027-NLR-NLR-V-18-SILVA-v.-KINDERSLEY.pdf
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Present: Pereira J. and De Sampayo A.J.
SILVA t>. KINDEBSLEY.109—D. G. Kurunegala 4,666.
Document tendered in evidence without objection by other party in civil suit.
In a civil suit, when a document tendered in evidence by oneparty is not objected to by the other, the document is to be deemedto constitute legally admissible evidence as against the party whois sought to be affected by it.
^iHE facts are set out in the judgment.
Bawa, K.G. (with him A. St, V. Jayewardene and Dias), for thethird plaintiff, appellant.
t?a» Langenberg, K.G., S.-G. (with him V. M. Fernando), for therespondent.
Cur. adv. vult.
September 9, 1914. Pereira J.—
The portions of land now in dispute between the appellant andthe respondent are those marked 1, 55, 30, and 34 in preliminaryplan No. 556 (D 9), and the question to be amwered by the DistrictCourt was whether these lots were included within the boundariesgiven in the Temple Lands Begister as the boundaries of the landadmitted by the Temple Lands Commissioners to belong to theDalada Maligawa. The evidence of Mr. Shipton, the Superintendentof Surveys, North-Western Province, places beyond doubt the factthat Aturuwellahenabodahenyaya, which the appellant contends isoutside the village Dambadeniya, but which really is a henyaya inDambadeniya, is identical with lot No. 30, and this henyaya isexcluded from the land within the boundaries referred to above inthe Temple Lands Begister. It has been strongly contended thatMr. Shipton’s evidence is of no value, because the plans and surveyshe relies on depend largely for .their correctness on the field books ofMessrs. Gordon and Mackenzie, and that these field books cannot be
1914.
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1914.
Pbtkkira J.
Silva v,Rindersley
treated as evidence- It is too late to raise this contention now>because these field boohs were admitted in evidence in the DistrictCourt without objection. According to the ** explanationattached to section 154 of the Civil Procedure Code, when a docu-ment tendered in evidence is objected to, the question arises whetherit constitutes legally admissible evidence as against the party whois sought to be affected by it. The inference is that when thedocument is not objected to by the party affected, no such questionarises. It would be manifestly unfair to a party who tenders adocument in evidence if, after he has been lulled into security bylack of objection by his opponent, he is suddenly required to meetfor the first time in the Appellate Court objections to the receipt ofthe document in evidence. If timely objection had been taken, thedefendant might possibly have shown that the documents inquestion in this case were evidence under some such provision of thelaw as that of section 82 (2) or 85 of the Evidence Ordinance. Ithink that the District Judge was right in accepting the field booksin evidence and allowing Mr. Shipion to draw his deductionstherefrom.
It has been said that the very name Aturuwellahenabodahenyayaimplies that the henyaya in question is in Aturuwella rather than inDambadeniya, but, as explained by Mr. Shipton, the name meanshenyaya alongside the ridge boundary of Aturuwella- That beingso, there is nothing in the name itself to negative the idea that thehenyaya belonged to Dambadeniya. With regard to the other lots,which are comparatively small and insignificant, I need say no morethan that Mr. 3hipton*s evidence with even greater force establishesthe fact that they are not included in the land allotted to the DaladaMaligawa in the Temple Lands Register. Clearly, the preponder-ance of testimony recorded 'at the second trial of this case is on theside of the defendant.
I would dismiss the appeal with .costs.
De Sampayo A.J.—I agree.
Appeal dismissed.