Abdur Rahman, J.
1. The learned District Judge has in a careful and fairly elaborate judgment, after discussing the whole of the evidence which was on the record, recorded his finding that the plaintiff had failed to establish his title to the land sued for. After hearing learned Counsel for the appellant I find that the only two points which deserve any notice are:
(1) that although there is a reference in Ex. A. to 7 1/2 kulis of land in paimash No. 16, the learned District Judge has failed to note that fact and given no reasons for holding that the plaintiff did not have any land, even to that extent, in paimash No. 16, and
(2) that the documents, Exs. J, K and L were wrongly rejected by the lower appellate Court.
2. In regard to the first question learned Counsel for the appellant is not even today in a position to satisfy me as to the extent of the area contained in paimash No. 16 or that the 7 1/2 kulis mentioned in Ex. A had any reference to 1 acre 73 cents for which the suit was brought by his client. He wants me to call for a finding in that respect. But if there had been anything in that point, learned Counsel for the appellant would have drawn my attention to the evidence on the record bearing on that point particularly when I asked him to do so. This was apparently not suggested in the Court below and the absence of a definite ground of appeal either to this Court or to the lower appellate Court leads me to the same conclusion. I am not inclined to call for a finding in the circumstances.
3. As to the second question whether Exs. J, K and L were admissible in evidence, it was contended by learned Counsel for the appellant that having been admitted with the consent of the counsel for the respondent, they should not have been rejected by the learned District Judge. These three documents are copies of depositions of persons, who had been dead on the date on which these depositions were tendered in evidence. They were recorded in a case to which the present respondent was not a party and could not therefore fall within the ambit of Section 33 of the Indian Evidence Act. Learned Counsel for the appellant, however, contended that these depositions would be admissible in evidence even if they could not be brought within the four corners of Section 33 or of any other section of the Evidence Act. But this is obviously an untenable position. The scheme of the Evidence Act is that the evidence must, to be relevant or admissible, fall within one or other section of the Act. If a particular statement or document cannot be brought within the four corners of any section of the Evidence Act, it will have to be rejected. Reliance was placed by learned Counsel for the appellant on a number of cases to which 1 will refer in a minute; but they have, in my opinion, no application to the facts of the present case. My attention was drawn first of all to a Full Bench decision of this Court in Jainab Bibi Saheba v. Hyderatty Sahib : (1920)38MLJ532 in which one of the learned Judges referred to Sri Rajah Prakasarayanim Garu v. T. P. Venkata Rao (1912) 25 M.L.J. 360 : I.L.R. Mad. 160 which in turn approved of a decision of the Calcutta High Court in Sree Nath Roy v. Goluck Chunder sein (1869) 15 W.R. 348. But the question as pointed in the order of reference to the Full Bench was whether the evidence taken in a previous judicial proceeding to which the same persons were parties and in which the same main issues were raised could not have been admitted into evidence in a subsequent litigation even with the consent of parties. It will thus be seen that the main conditions of Section 33 were complied with and the question merely was as to the mode of proof and not as regards the nature and quality of the evidence itself. This case is no authority for the proposition that irrelevant and inadmissible evidence can be made relevant or admissible with the consent of a party. The observations of Mr. Justice Coutts Trotter (as he then was) express the position very correctly. He observed as follows:
It is clear that in this country neither an omission by an advocate to object to the giving of irrelevant and inadmissible evidence, nor the failure of the tribunal to exclude it of its own motion, will validate a decree based on material which the Evidence Act declares to be inherently and in substance irrelevant to the issue.
It is possible however that if evidence otherwise relevant and admisible is received by a 'defective method of letting in evidence' although 'in its substance and context relevant and germane to the issues', the consent may cure the defect and it will not be open to a party to object to the method of proof subsequently. It may be that certain observations of Mr. Justice Krishnan are not very happily worded; but the following question, which he himself formulated and which cannot be lost sight of, would show that he did not intend to lay down that otherwise irrelevant evidence could be made relevant by the consent of parties. The question formulated by him was in the following words:
As pointed out in Krishna Reddi v. Sundara Reddi (1914) M.W.N. 931 the question involved here is one of mode of proof of relevant facts rather than one of the relevancy of the facts themselves.
It was held in Sri Rajah Prakasarqyawim Garu v. Y. P. Venkata Rao (1912) 25 M.L.J. 360 : I.L.R. Mad. 160 that,
consent or want of objection to the reception of evidence which is irrelevant cannot make the evidence relevant, but consent or want of objection to, the wrong manner in which relevant evidence should be brought; on record of the suit disentitles parties from objecting to such evidence in a Court of appeal.
This decision cannot possibly help the appellant. Nor do the facts of the case in Sree Nath Roy v. Goluck Chunder Sein (1869) 15 W.R. 348 assist the appellant. It was pointed out by the learned Judges in that case that the depositions which were tendered in evidence were of persons who were allied and who were actually summoned. But they were not examined in view of the fact that the party tendered their previous depositions and the other party agreed to their previous statements being let in evidence. After the witnesses were discharged an attempt was made on behalf of the consenting party to resummon them and that application was rejected by the learned Judges on the following grounds:
Nothing of this sort was urged before the Court below and we do not think that the witness should be harassed by being repeatedly summoned before the Court when the plaintiff after perusing their testimnoy was satisfied that it was sufficient for the purposes of his case that that evidence should be used as evidence in his cause.
The decision in Lakshmidevamma v. Pobhisetti Krishtiah (1927) 104 I.C. 518 is not of much help either as the documents in that case to which objections were taken were first of all produced by the very party v/ho chose to object to their admissibility. But that was not all. The following sentence in Madhavan Nair, J's., judgment is very significant:
Though these depositions, Exs. I, II, III and IV given in prior proceedings were exhibited it should be noticed that the deponents themselves were examined as witnesses in this case and these documents were put to them while they were under examination.
If the witnesses themselves were examined in that case the question whether their previous statements were read out to them with the permission of the Court and with the consent of the other parties would not although a wrong procedure to adopt, make the statements inadmissible in evidence. The correct procedure would have been to put the same questions to witnesses over again in regard to which they had already made their statements. But if in order to save time, the parties agreed to have the previous depositions of the witnesses in Court read as evidence, it would not be admitting irrelevant evidence but will only be consenting to a wrong procedure or method of the reception of their evidence.
4. The decision in Lakshman Govind v. Amrit Gopal I.L.R.(1900) 24 Bom. 591 does not advance the position any further. The witnesses whose depositions were tendered in evidence were alive and the application to have those witnesses summoned were cancelled after the statements made by those witnesses were admitted in evidence. Had no consent been given by the other side, the witnesses would have been examined in the ordinary course. Having once agreed to the statement being brought on the record and having thus allowed the other party to act to his detriment by cancelling his application to summon those witnesses, it was held to be no longer open, and if I may say so with respect rightly, to the party on the ground of what may be described as an estoppel to object to those documents from being referred to in the case. The decision in Radha Kislian v. Kedar Nath I.L.R.(1924) All. 815 does not, in my opinion, and I say so with very great deference, lay down the law correctly. Unless a party can be found to have been estopped from objecting to the admissibility of the evidence, I do not think it can be said on the basis of the authorities to which 1 have already referred that evidence not otherwise admissible or which would have been liable to rejection if objection were taken to it, may be perfectly good evidence if admitted by the consent of parties. The observations of Mr. Justice Krishnan in the Madras case on which reliance was placed in this decision cannot be as observed before torn from their context or taken as an authority on facts other than those that were before the learned Judge in that case.
5. For the above reasons I hold that the documents, Exs. J, K and L were rightly rejected by the learned District Judge. In the result the appeal fails and is dismissed with costs.
6. Leave to appeal refused.