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Seth Behari Lal Vs. AmIn Chand and anr. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1924All918; 79Ind.Cas.1029
AppellantSeth Behari Lal
RespondentAmIn Chand and anr.
Cases ReferredKishori Lai v. Bakhal Das
Excerpt:
civil procedure code (act v of 1908) order xli, ruler 2 - document, admissibility of--objection before appellate court--discretion of court--sigh court, whether will interfere. - .....discretion of the court below in holding that the plea could not be raised by the appellant. the document was admitted without question in the trial court, and even in the appeal to the court below no question of its admissibility was raised. it was only at the time of arguments that the point was taken. under these circumstances the court below was, in my opinion entitled to refuse to entertain it. the code (order xli, ruler 2) expressly lays down that except by leave of the court no party shall be entitled to urge any objection not taken in the memorandum of appeal. it has also been held in several oases that where a dooument is admitted without objection in the trial court, it cannot be objected to afterwards. the point arose in a recent case in the patna high court chartiter rai v......
Judgment:

Daniels, J.

1. This appeal arises out of a suit for possession of the site of a house. The claim was disputed on the ground of adverse possession. It has been found that the plaintiff is the owner of the site. It has also been found that the defendant's predecessor-in-interest occupied the land in 1885 under an agreement which allowed him to build a house on it but required him to vacate it and remove the materials when asked to do so by the owner. It is further found that from that time ground-rent has been regularly paid and that the appellant, when he bought the house knew of the plaintiff's rights, that is, he knew that the site belonged to the plaintiff and that his vendor had no transferable interest in it.

2. Two pleas are taken in the grounds of appeal:

1. That no decree for ejectment should have been given but only a decree for arrears of rent.

2. That the lease or counterpart executed by the defendant's predecessor required registration.

3. The first plea has not been seriously pressed. On the facts found the plaintiff was entitled to a decree for ejectment.

4. As to the second plea the Court below held that it was not open to the appellant. It further held that even if the plea was open there was no force in it.

5. If it were necessary to support the second finding the plaintiff-respondent admits that he would not be in a position to do so. The question which has been argued is whether this Court ought to interfere with the discretion of the Court below in holding that the plea could not be raised by the appellant. The document was admitted without question in the Trial Court, and even in the appeal to the Court below no question of its admissibility was raised. It was only at the time of arguments that the point was taken. Under these circumstances the Court below was, in my opinion entitled to refuse to entertain it. The Code (Order XLI, Ruler 2) expressly lays down that except by leave of the Court no party shall be entitled to urge any objection not taken in the memorandum of appeal. It has also been held in several oases that where a dooument is admitted without objection in the trial Court, it cannot be objected to afterwards. The point arose in a recent case in the Patna High Court Chartiter Rai v. Kailash Behari 44 Ind. Cas. 422 : 3 P.L.J. 306 : (1918) Pat. 145 : 4 P.L.W. 213, Certain papers had been admitted without objection in the trial court. The special judge in first appeal and a Judge of the High Court in second appeal rejected them as inadmissible. In Letters Patent it was held that the objection should not have been entertained. The learned Judges support their view by reference to a dictum of the Privy Council in Shahzadi Begam v. Secretary of State for India 34 C. 1059 : 9 Bom. L.R. 1192 : 6 C.L.J. 678 : 2 M.L.T. 439 : 34 I.A. 194 (P.C.). where their Lordships say:

It is now too late for the respondent to take an objection to the admissibility of a document which was received without objection at the trial.

6. The same view has been taken in another case Chimnaji Govind Godbole v. Dinkar Dhondev Godbole 11 B. 320 : 11 Ind. Jur. 342 : 6 Ind. Dec. (N.S.) 209, where a copy of a copy had been admitted without objection in the Trial Court, as also in Kishori Lai v. Bakhal Das 31 C. 155.

7. Even if the document in dispute were rejected for want of registration this would not result in the dismissal of the suit. Quite apart from this document there is a finding of fact based on oral evidence that groundreut has been regularly paid for the site by the appellant's predecessor and that the appellant took his sale deed with full knowledge of the plaintiff's rights.

8. For the reasons already given I dismiss the appeal with costs including in this Court fees on the higher scale.


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