1. This is an appeal by the plaintiff Ram Chandra. He brought a suit or a declaration that the house mentioned in the plaint had been in the possession of the plaintiff for about 14 years with the permission of the zamindar and that the defendant who was attempting to interfere with this possession should be restrained by means of a perpetual injunction. It is dear that the plaintiff alleged in the plaint that ho had been in possession all along. The Court of first instance came to the isoncluaion that the plaintiff was in possession of the house with the permission of the zamindar. The suit was therefore decreed by the trial Court. The defendant filed an appeal and applied during the pendency of the appeal for the reception of some additional evidence which consisted of certain public documents. The application was supported by an affidavit. There were objections by the plaintiff. The lower Appellate Court in a very short and cryptic order admitted the additional evidence. I am not satisfied that the lower Appellate Court did its duty properly and judicially In the matter of admitting additional evidence. Order 41, Rule 27, Civil P.C., requires that a Judge admitting additional evidence it appeal should state the reasons for the admission of additional evidence. No such reasons are given. The defendant further prayed for a local enquiry on the question of possession and a commissioner was appointed for such enquiry. The next day there was an application by the plaintiff Hind he said that the commissioner had gone during the absence of the plaintiff and that the Court should either itself inspect the locality or should depute some-body to take the evidence of witnesses on the question as to when the defendant had taken possession of the house. It was suggested in the application that possession had been obtained by the defendant only three or four days before the making of the application. The commissioner went twice to the place where the house was situate, examined certain witnesses and came to the conclusion that the defendant had been living in the house for some considerable time and the allegation of the plaintiff that the defendant had taken wrongful possession only throe days before was incorrect.
2. The lower Appellate Court then proceeded to hear the appeal and it heard the appeal with the additional evidence on the record and with the report of the commissioner on the record. It started by saying that in order to succeed the plaintiff must prove that the house in suit was abandoned by the previous owners and that after abandonment the plaintiff obtained the permission of the zatnindars to occupy the house and that the plaintiff was in actual occupation of the house at the time of the institution of the suit. The lowers Appellate Court came to the conclusion that the house had been abandoned by the original owners and to that extent the finding was in favour of the plaintiff. It then came to consider as to whether the plaintiff had obtained the permission of the zamindars and here it looked not only at the evidence which was on the record prior, to the reception of additional evidence, but it looked at the additional evidence also and it observed:
Weighing the evidence as a whole I feel very, doubtful about the plaintiff's allegation of the; grant of permission to him by the zamindars.
3. It then discussed the evidence produced' by the plaintiff and came to the conclusion.' that that was not sufficient to establish the- permission alleged by the plaintiff. I have not the slightest doubt in my mind that, the lower Appellate Court was to a great, extent influenced by the evidence that was admitted in appeal. It then proceeded to consider the question of possession and here it was greatly influenced by the report of the commissioner and it is argued by the plaintiff-appellant that the report of the commissioner ought not to have been admitted in evidence. It might be mentioned in this connexion that the plaintiff, himself wanted the commissioner to go to the spot and to take evidence and it does not lie in his mouth or in any event it comes with a very bad grace from the plaintiff to say that no commissioner ought to have been appointed and the commissioner should not have taken evidence at the spot. I think the finding of fact by the lower Appellate Court that the plaintiff has not been in possession of the house is a finding to which no serious objection cart be taken in second appeal. Having said so much it now remains for me to consider whether I should set aside the decree o the lower Appellate Court and direct the appeal to be reheard after eliminating the additional evidence that has been taken by the lower Appellate Court. The appeal before me is an appeal under Section 100, Civili P.C. It provides that an appeal lies to the High Court on any of the following grounds:
(a) The decision being contrary to law or to some usage having the force of law;
(b) the decision having failed to determine some material issue of law or usage having the force of law;
(c) a, substantial error or defect in the procedure provided by this Code or by any other law for the time being in force which, may possibly have produced error or defect in the decision of the case upon the merits.
4. What is objected to by the appellant is that there has been a substantial error or defect in procedure provided by Order 41, Rule 27, Civil P.C. I have said that there is such an error. I have then got to see whether his error has produced an error or defect in the decision of the case upon the merits. What I find here is that all that the Court did was to admit certain public documents about whose genuineness there could not be the slightest doubt. The Court also made the mistake of not allowing the plaintiff to adduce evidence in rebuttal. That again was a matter of procedure, but in this respect the plaintiff was just as much to blame as the Court, because the plaintiff did not insist upon his right to produce evidence in rebuttal and I am sure that if he had so insisted the Court below would have allowed him to produce evidence in rebuttal. On the whole, I have come to the conclusion that the decision of the Court below cannot be challenged upon the merits and therefore I do not feel inclined to allow this second appeal on a question of there being a substantial error or defect in following the provisions of Order 41, Rule 27, Civil P.C. I dismiss this appeal with costs.