1. In the suit out of which this appeal, has arisen the plaintiffs sued for partition of some 11 plots of land. The plaintiffs' allegation was that oat of 11 plots of land plots Nos. 1 to 4 had already been partitioned and of these plots plots Nos. 1 to 3 had fallen to the share of defendant No. 9 Mahim and plot No. 4 to defendants Nos. 1 to. 3 and the remaining plots Nos. 5 to 11 were held join as between defendants Nos. 1 to 9. The plaintiffs had purchased the share of defendant No. 9 in the property by a kobala dated 21st Sraban 1323 and on this allegation he asked for partition of the property. The First Court dismissed the plaintiffs' suit holding that they had no title or possession in the property in dispute and this finding was upheld on appeal to the District Court. The plaintiffs have now appealed to this Court and their contention is that certain documents, namely, a geneology, jama-kharach and collection papers which he had desired to be produced by defendant No. 9 and a list of the names of ancestors used in the ceremonies performed on behalf of the family which they wished the witness Kailash to produce had not been allowed to be put into evidence by the Court of first instance nor by the lower Appellate Court. Now it is not disputed that the plaintiffs wanted that these documents should be produced by the two witnesses, defendant No. 9 and Kailash. The Trial Court rejected these documents and did not allow them to be produced by the witnesses and to be proved on the ground that the plaintiffs' witnesses should before long have filed these documents if any they had brought for the purpose of being used in evidence and for this reason he did not allow them to be produced or proved. A question was raised in the lower Appellate Court and in that Court apparently two documents were dealt with by the Judge. But it does not appear that the plaintiffs were given ah opportunity of summoning witnesses Kailash and Mohim to produce the documents which they had desired to be produced and proved. The plaintiffs argue that it was not necessary for them to produce these documents before hand because these documents were not in their possession and power and that, therefore, they could not produce them before the witnesses were put into the box to give their evidence nor was it necessary for them to do so. The respondents contend that under Order XIII, Rule 2 no documentary evidence in the possession or power of any party which should have been but has not been produced in accordance with the requirements of Rule 1 shall be received at any subsequent stage of the proceedings unless good cause is shown to the satisfaction of the Court for the non-production thereof; and the Court receiving any such evidence shall record the reasons for so doing. But the respondents seem to have never realised that these documents are not documents which were in the power and possession of the witnesses, and, therefore, the plaintiffs clearly could not cause them to be filed before the witnesses were put into the box to adduce evidence and Order XIII, Rules 1 and 2 have, therefore, no application. It seems, therefore, clear that the learned Judge was wrong in refusing to admit these documents and the plaintiffs must be given an opportunity of producing these documents in Court.
2. The case, therefore, must be sent back to the lower Appellate Court to re-hear the appeal after giving the plaintiff an opportunity of summoning these two witnesses Mohim and Kailash, Mohim to produce the geneology jama-kharach and collection papers and Kailash to produce the list of the names of the ancestors used in the ceremonies he had performed. The defendants will be allowed to cross-examine these witnesses and if they so desire to produce evidence to rebut the documents.
3. Costs of this appeal will abide the result.
4. I want to add a few words to the judgment which has just been delivered by my learned brother not with regard to the facts but with regard to some of the views expressed by the Court of first instance as to documents produced by some of the witnesses which the Judge refused to admit as they had not been previously filed. It is necessary to state that the documents in question were not in the possession or power of any party to the suit but were documents belonging to the witnesses. It is clear that it is the duty of the parties to the suit under the provisions of Order XIII Rules 1 and 2 to produce at the first hearing all the documents in their possession or powers. Secondly, if a party desires to summon witnesses to give evidence on his behalf he can either summon them merely to give evidence or to give evidence and produce documents which he possesses or has reason to believe to be in their possession or he can merely summon a witness to produce documents in his possession without requiring him to give oral evidence. But, in my opinion, it is open to a witness to produce at the hearing documents which are not referred to in the summons requiring him to give evidence and these documents are admissible in evidence on behalf of the party calling the witness although they may not be mentioned in the summons addressed to the witness. There is no doubt that the fact that they are not referred to in the summons may be a factor to be taken into account in considering the value of the evidence but, in my opinion, they are admissible in evidence even if they are not referred to in the summons. It seems to me extraordinary that the Judge should have refused the documents tendered by the witness Kailash and by defendant No. 9 on the ground that they were not filed before hand. There is no obligation on a witness so to do nor is there an obligation on the party summoning the witness to procure this filing for clearly he cannot compel the witness to file before hand the documents which are the documents of the witness and which are not in the possession and power of the party summoning the witness. These are elementary matters and I should not have thought it necessary to state them but for the view expressed by the Judge and strenuously pressed upon us by the learned Vakil who appeared for the defendant.
5. The money deposited in the Court here on the ground that the sufficient Court-fees have not been paid in the Courts below will be returned to the appellants and it will be for the Court below to decide whether the plaintiffs or the defendants were in possession of the properties of which partition is sought. If it is found that the plaintiffs were in possession then ad valorem Court-fees must be paid. If, however, they were not in possession then a Court-fee of Rs. 10 will suffice and the lower Appellate Court will decide which Court-fee is payable.
6. I agree.