1. This is as appeal against an order of my learned brother Mr. Justice Chakravarti setting aside a decree of the first Appellate Court and remanding the case to that Court for re-trial.
2. The suit was a suit for recovery of arrears of rent at an enhanced rent; and one of the points of difference between the parties was what was the initial1 rent of the holding on which enhancement was to be calculated. It was the ca3e of the plaintiff that the initial rent was Rs. 6 odd which it was the case of the defendant that the rent was Rs. 6 odd.
3. The trial Court decided in favour of the plaintiff. On appeal the, learned Subordinate Judge relying together with other evidence on a certain kabuliyat, Ex. A, decided in favour of the defendant. The plaintiff appealed to this Court and Mr. Justice Chakravarti holding that the kabuliyat, Ex. A, which the learned Subordinate Judge had taken into consideration in coming to his finding was not admissible in evidence set aside the judgment of the first Appellate Court and sent back the case for re trial excluding this evidence which he held to be inadmissible. Against this order the defendant has appealed.
4. Mr. Sen Gupta who appears for the appellant has contended that it was not open to the plaintiff in second appeal to challenge the admissibility of a document which had been admitted in evidence without objection in both the lower Courts. This contention, I think, ought to prevail. It would appear that no objection was raised to the admissibility of this evidence either in the trial Court or in the Court of first appeal. The particular piece of evidence was a kabuliyat. It was executed by the defendant in favour of one Hossain Ali who was the father of the present plaintiff. In this kabuliyat a certain rate of rent was stated for the lands in suit.
5. The contention of the respondent is that the plaintiff is not bound by any admission made m in a document between the defendant and a third party' and, secondly, that this kabuliyat does not cover the land in dispute. Had this objection been made in the trial Court or in the Court of first appeal that the document was not admissible, it is quite possible as is suggested by Mr. Sen Gupta that the defendant could have shown that Hossain Ali at the time when this kabuliyat was executed in his favour was acting on behalf of his son; and, therefore, he contends and I think rightly that whether this kabuliyat is or is not admissible is a question of fact and being a question of fact it should have been raised in the trial Court and not having been raised in that Court it is not open to the plaintiff in second appeal to contend that the document is not admissible in evidence.
6. The appeal must, therefore, succeed. The order of remand of Mr. Justice Chakravarti must be set aside and the judgment and decree of the first Appellate Court must be restored.
7. The defendant-appellant is entitled to his costs both in this Court and before Mr. Justice Chakravarti.
B.B. Ghose, J.
8. I agree.