Abdul Gani and Another vs Jarun Ali Mandal

J.N. Sarma, J.—This appeal has been filed by the Defendants. The only substantial question of law formulated in this appeal is with regard to the intepretation of Exhts. 2, 3, 4, 5, 6, 7, 9, 11 and 12. All are original sale deeds.

The Plaintiff brought the suit for declaration of title and recovery of possession on the basis of sale deeds mentioned above. The suit was resisted by the Defendants and the trial court dismissed the suit holding that the execution of the sale deeds were not proved as the vendors have not been examined. There was an appeal being title Appeal No. 21/88 before the District Judge at Goalparaand the Learned District Judge at Goalpara allowed the appeal and decreed the suit and the learned District Judge rightly found that these sale deeds were exhibited in evidence without any objection and as such at the appellate stage no objection can be raised regarding these sale deeds. Accordingly, the Learned Judge found that these sale deeds to be genuine and it was further found that they were duly executed and registered. Having arrived at this finding, the appeal was allowed.

I have heard Sri M. Nath, Learned Advocate for the Appellants and Sri K. Basar, Learned Advocate for the Respondent.

The law on this point regarding proof of documents and their admission has been settled by a catena of decisions but I only rely on AIR 1943 83 (Privy Council) wherein the Privy Council pointed out that if a document is taken as evidence even without sufficient foundation being laid for its admission but no objection is taken in the first court against the document at a later stage no such objection can be taken. Had such objection been taken at the proper time the trial court would probably have seen mat the deficiency was supplied. On the same line there is a decision of the Supreme Court in Javer Chand and Others Vs. Pukhraj Surana, wherein the Supreme Court pointed out as follows:

Once a document has been marked as an exhibit in the case and has been used by the parties in examination and cross-examination of their witnesses...it is not open either to the trial court itself or to a court of Appeal or revision to go behind that order.

In P.C. Purushothama Reddiar Vs. S. Perumal, their Lordships observed as follows:

It is not open to a party to object to the admissibility of documents which are marked as exhibits without any further objection from such party.

That being the position, these documents having been marked as exhibits without any objection, the Learned Judge correctly found that no objection can be raised regarding their execution and mode of proof.

Sri M. Nath in this regard places reliance in AIR 1982 Cal 294 (Dukhiram Dey v. Mrityunjoy Prasad Daw and Ors.) In that case it was pointed out that in a suit for declaration of title if the vendor of the Plaintiff is material witness and if not explanation is given for his non examination the adverse presumption is to be drawn u/s 114 of the Evidence Act. With all humility I cannot accept this proposition of law made by the Calcutta High Court. In order to prove a sale deed it is not necessary to examine the vendor and or attesting witness or even the scribe. It will differ from very situation to situation. In the Calcutta case it was further found that the Vendor is fictitious person and it is with that background, this observation was made by the Calcutta High Court. Accordingly, there is no merit in this second appeal and the same is dismissed.