Bhagwan Dass and Another vs Khem Chand and Others

The facts necessary for the decision of this appeal under Clause 10 of the Letters Patent may briefly be given as follows:--

Khem Chand and Yadav Rai plaintiffs (respondents Nos. 1 and 2 in this appeal) are admittedly the owners of the shop in dispute. According to the plaintiffs, Kidar Nath was the tenant of the aforesaid shop under a rent-note which, during the course of evidence in the suit, was marked Exhibit P-12. After the death of Kidar Nath, his son, Bhagwan Dass and widow, Bhuri Devi, being defendants Nos. 1 and 2 (appellants before us) continued in possession of the shop. It was alleged by the plaintiffs that inasmuch as Kidar Nath was a statutory tenant in the shop, the possession of defendants Nos. 1 and 2 after his death, became unlawful. The defendants contended that the tenancy in question was not statutory but heritable. This matter was put in Issue No. 1 which was "whether Kidar Nath was a statutory tenant of the shop in dispute." P.W. 3 Durga Parshad was produced as a witness by the plaintiffs. He identified the handwriting and the signature of the petition writer who had written Exhibit P.12. It was further stated that the petition writer as well as his son are dead and are not available. During the course of evidence of Durga Parshad, the rent-note was exhibited as P-12 without any objection on behalf of the defendants. The Trial Court decreed the suit holding the tenancy of Kidar Nath as statutory. The lower appellate Court came to the conclusion that Exhibit P-12 was not properly proved and, therefore, it had not been established that Kidar Nath was a statutory tenant. In the regular second appeal filed by the plaintiffs, basing his decision on AIR 1943 83 (Privy Council) , and on a decision of this Court in Harnam Singh v. Dalip Singh (1963) 65 PLR 1133, the learned Single Judge came to the conclusion that the document being admissible and no objection having been taken by the defendants to the mode of its proof at the relevant time, they cannot now be heard to object that the document has not been properly proved.

The observations of the Privy Council in AIR 1943 83 (Privy Council) which were relied upon by the learned Single Judge, were to the following effect:--

"Where the objection to be taken is not that the document is in itself inadmissible but that the mode of proof put forward is irregular or insufficient, it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record. A party cannot lie by until the case comes before a Court of appeal and then complain for the first time of the mode of proof."

In Harnam Singh''s case (1963) 65 PLR 1133 (supra) the Court come to the conclusion that in order to prove document ''C'' it was necessary to call an attesting witness alive and available in proof of the execution of the document in question but no objection was raised when it was produced and exhibited by the Trial Court." In that case, the counsel for the plaintiffs made a statement that he produced the copies of the sale deeds marked ''A'' and ''B''. This was objected to, but when he said "I also produce ''C'' copy of the sale deed" no objection was taken. Grover J., as he then was, while delivering the judgment observed as follows:--

"In these circumstances the defendants cannot now be heard to say that the document was not properly proved.................."

The decision of the Allahabad High Court in Salaik Chand and Others Vs. Mt. Tamiz Bano and Others, , which was relied upon by the learned counsel for the defendants, who were respondents before the learned Single Judge, was distinguished by the learned Single Judge, because that was not a case where a document had been exhibited without any objection. The decision in AIR 1942 84 (Nagpur) , cited before us, is also distinguishable on the same basis.

In view of the above, we find no force in this appeal and dismiss the same without any order as to costs.

Appeal dismissed.