DAJI ABAJI SAWANT Vs. SAKHARAM KRISNA KULKARNI

JUDGEMENT

(1.) The main point argued in this appeal relates to the question of the admissibility of certain evidence which the lower appellate Court considered for the first time in appeal. That evidence consists of certain papers relating to a revenue inquiry. During the course of the argument we were led to think that these papers were looked at and considered by the Court without the knowledge and consent of the present appellants. It turns out, however, that these papers were sent for expressly on the application of the plaintiffs, and the pleaders on both sides were heard after these papers were received and before the judgment was pronounced. No objection has been taken to this procedure in the memo of appeal to this Court. Under these circumstances it is quite clear that so far as the present appellants are concerned, they have no just grievance at all as regards the procedure adopted by the lower appellate Court with reference to these papers.

(2.) At the same time we think that it was necessary for the lower appellate Court to have complied with the provisions of Rule 27 of Order XLI before taking these papers into consideration; and if it thought, either with the consent of the parties or on the application of any one of the parties, that there was sufficient ground to admit these papers, the reasons for admitting them in evidence should have been stated, and they should have been formally admitted in evidence. The lower appellate Court no doubt acted improperly in considering the papers without formally admitting them in evidence. But having regard to the facts which we have already mentioned, it is quite clear that the appellants cannot be allowed to object to the procedure which they invited the Court to adopt.

(3.) On a consideration of the whole evidence in the case, including these papers, the lower appellate Court has come to definite conclusions on questions of fact, viz., that the plaintiffs have not proved their title, and that the defendant has been in possession of the lands for over twelve years prior to the date of the suit. These findings must be accepted. On these findings it is quite clear that the decree passed by the lower appellate Court is proper.