Mohar Ali Sarkar vs Mafizuddin Sarkar and Others

The main ground urged in these appeals is that certain documents were improperly admitted in evidence.

Two of the documents were copies of judgments in a previous suit for ejectment brought by the respondent against one Jait-un-nissa Bibi, in which he obtained a decree. It is contended by the learned Pleader for the appellant that they were not admissible in evidence as the appellant was no party to that suit, and that the reasons contained in the judgment could not be used against him.

But the learned Subordinate Judge on appeal has not considered the reasons for the judgment and has merely referred to the fast that there was a suit in which the title of the present defendant was set up by Jait-un-nissa Bibi and that the suit was decreed. For this purpose the judgments were admissible in evidence.

The criminal case has been referred to as showing that the defendant has all along bean fighting with Alimuddin and on big death with his son, the present plaintiff, but has been mostly unsuccessful.

Objection is taken to the documents (Exhibits 18 and 28) on the ground that the originals had been proved by Enatulla and Sadek Khan (their depositions are marked as Exhibits 16 and 17) in the ejectment suit to which the defendant was no party.

But the loss of the original documents was proved by the plaintiff himself in the present suit and secondary evidence was adduced to prove these documents (likhans).

The learned Pleader for the appellants contends that the first with which these likhans were produced in the ejectment suit ought to have been proved. But the Pleader''s clerk who swore to the handwriting was the person who wrote out the first. Is these circumstances, we are unable to hold that the documents were inadmissible in evidence.

That being so, and the Courts below having found in favour of the plaintiffs on the merits the appeals must be dismissed with costs.