HER HIGHNESS MATUSRI JIJOYAMBA BAI SAHIBA BY HER DULY AUTHORZED AGENT BALUSWAMI BHATTUGOSWAMI Vs. VENGALAKSHMI AMMAL

JUDGEMENT

(1.) This is an appeal from a decree of Mr. Justice Boddam dismissing the plaintiff's suit. The plaintiff's suit was in ejectment and the plaintiff relied upon an alleged lease which was set up in paragraph 4 of the plaint. The lease is alleged to have been executed in November 1845 by the then Maharajah of Tanjore and under the alleged lease one Aiya Dikshadar, according to the allegations in paragraph 4 of the plaint, became a tenant-at-will of the Maharajah. Certain documents were tendered in evidence in the Court below and were rejected by the learned Judge and the ground of this appeal is that these documents were wrongly rejected.

(2.) With regard to the alleged lease a document was tendered in evidence which was produced by the 1 witness for the plaintiff who says that he found it among the records in an almirah in a room of the plaintiff. And he says it purports to be a copy and to bear the signature of the Rajah who is referred to in paragraph 4 of the plaint. Now I will assume that this document does purport to be a copy of the document which is referred to in paragraph 4 of the plaint. There is no evidence that the original has been lost or destroyed. The Advocate- General relied upon the provisions of Section 90 of the Evidence Act and contended that this document was admissible in evidence and he cited two cases. Khetter Chunder Mookerjee v. Khetter Paul Sreeterulus 5 C. 886 : 4 C.L.R. 199 and Ishri Prasad Singh V/s. Lalli Jas Kunwar 22 A. 294. But he admitted that he could not rely on the provisions of Section 90 unless there was evidence to show that the alleged original had once existed and had been lost. For the purpose of showing that, he relied upon certain documents which were tendered in evidence before the learned Judge and which were rejected by him.

(3.) I need not only refer to two of these documents, as they are the only material ones for the purpose of this question. The first is a letter, dated the 26 November 1845, from the Chief Magistrate, Madras, to the officer described as the Resident at Tanjore. This letter refers to certain correspondence which had passed between the Chief Magistrate and the Sirkele of the then Maharajah. It then goes on to refer to the representative of the Maharajah having obtained an agreement from a certain party who was then in possession of a house which the Maharajah said was his property acknowledging that the house was the property of the Maharajah and rendering himself liable to proceedings in the event of the party in possession attempting to retain possession against the desire of the Maharajah. It is quite clear that there is nothing in this document even supposing for a moment that it is admissible in evidence to identify the party therein referred to as being in possession of the house with the Aiya Dikshadar referred to in paragraph 4 of the plaint. The Advocate-General, however, seeks to establish this contention by means of another document which was tendered in evidence before the learned Judge and rejected--and, according to the Advocate-General wrongly rejected. This is a letter dated the 17 January 1846, some months after the letter written by the Chief Magistrate and it is in reply apparently to the letter written by the Chief Magistrate in November 1845. In this letter there is a statement that the then Maharajah gave a house referred to in correspondence into the custody of one person calling himself Aiya Dikshit and "that Aiya Dikshit brought and delivered to us an agreement obtained from him in writing." And that is all.