BINDESHWARI SINGH Vs. RAMRAJ SINGH

JUDGEMENT

(1.) This is a defendants appeal from a decree of the learned Civil Judge of Azamgarh which affirmed a decree of the learned Munsif of Haveli in that district. It is common ground that one Achraj Singh died some time in the year 1909. Mt. Sonbarsa Kunwar the widow of the deceased, succeeded her husband and remained in possession of the property till her death which occurred on 31 May 1922. Upon the death of the widow, several persons claiming to be reversioners to the last male owner applied to the Revenue Court for the mutation of their names. Ultimately, the defendant Bindeshwari Singh was successful on the ground of possession and his name was recorded in the village papers. The order of the mutation Court was passed on 2 March, 1923. The present suit was instituted on 8 May 1924 on the allegation that the plaintiff's father Sadashiv Singh who died on 1 May 1923 was the nearest reversioner to Acharaj Singh, the last male owner. The suit was contested by the defendant on the ground that he (Bindeshwari) had preferential claim to the plaintiffs. Defendants 2 and 3 are subsequent transferees and their title depends on the proof of Bindeshwari Singh's title to the property in suit. The Courts below upon a consideration of the evidence have recorded a definite finding in favour of the plaintiff and have held that Sadashiv Singh was entitled to succeed as a sapinda and that he was within seven degrees from the common ancestor Bandi Shah. The appeal appears to be concluded by this finding on a question of fact. The decision of the Court below however has been challenged by learned Counsel for the appellants on legal grounds. It has been strenuously contended that the documentary evidence produced by the plaintiff and relied upon by the Courts below was not admissible in evidence inasmuch as it does not fulfil the conditions laid down in Section 32(5), Evidence Act.

(2.) The documents referred to above are Exs. 15 and 9. Ex. 15 is a copy of the plaint in Suit No. 25 of 1887 which gives a part of the pedigree produced in this case It begins from Harkunwar Shah downwards. The suit was brought for redemption by one Baijnath Singh on the allegation that he was entitled to the relief as an heir to the mortgagor named Sangram Singh. Tito pedigree appended to the plaint tallies with the pedigree given by the present plaintiff of hiss own branch. The next document relied upon is also a copy of the plaint in a suit instituted in the year 1922 by several persons some of whom are, according to the plaintiff's pedigree, members of the family of Acharaj Singh. In that suit, the defendant Bindeshwari Singh and the plaintiff's father, Sadashiv Singh were arrayed as defendants along with several other persons with whom we are not concerned. In that plaint also Sadashiv Singh is shown within seven degrees from Bandi Shah, the common ancestor of the plaintiff, and Achraj Singh. The defendant Bindeshwari Singh is also shown in the pedigree and his position according to the pedigree is 10 from the common ancestor. It appears from the judgments of the Courts below and the grounds of appeal filed in the Court of the learned Civil Judge that no objection with regard to the admissibility of these documents was ever raised by the defendants. It is contended by learned Counsel for the respondents that it is not open to the appellants to raise this objection at such a late stage of litigation. Reference has been made to Shahzadi Begam v. Secy. Of State (1907) 34 Cal. 1059. In that case in order to prove the genealogical table of the family a copy of a document was produced which was alleged to have been filed in an earlier litigation in 1884 in a suit to establish the same fact. This document was admitted in the first Court without objection and the Court held the document to be genuine and admissible in evidence, but on appeal the High Court hold it to be a forgery. Their Lordships of the Judicial Committee in appeal held that it was too late to object to the admissibility in evidence of a document which had been admitted without objection in the first Court.

(3.) The next case cited by learned Counsel (or the respondents on this point is Jahangir V/s. Sheoraj Singh (1915) 2 A.I.R. All. 334. In that case a certain document purporting to be a family pedigree was produced in evidence in a mutation case by one Jairaj. The record of the Revenue Court containing the aforesaid document was produced in the Civil Court where the plaintiff's relationship to one Hulas was in question. It appears that no objection to the admissibility of this document was raised at the trial although in the grounds of appeal to the District Judge the admissibility of this document was challenged. At p. 819 the learned Chief Justice mad& the following observation: Objection to the admissibility of evidence at the late stage in litigation is not to be encouraged. The proper time to object to the admissibility of evidence is at the trial when the evidence is tendered and it is then that the Court should rule as the admissibility or inadmissibility of the evidence. When the objection is taken at the proper time the party wishing to produce the evidence may be able to take steps to make the evidence admissible. If the objection is not taken until a late stage of the litigation it may mean that an Appellate Court is obliged to decide against the party on a technical ground or the time of the Court is taken up in retrying matters which ought to have been disposed of at the original hearing, the result being loss of public time and additional and unnecessary expense to the litigant.