1954 Supreme(Raj) 213

Rajasthan High Court
Wanchoo C.J. & Modi, J.
Kishanlal - Appellant
Versus
Sohanlal - Respondents
Civil Appeals (Ijlas Khas) Nos. 2 and 3 of 1940-41
Decided On : September 19, 1954

Headnote:(a) Evidence Act, sec. 42(5) and (6)—Previous statement after arising of controversy inadmissible.(b) Evidence Act, see. 65(g)—Applicability—Clause has nothing to do when documents are not available to court.(c) Evidence Act, sec. 33—Party cannot be found—Report that witness had gone out.(d) Evidence—Burden of proof on plaintiff—Some defect in frame of issue no ground for plaintiff being misled. (para 13)(e) Evidence—Admissibility of document—Failure to object—Document does not become admissible if otherwise inadmissible.(f) Evidence Act. sec, 57—Public History—Statement of grant to a particular person not public history.

       In a suit to establish his right to succession the plaintiff was required to prove his descent from the common ancestor. He produced three documents, Ex. D 2, Ex. D 5 and Ex D 6. Ex. D 2 is a certified copy of the pedigree filed in certain proceedings before the Mahakma Khas by Bhura Bhat, and it has been proved by the certified copies of the statements of two Bhats. Bhura and Moti, which are Exs. D5 and D 6. We have to see whether these three documents are admissible in evidence at all.

       Counsel for the appellant contends that these documents are admissible under secs. 32(5) and (6) of the Indian Evidence Act, as they are statements relating to existence of relationship. But statements are admissible under sec. 32(5) and (6) only when they are made before the question in dispute was raised, These there documents, Exs. D 2, D5, and D6 came into existence after the dispute had been raised. They cannot, therefore, be admitted in evidence under sec. 32(5) and (6).

       Counsel for the appellant further relies on sec. 65, clause (g) of the Indian Evidence Act in this connection. But sec. 65(g)has nothing to do with the admissibility of Exs. D2, D5 and D6. That clause deals with well-known cases where there are too many documents, whether it be books of accounts or other documents which are available to the court but which it is inconvenient for the court to examine. Clause(g) has nothing to do with documents which are not available to the court. The very fact that clause (g) provides secondary evidence of the result because the documents cannot conveniently be examined in court shows that the documents are there for the court to examine if it so likes to do. But where, no attempt was made to produce the original documents from Which the original of Ex. D 2 was prepared, sec. 65(g) cannot be used for the admission of Ex.D 2. Moreover sec. 32(5)(6) requires the production of original statements, and do not contemplate the production of some result deduced by some body on examination of the statements admissible thereunder.

       Nor can these be admitted under sec. 33 Evidence Act. This section makes such statements admissible if (among other things) the witness cannot be found and the previous proceeding was between the same parties or their representatives-in-interest. So far as Ex. D 5 is concerned, it is the statement of Motiram, who is dead. One condition is therefore satisfied in this case. But Ex. D 6 is the statement of Bhura. That man was alive when this statement was admitted. All that was proved was that he had gone away to Disawar That alone, was not enough to prove that the witness could not be found. Further, the statements (Ex. D 5 and Ex. D 6) do not show between what parties the case was going on in which they were taken. It is therefore difficult to say whether the previous proceedings, in which the statements were taken, were between the same parties. (Para 12)

       An erroneous omission to object to inadmissible evidence does not make it admissible. If the evidence is perse inadmissible, and cannot possibly be admitted under any provision of the Indian Evidence Act, the failure to object to its admission in the trial court would not make it admissible, and would not bar the party objecting to admission from raising the point in the appellate court. It is only with respect to evidence, which is admissible under some provision of the Indian Evidence Act, and there is some defect in connection with its admission, but no object was taken to the admission on account of the defect, that the party objecting may not be allowed to object to the improper admission at the appellate stage. (Para 15)

       The question whether a particular village was granted to a particular person by a former ruler is not a matter of public history. It cannot really be contended that statements as to title of a certain person to a certain property, if found in some book written by somebody a century or two ago, would be relevant and admissible evidence to prove that title, (Para 17)