- (1.) THIS is a second appeal by the defendant and arises out of a suit filed under O. 21 R. 63 C. P. C.
(2.) THE facts giving rise to it are that respondents No. 1 and 2, i. e. Tarachand and his son Mancharmal brought a suit against respondent No. 3 Baluda for recovery of Rs. 1700/ -. That suit was filed in the court of Sub Judge, Balotra on 28. 11. 48. In that suit, the plaintiffs prayed for attachment of the defendant's property before judgment under O. 38 R. 5 C. P. C. That application was allowed and on 1. 12. 49, 227 hides were attached from the possession of respondent No. 3. On 6-1. 50 Bhika (present appellant) filed an objection petition and challenged the validity of attachment on the ground that all the hides attached by the court belonged to him and that they were in. possession of respondent No. 3 only as his trustee as they were given to him for the purpose of tanning. Respondent No. 3 supported Bhika, while respondents Nos. 1 and 2 asserted that the property belonged to respondent No. 3. THE objection-petition was however allowed by the trial court on 6 4-53 and the property was released from attachment. THE plaintiffs filed a revision application, but they were not successful and hence they brought the present regular suit under O. 21 R. 63 C. P. C. It was stated by respondents Nos. 1 and 2 in the plaint that they had obtained a decree for Rs. 1800/- in their previous suit against Baluda, that the hides which they had got attached before judgment really belonged to Baluda, that Baluda had colluded with Bhika and falsely supported him in his objection in order to save his property and that the said property should be declared as belonging to Baluda and liable to attachment and sale in execution of the plaintiffs' decree. It is noteworthy that in his written statement filed by respondent Baluda this time, he supported the plaintiffs instead of Bhika and admitted that the objection-petition filed by Bhika was false and collusive and was presented only to save his property from attachment and sale. It was asserted by him that the hides which were attached from his possession belong to himself, that he had purchased that property from one Abdul Ghafoor and that he was producing with his written statement Abdul Ghafoor's letter together with a letter from the Bank of Jaipur, which he had received about the railway receipt which was sent to him through the Bank. He produced with his written, statement 3 documents which were marked by the trial court as Ex. D. 2-A, D. 2-B and D. 2 C. Defendant Bhika, on the other hand, contested the plaintiff's case and it was contended by him that the plaintiffs had obtained a collusive consent-decree against Baluda, that the disputed hides belonged to him and so the suit should be dismissed. After recording evidence of both the parties, the trial court came to the conclusion that the disputed hides belonged to respondent No. 3 Baluda and therefore the suit was decreed in plaintiffs' favour. Defendant Bhika went in appeal which was heard by the Senior Civil Judge, Jalore. The appellate court also agreed with the finding of the trial court and dismissed the appeal on 20. 3. 56. It is against this judgment and decree that the present appeal has been filed. Learned counsel for the appellant has strenuously urged that his client's objection petition having been decided in his favour, a very heavy burden lay on the plaintiff-respondents to prove that the disputed hides belonged to respondent No. 3. It was pointed out that the same court, which had allowed the objection-petition, strangely enough came to a contrary conclusion. It was further contended that the first appellate court while supporting the trial court's judgment had taken into consideration Ex. D. 2-B which purports to be an intimation sent to Baluda by the Batik of Jaipur about the railway receipt, that this document was never proved and therefore it should not have been used in evidence. According to learned counsel, the evidence produced by the plaintiffs and Baluda was discrepant and unreliable, that on the other hand the documentary evidence Ex. D-2 produced by his client together with oral evidence clearly shows that the disputed property belonged to his client and therefore it has been prayed that the decree of the courts below should be set aside and the suit should be dismissed with costs. Learned counsel for the respondents (Nos. 1 and 2) has, on the other hand, urged that the question whether the disputed hides belonged to Baluda or the appellant is purely one of fact and when both the courts below have arrived at a concurrent conclusion, a second appeal on that point does not lie. It is further urged that the argument of the appellant's learned counsel to the effect that the first appellate court should not have relied upon Ex. D. 2-B cannot be raised now in second appeal. I agree with learned counsel for respondents Nos. 1 and 2 to the extent that the question whether the disputed hides were got by Baluda from Abdul Ghafoor, i. e. whether they were Kanpuri hides and belonged to Baluda or whether they were local hides and belonged to appellant Bhika is one of fact and both the courts having arrived at a concurrent finding in favour of the plaintiffs; a second appeal could not lie. But as pointed out above, learned counsel for appellant has urged that the first appellate court has wrongly relied upon inadmissible evidence Ex. D. 2-B and therefore it becomes a question of law. Learned counsel for respondents Nos. 1 and 2 has urged that appellant did not raise any objection to the admission of Ex. D. 2-B in evidence in trial court and therefore it should be deemed that the appellant waived his objection and it cannot be raised now in appeal. It is contended by him that if the objection about proving Ex. D. 2-B by calling an employee of the Bank were raised in the trial court, his clients would certainly have proved that document. In support of his argument learned counsel has referred to The Rohilkund & Kumaon Rly, Co. Head Office, Bareilly vs. Zihurus Syed Alvi (l) in which it was held that "if no objection be taken in the first court to the admissibility of evidence on the ground of improper proof, such objection cannot be raised in appeal". He has also referred to Pandappa Mahalingappa vs. Shivlingappa Murteppa (2 ). It that case it was observed that "where evidence is admitted in the trial court without any objection to its reception and the evidence is admissible and relevant, then no objection will be allowed to be taken to its reception at any stage of. the litigation on the ground of improper proof. But if the evidence is irrelevant or inadmissible, as for instance, owing to want of registration, omission to take objection to its reception does not make it admissible, and the objection may be raised even in appeal for the first time. " Reliance was placed on Kalikanand vs. Shiv Nandan{3) in which it was observed that "the question of relevancy is a question of law and can be raised at any stage, question of proof is a question of procedure, and is capable of being waived. " Learned counsel for the appellant has urged that the trial court had marked Ex. D. 2-B. as an exhibit as the time when it was tendered by Baluda with his written statement as required by r. 46 (b) of the General Rules (Civil), 1952, that it was not admitted in evidence without objection by his client and therefore the cases cited above do not apply to the present case. I have given due consideration to this argument and I find myself unable to agree with appellant's learned counsel, because the trial court has not written on this document a note, which it ought to have put, as required by r. 46 (c) of the General Rules (Civil) 1952, if it thought that no oral evidence was led in proof of the document. On the contrary, I find that this document bears the signature and the stamp of the trial court twice. The first signature and the first stamp is dated 2. 4. 54 which is also the date of the presentation of Baluda's written statement. That signature appears on the left-hand corner of the document and there is no note on that signature that it was admitted in evidence on that day. Thereafter, there is another note over the signature and seal of the Munsif dated 19. 4. 55 where it is written that the document was admitted in evidence. Ex. D. 2. B seems to have been marked on this date, i. e. 19. 4. 55. It further appears from the record that 19. 4. 55 was also the date on which Baluda was examined in the court. I am therefore inclined to think that this document was exhibited and marked in evidence at the time when Baluda was examined and when he referred to it in his statement. It does not appear from the order-sheet of 19. 4. 55 or from the statement of D. W. Baluda if any objection about the reception of Ex. D. 2. B was made on behalf of the appellant. It is not contended by appellant's learned counsel that Ex. D. 2. B was irrelevant or inadmissible in evidence on account of any inherent legal defects. His only contention is that it required to be proved before in could be used in evidence. But, this objection ought to have been taken in the trial court when Ex. D. 2. B was admitted in evidence and when Baluda referred to it in his statement. I respectfully agree with the observation made in Pandappa Mahalingappa vs. Shivalingappa Murteppa (2) that if a certain document is admitted in evidence without any objection by the other party about its reception and if that evidence is otherwise admissible and relevant then it should be deemed that the other party had waived its objection about its being proved in a formal manner and such objection should not be allowed to be raised in appeal. It may be pointed out that Ex. D. 2. B is a printed document purporting to have been issued by the Bank of Jaipur Ltd. If the appellant had raised any objection to the effect that it should not be admitted without being proved, it could not have been difficult for respondent Baluda to call some employee of the Bank and get it proved formally. It is not suggested that this is a forged document. Under these circumstances, I do not think that the first appellate court has committed any error in taking this document into consideration. This document is dated 23. 6. 49 and it goes to support the statement of respondent Baluda to the effect that he had got a railway receipt through the Bank from Abdul Ghafoor of Kanpur and if the hides seized from his possession were Kanpuri hides, then they were received with the consignment referred in this document. ( Here follows discussion of evidence.) For all the reasons stated above, I see no good ground to allow the appeal. It is, therefore, dismissed with costs. . ;