1. In this case, plaintiffs appeal from a decree of the Special Judge who has refused their claim for additional rent for additional area. It appears that the first Court, that is to say, the Assistant Settlement Officer decreed the suit and when the matter was taken on appeal to the Special Judge the learned Judge refused the relief asked for because he rejected a dowl kabuliyat as being insufficiently stamped, although it had been admitted in the first Court. The Judge then held that as there was no evidence as to what the original area was, no case had been made out for additional rent.
2. In this appeal it is objected, first of all, on behalf of the respondents that, under Section 109-A, Bengal Tenancy Act, no appeal lies and the decision in Nafar Chandra Pal Choudhury v. Nur Ali : AIR1928Cal496 has been cited to us. In my opinion the present is not a case in which the prohibition of Section 109-A applies at all. There is no question here of settlement of fair and equitable rent.
3. On the merits of the appeal it appears to me that Section 36, Stamp Act, makes it reasonably clear that the instrument having once been admitted in evidence is not to be called in question at any stage of the same suit. The Special Judge has seen this section but has though to avoid the consequence of it by taking notice of an affidavit in which it is said that the tenure-holders did object when the document was tendered and that there was a discussion as to its admissibility. The learned Judge has entirely failed to see that under Section 36 it matters nothing whether it was wrongly admitted or rightly admitted or admitted without objection or after hearing or without hearing such objection. These stamp matters are really no concern of the parties and if the objection was taken at the time when the record was made up by the trial Court, there it might be rejected, if not, the matter stopped there. In my opinion, the appeal must be allowed, the decree of the lower appellate Court must be set aside and the case must be sent back to that Court to deal with it on the footing that the dowl kabuliyat is rightly in evidence. The appellants are entitled to their costs of this appeal.
C.C. Ghose, J.
4. I agree.