JUDGMENT
1. This appeal is on behalf of the plaintiff and arises out of a suit for declaration of title to and recovery of possession from the defendants on their eviction from an area of 85 acres of land (Dag No. 30) in mouzah Akua. The plaintiff's case was that the land was part of a tenancy originally held by certain persons called the Sens and that in execution of a rent decree obtained against the Sens in 1930, the plaintiff had purchased the land of the said tenancy on 19th March 1930. He obtained possession on 24th February 1932. He did not however exercise any act of actual possession. Sometime later, he received notice of certain transfers by defendants 1 to 3 of portions of this land and then he discovered that those defendants were upon the land with, out, as he alleged, any right or title thereto. On the above allegation he asked for a declaration of his title as the purchaser at the rent sale and eviction of the defendants on the footing that they were trespassers.
2. The defence so far as is material to the present case, was that the right in which the Sens held the land was the right of tenure holders and that the defendants were raiyats under the Sens. A further defence was that the decree which the plaintiff had obtained against the Sens was not a rent decree at all by reason of the fact that certain of the tenants interested in the tenancy had not been impleaded in the rent suit. It was therefore pleaded in the written statement that the plaintiff had not, by his execution purchase, obtained the rights of a purchaser at a rent sale.
3. The trial Court passed a limited decree in favour of the plaintiff. It held that the decree in execution of which the plaintiff had purchased the lands was not a rent decree but a money decree and the interest of one Mrinalini which was one-sixth had not been affected thereby. On that finding the learned Munsif declared the title of the plaintiff to the extent of the shares of the persons who were judgment-debtors under the decree which he had obtained, namely, five-sixths. The claim for recovery of possession was dismissed. On appeal the lower appellate Court modified the decree passed by the trial Court to the extent that it merely declared the plaintiff's title by purchase without specification of either the nature of his title or its extent. It added a rider to the effect that the plaintiff would be able to recover a fair and equitable rent from the defendants to the extent of his interest. Subject to this modification, the appeal was dismissed. It is necessary now to state, in little more detail, the actual findings arrived at by the Courts below. They found concurrently that in respect of the suit land the Sens were not tenure-holders but raiyats; that the defendants had not proved that they had obtained any settlement of the land from the Sens; that nevertheless the defendants had been in possession from the time of their grandfather under a claim of tenancy under the Sena and thus had acquired by adverse possession the rights of korfa tenants before the plaintiff's purchase at the rent sale; that such a tenancy was an incumbrance under the law and required to be annulled; that in those circumstances there could be no question of the plaintiff being given a decree for possession, inasmuch as the defendants were not trespassers and secondly inasmuch as no proper notice, annulling the incumbrance, had been served under Section 167 of the Ben. Ten. Act. Both the Courts pointed out that a notice, purporting to be notice under S. 167, had been filed only on the date of the trial but that date was clearly more than one year after the confirmation of the sale and the plaintiff had not proved that it was within one year from the date of his knowledge. The Courts pointed out further that service of this notice upon the defendants had not been proved and also that no foundation had been laid in the plaint for ejectment of the defendants on the footing that the incumbrance held by them had been duly annulled. On these findings the Courts below arrived at the conclusions to which reference has already been made.
4. It is next necessary to refer to a chapter of events upon which the argument before this Court mainly turned. It appears that the only evidence led at the trial in support of the contention that one of the tenants had been left out in the rent suit was the evidence coming from two witnesses, One of them, who was defendant 1 in the suit, stated that Mrinalini was also one of the maliks and that he had seen her in the house of the Sens five or six years before. The other witness was a pleader whose mother held a mortgage of the suit lands and he stated that Mrinalini was also one of the cosharers.
5. The decision of the trial Court was given on 14th February 1942. On 10th March 1942, an application was made before the trial Court for review of judgment on, amongst others, the ground that the plaintiff had discovered after the judgment that Mrinalini's husband had predeceased her father-in-law and therefore Mrinalini was not and could never have been one of the cosharer tenants. On 16th March 1942, the appeal before the lower appellate Court was filed. It appears that no application for reception of any additional evidence was made before that Court and the appeal came to be disposed of on 12th May 1942. On 10th August 1942, however, an application for review of judgment was filed before the lower appellate Court on, amongst others, the ground already stated and it was there asserted that the applicant had then for the first time been able to procure the relevant documentary evidence, namely a copy of a death register and a copy of a suit register which would prove his contention that Mrinalini was not one of the cosharer tenants. After this application for review had been filed before the lower appellate Court, the appeal to this Court was presented on 18th August 1942. Previously, however, on 15th August the appellant had informed the trial Court that he would not proceed with the application for review which was pending before that Court. The review application filed before the lower appellate Court came ultimately to be disposed of on 18th December 1942 and it was dismissed on something like a preliminary ground. The learned Judge held that even if the two items of additional evidence were received and a finding recorded thereon that Mrinalini had not been one of the cosharers and consequently the decree obtained by the plaintiff was a rent decree, still the result would not be in any way different, since the defendants were not trespassers as alleged in the plaint but were incumbrancers and no proper steps for annulling the in cumbrance had been taken nor had the plaint been amended so as to ask for ejectment on the latter footing. In this view the lower appellate Court dismissed the application for review in limine.
6. The appeal to this Court came to be heard on 10th January 1946 but after I had dictated the judgment and before it was transcribed, it appeared that this matter required further consideration. Accordingly the appeal was set down for further hearing and meanwhile the appellant has made an application to this Court for reception of the aforesaid two items of additional evidence after notice to the respondent which he received on 3rd February 1946. I may point out at once that on merits the lower appellate Court, in dealing with the application for review, was not justified in holding that to allow it would serve no practical purpose. It might be true that the plaintiff would not be able to obtain a decree for possession but be had also sued for declaration of his title and surely the two items of evidence had a clear bearing on the question as to whether he had purchased the interest of all the tenants or of only some of them. The learned Judge therefore was not, in my view, right in throwing out the application on the ground that he did, but I must hasten to add that he having refused the application for review after disposal of the appeal before him, I have no jurisdiction in second appeal to set aside the order.
7. The question is whether I have jurisdiction in second appeal to entertain the application which has been made, apart from its merits. In my view I have such jurisdiction. The ground upon which the lower appellate Court threw out the application for review has already been stated. On the rejection of the application, the decree as passed by that Court remained as it was and when that decree came to be dealt with by this Court in second appeal it is impossible to say that an application for admission of additional evidence would not lie as a matter of law, because such an application, made in the form of an application for review, had been rejected by the lower appellate Court. The question before me simply is whether the appellant has been able to bring himself within the limits of O. 41, R. 27 of the CPC.
8. Mr. Bhaduri appearing for the respondent, has referred me to all relevant cases decided either by this Court or by the Privy Council. As the law stands explained by the latest of them, it is now well settled that an appellate Court cannot admit additional evidence unless the Court itself requires such evidence in order to be able to pronounce judgment. There were certain observations to the contrary effect in 50 I.A 183,1 where it might be taken to have been observed that the powers of the appellate Court were not limited to cases where a lacuna or defect in the evidence had been discovered. That decision, however, has subsequently been explained in 58 I.A 254 : 35 C.W.N 7862 which has laid down with some emphasis that the true rule was as laid down in that decision, namely that additional evidence could be admitted only when the appellate Court itself required it. Applying that test to the present case, it seems to me that the case comes clearly within the limits of the rule laid down by the Judicial Committee. The evidence bearing upon the alleged interest of Mrinalini has already been referred to. She could not have been a necessary party to the rent suit and her absence could not deprive the decree of the character of a rent decree simply because she had been seen in the house of the Sens five or six years ago or simply because in 1942 or 1943 somebody said in a general way that she was also one of the cosharers. The matter for enquiry was whether she had any interest in the tenancy at the time when the rent suit was brought, namely in the year 1930. The vague statement that Mrinalini was also one of the cosharers, coming, in one case, from a tenant and in another case from a mortgagee does require, in my view, to be clarified or supplemented by other evidence. The evidence now produced by the plaintiff is clearly evidence of that explanatory character.
9. I am satisfied from the averments in the affidavit supporting the application that it was beyond the power of the plaintiff to produce this evidence at any previous stage. Mr. Bhaduri complained that the appellant ought to have prayed for an adjournment of the appeal before the lower appellate Court. That, I do not think, is a very reasonable criticism, seeing that before the disposal of the appeal by the lower appellate Court the plaintiff had been unable to obtain these pieces of evidence. The evidence proves that in the year 1917 Mrinalini was describing herself as the widow of Jadunath but Krishna Sundar Sen, the father of Jadunath, died on 31st December 1922. Clearly, therefore, Mrinalini being the widow of a predeceased son was not, as the law stood in 1930, one of the heirs or one of the cosharers interested in the tenancy. On this evidence, I am bound to hold that the decree obtained by the plaintiff-appellant was a rent decree. Even without this evidence I would be bound to hold that the evidence led by the defendants had not proved in a manner sufficient in law that Mrinalini was in fact one of the cosharers. In either case, the finding of the Courts below on this point cannot be supported and must be set aside. I am of opinion, however, that the Courts below are entirely right in holding that the plaintiff could not obtain a decree for khas possession either on the basis that the defendants were trespassers or on the basis that a notice for annulment of the incumbrance had been duly served. His claim to eject the defendants on either of these grounds must be rejected and will stand dismissed. He will, however, get a declaration of his superior title as the purchaser at the rent sale to the entire 16 annas of the tenancy.
10. The result is that the appeal is allowed in part. The judgments and decrees of both the Courts below are modified to the extent that the plaintiff's title, as the purchaser at the rent sale, to the full sixteen annas of the lands of the tenancy is declared but his claim for recovery of possession is dismissed. In view of the negligence which has certainly occurred towards the later stages of the proceedings on the part of the appellant, I order that each party will bear its own costs throughout. The copies of the death register and the suit register, put in along with the application filed in Court today, are accepted in evidence and will form part of the record. Leave to appeal under Cl. 15 Letters Patent has been asked for. It is refused.
D.S/D.H
11. Appeal partly allowed.