'(1035) A. I. II. Patna 107.
Tho recital of the facts in the Patna case which was referred, to in.Peer is v. Savunhaniy docs not disclose whether objection was taken in the .original Court to the documents which formed the subject matter of"the reference. It is difficult to assume, however, that in the originalCourt no objection was taken in view of the numerous decisions of theIndian Courts under Order 13 rule G of the Code to the effect that “ whenevidence has been led without objection it is not open to the oppositeparty to challenge it at a later stage of the litigation. But where evi-dence had been recorded indirect contradiction of an imperative provisionof the law the principle on which unobjected evidence is admitted, be itacquiescence, waiver or estoppel, none of which is available against apositive legal enactment, does not apply. ” (Saitoh Chandra v. GourChandra 1.)
This statement of the law in the Calcutta case is however embodiedas a positive enactment in our Code of Civil Procedure in the explanationto section 154, which finds no counterpart in the Indian Code. This-provision has been construed and acted upon in our Courts over a longperiod of time, vide Silva v. Kindersley 2, and the cases referred to thereinand Siyadoris v. Da nor is 3. The explanation in question is as follows :
“ If the opposing party does not, on the document being tenderedin evidence, object to its being received, and if the document is notsuch as is forbidden by law to be received in evidence, the Court shouldadmit it. ”
What is meant by the expression " forbidden by law was consideredin the case of Siyadoris v. Danoris 3 and construed to mean absoluteprohibition and not to include a case where evidence was required notto be received or used unless certain requirements were fulfilled—aninstance of absolute prohibition which immediately comes to mind isincome tax returns made by a person to the Income Tax Department.
The IS JV. L. 11. case was decided by de Sampayo, J. andWalter Pereira, J., two very distinguished and experienced judges of tin'sCourt, and this case was not considered in the two cases which we harebeen invited to follow, nor were the express provisions of section 154taken into account-.
The judgment in Solomon v. William Sinyho does not indicate what thearguments of Counsel were in regard to this matter but there is no referencein it either to the earlier decisions wc have referred to or to section 154 :instead the decision in the Patna ease was presumably adopted. As wehave pointed out the facts do not clearly indicate whether in the Patnacase objection was taken at the trial to the production of the deeds inquestion or not.'-
We accordingly in reaching our decision have, taken into account,description of boundaries in deeds between strangers to the action andin doing so have followed several earlier decisions which approved of that-
» (10-2-2) .4. 1. rt- Calcutta ICO.1 (1014) IS X. L. R. So.
3 (1041) 42 X. L. TP. 311.
practice as being in conformity with the law of the land and which un-fortunately were not considered by the learned Appeal judges who decidedPccris v. Savunhamy and Solomon v. William Singho.
We would accordingly set aside the judgment appealed from andenter judgment for plaintiffs-appcllants as prayed for subject to thefollowing modifications:
Plaintiffs are not awarded any damages, but plaintiffs will pay2nd defendant compensation for improvements which will have to beassessed on proper evidence led before the District Judge. The easewill go back for that limited purpose. PlaintifFs will be entitled tocosts of appeal and costs of trial so far had in the Court below. Thecosts of the further hearing in regard to compensation will be in thediscretion of the District Judge.
L. W. de Silva, A.J.—
A have nothing to add to the judgment ol my brother except m regarcto the reception and value of documentary evidence bearing on the identity of the property in suit. At the hearing of this appeal, learned Counscfor the appellants objected to the admissibility of certain documentswhich are cither deeds of title relating to contiguous lands or encum-brance sheets descriptive of them. They were produced at the trial fortho purpose of enabling the Court to identify the land in issue by re-ference to boundaries. No objection was taken to these documents atthe time they were tendered in evidence at the trial. At the end of it,however, the plaintiff’s counsel in the course of his argument did no morethan cite to the District Judge the ease of Pceris v. Savunhamy >.
1 (/Oil) 5-1 N. L. It. 207.
' (1052) 51 X. L. It. 512.
– I TQ1A ATT?ir.T
This method of frying to whittle away evidence already received isnot known to our law. It lias been held in the case cited that for thepurpose of identifying property in dispute, statements of boundariesin title deeds between third parties are not admissible under Section32 of the Evidence Ordinance. Some of the documents were held byDias S. P. J. to be inadmissible in evidence while the evidentiary valueof another document, even if it was admissible, was considered to bealmost nil. This decision, with which Cratiacn J. concurred, followed aruling by a Full Pencil of Patna in Soue-y Lull v. Darbedo In the courseof the argument before us, the appellants ’ counsel also brought to ournotice the case of Solomon u. Don William Singho 3 where too the viewwas taken by Gratiacn J., with whom Gunasekara J. agreed, that therecitals of boundaries in tho deeds of third parties were at best hearsay-evidence and were inadmissible. Xo other decisions were cited to us.In neither of these reported eases had the parties to the documents ortheir successors given evidence at the trial. Learned Counsel for therespondents also supported these judgments. Both decisions have as-sumed that- a Court of Appeal has an unqualified right to rule on theadmissibility- of documents received without objection in the court oftrial.
I do not think that the matter could be disposed of in that way, andregret I am unable to agree ■with the view taken in the two cases reportedin 5-1 N. L. R. In Siyadoris v. Danoris 1, the point was specifically de-cided that objection to a deed admitted hi evidence without objectionat the trial cannot be entertained in appeal on the ground that the docu-ment had not been duly proved. The same principle was followed inOpaly all a Tea and Rubber Esates Ltd. v Ilu-ssain , where no objectionwas taken to certain letters admitted in evidence without legal proof inthe District Court.
In neither case reported in 5-1 X. L. R. is there any reference to Section154: of the Civil Procedure Code, the Explanation to which is asfollows :—
If the opposing party does not, on the document being tendered inevidence, object to its being received, and if the document is not suchas is forbidden by law to be received in evidence, the Court shouldadmit it.'
In Shahzadi Regam v. Secretary of State for India 3, the Privy Councilheld that it was too late on the appeal to object to the admissibility inevidence of a document which had been admitted without objection inthe first court.
The appellants’ Counsel, however, argued that the law of evidenceshould receive primary consideration and cannot be made subordinateto a rule of procedure. There .is no substance in this contention sinceit is in direct opposition to the Explanation to Section 151 of the CivilProcedure Code. A similar argument was rejected by Hutchinson C.J.in Sangarapillai v. Arumugam J, where it was held that if evidence, whichis repugnant to Sections 91 and 92 of the Evidence Ordinance is let inby consent, it is too late for either party to object to it in appeal sincethe requirements of Section 154: of the Civil Procedure Code were notobserved. The question raised as to admissibility cannot therefore now"be entertained.
The only other matter for consideration is the evidentiary value of thedocuments. This is covered by the decision- in Silva v. Kindersley3which I brought to the notice of Counsel at the hearing of this appeal.Pereira J., with whom de Sampayo A.J. agreed, pointed out that a docu-ment not- objected to by the opposing party in a civil suit is to be deemedto constitute legally admissible evidence as against the party who issought to be affected by it. The contention that the testimony of a• Superintendent of Surveys was of no value, because the plans and surveyshe relied on depended largely for their correctness on a third party’s fieldbooks, was rejected because those field books had been admitted in evidencein the Court below without objection..
The Patna case on which the decision of Pceris v. Savunhaniy 1 restsis neither sufficient nor persuasive authority for at least two reasons.First!v the.Patna Court was called upon to deal with a general problem.
5 (1911) IS X. L. n. $5.
3 U007) -31 Cal. 10-59.1 11000) ■> Leader 1G1.
Jxaruftaralitc i*. Fc*'natulo
Two questions of law fomied part of the rcference'put before the PatnaBench: (i) whether statements of boundaries in documents of titlebetween third parties are admissible in evidence under Section 32 (3),Evidence Act. Are they admissible under any other provision of theAct if the third parties are dead, or outside the jurisdiction of the Court ?and (ii) was the case of 1916 Pat. 416 correctly decided ? Secondly,the Patna Bench did not take into account provisions of law similar tothose contained in Section 154 of the Civil Procedure Code. This Sectionis one of several provisions regulating the orderly manner in which trialsarc to be conducted in courts of first instance. To permit objections tobe taken for the first time in appeal regarding the admissibility of docu-mentary evidence not forbidden by law is to divert the orcler^* conductof trials into an undesirable course not sanctioned b3* our law.
I concur in the order made by m3* brother and agree that the appellants-havc proved their title to the property in suit and are entitled to succeed-
Apjieal allowed.