GAJADHAR TEWARI Vs. NAND LAL PANDE

JUDGEMENT

(1.) This appeal arises out of an action in which the plaintiff in substance claimed a declaration of his title to certain property, the property being conveyed to him in the year 1919 by defendant 24. The main question in the trial Court was whether defendant 24, who was a lady, was a minor at the time she conveyed the property to the plaintiff. Other questions were gone into before the learned trial Judge, but in appeal the plaintiff, having lost his action before the learned Munsif, confined himself to the one question, namely whether his vendor was a minor or whether she was a major and whether, therefore, she had a right in law to convey a valid title to the plaintiff. The learned District Judge has dealt with this question and has come to a conclusion as a fact that the lady at the time she executed the conveyance was a minor.

(2.) It is, therefore, clear that the plaintiff's action was bound to fail. Before me a number of points have been argued none of which is urged in the grounds of appeal. Therefore, the appellant has no right to advance arguments on these questions, but I propose to deal with them. The main point argued was that the learned Judge had relied upon certain inadmissible evidence in coming to his conclusion. There was oral evidence of what the Judge calls local witnesses and his comment upon that evidence was that it was of the usual contradictory character. Then there came a lady doctor and an Assistant Surgeon and then there were two other items of evidence which were relied upon. One is described in the judgment of the learned Judge as Ex. J. This is a mistake for Ex. I, and in any event was a deposition of another lady doctor in a previous proceeding between the parties. Quite clearly this was inadmissible in evidence.

(3.) Then the deposition (Ex. F) of the appellant was used to contradict his present case. Section 145, Evidence Act, makes it necessary to put this document to the witness. This procedure was not adopted for the simple reason that he did not go into the witness-box, but that does not entitle the Court to break the law. There was one way only of using this document; as it could not be used in that way in the circumstances it was as I have said inadmissible. Now the question that has been argued is first that as this inadmissible evidence has been relied upon the judgment is not in accordance with law. I am bound in this respect by Section 167, Evidence Act, which provides that the acceptance of inadmissible evidence is not a ground to set aside a judgment or grant a new trial if there is other evidence upon which the finding could be arrived at.