Girindra Chandra Ganguli and others vs Rajendra Nath Chatterjee

Maclean, C.J.—The ground upon which the Appellant bases his right to a successful appeal in this case is, that the Subordinate Judge in the Court below erroneously admitted as evidence a certain chitta, which, according to the view urged by the Appellant, he ought not to have admitted. I think that having regard to the cases of Dwarka Nath Misser v. Tarita Moyi Dabia ILR 14 Gal. 120 and of Ram Chunder Sao v. Bunseedhur Naik ILR 9 Cal., 741, the Appellant is right in the view he urges, viz., that the chitta qua chitta is not evidence as between the Plaintiff and himself. But assuming that point in his favour, the question arises whether he is not too late in now taking for the first time the objection, viz., on second appeal. It appears that, although before the Munsif he took certain objections to the proceedings taken by the Amin, he never took any objection to the admissibility of this document as between himself and the Plaintiff. He did take an objection to the document, but the objection was not as to its admissibility as between the Plaintiff and himself, but as to the genuineness of the document. When, therefore, you find a litigant taking an objection on one particular ground, the inference is strong that he did not intend to rely upon the other objection which he might have taken. It is urged, and there is some force no doubt in the view that the conclusion at which the learned Judge arrived in the Court below must be taken to have been influenced by this particular document. I agree with the view urged by the Appellant, that when that is treated as evidence, which is not evidence, it is impossible to say what effect the so-called evidence might or might not have had upon the Judge''s mind in the Court below. But taking all that in the Appellant''s favour, the question is whether we ought now to allow a point to be raised, it not having been raised in either of the Courts below. I take it that in this matter the Court has a discretion which it must exercise judicially. We are told that we are prevented from accepting the view urged by the Respondent by reason of the language used by their Lordships of the Privy Council in the case referred to by my learned colleague. But it: must be borne in mind that these words were used with reference to that which was not evidence, and which never could have been made evidence and I am inclined to think that the language would not have been used in relation to a document which per se was not inadmissible in evidence, but which was susceptible of being regularly proved. Now, in this case, if the objection had been taken at the proper time, it would have been open to the Plaintiff, either to prove the facts in some other way or to put in evidence which would have made this chitta good evidence, in other words, to have proved the chitta. But he took no such course, and the result is now that, on second appeal, we are asked to remand the case upon a ground which was never suggested in the Court below. If we have a discretion in this matter, and I am inclined to think we have, in the exercise of that discretion judicially, I should not be inclined to interfere in the Appellant''s favour. In this case the Subordinate Judge has not relied entirely, but only, to some extent, upon this document. There are other facts in the case, and taking it as a whole, he has found against the Defendant-Appellant.

I think therefore that under the circumstances this case is distinguishable from the case in the Privy Council, which has been referred to, and that it is open to us to say that it is too late now for the Appellant to take the objection.

It might perhaps have been urged, though in fact it is not, that the question is really one of costs, and that we ought to make the order of remand giving the Respondent his costs in all the Courts below. This case, however, has been going on since June 1894, and the value of the property is Rs. 10; and this being so, we do not think it is a case in which we ought to encourage any further litigation.

Upon these grounds we think the appeal fails, and must be dismissed with costs.

Banerjee, J.

This appeal arises out of a suit brought by the Plaintiff (Respondent) to recover possession of a strip of land upon establishment of his right thereto. The first Court dismissed the suit upon the ground of limitation.

On appeal, the lower Appellate Court has reversed that decision and given the Plaintiff a decree, holding that the claim is not barred by limitation, and that the land is shown to appertain to the Plaintiffs dwelling-house,

In second appeal it is contended that this decision of the lower Appellate Court is wrong in law, because it is based practically upon the report of the Amin who was deputed to hold a local investigation, and that report, in its turn, is based upon certain measurement chittas prepared by the Collector, which are not admissible in evidence. And in support of this contention several cases are cited, of which I may refer to two, viz., the cases of Dwarkanath Misser v. Tarita Moyi Dabia ILR 14 Cal. 120 and Ram Chunder Sao v. Bunseedhur Naik ILR 9 Cal. 741. The cases cited are distinguishable from the present. But granting that the chitta in question was not admissible without proof of its correctness, the question remains whether it is open to the Appellants at this stage to raise any objection, when they did not do so in the Court of first instance at the time the document was produced, and when in the Lower Appellate Court, whilst objecting to the Amin''s report on various grounds, they raised no objection to the admissibility or accuracy of this chitta.

It was argued that if the chitta was not admissible in evidence, the mere fact that it was not objected to in the Courts below could not make it evidence, and that it was open to the Appellant to raise the objection now; and in support of this argument, the case of Miller v. Babu Madho Das L.R. 23 IndAp, 106 was relied upon. In that case their Lordships no doubt say after referring to a certain so-called admission of one of the parties which was used as evidence. "The erroneous omission before the Commissioner and the District Court to object to its admission did not make it relevant, and their Lordships must in this appeal, as the High Court, should have done, entirely disregard it." But these observations are made with reference to an admission which was not relevant under sec. 21 of the Evidence Act, and if it was not admissible in evidence at all, the mere fact that it was not objected to could not make it evidence. The document with reference to which objection is raised by the Appellants in this appeal is not, however, of that nature. It is relevant under sec. 35 of the Evidence Act; and if/its accuracy is required to be proved it might have been proved by evidence, if objection had been taken in time on the ground that its accuracy was questioned. It was argued that in the Court of first instance a petition was filed oft behalf of the Defendants, in which they raised such an objection. But this is what the Defendants said in the petition : " the survey chitta was not prepared in the presence of your petitioner or that of his vendor or his predecessor, and its genuineness cannot, (therefore) be accepted by your petitioner." This does not mean any objection to the accuracy of the chitta. As for the objection to its genuineness, that would be met by the provisions of sec. 90 of the Evidence Act. And, then, this objection was taken in the first Court long after the document was put in evidence. But be that as it may, in the Court of Appeal below, when the correctness of the Amin''s report was discussed, I gather from the judgment of the learned Subordinate Judge that, whilst several objections were taken to that report, the Defendants never once objected to it on the ground that the chitta upon which the report was based was inadmissible in evidence, or was incorrect. In that state of things, I think it is too late for the Appellants to urge the objection that they have now raised.

This litigation has been going on for a long time; and reading the judgment of the lower Appellate Court, as a whole, I find that it is based also upon other considerations besides those derived from the measurement chitta, and there is no reason to think that there has been any error of law or miscarriage of justice in this case, such as would justify our prolonging the litigation further by remanding the case to the Court below. The result is that this appeal must be dismissed with costs.