parties, in return for a payment of Rs. 200. Other points regarding the title of the plaintiff's to represent the interest of the original mortgagors, and also with regard to certain other charges on the land set up by the defendants in possession, were gone into. All questions in issue were decided by the trial Court in favour of the plaintiffs, and they got a decree for redemption on payment of Rs. 200. The defendants then went up in first appeal. Their first plea was that the plaintiffs had totally failed to prove their title to redeem the mortgage, and also the particular mortgage set up by them. There were other pleas taken with respect to the other transactions which the defendants had set up, and it was alleged that those transactions were fully proved. There was a general plea that the evidence produced by the plaintiffs in the trial Court was altogether worthless and unworthy of credit. All these pleas were carefully dealt with by the learned Subordinate Judge. He reviewed the evidence in detail and confirmed all the findings of the trial Court in favour of the plaintiffs.
2. The defendants then came to this Court in second appeal. By this time the record had been examined on their behalf by a legal practitioner competent to appreciate all the difficulties arising out of the pleadings and the evidence in the two Courts below. It now occurred to the defendants that the Registration Act of 1866 was in force in the Mirzapur District in the year 1869. In their memorandum of appeal to this Court, therefore, they laid hold of statements in the plaint and certain statements made by one of the plaintiffs' witnesses in the trial Court. They put these forward as establishing beyond doubt the fact that the transaction of mortgage set up by the plaintiffs was embodied in a written instrument. From this they went on to contend that this instrument, not having been registered, was inoperative and could not have been admitted in evidence. The further contention followed that, therefore, secondary evidence of the contents of this document was also inadmissible. They also took the point that the plaintiffs had failed to lay the foundation required by law for the admission of secondary evidence before they tendered such evidence in the trial Court, and, finally, they contended that the evidence which the plaintiffs did tender, which had been accepted and acted upon by two Courts, was not within the definition of admissible secondary evidence under the provisions of the Indian Evidence Act. The learned Judge of this Court, who heard the appeal, has in substance refused to entertain these pleas, because they were not taken before the lower Appellate Court. It is true that in an earlier part of his judgment he discusses the question whether the plaintiffs had or had not laid a sufficient foundation for the production of secondary evidence of some sort or kind; but with regard to the remaining pleas, which we have set forth above, he frankly bases his decision on the ground that it would not be fair to the opposite party, under the circumstances, to permit these pleas to be taken for the first time in second appeal. In taking this line we are satisfied the learned Judge of this Court was within his discretion. We think it would be in the interests of the administration of justice, on this Province if it were generally understood that questions of law of this nature, more particularly questions dealing with the admissibility and the legal effect of evidence, will not, as a general rule, be entertained in second appeal in this Court, if they have not been taken at least at the stage of first appeal in the Court below. We are not prepared to hold that the learned Judge of this Court was wrong in taking the line which he did. We dismiss this appeal with costs.