CHHATRA KUMARI DEBI Vs. MTPARBATI KUER

JUDGEMENT

(1.) This is an appeal by defendant 3 from a decision of the Additional District Judge of Muzaffarpur modifying a decision of the Subordinate Judge of Motihari. In 1907 the respondents purchased at a sale in execution of a mortgage decree the right, title and interest of the mortgagor, one Chautiria Padamraj, who since died in 1922. As purchasers of the interest of the mortgagor they claimed a sum of money which has been deposited in the treasury as the purchase price of land in village Bharnihar under the Land Acquisition Act. The suit was contested by the Ramnagar Raj the recorded proprietor of the mauza. The actual document by which the land was granted by the Ramnagar Raj to Chautiria Padamraj has not been exhibited. In the record of rights it was stated that the grant would lapse on the death of the grantee, "Nirbans." It is the construction of this word "Nirbans" which is the principal question which arises in the litigation. The first Court held that the word "Nirbans" meant "without male issue," and it not being alleged that any male issue survived. Padamraj the first Court held against the plaintiff. In appeal the appellate Court reversed this decision holding that Nirbans meant "without heirs." As it is not disputed that Padamraj left a widow surviving him as his heir, the appellate Court reversed the decision of the first Court and decreed the suit in favour of the plaintiff.

(2.) In second appeal various questions have been raised by the learned Advocate for the appellant. It is first contended that the appellate Court should not have admitted additional evidence at the appellate stage. From the order sheet it appears that on 22 December, 1932, the plaintiffs applied to the appellate Court for permission to file certain documents. The documents they tendered were copies of certified copies of judgments and decrees in previous litigation between the grantor and grantee in which the term Chautaria khangi" had been adjudicated upon. The Court directed that the originals of these documents should be sent for. By this it apparently meant the certified copies of the original documents. The certified copies were in the Court of the Subordinate Judge at Motihari. On 29th March 1933 the Court recorded an order that it was necessary for the proper decision of the case that the documents which the plaintiffs sought to be admitted in evidence should be so admitted. The learned Advocate's contention that the Court had no power to do this is plainly negatived by the Court's order that it was necessary for the purpose of deciding the case that the documents should be taken into consideration. It is true that it was the plaintiff who moved the Court to admit these documents but that does not affect the matter. If the appellate Court found it necessary to admit the documents for the purpose of arriving at a decision it had ample power under Order 41, Rule 27 to do so.

(3.) The next objection of the learned Advocate for the appellant is that some of the documents admitted are copies of copies. The answer to that argument is that the Court sent for the certified copy from the Court at Motihari and it is those certified copies which were in evidence in the case, and not the copies which were originally tendered by the plaintiff and have been sent up with the record of this second appeal. Furthermore, the appellant did not raise any objection as to the irrelevancy of these documents or deny that they contained a true and accurate statement of the contents of the original documents. In that view of the matter, in my opinion, it is too late for them now to object that there was no evidence of the formality of comparing the copies with the originals. The learned Advocate also made a grievance of the fact that the appellate Court bad refused to take into evidence documents which the learned Advocate states that the defendant appellant desired to put in as rebutting evidence. The appellate Court observed that the defendant had had ample opportunity of putting in these documents at the trial. The learned Advocate for the appellant has been unable to tell us what the documents were or what their relevancy was. We are, therefore, unable to agree with the learned Advocate that the documents were wrongly rejected in the appellate stage. It was next contended that as the plaintiff in his plaint had alleged himself to be the proprietor of the mauza in dispute it was not open to him to give evidence that his grant was a tenure. The nature of the plaintiff's grant from the Ramnagar Raj was raised by defendant 3 herself in her written statement. It is true that the written statement does not allege that the grant was a chautaria khangi in so many words, but it does state what the requisites of a chautaria khangi grant are, and it describes the grantee as a chautaria. An issue covering this point was raised in the trial Court, and there can be no doubt that the parties litigated with the full knowledge of what the point was that was in issue.