RAMANUJ RAI Vs. DAKSHINESHWAR RAI

JUDGEMENT

(1.) In this case the defendants are appellants. Both the Courts below decreed the plaintiffs suit which was one for establishment of their title to and recovery of possession of 15 cottahs of the land in suit. The property originally belonged to one Rakhal. The plaintiffs case is that on the 25 February 1901 the plaintiffs father purchased it along with other plots from Rakhal. The kobala recites that the property was sold in order to pay off a mortgage executed by Rakhal in favour of the plaintiffs father in 1889. It further appears that in 1888 Rakhal had mortgaged this plot to one Khelaram by way of usufructuary mortgage and put him in possession of it under which the mortgagee was to remain in possession up to 1314. The plaintiffs father, after having purchased the land, paid off Khelaram and entered into possession of it in 1901. The plaintiffs allege that they were in possession all along from that date till December 1917 when they were dispossessed by the defendants. There were proceedings started under Section 145, Criminal P.C., which terminated in favour of the defendants and hence this suit.

(2.) The defendants case is that the property in suit belonged to Rakhal who in 1284 mortgaged it to one, e.g., Rooke who obtained a decree on the mortgage and purchased the property in 1891. In 1892 Rooke sold it to Dinesh from whom Ramesh, who held a mokurari interest in the property bought by Rooke, purchased it in 1900. Ramesh mortgaged the property to one Bhowni Ranjan Sen who obtained a decree on the mortgage and in execution of the decree the property was purchased by one Harmukh Marwari from whom the defendants purchased it on the 28 Kartick 1313 and since then they are in possession of it. The defendants did not produce their documents of title but stated that they were filed in a certain case in the High Court. No attempt was made to call for the documents from the High Court but the paper-book prepared in the High Court in which translations of those documents were inserted was put in on behalf of the defendants. The plaintiffs objected but the trial Court marked the paper-book as an exhibit in the case with the remark after objection." At the hearing the trial Court did not take into consideration the documents in the paper-book as the original documents were not placed before it. On appeal the Subordinate Judge held that the paper-book was not admissible in evidence, but he looked into the paper-book and on a consideration of certain facts he found against the defendants.

(3.) The first point that is argued before us is that when the Court below was of opinion that the paper-book should not have been admitted in evidence, the defendants should have been given an opportunity of producing the original documents. They allege that the trial Court having admitted the paper-book they did not consider it necessary to produce the original documents and the appellate Court being of opinion that the original documents should have been produced and that the paper-book was no evidence, opportunity should have been given to them to produce the original documents. This question raises a question of some intricacy inasmuch as the paper-book is, in my opinion, no evidence at all, either primary or secondary. It may be, however, conceded that in the interest of justice, one Court having committed a mistake in admitting the document, another Court when it was of opinion that such a document should not have been admitted should have given an opportunity to the appellants to produce the original documents. It is not necessary to enter into this matter further as in my opinion the appeal fails on the ground of limitation.