AJODHYA PRASAD DUBE Vs. MAHABIR

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit brought by him for the recovery of arrears of rent for the years 1333 and 1334 Fasli. The suit was filed upon the allegation that the rent was paid by the defendants in kind. The Court of first instance decreed the plaintiff's suit for about Rs. 121. On appeal the learned Judge dismissed the plaintiff's suit holding that there was no proper evidence to enable the Court to justly estimate the claim of the plaintiff.

(2.) The facts are that two bahi khata jinsi (grain rent ledger), one for the year 1333 and the other for the year 1334, were filed by the plaintiff. The first of them was marked Ex. A and was prepared by Badri Lal patwari and the second was marked Ex. B and was prepared by Dwarka Prasad Patwari. These documents were presumably prepared under the provisions of Section 32, Clause (e), Land Revenue Act. They were however filed by another patwari and the plaintiff neither examined Badri Lal nor Dwarka Prasad, although perhaps both of them are alive. The documents were tendered in evidence in the Court of first instance. They were exhibited and the patwari who filed them was examined with reference to these two documents. No objection was taken by the defendants in the trial Court as to the admissibility of these documents on the ground that they had not been properly proved. When the defendants appeal came up for hearing the lower appellate Court repelled several objections taken by the defendants and although there does not seem to be any specific plea on the question of the admissibility of the bahi khata jinsi. filed by the plaintiff, yet the lower appellate Court of its own accord came to the conclusion that as the patwari who had prepared these ledgers had not been produced in Court to prove them legally the ledgers were of no value at all and disbelieving the other witnesses produced by the plaintiff came to the conclusion that the plaintiff's claim was not proved by proper evidence.

(3.) In second appeal it is contended before me by the plaintiff that the lower appellate Court should not have rejected the two bahi khatas when no objection was taken to them in the trial Court by the defendants. I agree with this contention. The two documents were not inherently inadmissible. They were relevant, but in order to form part of the record they had to be formally proved. The question of proof is a question of procedure and if it can be shown that the documents went in without any objection it cannot be urged in the appellant Court that, they were not properly proved in the Court below. I am therefore of the opinion that the lower appellate Court should not have rejected them. At the same time his appraisement of the other witnesses produced by the plaintiff is final and cannot be questioned in second appeal before me. Under these circumstances I think the proper course for me is to send back the case to the lower appellate Court with directions to that Court to allow the plaintiff to produce the two patwaris Badri Lal and Dwarka Prasad. It must now be taken that the defendants are objecting to the two documents and they require to be formally proved, but the plaintiff must be given an opportunity to prove the two documents.