HIGH COURT OF HIMACHAL PRADESH
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Chowdhry, J.C. -
(1.) This is an application in revision by Sinhu, defendant against whom the Senior Subordinate Judge of Mandi passed a permanent injunction restraining him from working his water-mill because it interfered with the plaintiff's right of running their own mill, known as the Rafi Gharat, and that decree was affirmed on appeal by the District Judge. The decree in question was passed on foot of a Santha, or grant of lessee rights, made in favour of the plaintiffs by the then ruler of Mandi on 9 Har Sambat 72 Kham. The Santha provided that no other water-mill could be run by anyone else within a radius of four kos from the Sihnu vs. Lachman Dass and Ors. (27.03.1952 - HPHC) Page 1 of 3 plaintiffs' mill. The water-mill in suit was set up by the defendant-petitioner at a distance of about three quarters of a mile from the plaintiff's mill.
(2.) The first point urged by the learned counsel for the defendant-petitioner was that the Santha in question had not been proved as required by Section 67, Evidence Act, and that the presumption laid down in S. 90 of that Act could not arise in favour of the document since it does not purport to show who prepared or signed it and no evidence on that point was produced by the plaintiffs. In support of this contention he relied upon 'CHARITER RAI v. KAILASH BEHARI', AIR 1918 Pat 537. It is however to be noted that no objection as to the proof or admissibility of the Santha, which was filed in original in the trial Court, was taken on behalf of the defendant-petitioner either in that Court or in the Court of the District Judge. Accepting the grant of the Santha certain other pleas were taken by the defendant. That being so, the aforesaid objection as regards the proof of the Santha cannot be allowed to be taken for the first time in revision in this Court. The very ruling relied upon by the learned counsel for the defendant-petitioner lays down this principle acting upon the observations of the Privy Council in 'SHAHZADI BEGAM v. THE SECRETARY OF STATE', 34 Cal 1059 (PC), wherein it was laid down as follows: "Their Lordships are however of opinion that it is now too late for the respondent to take an objection to the admissibility of a document which was received without objection at the trial."
(3.) The learned counsel also cited 'HABIB BUX v. SAMUEL FITZ & CO. LTD.', AIR 1926 All 161, where in exercise of its revisional jurisdiction the High Court remanded the case to the lower appellate Court because it had not applied its mind to the question of the admissibility and proof of a document and the petitioner had no opportunity of meeting it. This ruling has however no application in the present case since, firstly, the Santha was specifically alleged in the plaint and the petitioner merely professed ignorance with respect to it and raised no objection with regard to its admisssibility and proof, and, secondly, the trial Court did apply its mind by admitting it in evidence without proof on the ground of its being more than thirty years old.;
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