Wanchoo, C.J:— These are two connected appeals from the judgment of the Chief Court of the former State of Marwar, and have come up before us for disposal under Ordinance No. XL of 1949, and Ordinance No. XII of 1950.

2. We may give a brief history of this litigation as that will help in understanding the questions involved in these appeals. One Ganesh was the jagirdar of village Malpuria. He died sometime in 1931, and a dispute arose as to the succession of his jagir. Two sets of claimants appeared on the scene. One set consisted of Mohanlal alone who claimed that he was entitled to the jagir of Malpuria on the ground that he was the adopted son of Ganesh. The other set consisted of Sohanlal and others who contended that Mohanlal was not entitled to the jagir on the ground that he was not in the line of the Murisala, and that they were entitled to the jagir as collaterals being in the line of Murisala. These disputes were considered by the Revenue Minister of the former State of Marwar, and he ordered on the 15th of March, 1934, that the two parties should get their claims determined by a civil court. In the meantime, the jagir remained under the management of the State. Thereupon, two suits were filed about August, 1934. In one suit Mohanlal was the plaintiff, and Sohanlal and others were defendants. Mohanlal claimed that he was in the line of the Murisala, and was entitled to the jagir being the adopted son of Ganesh. The other suit was filed by Ambalal, father of Sohanlal, and others. They claimed that they were in the line of the Murisala, and were entitled to the jagir as collaterals, and that Mohanlal was not entitled to the jagir as the adopted son of Ganesh as he was not in the line of Murisala, and could not, therefore, claim the jagir. It may be mentioned that the law as to the succession to jagirs of adopted sons in the former State of Marwar was that adopted son could only succeed to the jagir if he was in the line of the Murisala, i.e the original grantee. If he was not in such line, he could succeed to the other property of the adoptive father but not to the jagir.

3. The two suits were tried together, and the trial court held that Mohanlal was not in the line of the Murisala. It also held that Sohanlal and others were in the line of the Murisala. Therefore the suit of Mohanlal was dismissed, and the suit of Ambalal and others was decreed. There were then appeals by Mohanlal in both the suits Both these appeals were allowed by the District Judge. He held that Ambalal and others had failed to prove that they were in the line of the original grantee, and that Mohanlal had established that he was in the line of the original grantee, and therefore entitled to the jagir. Thereupon, there were two second appeals to the Chief Court, this time by Ambalal's son Sohanlal and others. These appeals came up for hearing before the Chief Court first in 1939. The Chief Court took the view that a crucial issue had not been framed in the case, and therefore framed that issue and ordered the lower appellate court to take evidence on Page: 340that issue, and submit its finding to the Chief Court. That issue was as follows—

“Whether the villages of Kanawas and Malpuria were granted to one person or to two different persons, and who was the original grantee in respect of each of these two villages?”

4. The finding on this issue was then submitted by the District Judge, and he held that Kanawas and Malpuria were granted to two separate persons, namely Kanawas to Kana, and Malpuria to Kumpa. Thereafter the two appeals were heard by the Chief Court in 1940, and it allowed both the appeals, and setting aside the decrees of the District Judge restored the decrees of the trial court. Then there were two appeals to the Ijlas Khas, which are now before us for disposal.

5. It is not necessary for us to give in detail the case of the two sets of claimants; but we may briefly indicate what their respective cases were. The case of Sohanlal was that originally two villages, namely Kanawas and Malpuria were granted to one person Kumpa. Kumpa had a son Kana. Kana had two great grand-sons Gopal and Mala. Eventually village Kanawas became the jagir of Gopal's descendants only, and Malpuria became the jagir of Mala's descendants only. Ganesh was the last holder of the jagir of Malpura, and Sohanlal and other claimed, that, as the jagir of Malpura also had been originally granted to Kumpa, and they were the descendants of Kumpa, the original grantee, they were entitled to this jagir. They contended further that Mohanlal was not in the line of Kumpa at all, and therefore even if he had been adopted by Ganesh, he could not get the jagir.

6. The case of Mohanlal was slightly different. He said that Kumpa and Kana were brothers, and the jagir of Kanawas was granted to Kana, and that of Malpuria to Kumpa by two separate grants. It was not denied that Gopal was the descendant of Kana, and that Gopal's descendant remained sole jagirdars of Kanawas. It was also not denied that Mala was the descendant of Kumpa, and that Mala's descendants remained the sole jagirdars of Malpuria. But it was urged that Kana being the brother of Kumpa, Sohanlal and others, who were the descendants of Gopal, could not be said to be in the line of the original grantee Kumpa, because the grant of Malpuria to him was a separate matter from the grant of Kanawas to Kana. Mohanlal also claimed that he was in the line of Kumpa's descendants, and thus was entitled to succeed as the adopted son of Ganesh.

7. It will be clear from this brief statement of the cases of the parties that there were two crucial points which require decision. The first was whether the two villages had been granted to one man Kumpa, or whether they had been granted separately to two persons, namely Kumpa and Kana, who were brothers. This point was of importance so far as the case of Sohanlal and others was concerned, because if Kumpa and Kana were brothers, and the villages had been granted separately to them, Sohanlal and others could never be in the line of the original grantee so far as Malpuria was concerned. The second point was whether Mohanlal was in the line of the original grantee of Malpuria, who was, according to both parties, Kumpa. The issue, which was remanded by the Chief Court for further evidence and finding, related to the first of these points.

8. The Chief Court, on receipt of the finding of the District Judge, heard the two appeals, and came to the conclusion that the two villages were granted to one person, namely Kumpa, and that Kana was the son of Kumpa, and on this finding they naturally came to the conclusion that Sohanlal etc. were in the line of the original grantee of Malpuria. They also came to the conclusion that Mohanlal had failed to prove that he was in the line of the original grantee, namely Kumpa. Therefore they allowed both the appeals, and restored the decrees of the trial court. The judgment of the Chief Court is, however, written in a manner as if they were dealing with a first appeal, and the main contention of Mohanlal appellant before us is that the Chief Court were dealing with a second appeal, and they were bound by findings of fact arrived at by the lower appellate court unless these findings of fact were vitiated by error of law or by misreading of evidence or by overlooking of important evidence on the record. It is contended that the judgment of the Chief Court does not show that there was any error of law by the lower appellate court, or misreading of evidence, or overlooking of important evidence, and therefore the learned Judges of the Chief Court were not entitled to set aside the finding of fact of the lower appellate court with respect to Mohanlal being in the line of Murisala. If that finding prevails, Mohanlal was entitled to succeed to the jagir as the adopted son, even if it be that the two villages Malpuria and Kanawas were granted to the same person Kumpa, and Sohanlal and others were in the line of the original grantee, namely, Kumpa.

9. Learned counsel for Sohanlal and others contends in reply that though the Chief Court has not said in so many words that the finding of fact of the lower appellate court that Mohanlal was in the line of the original grantee, Kumpa, is vitiated by an error of law, and overlooking of important evidence, it is in fact so, and that if we are satisfied that there was an error of law and over looking of important evidence by the first appellate court we should not interfere with the judgment of the Chief Court relating to Mohanlal not being in the line of Kumpa, even though the form of that judgment is not what it should be. Further, as to Sohanlal etc. being in the line of the original grantee Kumpa learned counsel for the respondents contends that the Chief Court had sent down a new issue for recording a finding by the District Judge, and it was entitled to review the evidence produced before the District Judge in that connection in view of O. 41, r. 26.

10. It would be better if we deal with the two appeals of Mohanlal separately. We shall first deal with the appeal in the suit in which Page: 341Mohanlal was the plaintiff, and the crucial point in that case was whether Mohanlal was in the line of the original grantee, Kumpa. In this connection, the District Judge relied on the pedigree produced by Mohanlal. That pedigree, Ex. D.2, was held proved by the District Judge on the basis of the statements of two Bhats, Bhura and Moti, which they had made on an earlier occasion, and certified copies of which were produced in this case as Exs. D5 and D6. It was not disputed that Bhura and Moti were the Bahee Bhats of the family, and on this evidence alone, the District Judge held the pedigree, Ex. D2, proved. He did not refer to any oral evidence at all in proof of this pedigree.

11. The contention on behalf of the respondents is that the District Judge erred in law in holding that the pedigree Ex. D2 was proved by the statements Exs. D5 and D6 and that in fact neither the pedigree Ex. D.2 nor the statements Exs. D5 and D6 were admissible in evidence, and the Chief Court in fact held this, though it did not say so in so many words. It was also contended that the statements of three important witnesses, namely Champalal, who was the creditor and friend of Ganesh, Mst. Sire Kanwar, daughter of Ganesh, and Mst. Ramsukhi, widow of Ganesh's brother, Abheyraj, which were of great importance, were completely overlooked by the District Judge. The Chief Court relied on these statements which had been completely overlooked by the District Judge, and for these reasons reversed the finding of fact arrived at by the District Judge, namely, that Mohanlal was in the line of the Original grantee.

12. Let us see if there is any, force in these contentions on behalf of the respondents. Ex. D2 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 D6. We have to see whether these three documents are admissible in evidence at all. Learned counsel for the appellant contends that these documents are admissible under sec. 32(5) and (6) of the Indian Evidence Act, as they are statements relating to existence of relationship. It is enough to say that sec. 32(5) and (6) have no application at all, and cannot be used to make these three documents admissible because these three documents came into existence after a dispute had been raised in the Mahakma Khas as to the succession to the jagir of Malpuria. Statements are admissible under sec. 32(5) and (6) only when they are made before the question in dispute was raised. These three documents, Exs. D2, D5 and D6, came into existence after the dispute had been raised in 1931 on the death of Ganesh. They cannot, therefore, be admitted in evidence under sec. 32(5) & (6). Learned counsel for the appellant further relies on sec. 65, clause (g) of the Indian Evidence Act in this connection. Clause (g) provides for admission of secondary evidence when the originals consist of numerous accounts or other documents which cannot conveniently be examined in court, and the fact to be proved is the general result of the whole collection. In such case evidence can be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents. We are of opinion that 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, as in this case, no attempt was made to produce the original documents from which the original of Ex. D2 was prepared, sec. 65(g) cannot, in our opinion, be used for the admission of Ex. D2. We may also point out that sec. 32(5) & (6) require the production of origin statements, and do not contemplate the production of some result deduced by somebody on examination of the statements admissible thereunder. We are, therefore, of opinion that Ex. D2 was not admissible in evidence. We also agree with learned counsel for the respondents that Exs. D5 and D6 were inadmissible in evidence even under sec. 33 of the Indian Evidence Act. That section provides that previous evidence given by a witness in judicial proceeding or before any person authorised by law to take it is relevant in a subsequent judicial proceeding when the witness is dead or cannot be found or incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the court considers unreasonable. The previous evidence is admissible if one or other of these conditions is present, and also provided the previous proceeding was between the same parties or their representatives-in-interest, and the adverse party had the right or opportunity to cross-examine the witness, and the questions in issue were substantially the same in the first as in the second proceeding. It is contended by learned counsel for the respondents that the terms of sec. 33 were not complied with, and therefore the District Judge was wrong in admitting in evidence Ex. D5 and Ex. D6. So far as Ex. D5 is concerned, it is the statement of Motirarri who is dead. One condition is therefore satisfied in this case. But Ex. D6 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, in our opinion, was not enough to prove that the witness could not be found. There was no order of the court admitting Ex. D6 on the ground that the witness could not be found, or his presence could not be obtained without an amount of delay or expense which, under the circumstances, was Page: 342unreasonable. Further, the statements 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 proceeding, in which the statements were taken, were between the same parties. In any case, the evidence shows that at that time two matters were going on before the Mahakma Khas, namely escheat of village Malpuria, and escheat of village Kanawas. It is not clear whether the two matters were treated as one proceeding though the order of the Revenue Minister, dated the 15th of March, 1934, deals with both the escheat proceedings. In any case, the oral evidence is that in those proceedings Mohanlal was on one side, and Ambalal was on the other; but in these suits there are others who are parties besides Ambalal and Mohanlal, namely Kaluram, Shivraj etc. Obviously these statements would not be admissible against Kaluram etc. So far, therefore, as Ex. D6 is concerned, it cannot be admitted because it has not been proved that Bhura could not be found, or that his presence could not be obtained without an amount of delay or expense which, under the circumstances, was unreasonable. Further, Ex. D6 cannot be admitted, in any case against Kaluram and others, even assuming that the proceeding was with respect to the escheat both of Malpuria and Kanawas, though it may be admissible against Ambalal's descendants.

13. Learned counsel for the appellant urges that he was misled by the manner in which the issue was framed by the trial court in this connection placing the burden on Sohanlal and others, and that if the issue had been properly framed, he would have proved his case to the hilt by good and admissible evidence, and that if now it is to be held that the evidence produced was inadmissible, the suit should be remanded, and he should be given a chance to prove his case by good and admissible evidence. Assuming that there is some defect in the issue, the fact remains that Mohanlal was the plaintiff, and he could only succeed in his suit if he was able to prove that he was in the line of the original grantee. The burden of proving the case which the plaintiff, and he was to prove it by good and admissible evidence. The fact that there is some defect in the issues, even assuming it to be so due to the fact that two suits were consolidated, would not mean that Mohanlal as plaintiff could possibly be misled as to what he had to do. He knew very well that he had to prove his case that he was in the line of Kumpa, the original grantee, and he did lead evidence to prove that case. There can in our opinion be no question, therefore, of any prejudice to Mohanlal by the frame of the issue, and there is thus no question of the remand of this suit now twenty years after it was first instituted.

14. It was then urged on behalf of the appellant that the respondents should not be allowed to raise the question of inadmissibility of these documents, as they did not take serious objection to their inadmissibility at the proper time. If they had done so, the appellant would have taken steps to produce admissible evidence. Reliance in this connection was placed on Sayeruddin Akonda v. Samiruddin Akonda (1), Ramachandra Ayyar v. Ranganayaki Ammal (2). In the Calcutta case, the question was whether a mortgage bond was admissiable in evidence against the appellant. The original was produced, and there was no objection taken to its admissibility at the proper stage. It was held that as the document was perse not inadmissible, but had merely been improperly admitted in evidence, the objection to its improper admission could not be raised in appeal. The Madras case is about the admission of secondary evidence without objection.

15. The principle of these two cases, in our opinion, is not applicable to the present case. As was observed by their Lordships of the Privy Council in Miller v. Babu Madho Das (3), an erroneous omission to object to inadmissible evidence does not make it admissible. If the evidence is per se 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 appellate court. It was 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 objection 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. But in this case Ex. D2 is per se inadmissible, and there is no provision of the Indian Evidence Act under which it can be admitted. Exs. D5 and D6 may be admissible under sec. 33 of the Indian Evidence Act, and to that extent it may not be possible for the respondents to raise objection to their inadmissibility in the appellate court; but the admission of Exs. D5 and D6 alone is of no help to Mohanlal without the admission of Ex. D2 which, as we have held, is not admissible under any provision of the Indian Evidence Act. In these circumstances, we are of opinion that the first appellate court relied on inadmissible evidence in holding that Mohanlal was in the line of the original grantee, and therefore this finding of fact could be disturbed by the Chief Court.

16. Further, the first appellate court overlooked certain important evidence namely the statements of Champalal, Mst. Sirekanwar and Mst. Ramsukhi. They stated that Ganesh knew that Mohanlal was not in the line of the original grantee, but he still adopted him in order to facilitate his marriage as he was the Dharam-bhai of Ganesh's daughter. This evidence of a friend and near relations of Ganesh, the adoptive father, was of great importance on the question of Mohanlal being in the line of the original grantee. If the first appellate court had referred to that evidence and had disbelieved it, the Chief Court would not be entitled to interfere with that finding. But when evidence of these important witnesses was not referred to at all, the Chief Court was entitled to consider its effect on the finding Page: 343of fact arrived at by the first appellate court. Thus we are of opinion that though the Chief Court did not say so in so many words there is no doubt that the finding that Mohanlal was in the line of the original grantee, Kumpa, was arrived at by the first appellate court on inadmissible evidence and by overlooking important evidence. In this view of the matter we are of opinion, so far as the appeal in Mohanlal's suit is concerned, that there is no reason for us to interfere.

17. Now we come to the other appeal in the suit by Sohanlal and others. In that suit the question was whether Sohanlal was in the line of the original grantee of the jagir of Malpuria, and the crucial question was whether Kana, in whose line Sohanlal and others are, was the son of Kumpa, and whether both the villages, Kanawas and Malpuria, were granted in jagir to Kumpa. Sohanlal etc. relied on a pedigree filed by them, and the first appellate court held that there was no evidence to prove that pedigree. The Chief Court in their judgment do not say that there was evidence to prove the pedigree filed by Sohanlal etc. in the trial court. They have relied on evidence, which was led on remand, to come to the conclusion that Sohanlal etc. are in the line of the original grantee. The issue, that was remitted by the Chief Court, was whether the villages had been granted to one person or to different persons separately, and if so to whom. The first appellate court came to the conclusion that the villages had been granted separately to two persons, namely Kumpa and Kana. This finding was assailed on behalf of Sohanlal etc. in the Chief Court, and the learned Judges went into the evidence led with respect to this after the remand, and came to the conclusion that both the villages were granted to Kumpa. The Chief Court were, in our opinion, entitled to go into this evidence in view of the provisions of O. XLI, r. 26, and from their own conclusions on it. The Chief Court also admitted into evidence one more document Ex. CW ½ which was a certified copy of a genealogical table filed in the Archaeological Department. That document was produced in the Chief Court by a clerk of that department; but its mere production does not amount to proof, and no attempt was made to prove this document in the Chief Court. Under these circumstances, the pedigree table Ex. CW ½ must be ignored. We have, therefore, to see whether there is proof on the record that Sohanlal etc. are in the line of the original grantee of the jagir of Malpuria. The Chief Court relied on entries in Government record Ex. A1 to A5 in this connection. These entries are from the year Smt. 1808, and four of them show that the jagirdars of Malpuria and Kanawas are descendants of one Kumpa. In the fifth document it is mentioned that the jagirdars are Kana etc. descendants of Kumpa. The first appellate court was also of the view that these documents would certainly ??? lead to the inference that both the villages were granted to Kumpa, and that there was no separate grant of Malpuria to Kumpa, and Kanawas to Kana; but he did not make this inference because of certain entries in a book called Nensi Mutta's Khyat. It is not in dispute that these villages were granted about 300 or 400 years ago, and no record of that time is available. The State records available from Smt. 1808, i.e for about 200 years, show that these two villages were the jagir of the descendants of Kumpa. This was in our opinion, very important evidence available from the State records, and can only lead to the inference that the two villages must have originally been granted to one man, namely Kumpa. If there had been separate grants to two separate persons, the State records, which are available for the last 200 years, would have shown two separate entries one in the name of the descendants of Kumpa for Malpuria, and the other in the name of the descendants of Kana for Kanawas. It is true that for a long time, the jagir of Kanawas is held by the descendants of Gopal, while the jagir of Malpuria by the descendants of Mala. It is not known how this came to pass, but it is possible that these two brothers may have divided the two villages between them in this manner, and the division may have, for all practical purposes, been recognised by the State. That would not, however make any difference to the original grantee for he would still be one person, namely Kumpa, for both villages. It was on the basis of these records that the Chief Court held that both the villages were granted to Kumpa as the original grantee. It cannot be said that this conclusion of the Chief Court is wrong on the evidence that was available. The evidence furnished by these State records going over 200 years cannot, in our opinion, be brushed aside because of some entries in Nensi's Khyat. That is not an official record, though a copy of the book is said to be kept in the Archaeological Department. Nensi is said to have held some official position in the State; but it is nowhere proved that this book was prepared on the orders of the State. Further, we do not see how statements in Nensi's Khyat would be relevant and admissible under the Indian Evidence Act. Learned counsel for the appellant relied on sec. 57 of the Indian Evidence Act in this connection, and pressed that we should take judicial notice of what is entered in Nensi's Khyat. Reliance was placed on the following words in sec. 57—

“In all these cases and also on all matters of public history, literature, science or art, the Court may resort for its aid to appropriate books or documents of reference.”

18. The argument is that this is a matter of public history, and therefore we should look into Nensi's Khyat for this purpose. We must say that we cannot accept this contention. 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. We are, therefore, of opinion that statements in Nensi's Khyat with respect to the grant of a Page: 344particular jagir to a particular person is not a matter of public history, and therefore courts cannot take judicial notice of it. It is true that in Nensi's Khyat, it is mentioned that Kanawas was granted to Kana and Malpuria to Kumpa; but that statement is not a matter of public history of which courts can take judicial notice. This statement overruled the clear inference to be drawn from entries in State records over a period of about 200 years. The first appellate court was, therefore, wrong in taking judicial notice of Nensi's Khyat in this matter, and though the Chief Court did not hold that it could not take judicial notice of Nensi's Khyat it preferred the evidence of entries in Government records to statements in Nensi's Khyat. We are prepared to go further and hold that we cannot take judicial notice of Nensi's Khyat, and therefore the clear inference to be drawn from Exs. A1 to A5 must prevail namely that the villages of Malpuria and Kana were both granted to Kumpa. The next question is whether the decision of the Chief Court that Sohanlal etc. are in the line of the original grantee is correct. We have already pointed out that the Chief Court were not entitled to rely on Ex. CW½ in this connection. At the same time, the very fact that the villages of Malpuria and Kanawas were both granted to Kumpa, and that the village of Kanawas is now with the descendants of Kana can only lead to the inference that the descendants of Kana must also be the descendants of Kumpa, for otherwise the descendants of Kana could not get the jagir of Kanawas as it was granted to Kumpa along with the jagir of Malpuria. This fact alone, therefore, which emerges on a consideration of the evidence led on remand, was, in our opinion, sufficient for the Chief Court to come to the conclusion that Sohanlal etc. were in the line of the original grantee of Malpuria, namely Kumpa. The Chief Court were, in our opinion, entitled to draw such inference from evidence led on remand as they thought proper, and as might affect the decision of the suit brought by Sohanlal etc. In this view of the matter, it cannot be said that the Chief Court were not entitled to come to the conclusion from the entire evidence available to them after the remand that Sohanlal etc. had proved that they were in the line of the original grantee of Malpuria, namely Kumpa. Consequently the appeal of Mohanlal fails so far as the suit of Sohanlal etc. is concerned.

19. We are, however, of opinion that in view of the defective form of the judgment of the Chief Court, parties should bear their own costs of the proceedings in this Court. The costs in the Chief Court and the courts below would be borne as ordered by the Chief Court. We, therefore, dismiss the appeals and order that parties will bear their own costs of this Court and the Ijlas khas and that costs of the Chief Court and the courts below would be borne as ordered by the Chief Court.