HARICHAND Vs. BACHAN KAUR

JUDGEMENT

(1.) THERE seems to be no end to this litigation. The relevant facts giving rise to this are stated in the judgment of Shamsher Bahadur, J. , which was reversed by the Letters Patent Bench. I am reproducing the judgment of Shamsher Bahadur, J. only with regard to the facts in order not to cover the ground all over again:- "the plaintiff Bacon Kauai brought a suit for an injunction restraining the thirty-four defendants from interfering with her ownership and possession of the disputed land measuring 5 bighas in khasra nos. 344 and 346 situated in Chamar Majri in Mauza Lehal which is contiguous to the town of Patiala. Tthe plaintiff seeks to derive her right in the disputed land as an owner through her husband Mehar Singh who purchased it from the biswadars of the village and subsequently made a gift of it in favour of his wife. Khasra no 572/344 measuring I bighas and 10 biswas was purchased by Mehar Singh on 15th of November, 1940 from one Chanan Singh out of shamilat deh. Another parcel of land of the same area under Khasra No. 571/344 was purchased again for the shamilat land on 19th of November, 1940 from Tara Singh, another biswedar of the village. Two more purchases were made of 2 bighas from Cahnan Singh on 23rd of December, 1940. The present suit was brought by the plaintiff on 6th of January, 1958 against the thirty-four defendants who are all chamars of the village and admittedly reside in khasra No. 345 which is hedged between Khasra Nos. 344 and 347, for an injunction that they should be restrained from interfering with her possession. It appears that the chamras including the "defendants residing in the locality had been resisting the efforts of the plaintiff and her husband to obtain possession of the land in suit. The dispute culminated in criminal proceedings which were initiated in the Court of the Executive Magistrate, Patiala, under Section 145 of the Code of Criminal Procedure by Jasbir Singh and Harbans Singh sons of Mehar Singh. The trial Magistrate came to the conclusion that the petitioners had not proved themselves to be in possession of he land in suit which was recorded as shamilat deh. A revision petition was preferred before the District Magistrate, Patiala, who by his order of 17th of September, 1956 (Exhibit P. W. 11/n) affirmed the decision of the trial Magistrate and directed the parties to get their claims settled in a Civil Court. According to the District Magistrate the land in suit recorded as shamilat deh had not been established to be in exclusive and physical possession of either party. The defendants denied the ownership or possession of the plaintiffs in the suit land and various other objections were raised which it is not necessary for purposes of this appeal to set out. The Trial Judge on a consideration of the evidence came to the conclusion that the plaintiff had proved her title tot he suit land as also her possession except the portion marked "efgh" in khasra No. 346 covered by two kothas. A decree was accordingly made in favour of the plaintiff. The defendants' appeal having failed before the learned Additional District Judge, Patiala, they have now come to this Court in second appeal. When the appeal came up for hearing, I considered it necessary to retrieve additional evidence under O. 41, R. 27 of the Code of Civil Procedure and the case was sent to the lower appellate Court for this purposes. The trial Court had rejected the evidence of the revenue records in which the defendants had been shown in possession over a stretch of many years and their prayer for additional evidence was not acceded to before the lower appellate Court. The earliest entry n record is Exhibit D. G. of 3-12-1965 Bk, corresponding to the year 1912 A. D. , in which it is stated that he chamars had been rehabilitated in khasra Nos. 344 and 346 had been given to these chamars for purposes of their vocation. According to Exhibit D. G. , which purports to be an order in appeal the chamars had bee in possession of khasra Nos. 343, 344 and 346 for a period of twelve years. According to this order it was directed that a mutation should be made to this effect. In pursuance of this order a mutation was made in favour of the chamars on 26-4-1966 B. K. (Exhibit D-F ). Thereafter, the revenue entries right from the year 1966-67 Bk to 1990-91 Bk disclose that land in these khasra numbers was in possession of the chamars. These entries are Exhibits A. 1 to A. 7 which had not been accepted by the trial Court and which I directed the Lower Appellate Court to receive in evidence. It appears, however, that adequate proof of these entries has not been adduced before the lower appellate Court. The jamabandis which purport to be copies of the originals have not been certified to be true under the provisions of Section 76 of the Indian Evidence Act, according to which:- "every public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefor, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorised by law to make use of a seal, and such copies so certified shall be called certified copies. " These Jamabandis were tendered in evidence by the Advocate for the defendants who made a statement that he would not examine the Patwari whom he had summoned to make a comparison of the copies with the original. The counsel contented himself by saying that he had himself compared the copies with the originals and had found them to be correct. It appears that the Patwari was given up as the defendants did not want him to be cross-examined by the plaintiff. It seems that no objection head been taken to the production of the copies of the jamabandis by the counsel himself but it is contended by Mr. Atma Ram, the learned counsel for the respondent, that this by itself could not relieve the defendants from the necessity of adducing adequate proof. Mr. Kaushal has argued on the basis of the Privy Council authority in Shahzadi Begam v. Secretary of State for India, (1907) ILR 34 Cal. 1059 (PC) that the admissibility in evidence of a document which has been admitted without objection the first Court cannot be questioned in appeal. The record does not show that the plaintiff made any objection tot he filing of the documents or the statement of the counsel that they were true copies of the original. It is no doubt true that the Patwari should have been examined but considering that no objection was taken to the admissibility of these documents. I decline to consider at this stage the question of their admissibility. Reference authority of Sir Shadi Lal, C. J. and Tapp, J. in Fauja Singh v. Allh Ditta, AIR 1931 Lah 722, where the law was stated thus: "it is well established that where a fact has been erroneously allowed to be proved in a manner different from which the law requires, and no objection is taken in the Court of first instance, such objection cannot be taken later in appeal. This view is based on the principle that if objection is taken at the proper time to the reception of certain evidence (not inadmissible in itself) owing to such evidence not being produced in the form prescribed by law, an opportunity can be afforded to the party producing such evidence to remedy the defect and satisfy the requirements of the law. " In Suraj Bhan v. Hafiz Abdul Khaliq, AIR 1944 Lah 1, a Division Bench authority of Din Mohammad and Sale, JJ. , a copy of a copy was admitted in evidence as its admissibility was not questioned at an initial stage.

(2.) IT is argued by Mr. Kaushal that if an objection had been taken with regard to the admissibility of the jamabandis the Patwari would have been immediately summoned to remedy the defect. In his submission, it is now too late for the respondents to take an objection to the admissibility of documents which had been received without objection before the lower appellate Court. In view of the principles laid down by their Lordships of the Privy Council and the Division Benches of the Lahore High Court, I am of the view that the documents Exhibits A. 1 to A. 7 have been properly received in evidence and their admissibility cannot be questioned at this stage. "

(3.) AFTER considering the additional evidence which the learned Single Judge permitted, he reversed the decision of the Courts below and dismissed the plaintiff's suit. Against this decision, the plaintiff preferred an appeal came up for hearing before my Lord the Chief Justice and Mr. Justice Tuli. It was argued before the Letters Patent Bench that some of the defendants had died during the pendency of the letters patent appeal and their legal representatives had not been brought on the record, and therefore, there was a decree against a dead person. It was also argued before the Bench that the abatement would be total and not partial. However, the Bench left the question of abatement open and set aside the judgment of the learned Single Judge and remitted the case for a fresh decision taking the view that a judgment against a dead party was a nullity. That is how the matter has been placed before me.