JUDGMENT
1. The learned District Judge has found mainly on the strength of a document, Exhibit M, which was received in evidence by him on appeal that the plaintiffs (respondents) have proved that they were the nearest reversionary heirs of the deceased, Devaraja Pillai. It is contended by Mr. T.V Venkatrama Aiyer for the appellants (who are most of the alienee-defendants) that document was wrongly admitted in evidence and reliance is placed on Kessowji Issur v. Great Indian Peninsular Railway Company(1) and Krishnama Chariar v. Narasimha Chariar(2).
2. The decision of their Lordships of the Privy Council in Kessowji Issur v. Great Indian Peninsular Railway Company was considered in several later cases in this Court.
3. It is necessary, however, to refer only to Andiappa Pillai v. Muthukumara Thevan(3), Second Appeal No. 819 of 1911 and Peddibotla Kameswaramma…Defendant v. Bezwada Chelapathi…Plaintiff .(5). In all these cases, it was held that when the Appellate Court wishes to admit fresh evidence in order to enable it to pronounce a judgment to the satisfaction of its own mind, there is nothing in Kessowji Issur v. Great Indian Peninsular Railway Company to prevent its doing so. It has been further observed in some of these later cases that the expression “for any other substantial cause” in O. 41, R. 27, (old S. 568) gave further power to the Appellate Court to admit fresh evidence on the same grounds as would justify the Court of first instance in granting a review. That the discovery, after the filing of the appeal of fresh evidence not known to and not available to the appellant after due diligence in the first Court is such substantial cause and that such evidence could be admitted at the hearing of the appeal has been also decided in Kalka Singh v. Bharat Singh(6) and that view is supported by the decision of their Lordships of the Privy Council in Sheo Singh v. Raghubans Kunwar(7), their Lordships having approved in that case of the reception of such fresh evidence by the Appellate Court notwithstanding the arguments addressed to them that the reception of such evidence was improper.
4. In the present case reading the judgment of the learned District Judge as a whole, we are satisfied that Exhibit M was admitted by him during the hearing of the appeal for “substantial cause” because he was satisfied that the plaintiffs were unable to produce it in the Court of first instance through no fault or negligence of their own. The learned District Judge, no doubt, does not refer expressly to the plaintiff's negligence not having been the cause of their ignorance of the existence of Exhibit M till after the decision of the District Munsif was pronounced, but having regard to the learned Judge's refusal to allow the plaintiff to produce another document as evidence before him on the ground that the plaintiffs were negligent in not having filed it before the Munsif, we think that he allowed Exhibit M to be produced in appeal because he was satisfied that the plaintiffs were not guilty of negligence in not having produced this particular document before. In the case in Krishnama Chariar v. Narasimha Chariar the additional evidence was apparently allowed by the Appellate Court in the very same irregular manner which was pointed out by their Lordships of the Privy Council in Kessowji Issur v. Great Indian Peninsular Railway Company as not permitted by law and hence that decision is not relevant.
5. The other questions argued before us are either questions of fact or points not taken up in the grounds of second appeal and we cannot entertain them.
6. There are, however, certain minor errors which have crept into the decree, of the District Court (one of these minor errors also appears in the judgment) and we are entitled to correct them under O. 41, R. 33, even if some of the parties are not before us or have not appealed. These errors relate to the properties alienated to the defendants Nos. 2 to 9, II, 12 and 16. As these alienations have been declared by both the Courts to be binding on the plaintiffs, the decree of the District Court will be modified by removing the words beginning with “that the plaintiff do pay Rs. 120” up to the words “hereunder” the words “subject to the above limitations” and the words “after removal of the houses” up to the figures “11 and 12” and by inserting the words “other” between “the” and “suit properties.”
7. The appellants will pay three-fourths of plaintiff's costs and bear their own.
S.N/R.K
8. Appeal dismissed.