1. This is a hopeless appeal and I do not desire to waste my words on it except on one matter. The onus was rightly found by the learned Subordinate Judge to be on the defendants; accordingly they opened the proceedings and called evidence first. The defendants adopted the objectionable practice of calling the 1st plaintiff as their witness, objectionable for this reason, that they were obviously bound to follow it up, and it appears clearly from the judgment that they did follow it up, by asking the Judge to disbelieve and set aside all the evidence given by the 1st plaintiff. This practice has frequently been unfavourably commented upon by this Court and indeed also by the Privy Council. There is no objection whatever to an advocate seeking to prove his cast out of the mouth of the opposite party; but if he puts the opposite party into the box be takes the risk of making statements made by that witness part of his own evidence. It is possible that in a proper case the Court would be satisfied from the witness demeanour that be was hostile and might in such circumstances even allow the advocate to cross-examine him ; but that very rarely happens. This course was adopted in this case apparently because the vakil said that he wanted to elicit some facts from this witness before he heard any other evidence in the suit. He was evidently suspicious that the witness might improve upon facts in the light of any other evidence that might be adduced if he was not examined first. There is no warrant for any such procedure whatever and I regret that the Subordinate Judge permitted it to be done. But, in my opinion, in this particular case it cannot be allowed to affect the result because the answers the witness did give were sufficient in the opinion of the learned Judge, and sufficient in my opinion, to show that the whole of this story about an undivided family property is a concoction from start to finish. That is all I desire to say about this appeal which will be dismissed with costs.
Viswanatha Sastri, J.
2. I agree.