JUDGMENT : R.N. Misra, J. - Plaintiff Respondent No. 1 filed a suit for declaration of tide to and recovery of possession of 10.51 acres of land and asked for setting aside on alienation of the suit property made by Defendant No. 1 (Respondent No. 1) in favour of Defendant No. 2 (Appellant). The genealogy below shows the relationship of the parties: Narayana Raghava (Plaintiff) Maguni (died in 1931) widow Soli (died in 1948) Chanda (daughter) (D.1) Plaintiff had earlier instituted Title Suit No. 51 of 1950 against Defendants 1 and 2 and some others claiming the disputed property to have been on Inam Jagir granted in favour of Maguni and upon his death, the grantor had resumed the Inam and re-granted the same In favour of the Plaintiff. Defendant No. 1 without any right, title and interest had got herself recorded in the Record-of-Rights. Therefore, Plaintiff claimed title and possession. That suit had been decreed in the trial Court and that had been upheld in appeal but in Second Appeal No. 120 of 1955, this Court held that the reasonability of the grant had not been established and, therefore, Plaintiff's claim of resumption and re-settlement was not accepted. By judgment dated 21st of July, 1959 (Ext. 6), Plaintiffs suit was thus dismissed. On 30th of November, 1964, the present action was instituted and Plaintiff had initially claimed half share in the property, but later on by amendment dated 14-9-1966, claimed title to the entire property by way of survivorship and asked for a declaration that any alienation made by first Defendant was not binding on Plaintiff. 2. Defendant No. 2 alone contested by contending that the property belonged to Maguni exclusively and he was the grantee of the Inam as, Estate Paik of the ex-intermediary of Badogodo. After Maguni, his widow Soli enjoyed the disputed property exclusively and was rendering service. After Soli, Defendant No. 1 came to possess the property. The maintainability of the, suit was challenged on account of res judicata and by operation of law as provided under Order 2 Rule 2 of the Code of Civil Procedure. It was contended that there was a complete partition between Maguni and Plaintiff. 3. After Soli, Defendant No. 1 came to possess the property. The maintainability of the, suit was challenged on account of res judicata and by operation of law as provided under Order 2 Rule 2 of the Code of Civil Procedure. It was contended that there was a complete partition between Maguni and Plaintiff. 3. The learned Trial Judge dismissed the suit holding that the disputed property was not joint family property of Maguni and Plaintiff; there had been a complete partition as alleged by Defendant No. 2 and the suit was barred by constructive res judicata as also under Order 2, Rule 2 of the Code of Civil Procedure. 4. Plaintiff came in appeal to this Court in First Appeal No. 61 of 1969 and there was a compromise between Plaintiff and Defendant No. 1, where under Defendant No. 1 relinquished half of the disputed property in favour of Plaintiff. 5. In paragraph 6 of his written statement, second Defendant (Appellant before us) pleaded: It is not true that only a portion of the suit lands were transferred to Defendant No. 2 by Defendant No. 1, but she had absolutely alienated to the 2nd Defendant all her right, title and interest in the suit lands to be enjoyed by him absolutely. In paragraph 3 of the additional written statement, it was further asserted thus: The first Defendant was fully entitled to suit land and to sell the same to 2nd Defendant. The said sale is valid and binding on Plaintiff. Issues Nos. 2 and 3 were as follows: 2. Whether there was any alienation alleged to have been made by 1st Defendant in favour of the 2nd Defendant? 3. Whether such alienation if any is true, valid and binding on the Plaintiff? " In paragraph 8 of its judgment dealing with these two Issues along with Issue No. 4 the trial Court stated: These issues being inter-related can be disposed of together. It is not disputed that the second Defendant is on alienee from the first Defendant. His alienation has also been found valid under the previous litigations. There is also no dispute about the alienation in his favour. I would therefore, answer all these issues against the Plaintiff and in favour of the Defendants. It is not disputed that the second Defendant is on alienee from the first Defendant. His alienation has also been found valid under the previous litigations. There is also no dispute about the alienation in his favour. I would therefore, answer all these issues against the Plaintiff and in favour of the Defendants. Before the trial Court, Plaintiff had produced the certified copy of a usufructuary mortgage bond dated 20th of March 1952, executed by the first Defendant in favour of second Defendant for a sum of Rs. 2,000/- in respect of the disputed property and this certified copy was marked as Ext. 1 without objection. The Defendant No. 2 had not produced the registered deed of sale subject to a condition of re-purchase executed in favour of Defendant No. 1 on 27th of March, 1949. 6. In Plaintiff's First Appeal 61 of 1969, before this Court, the second Defendant as Respondent No. 2 applied for letting in the alleged sale deed by way of additional evidence. It was also brought to the notice of the learned Single Judge that during the pendency of the First Appeal, Defendant No. 1 had instituted T.M. 5.69 of 1971 in the Court of the Subordinate Judge at Aska claiming that her mortgage under Ext. 1 stood discharged by operation of Section 17 of the Orissa Money-lenders Act and that the second Defendant as Defendant in the said suit was contesting it on the footing that the suit was not maintainable and the Defendant had acquired full title to the property under the said deed of 1949. 7. Our learned brother B.K. Ray, J, rejected the application under Order 41, Rule 27 of the CPC by saying: ...There is no dispute that Respondent No. 1 had executed usufructuary mortgage bond (Ext. 1) in respect of the suit land in favour of Respondent No. 2 in which it has been clearly mentioned that the dues under the previous mortgage by conditional sale executed by Respondent No. 1 in favour of Respondent No. 2 in the year 1949 have been adjusted out of the consideration under Ext. 1 Respondent No. 2 being the mortgagee under Ext. 1, it cannot be said that he was not aware of its contents. 1 Respondent No. 2 being the mortgagee under Ext. 1, it cannot be said that he was not aware of its contents. It may also be noticed that Respondent No. 2 in his written statement has asserted that Respondent No. 1 was the full owner of the suit land prior to the alienation of the same in his favour. In view of the pleading of the Appellant and Respondent No. 2 as noticed above and in view of the admitted fact that Respondent No. 1 had executed a usufructuary mortgage bond (Ext. 1) in favour of Respondent No. 2 in respect of the suit land, it was for Respondent No. 2 to establish the fact that Ext. 1 was not genuine and that under the previous mortgage by conditional sale he had acquired full title to the suit land. The reason given by Respondent No. 2 as to why he did not file the original mortgaged or even a certified copy of his application under Order 41, Rule 27 CPC are not at all convincing.... The present Appellant has also challenged the finding that he was a usufructuary mortgagee. Dealing with that aspect our learned brother held: ...The suit having been dismissed, Respondent No. 2 could not have preferred on appeal against the finding arrived at by the trial Court against him. Respondent No. 2 is entitled, therefore to challenge the finding of the trial Court that he is only a usufructuary mortgagee while supporting the judgment. In this view of the law, Mr. Pal, learned Counsel for Respondent No. 2, was given full liberty to argue that Respondent No. 2 was not a usufructuary mortgagee and that the finding to that effect by the trial Court was wrong. After having heard him at length, I do not see any reason to differ from the finding of the trial Court. No of material has been placed before me to come to the conclusion that, Ext. 1 is not genuine. This document clearly recites that the dues under the previous mortgage by conditional sale have been adopted out of the consideration under Ext. 1. That apart, in a petition filed by Respondent No. 2 under Order 39, rules to 4, CPC in the previous suit (vide T.S. No. 51/50), he has admitted that he is a usufructuary mortgagee. A copy of this petition is Ext. 1. That apart, in a petition filed by Respondent No. 2 under Order 39, rules to 4, CPC in the previous suit (vide T.S. No. 51/50), he has admitted that he is a usufructuary mortgagee. A copy of this petition is Ext. 3 which shows that it was filed in 1959. In view of this, the oral evidence led by Respondent No. 2 in the trial Court has been rightly rejected. I, therefore, agree, with the finding of the trial Court that Respondent No. 2 is a usufructuary mortgagee in respect, of the suit land. The learned Single Judge accepted the compromise petition and decreed the Plaintiff's appeal in part and left the question open as to whether the mortgage in respect of the Respondent No. 2 had been discharged under the provisions of the Orissa Money-Lenders Act to be determined in the pending suit for redemption. 8. Mr. Pal for the Appellant takes the stand that finality should not have been given to the status of second Defendant. He had been claiming thought to be transferee of full title. In the suit, there was no clear issue nor did the learned Trial Judge give a clear finding. According to Mr. Pal, Ext. 1 should not have been admitted into evidence as foundation for receiving secondary evidence had not been laid and if this Court was going to examine the nature of the alienation in favour of second Defendant, additional evidence should have been permitted to be received. In view of the fact that the genuineness of the document was beyond dispute, Defendant No. 1 was a party to the document and could not have been taken by surprise, the examination of the document would have enabled the Court to pronounce judgment effectively. According to Mr. Pal, when a mortgage suit was admittedly pending and second Defendant had raised the defence of title in that suit, a finding in First Appeal that second Defendant is only a usufructuary mortgagee should nor have been given so as to take away a valid defence in that suit. 9. There is no force in Mr. Pal's contention that Ext. 1 should be ruled out of consideration. This document which is a certified copy of a mortgage deed of 1952 was marked without objection. 9. There is no force in Mr. Pal's contention that Ext. 1 should be ruled out of consideration. This document which is a certified copy of a mortgage deed of 1952 was marked without objection. on objection that a document, which per se is not inadmissible in evidence, has been improperly admitted in evidence in the trial Court can not be entertained for the first time in the Court of Appeal. In AIR 1943 83 (Privy Council), the Judicial Committee pointed out: Where the objection to be taken is not that the document is in itself inadmissible but that the mode of proof put forward is irregular or insufficient, it is essential that the objection should be taken at the trial before the document is marked as on exhibit and admitted to the record. A party cannot lie by until the case comes before a Court of appeal and then complain for the first time of the mode of proof. 10. Defendant No. 2 examined himself as d.w. 3. In cross-examination, he stated: I have not filed the sale deed executed by Chanda in my favour. It is not a fact that I obtained a usufructuary mortgage of the suit lands from Chanda. I am not aware of execution of Ext. A in my favour. The reference to mortgage in the petition Ext. 3 is some other mortgage and not the one contained, in Ext. A. There seems to be a mistake in referring to Ext. in this evidence. What was really intended is Ext. 1. This is so as Ext, A appears to be a muchalika wherein there is no reference to any mortgage. Defendant No. 2 had therefore, been disputing the position that the original of Ext. 1 was a document within his know ledge. He had also explained that reference to mortgage in the petition (Ext. 3) was to some other mortgage and not Ext. 1. The learned Single judge has not referred to this evidence of second Defendant. There is no evidence on Plaintiff's side to the, effect that Ext. 3 related to the disputed property. In the absence of any evidence from the side of Plaintiff to co-relate Ext. 3 to the disputed property, in view of the denial of second Defendant that reference to usufructuary mortgage in Ext. There is no evidence on Plaintiff's side to the, effect that Ext. 3 related to the disputed property. In the absence of any evidence from the side of Plaintiff to co-relate Ext. 3 to the disputed property, in view of the denial of second Defendant that reference to usufructuary mortgage in Ext. 3 was not to the suit property and particularly in the absence of any intrinsic evidence in Ext. 3 itself to throw light on the point, we are of the view that no support can be had for the finding that second Defendant is only a usufructuary mortgage from this document. The application for receiving additional evidence, in our view, should not have been rejected. Once the learned Single Judge decided to examine the character of the alienation, the registered deed, of 1949 became relevant. Undoubtedly second Defendant had taken the plea of title under this document from the very beginning. It is a document to which Defendant No. 1 is admittedly a party, and Plaintiff never disputed that position. We say so because Plaintiff seeks to rely upon Ext.1 the certified copy of the subsequent mortgage of 1952 where the document has been referred to. In view of the fact that the document was a registered one and its execution was not in dispute, the document of 1949 could have even been received without further proof in evidence even at the appellate stage and as we have already said, it would have assisted the Court in determining the question as to whether second Defendant was merely a mortgagee or a transferee of title. The determination of the question in the absence of the deed itself must have prejudiced second Defendant. 11. There is no dispute that second Defendant in the pending mortgage suit has taken the stand that he has title to the property under the document of 1949. In the pending suit, such a question would normally be open to examination in a comprehensive manner but for the finality given to the matter by our learned brother. In the present suit, the Plaintiff never challenged any specific document, the issue was somewhat vague, on Plaintiff's side no oral evidence on the point was led, the alleged document of title was not before the Court and the learned trial Judge had not even examined the question pointedly. In the present suit, the Plaintiff never challenged any specific document, the issue was somewhat vague, on Plaintiff's side no oral evidence on the point was led, the alleged document of title was not before the Court and the learned trial Judge had not even examined the question pointedly. Keeping these aspects in view, we are inclined to agree with Mr. Pal that the, nature of the transaction between first Defendant and second Defendant open to be agitated in the T.M.S. 69 of 1971. 12. While affirming the decree of the learned Single Judge in regard to the part decree of the First Appeal on the basis of compromise between' Plaintiff and Defendant No. 1 we set aside the finding that second Defendant is only a usufructuary mortgagee of the disputed property from Defendant No. 1. Whether Defendant No. 2 is only a usufructuary mortgagee or acquired title to the property is left open for determination in the pending litigation along with the other question namely whether there has been a statutory discharge of the mortgage as alleged. We direct parties to bear their own costs of this appeal. P.K. Mohanti, J. 13. I agree.