MAHESHREY TEWARI Vs. JARBANDHAN MISIR

JUDGEMENT

(1.) MR. Harnandan Prasad on behalf of the appellant has given us the fact of this case in detail and has proposed to raise four points before us: one based on Section 115, Evidence Act; another on Section 43, T.P. Act; a third in reference to the alleged assumption of both the lower Courts that a 20 pies share must be taken to be owned in equal halves by two ladies; and finally a question of the burden of proof. It has to be admitted however that no point was made in the grounds of appeal taken to the lower appellate Court in regard to either of first three matters. In regard to the fourth, it is possible to more than suggest that the point was taken; but admittedly it cannot carry the appellant any further if he cannot succeed on either of the first three points. It having to be admitted that neither of the first three points was taken before the lower appellate Court, and we may here mention that we are informed that both Courts have agreed in their findings on all points, the burden lay upon the appellant to show us adequate reason why we should allow the points to be taken here. No such reason can be offered.

(2.) THE only explanation which counsel can suggest is that the points were not noticed in the lower Courts. That is not an adequate reason for allowing them to be argued here. This Court manifestly is not here to do the work of the trial or the lower appellate Courts. Further it would be unfair to the respondent, generally speaking, to allow matters to be raised here of which he has had no warning, and which had not been raised, in the Courts below; and finally it is not fair to the Court below to allow points to be taken and have its judgment upset on those points when the points were not raised before it. THEse are the manifest reasons for refusing to allow points to be urged in this Court merely because they are points of law, unless good ground is shown for failure to take them before. This being the admitted situation, the appeal must fail and it is dismissed with costs. THE plaintiff and the defendant second party, who are both of them represented here, will have their separate costs.