SYED NAYAJAN ALI Vs. MIDNAPORE ZAMINDARY COMPANY LIMITED

JUDGEMENT

(1.) This is an appeal by the defendants. The suit by the plaintiffs was for khas possession of certain land and for damages and for an injunction. The plaintiffs were Zamindars of a certain Pargannah which included the village in which, I understand, the defendants held some land and the dispute was with regard to certain land which the plaintiffs claimed as their khas land. Whereas the defendants alleged that this land had been let out to them and that the plaintiffs had no right to eject them. Both the lower Courts have decreed the suit in the plaintiffs favour.

(2.) Four points are urged before me. First, it is said that the lower Appellate Court wrongly excluded certain evidence that was tendered on behalf of the defendants, namely, the Settlement map and khatain forming part of the Record of Rights. It is said that this evidence could not be adduced in the First Court as the Record of Rights had not been finally published but that between the hearing before the Munsif and the hearing in the Appellate Court the Record of Rights had been published and that, accordingly, as the entries in the Record of Rights were alleged to be in the defendants favour, the lower Appellate Court should have admitted this in evidence to be given in favour of the defendants contention; secondly, it is said that the lower Appellate Court has not given effect to the statement; contained in Exhibit D, a petition which is referred to in the judgment; thirdly, it is said that the lower Appellate Court has not properly considered the effect of certain judgments, Exhibits K and L; and lastly, it is urged that the heirs of one Musammat Amina Khatun, defendant No. 5, who died after the institution of the suit, should have been brought on the record.

(3.) So far as the last point is concerned, no issue was raised with regard to this before the Munsif. Nor was the point argued in the lower Appellate Court. Under the circumstances, it is not open to the defendants to raise it in appeal to this Court.