1. This is an appeal on behalf of the first defendant in a suit commenced by the respondents for recovery of possession of land, and in the alternative, for assessment of rent thereon. The Courts below have concurrently made a decree for rent in favour of the plaintiff. The first defendant has now appealed to this Court, and on his behalf two objections have been urged against the decision of the Subordinate Judge; namely, first, that the finding of the Courts below upon the question of title is based upon evidence not admissible in law, and secondly, that the question of limitation has not been properly decided.
2. In so far as the first of these points is concerned, the facts are as follows. The dispute between the parties was, whether the land claimed by the plaintiffs were situated within the ambit of their estate Touzi No. 136, or that of the defendants Touzi No. 132. A Commissioner was appointed to survey the properties. He based his report upon a copy of the map prepared at the time of the resumption of the estate. No objection Was taken before the Commissioner as to the admissibility of the copy of the map produced. The Commissioner submitted his report on the 1st August, 1906. No objection was taken on behalf of either party to the report. The trial began on the 5th December, 1903, and the report of the Commissioner together with the copy of the map were received in evidence without objection. In the course of argument, however, on behalf of the defendants, it was contended that the report of the Commissioner ought to be discarded inasmuch as it was based upon a copy of the map which was not legally admissible in evidence, as the non-production of the original had not been duly explained. This objection was overruled by both the Courts below, and, in our opinion, very properly. It has been contended by the learned Vakil for the appellant, upon the authority of the case of Ralli v. Gan Kim Swa 9 C. 939, that it was not obligatory on the part of his client to take any exception to the admissibility of the copy of the map before the Commissioner. Even if this be assumed to be correct, it is obvious that it was his duty to take the objection to the admissibility of that evidence at the earliest possible stage before the Court of first instance. As already pointed out, the trial began more than four months after the report of the Commissioner had been filed, and no exception was taken to the report of the Commissioner. It is clear that under these circumstances, the Court of first instance properly refused to entertain the objection which was taken in the course of the argument. In support of this view, it is sufficient to refer to the cases of Akbur Ali v. Bhyea Lal Jha 6 C. 666 : 7 C.L.R. 497; Chimnaji Govind Godbole v. Dinkar Dhondev Godbole 11 B. 320; Girindra Chandra Ganguli v. Rajendra Nath Chatterjee 1 C.W.N. 530 and Hridoy Krishna Das v. Prasanna Kumari Chowdhurani 28 C. 142. The distinction between admission of evidence which is not relevant and consequently not admissible under any circumstances whatsoever, as in Miller v. Madho Das 23 I.A. 106 : 19 A. 76 and reception of evidence which is relevant and would be admissible if certain conditions were fulfilled, is pointed out in the judgment of this Court in the case of Girindra Chandra Ganguli v. Rajendra Nath Chatterjee 1 C.W.N. 530. In the case before us, if any objection had been taken to the report of the Commissioner before the trial began, it would have been open to the plaintiffs-respondents either to produce the original map or to account for its non-production. In our opinion, there is no substance in the contention of the appellant that the decision of the Court below upon the question of title is based upon evidence not admissible in law.
3. In so far as the second contention is concerned, it is equally groundless. It has been found by the Subordinate Judge that the property is waste and is from time to time covered with water. It has further been found that the defendants have not been continuously in possession of the disputed land for over twelve years, but that within this period the plaintiffs have been, in possession for two years by the construction of dams. In our opinion, this finding is sufficient to meet the objection of limitation.
4. The result, therefore, is that the decree made by the Court below is affirmed and this appeal dismissed with costs.
5. It is conceded that this judgment will govern appeal from Appellate Decree No. 666 of 1908, which is accordingly dismissed with costs.