SUDHAKAR MISRA Vs. NILKANTHA DAS

JUDGEMENT

(1.) This appeal has been argued elaborately; but the points in dispute fall into a small compass and I propose to deal with them as briefly as possible. It was the plaintiffs action in which they claimed a declaration that the settlement record was erroneous and fraudulent. The entry in the record appears to have been that one Anant Misra and seven others were entitled to the mauza to the extent of two annas each. The plaintiffs claimed that Anant was entitled to the 16-annas interest and that the defendants were not co-sharers. In order to establish this the plaintiffs alleged that they were his legal heirs and the nearest agnates, and with regard to this claim issue 10 was settled by the Judge of the trial Court. So far as this question is concerned, both the trial and the appellate Courts have come to a conclusion in favour of the plaintiffs, and, as it is a decision on a question of fact, no point arises in this Court. The trial Court decided that Anant, and therefore the plaintiffs, were entitled to the 16 annas interest in the property, but that there was a charge in favour of the defendants to the extent of Rs. 5 each. The appellate Court modified this decision coming to the conclusion that the plaintiffs were entitled to two annas and that the seven defendants were also entitled to two annas each. This second appeal has been preferred against the decision of the learned District Judge.

(2.) Two questions arise: one as regards the admissibility of certain evidence and also the alleged error of the record, and the other is the question of limitation. Amongst the documents which the defendants relied upon was Ex. F-l. This purports to be a copy of the confirmatory sanad of the year 1841, and in passing, I should like to say that the entry in the Record of Rights was founded on the original sanad. It is a matter of some comment and perhaps of some importance to state that this sanad which was in the possession of the plaintiffs, was not produced by them. The contention of Sir Sultan Ahmed is that Ex. F-l was not admissible in evidence, and that it being admitted in evidence, the Judge of the appellate Court has been wrongly influenced by the document in discounting the evidence adduced by the plaintiffs. As already stated, Ex. F-l was a copy of a sanad purporting to be of the year 1841. Of the original sanad of which it was a copy there is no evidence. It appears from the record of the case that this document, amongst others, was objected to by the plaintiffs.

(3.) The nature of the objection is not stated, nor do we find any reference to the particular matter raised and argued by Sir Sultan Ahmed on behalf of the plaintiffs in this regard. It is contended that it is not even secondary evidence; that is to say, (I assume) that it is not a copy of the original sanad. All I need say with regard to that matter is that there is no foundation for that argument. Ex. F-l purports to be a copy of the original sanad, and it would appear to have been admitted on that basis, although the learned Judge in the Court below is in some error in stating it to be a certified copy. The point taken is this that no evidence was adduced by the defendants, nor were the facts proved, which would justify the Court in admitting it as secondary evidence of the original sanad. The objection, as I have already stated, appears to have been merely formal and this point was not discussed by either of the Courts; the trial Court, I might say, in coming to the conclusion, incidentally said that the document was not a genuine one. Mr. Bose contends however that the point cannot be taken in appeal before this Court as there was no objection, on the ground now stated, before the trial Court. If the record of the case gives no indication of what took place, I must say that I am in agreement with the argument of Mr. Bose that the objection was not taken in the form in which it is now presented. The objection in the first instance may have been merely formal, and if the plaintiffs intended to rely upon the objection, they certainly should have developed it, which, as I have already stated, was not done.