064-NLR-NLR-V-58-K.-E.-SEYED-MOHAMED-et-al.-Appellants-and-M.-C.-PERERA-et-al.-Respondents.pdf
1956Present :Sinnetamby, J., and L. W. de Silva, A.J.
IC. E. SEYED MOHAJIED cl at., Appellants, and
M.C. PERERA cl ah, Respondents
»S C. 313—D. C. Kandy, 2S11/L
-Evidence—Actio rci vindicatio—Boundaries of land in dispute—Deeds tendered inevidence without- objection by opposing parly—Evidentiary value of statementstherein—Civil Procedure Code, s. 154—Evidence Ordinance, ss. 3d, 01, 92,To identify the premises in dispute in an action for declaration of title toimmovable property, tlo Court may tako into consideration statements ofboundaries in title deeds of adjoining lands belonging to persons who nrostrangers to tho action anti who have not been called to givo evidence. Theovidence of such title deeds may become inadmissible only if objection to theirproduction is taken in tho court of first instance ; they cannot bo objectedto for tho first timo in appeal..
Peeris v. Savunhamy (19j 1) 54 X. I,. It. 207 and Solomon v. William Singho.{1952) 54 X. L. It. 512, not folloivcd.
' {1SS-3 SJ) 3 K. D. C. 254 at 250.
-A-PPEAL from a judgment of the District Court, Kandy.
C. Thiagalinsjum, Q.C., with E. C. U'ikramunayake, Q.C., T. A.Duntacila, and V. Arulambalam, for the plaintiffs-appellants.
II. W. Jayeicardenc, Q.O., with L. C!. Weeramuntry and P. JRanasinghe.for the defendants-respondents.
Cur. culc. cult.
'October 10 , 1950. Sixnetamb v, J.—
Tlie plaintiffs sued the defendants for declaration of title to premiseshearing Assessment Xos. GO, 62 and 64, Kandy Road, Gampola, for an■order of ejectment against the defendants and for damages. At the.hearing learned Counsel for the plaintiffs-appellants stated that he did.not ask for damages as no income could have been derived from the pro-perty in view of a closing order that had been issued by the GampolaMagistrate at the instance of the Urban Council. The property in disputeis depicted in plan “ X ” and D1 made by a Commissioner appointed by:the Court at the instance of plaintiffs and defendants respectively.
Defendants also claimed the same land on different deeds. The learned.District Judge held that plaintiffs' title deeds refer to another land anddismissed the action with costs. The appeal is against this finding.
Plaintiffs based their title on two deeds bearing Xos. 391G (PI) dated15/7/SO and 57S (P2) dated 7/11/79. The transferee on those deeds.is Cader Ibrahim Eawther a predecessor in title of the plaintiffs. Docu-ment- PI establishes the manner in which title devolved on the plaintiffs.It is not disputed that whatever Cader Ibrahim got on these deeds de-volved on the plaintiffs. Defendants have produced deeds which tracetlie title of plaintiffs title still further back. One Meedin Kandu and
U.M. Sulaiman f.ebbc were the original owners of the land described inPI and P2. On a Fiscal’s Conveyance D2 of 18G8 the land was sold andpurchased by two persons, viz., Seyadu Assen Lebbe and A. M. or H. M.Sulaiman Lebbe. The Fiscal’s Conveyance refers to a plan which hasnot been produced. These two gentlemen by deed ATo. 571 of 24/S/GSDll transferred to Omar Lebbe Sinna Lebbe one of the two houses to-wards the south conveyed to them by D2, presumably the one belongingto Sulaiman Lebbe as the northern boundary is described in the deed as" the house of Seyadu Assen Lebbe. ” This deed does not refer to a planbut plaintiffs had produced plans P3 and P4 which they say were withtheir title deeds. P3 bears an endorsement by a notai'3r certifying that-a house ami land belonging to Sulaiman Lebbe has been transferredby Deed Xo. 571. This plan on the face of it does not show that it hasbeen made by a surveyor. By deed DIO Sinna Lebbe transferred toSimeon Meedin on 27/4/75. This deed expressly refers to Plan P4.Simeon Meedin by deed PI transferred to 1st and 3rd plaintiffs’ grand-father Cader Ibrahim Rawther. The other share eonvcj'cd by Fiscal’s
Conveyance D2, which was the northern portion, was by deed P2 con-veyed to the same Cader Ibrahim Rawtlier. These deeds show that,whatever was conveyed on D2 eventually devolved on the plaintiffs^It is to be noted that all these deeds refer to T. S. PienV land as being oneboundary: PI, P2 and Dll give it as the southern boundary, DIOas the western boundary. This mistake in DIO is presumably due to thefact that in plan P4 the Kandy Road has been shown as the northernboundary and not the eastern. T. S. Pieris is the predecessor in title ofthe defendants.
The defendants also relied on title deeds in support of their claim.According to them the original owners of this land were T. Simon Peiris-and his wife Simona Mendis. By deed No. 3S2 of 1/11/64, D3, husbandand wife divided the property described in that deed consisting of 11 housesinto 11 parts each containing a house and numbered them 1 to 11 fromnorth to south, No. I being at the extreme north. The property wasthen partitioned as follows :—
Nos. I, 4 and 5 were given to Francisco Pieris.
Nos. 2 and 3 to Davith the grandfather of 2nd defendant.
Nos. G; 7 and 8 to Bastiana’s husband.
No. 11 to Bastiana.
The boundaries given show that on the north and east is SulaimanThamby's land. Plaintiffs contend that this Sulaiman Thamby is the-same as their predecessor in title H. M. Sulaiman Lebbe in respect of whoseland Fiscal’s Conveyance D2 issued in 1868. After the execution of thisdeed D3 there has been no transfer of their interests till 194S, i.e., forSO years, when 1st defendant transferred to 2nd defendant on deedsNo. 806 of 26/7/4S and 2211 of 29/11/48. D7 and D8 purport to transferthe property hearing Assessment Nos. 60, 62 and 64..
According to the plaintiffs the defendants claimed title to the premisesand disputed plaintiffs’ claim in about August, 1949, and they werecompelled to file this action.
At the .argument both counsel agreed that the judgment of the learnedDistrict Judge was far from helpful. He has misdirected himself on manymatters and has reached conclusions without considering evidence onimportant and relevant matters. Learned Counsel for the respondentsfound himself unable to support many observations and statements madein the course of his judgment by the trial judge and we were obliged toconsider the case independently of the trial j udge’s findings: indeed learnedCounsel for the respondents asked that the case be sent back for a re-trial.Having considered the matter very carefully although at a certain stagewe felt inclined to favour this suggestion, we have come to the conclusionthat justice demands a final adjudication in regard to all matters excepton the question of compensation.
As stated earlier the only question that arises is whether the landclaimed by the plaintiffs on D2, PI and P2 is the land in dispute. Thedefendants say it is further to the north and have produced a series ofdeeds to show that the land called Gallcwatte, which is the name givenin plaintiffs’ title deeds, is elsewhere.
WJiat then is the material on which plaintiffs rely to establish theidentity of the lands referred to in their title deeds ? The main groundson which they base their claims may be summarised as follows :—
They rely on the fact that the southern boundary given in theirdeeds is T. S. Picris’ land. The land to the north is the mosque atthe present moment. Defendants’ contention is that Isabella’sshare eventually went to the mosque. According to the deed of divi-sion D3 Isabella got house Nos. 6, 7 and S while Davith’s share which•devolved on plaintiffs comprised of house Nos. 2 and 3 which are tothe north of Isabella’s lots. This is inconsistent with the location insitu of the two lands for according to the above their land would beto the north of the mosque property and their contention is that-Jsabella’s lots non- form the mosque property.
They rely on plans P3 and P4. P4 in particular is a surveyplan attached to their title deed, Dll. and referred to therein. Theconfiguration of the land depicted in P4 strongly resembles the shapeof the land they now claim, which is surrounded on all sides by a wallsind is depicted in plan X and as lot 2 in plan Dl. The orientationis, however, different in P-1 though it is correct in P3. The extent shownin X and Dl is 19-5 perches while the extent given in P4 is twenty-perches and 8 sq. yards which for all practical purposes may be con-sidered the same. The defendants’ original deed of division D3gives the northern boundary as Sulaiman Thamby’s land which maywell be a reference to Sulaiman Lebbe, plaintiffs’ predecessor in-title.•
Plaintiffs also rely on the assessment sheet PIS issued by theUrban Council of Gampola. According to this in 1917, 1919 and 1920Abrahim Saibo the plaintiffs’ father is given as the owner of premisesNos. 174, 175 and 170. In 1922 Ibrahim Saibo is given as owner of170, 177 and 178. Plaintiffs contend that about this time the numberswere changed. Although the assessment register itself does not onthe face of it show the change, to establish it the plaintiffs rely on adeed of lease P32 executed in 1924 by- Abrahim Saibo which describesthe leased land as premises bearing Assessment- Nos. 174, 175 and170 presently 170 to 17S ”. This document certainly supports theircontention. The numbers continued to be the same till a changewas effected in 1941. The Assessment Register itself gives boththe new and the old numbers. No. 178 was changed to 00,177 to62 and 170 to 64. Ibrahim Saibo continued to be given-as owner.
It' Is certainly unfortunate that no officer from the Urban Councilhas been called to speak to these facts, but extracts of the Assessment‘Register were produced without objection for the purpose of proving ■ownership.'-
Plaintiffs then rely on a closing order issued in 1939 and servedon Ibrahim Saibo. A note appears in the Assessment Register in regardto this. The plaint P19 and the closing order itself P20 were produced.They are in respect of premises Nos. 170, 177 and 178. which were:the numbers of the disputed premises at that time. Ibrahim Saibo
retained a proctor to appear for him, a course which one would not-expect a man who was not the owner of the premises to take; 1st-'defendant admits that no closing order was served on him.
Notices of assessment P21 and P23 were served on Ibrahim.Saibo. They were for the year 1910 in respect of premises Nos. 176to 178.
A man by the name of Ghani claimed this property andplaint-iffs-filed a case against him in 191S and obtained a decree. P21 is plaint,
. P25 is answer and P26 is decree. Second plaintiff stated that at thattime no one was in occupation—(he closing order had been served-The schedule to the plaint gives the assessment numbers of the premises-ns 176 to 178 though by this time the numbers had been changed to 64..62 and GO..
Second plaintiff’s account book P28 shows at page 36 (P29).that the collected rents from September 1936 to January 1937 from.Abdid Gani & Co., for the premises Nos. 176, 177 and 178.
. 8. Lease Bond No. 1S257 of 1912 (P32) shows that the premises-Nos. 176 to 178 was leased by plaintiffs’ father Ibrahim Saibo.
Apart from dealing very briefly with the assessment register the learned.District Judge has not considered any of the other matters referred to-above when he was considering the question of identity. Much of t-Jic-above evidence is of a documentary nature relating to deeds, leases,assessment registers, etc., and are of a kind that cannot be fabricatedfor the purposes of a case. ' They certainly constitute compelling evidencerequiring careful consideration. In the absence of any reference tomany of them it must be inferred that the learned trial judge did notappreciate, their significance and importance. In these circumstanceswe are unable to accept his finding that the plaintiffs’ land is to thenorth of the land in dispute : indeed we have come to just the oppositeconclusion. The learned trial judge relied on certain deeds and docu-ments produced by the defendants which I shall now consider..
Dealing with Dll the learned judge says that the lots allotted to one-of T. S. Pieris’ heirs went to some 3fuslims. He draws attention to thefact that some of these properties have gone to Muslims and that theregister shows that the premises No. 173 in respect of which certain deed*,were registered gives the northern and southern boundaries as No. 173and No. 171 respectively. If anything this would only show that 173is to the north of 171 and at the lime of the first registration, i.e., in 191S.The disputed lands, however, bore numbers 171, 175 and 176 according-to-Assessment Register PIS taken in conjunction with the rc-cilal in leaseP32. In fact the evidence shows that Dll and Dl-3 were only producedto show that a land called Madegederawatte which defendants claim is.their land and a land called Galewatte which is the name given in deedD2 to plaintiffs’ land existed inGampoIaas two separate lands registered.
-in two separate folios—vide evidence of 1st defendant-. D20 and D2Lwore also produced for the same purpose. These documents may,however, well refer to other lands with similar names or other portions-
of the same land. The learned Judge then refers to'D4 of 1919 and D5of 190G which deal with premises No. 174 and 175 and concludes that theseare the numbers of the mosque property but in 1917 the premises-in question bore numbers 174,175 and 176 and it was only in 1922 that-they were changed to 176,177 and 178. Actually Do is a gift by Isabella’shusband to Joslin de Silva nee de 3IeI executed in 1906 and referred to-premises Nos. 174 and 175. There is’ a plan referred to in this deed whichwas not produced. The next deed is D6 of 1917 which is a sale by thedonee on Do to Uduma Debbc. In this deed the same numbers arc re-peated and also refers to the same plan. D4 is a mortgage bond executedby Uduma Debbe in 1919. This property is obviously the propertywhicli Isabella got under the deed of division D3. Dl also refers to Nos.
and 175. It is quite possible that in giving the numbers 174 and
in D4 and D6 the notary followed the description in the earlier deedDo : what the assessment numbers were in 1906 is not known find isnot shown in PIS. Uduma Lebbe’s mortgage bond was put in suit andfiscal's Conveyance Dio and DIG executed in favour of the purchasers.It is significant that neither of these deeds has any assessment numbersgiven in the description of the property but both refer to plans whichdefendants listed but did not produce. Dlo is a transfer to Adam Dsbbeand DIG to Uduma Debbo. D15 and DIG it was contended show thatNos. 174 and 175 would in the opinion of tire Fiscal not correctly describethe property sold. The learned judge relying oh these deeds came to theconclusion that Abraliim Saibo did not have possession of Nos. 174 and175. Such an inference it will be seen is completely erroneous.
’ It is interesting to note that D13 which is the encumbrance sheet ofthe mosque property gives as the southern boundary the property ofCadcr Ibrahim Rawlher, the 1st and 3rd plaintiffs ’ grandfather whoprobably was alive at the date of the first registration. Deed No. 13175which is a deed of transfer to the trustees of the mosque is the last regis-tration appearing at folio 35 of this document- and in the remarks column,the assessment number of the property transferred is given as 175 andthe southern and south-western boundaries as the property of IbrahimSaibo, plaintiffs ’ predecessor in title. This deed No. 13175 was executedin 1922 when the assessment numbers of the disputed property hadbeen changed according to P13 to 176, 177 and 17S. This document was-produced by the defendants.
Defendants ’ main contention was that the land in dispute was calledMadegederawatte while plaintiffs’ earliest deed D2 refers to aland calledGalewatte. Some of plaintiffs’ deeds—vide PI, DIO and DU—referto it as land in Mollegodapitiya (misspelt as Mamicgodapitiya in Dll)-■ While it is relevant to take into consideration the names given in deeds-lo lands dealt with what is more important is the boundaries. Galewatte-may well be the name for a larger area of wliich Maddcgederawatte forms-a part. Defendants for instance claim that Isabella’s share of Maddc-gederawatte eventually went to the mosque but D13 shows the regis-tration of a deed dealing with. mosque property bearing assessmentNo. 175 registered under “ Galewatte ” in 1922. This would immediatelyadjoin the disputed property.
' The evidence reveals that, plaintiffs and their predecessors in titlenever possessed any land other than the land in question in KandyStreet but 1st defendant owns other lands as well. The Gani whom thedefendant charged with criminal trespass is one N. Gani and the plaintand proceedings in that ease (P23) do not show what, land was trepassedupon. The Gani whom the plaintiffs sued for declaration of title inrespect of pi’emises 2STos. 176 to 178 in 194S is one Abdul Gani. Theymay be the same person or different persons but P23 docs not show it isin respect of the same property.
As regards prescriptive possession the learned trial judge summarilyrejects the plaintiffs’ evidence. He does not consider the effect of t-heseveral documents produced by plaintiffs such as the assessmentnotices, the lease P32, the action against Gani and 2nd plaintiff’s evi-dence. He does consider but rejects the evidence of the closing order andthe account- book P28, but with his conclusions we cannot agree. Inview of the closing order no one was in actual possession of the proper*'.'since 1939 and this perhaps accounts for the paucity of evidence relatingto possession in recent times. The Assessment Register PIS, the closingorder and the account books P2S while by themselves may not -per scbe evidence of actual possession they certainly corroborate the evidenceof the 1st and 2nd plaintiffs.
For the reasons we have given we arc of the opinion that plaintiffshave established satisfactorily the identity of the premises in dispute asthe premises referred to in his title deeds. We are also satisfied thatlie has established his claim to prescriptive possession. The learnedjudge has held that the 2nd plaintiff is a bona fide possessor having pur-chased the premises from the 1st plaintiff. We do not propose to interfere-with that finding. Learned Counsel did not seem to contest it and wcwere not addressed on it, but the evidence relating to compensation is-very meagre and most unsatisfactory. The 2nd defendant says she spentabout “ Rs. 4,000 or something ”. The 1st defendant says that 2nd'defendant spent Rs. 5,000 and the judge awards Rs. 6,000, a sum whichjicither defendant claimed. 2STo evidence of any kind apart from thesemere statements was led. While we hold that compensation is payablewe think that the case should go back for proper adjudication of theamount.
In the course of the argument learned Counsel for the appellants citedthe case of Solomon v. William Singho and contended that we should• not take into consideration boundaries described in title deeds of adjoining"lands belonging to “ strangers to the action ” who have not been called-to give evidence in the lower Court. The defendants particularly reliedon many such deeds including encumbrance sheets where the name ofthe land and the description of the boundaries are taken from the first-deed registered in that folio. Plaintiffs-appellants also made use ofentries in the encumbrance sheets produced by the defendants in supportof their case. Learned Counsel for the defendants-respondents likewiseobjected to these descriptions of boundaries being considered on the sameground. Both Counsel relied in the ease already referred to and on the
1 (1062) ol -V. L. It. 512.
•earlier case of Pecris v. Savinihamy1 in which the same question wasconsidered. As this matter involved an important question of practicewc heard as full an argument as was possible in the circumstances parti-cularly as we were not disposed to agree with the decisions c-ited. It■was contended by learned Counsel that the learned judges who decidedthese cases held that the principles therein enunciated were of general-application irrespective of whether objection to the production was orwas not taken in the court of first instance. Learned Counsel for re-.spondents, who also appeared in the Appeal Court at the hearing of boththese eases, assured us that no objection had been taken at the hearing.of the cases in the original courts. I have since verified and found thisstatement correct by reference to the original record in the case ofSolomon c. William Singho. In Pecris v. SavunJiamy Dias, J. who deli-vered the judgment of the Court referred to the judgment of SoneyLull v. Darbdeo 2 where the Full Dench expressed its view on certainquestions of law referred to for its opinion and held that statements ofboundaries in title deeds between third parties arc not admissible undersection 32 of the Evidence Ordinance. Dias, J. did not, however, ex-pressly follow it. Instead he said, “ the value of the deed as evidence evenif admissible is almost nil ”, and proceeded to give his opinion on thatbasis. In the case of Solomon v-. William Singlio, Gratiaen, J. who wasone of the two judges who constituted the Bench in Peeris v. Savinihamy.held that such recitals in deeds between third parties are “ hearsay evi-dence on the issues under consideration and are inadmissible Therecitals in question were used for the purpose of establishing the identityof lands alleged to be lying on one of its boundaries. The opinion of-so eminent a judge of this Court is entitled to the greatest weight andwe have accordingly given it very careful consideration. Documentsme constantly put in evidence in the course of a- trial, sometimes withoutobjection and sometimes by express consent. To ride every such-document out on the ground of hearsay would necessitate parties callinginto the witness box persons whose testimony in regard to the authenti-city of the document neither side disputes though the contents may be•disputed. To accept such a proposition as a legally sound and validbasis on which trials in the original courts should be conducted woiddadd in no small measure both to the cost of litigation and to the law’s■delays, which we constantly hear so much about. Wc have thereforeinvestigated this matter as fully as wc can with such assistance as learnedCounsel were able to give us and wc have come to the conclusion thatevidence of documents of title of persons who arc strangers to the action•and have not been called may become inadmissible only if objection to■their production is taken in the original Court and that they cannot beobjected to for the first time in appeal. We-are fortified in our view bycertain decisions of our own Courts and the express provisions of section154 of our Code of Civil Procedure, which incidentally finds no counter-part in the Indian Code—learned Counsel who assisted in investigatingthis matter for us were unable to point to any corresponding[provision.
'(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.
■v
5 (1911) IS X. L. n. $5.
3 U007) -31 Cal. 10-59.1 11000) ■> Leader 1G1.
257
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.