N. Kumar, J.

1. The defendants 3 and 4 have preferred this writ petition challenging the order dated 13.6.2013 where the Trial Court has declined to mark several documents on which they are relying on in support of their defense. The plaintiffs have filed a suit for a decree of permanent injunction in view of an attempt on the part of the defendants to encroach upon the plaint schedule property. The defendants have filed written statement contesting the claim. After framing issues, the plaintiffs have adduced evidence and now, the case is set down for defendants' evidence.

2. During the course of examination-in-chief, the defendants 3 and 4 sought to mark memorandum of partition dated 16.9.2010, 'B' khata certificate issued by the CMC, registered gift deed dated 16.11.2011 and a registered sale deed dated 16.11.2011 in support of their defense. But the plaintiffs raised objections to the marking of the said documents. The trial Court upholding the objection, observed that these documents are not relevant for the purpose of the case. Aggrieved by the said order, the defendants 3 and 4 are before this Court.

3. I have heard the learned Counsel for the parties.

4. Section 5 of the Evidence Act provides that the evidence may be given of facts in issue and relevant facts. Relevant facts have been defined in Section 3 of the Evidence Act. It provides that one fact is said to be relevant to another when one is connected with the other in any of the ways referred to in the provisions of the Evidence Act relating to relevancy of facts. Section 5 is the general section declaring that the evidence may be given of the existence or non-existence of facts in issue and of such other facts declared to be relevant under the said Section and no others. The force of Section lies in the last four words. Relevancy is the test of admissibility. Strictly speaking relevancy and admissibility are not the same thing. In general relevancy is determined by logic and human experience. Admissibility of facts is no doubt mainly determined by their logical relevancy to the matters in issue, or that relation between the two which renders the latter probable from existence or the non-existence of the former. But everything that is logically probative is not legally admissible in evidence. Admissibility is founded on law and not on logic. Admissibility pre-supposes relevancy. The distinction between 'proof and 'relevancy' should be borne in mind.

5. In a trial, the first question that presents itself is what facts will a party be allowed to lay before the Court. This is a matter of relevancy and is determined by the pleadings or the facts in issue. The next question is, how will the Court allow the party to prove those admissible facts? This is a matter of proof. Admissibility is a quality standing between relevancy or probative value, on the one hand and Proof or Weight of Evidence on the other hand. Admissibility signifies that the particular fact is relevant and something more, that it has also satisfied all the auxiliary tests or extrinsic policies. Yet, it does not signify that the particular fact has demonstrated or proved the proposition to be proved, but merely that it is received by the Court for the purpose of being weighed with other evidence. Under the Evidence Act, admissibility is the rule and exclusion is an exception. Where a Court has doubt as to the admissibility of a document and its decision, it is open to appeal, it is better to admit than to exclude in doubtful cases.

6. An objection should be taken when the evidence is tendered and not before. The proper time to object to the admissibility of evidence is when the evidence is tendered. The time for determining questions as to the admissibility of evidence is ordinarily the time when they arise i.e., when the evidence is offered, instead of admitting the evidence in the first instance and reserving the question of law as to its admissibility until the end of the trial. The earlier rule was,