BHAGWAN DASS Vs. KHEM CHAND

JUDGEMENT

(1.) THE facts necessary for the decision of this appeal under Clause 10 of the letters Patent may briefly be given as follows:-

(2.) KHEM Chand and Yadav Rai plaintiffs (respondents Nos. 1 and 2 in this appeal)are admittedly the owners of the shop in dispute. According to the plaintiffs, Kidar nath was the tenant of the aforesaid shop under a rent-note which, during the course of evidence in the suit, was marked Exhibit P-12. After the death of Kidar nath, his son, Bhagwan Dass and widow, Bhuri Devi, being defendants Nos. 1 and 2 (appellants before us) continued in possession of the shop. It was alleged by the plaintiffs that inasmuch as Kidar Nath was a statutory tenant in the shop, the possession of defendants Nos. 1 and 2 after his death, became unlawful. The defendants contended that the tenancy in question was not statutory but heritable. This matter was put in Issue No. 1 which was "whether Kidar Nath was a statutory tenant of the shop in dispute. " P. W. 3 Durga Parshad was produced as a witness by the plaintiffs. He identified the handwriting and the signature of the petition writer who had written Exhibit P. 12. It was further stated that the petition writer as well as his son are dead and are not available. During the course of evidence of Durga Parshad, the rent-note was exhibited as P-12 without any objection on behalf of the defendants. The Trial Court decreed the suit holding the tenancy of Kidar Nath as statutory. The lower appellate Court came to the conclusion that Exhibit P-12 was not properly proved and, therefore, it had not been established that Kidar Nath was a statutory tenant. In the regular second appeal filed by the plaintiffs, basing his decision on Gopal Das v. Sri Thakurji, AIR 1943 PC 83, and on a decision of this Court in Harnam Singh v. Dalip Singh, (1963) 65 Pun LR 1133, the learned Single Judge came to the conclusion that the document being admissible and no objection having been taken by the defendants to the mode of its proof at the relevant time, they cannot now be heard to object that the document has not been properly proved.

(3.) THE observations of the Privy Council in Gopal Das's case AIR 1943 PC 83 (supra) which were relied upon by the learned Single Judge, were to the following effect:--