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Bhagwan Dass and anr. Vs. Khem Chand and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtPunjab and Haryana High Court
Decided On
Case NumberLetter Patent Appeal No. 392 of 1972
Judge
Reported inAIR1973P& H477
AppellantBhagwan Dass and anr.
RespondentKhem Chand and ors.
Cases ReferredBulakidas Hardas v. Chotu Paikan
Excerpt:
.....[as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - 12. it was further stated that the petition writer as well as his son are dead and are not available. a party cannot lie by until the case comes before a court of appeal and then complain..........2 in this appeal) are admittedly the owners of the shop in dispute. according to the plaintiffs, kidar nath was the tenant of the aforesaid shop under a rent-note which, during the course of evidence in the suit, was marked exhibit p-12. after the death of kidar nath, his son, bhagwan dass and widow, bhuri devi, being defendants nos. 1 and 2 (appellants before us) continued in possession of the shop. it was alleged by the plaintiffs that inasmuch as kidar nath was a statutory tenant in the shop, the possession of defendants nos. 1 and 2 after his death, became unlawful. the defendants contended that the tenancy in question was not statutory but heritable. this matter was put in issue no. 1 which was 'whether kidar nath was a statutory tenant of the shop in dispute.' p.w. 3 durga.....
Judgment:

1. The facts necessary for the decision of this appeal under Clause 10 of the Letters Patent may briefly be given as follows:--

2. Khem Chand and Yadav Rai plaintiffs (respondents Nos. 1 and 2 in this appeal) are admittedly the owners of the shop in dispute. According to the plaintiffs, Kidar Nath was the tenant of the aforesaid shop under a rent-note which, during the course of evidence in the suit, was marked Exhibit P-12. After the death of Kidar Nath, his son, Bhagwan Dass and widow, Bhuri Devi, being defendants Nos. 1 and 2 (appellants before us) continued in possession of the shop. It was alleged by the plaintiffs that inasmuch as Kidar Nath was a statutory tenant in the shop, the possession of defendants Nos. 1 and 2 after his death, became unlawful. The defendants contended that the tenancy in question was not statutory but heritable. This matter was put in Issue No. 1 which was 'whether Kidar Nath was a statutory tenant of the shop in dispute.' P.W. 3 Durga Parshad was produced as a witness by the plaintiffs. He identified the handwriting and the signature of the petition writer who had written Exhibit P.12. It was further stated that the petition writer as well as his son are dead and are not available. During the course of evidence of Durga Parshad, the rent-note was exhibited as P-12 without any objection on behalf of the defendants. The Trial Court decreed the suit holding the tenancy of Kidar Nath as statutory. The lower appellate Court came to the conclusion that Exhibit P-12 was not properly proved and, therefore, it had not been established that Kidar Nath was a statutory tenant. In the regular second appeal filed by the plaintiffs, basing his decision on Gopal Das v. Sri Thakurji, AIR 1943 PC 83, and on a decision of this Court in Harnam Singh v. Dalip Singh, (1963) 65 Pun LR 1133, the learned Single Judge came to the conclusion that the document being admissible and no objection having been taken by the defendants to the mode of its proof at the relevant time, they cannot now be heard to object that the document has not been properly proved.

3. The observations of the Privy Council in Gopal Das's case AIR 1943 PC 83 (supra) which were relied upon by the learned Single Judge, were to the following effect:--

'Where the objection to be taken is not that the document is in itself inadmissible but that the mode of proof put forward is irregular or insufficient, it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record. A party cannot lie by until the case comes before a Court of appeal and then complain for the first time of the mode of proof.'

4. In Harnam Singh's case (1963) 65 Pun LR 1133 (supra) the Court come to the conclusion that in order to prove document 'C' it was necessary to call an attesting witness alive and available in proof of the execution of the document in question but no objection was raised when it was produced and exhibited by the Trial Court.' In that case, the counsel for the plaintiffs made a statement that he produced the copies of the sale deeds marked 'A' and 'B'. This was objected to, but when he said 'I also produce 'C' copy of the sale deed' no objection was taken. Grover J., as he then was, while delivering the judgment observed as follows:--

'In these circumstances the defendants cannot now be heard to say that the document was not properly proved..................'

5. The decision of the Allahabad High Court in Salaik Chand v. Mt. Tamiz Bano, AIR 1928 All 303, which was relied upon by the learned counsel for the defendants, who were respondents before the learned Single Judge, was distinguished by the learned Single Judge, because that was not a case where a document had been exhibited without any objection. The decision in Bulakidas Hardas v. Chotu Paikan, AIR 1942 Nag 84, cited before us, is also distinguishable on the same basis.

6. In view of the above, we find no force in this appeal and dismiss the same without any order as to costs.

7. Appeal dismissed.


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