1. Two points have been raised in this appeal, first, that the Lower Appellate Court ought to have held that the suit was not maintainable by reason of the provisions of Section 36 of Act XI of 1859; and, second, that the Lower Appellate Court ought not to have used Exhibit X as evidence in this case, the same not having been proved.
2. As to the first point, Section 36 of Act XI of 1859 enacts that 'any suit brought to oust the certified purchaser as aforesaid on the ground that the purchase was made on behalf of another person not the certified purchaser, or on behalf partly of himself and partly of another person, though by agreement the name of the certified purchaser was used, shall be dismissed with costs.' But the present suit is not one brought to oust the certified purchaser. Indeed, it is a suit to which the certified purchaser is no party. It has been brought against the defendant-appellant for the delivery of papers and accounts to the plaintiff in respect of the time during which he was the plaintiff's tehsildar; and his defence is that his brother, and not the plaintiff, is the certified purchaser; and that the plaintiff is therefore precluded from maintaining this suit against him. We do not think there is any force in his contention. With reference to a provision of the law somewhat similar to Section 36 of the Revenue Sale law, that is, Section 260 of Act VIII of 1859, the former Code of Civil Procedure, applicable to execution sales, and which was more comprehensive in its terms than Section 36 of Act X of 1859, it has been held by the Judicial Committee in two cases, namely, those of Buhuns Koonwur v. Lalla Buhoree Lall 10 B.L.R. 159 : 14 Moo. I.A. 496 and Lokhee Narain Roy Chowdhry v. Kallypuddo Bandopadhya L.R. 2 I.A. 154, that the section should be construed strictly and literally, and should not be applied to a case where a certified purchaser is the plaintiff and the real owner the party in possession. In the present case the real owner, the plaintiff, may not be under any necessity to bring a suit to oust the certified purchaser, for the simple reason that he is in possession.
3. That being so, there is no reason why he should be held precluded from maintaining a suit like the present against his tehsildar for accounts and papers.
4. As to the second objection, it is sufficient to say that the admissibility of the document in question was not objected to in the Court of First Instance. That being so, we do not think it open to the appellant to take the objection on second appeal.
5. The appeal is dismissed with costs.