1. This is a suit in which the plaintiff claims a share in the estate of one Ram Dial deceased. Ram Dial left a widow Musammat Indrani who held possession of his property for a number of years with a widow's estate. There were four brothers of Ram Dial all of whom predeceased him except the youngest whose name was Salik. Musammat Indrani in her life-time sold a share in the property to a son of the second brother and also got the names of the sons of the fourth brother recorded as in possession of another portion. The plaintiff is the surviving son of the third brother. He claims as a reversionary heir, and in the 5th paragraph of his, plaint he distinctly stated that at the time of Musarnmat Indrani's death the persons then living who were entitled to succeed as reversionary heirs of Ram Dial were as follows:
(a) The plaintiff himself together with his own brother since deceased. (b) The defendants Chandi and Dukhai, the sons of the fourth brother, (c) The defendant Hannu, the son of the second brother, and Bhawani Bhikh, son of Salik. It may be mentioned at once that Bhawani Bhikh was dead at the time when .the suit was instituted, and his widow Musammat Bhagwani was impleaded as the fourth defendant. This paragraph of the plaint distinctly presupposes that Salik was dead at the time of Musammat Indrani's death, and I do not think it can fairly be said that the plaintiff was bound to state this fact any more specifically than he did. It is to be noticed, however, that the defendants, Chandi and Dukhai, in their written statement distinctly replied that they admitted no portion of the 5th paragraph of the plaint beyond the allegation that Musammat Indrani died in March 1896. The defendant Hannu replied simply; 'paragraph 5 is not admitted'. It may be added that this defendant not only refrained from pleading any title in himself as a reversionary heir of Ram Dial but in paragraph 15 of his written statement distinctly stated that Bhawani Bhikh, son of Salik, had been at sometime or other the owner of the entire share left by Ram Dial at his death, and that the plaintiff himself had in the course of certain previous transactions admitted this fact. For his own part the defendant Hannu rested his case entirely on the validity of the transfer in his favour by Musammat Indrani. The defendants Chandi and Dukhai, no doubt, felt themselves to be in a more difficult position. They had been put in possession by Musammat Indrarii in lier lifetime but it does not appear that there, was ever any formal transfer in their favour. They accordingly in their written statement contented themselves with denying the plaintiff's title and putting him to the proof of the same but nowhere stated under what title they themselves professed to be in possession. Another point to be noticed is that Musammat Bhagwani did not contest the case at all. In the Court of first instance a large number of issues were fixed dealing with matters not now before me for consideration. The second issue, however, was as follows: 'Are the plaintiff and his brother Sobha among the next reversionary heirs of Ram Dial deceased? If so, what is their share, and is Sobha dead, and is the plaintiff the successor, of Sobha?' The Court of first instance found, upon this issue that the suit must fail because the plaintiff had adduced no evidence to prove that Salik, the surviving brother of Ram Dial, predeceased Musammat Indrarii, and this decision has been affirmed by the learned District Judge in appeal. Now it is considered that there is no evidence on the record upon this point, and that no facts are apparent from which any presumption can be drawn that Salik, who was admittedly alive when Ram Dial died, was not also alive when Musammat Indrani died in the year 1896. It is also quite beyond dispute as a quest ion of law, that if Salik was alive on the death of Musammat Indrani, he would succeed as the nearest reversioner to the entire estate of the deceased Ram Dial and that the said estate would then pass on Salik's death to, his son Bhawani Bhikh, and should now be in the possession of his widow Musammat Bhagwani, the one defendant who has not contested this case. I have been carefully through the pleadings and I quite agree with the learned District Judge that there is nothing in the written statement of the first three defendants that can be regarded as an admission, express or implied, of Salik's predecease. I have also pointed out that the plaintiff was expressly put to proof of the 5th paragraph of his plaint, and that the Written statement of the defendant Hannu did raise by fairly direct implication the plea that Ram Dial's estate (except in so far as it might have been affected by valid alienations on the part of Musammat Indrani) had passed through Salik to Bhawani Bhikh, The form of the issue framed by the Court of first instance might perhaps have been improved but there seems to me no getting away from the fact that the plaintiff was put to proof of his title and that it was essential for him to prove not merely that he was a possible reversioner, but that he was, one of the persons entitled to succeed as the nearest surviving reversioners at the time of Musammat Indrani's death. It may be added that he was also bound to prove this as against Musammat Bhagwani, the defendant who had not appeared in the case. The pleas in the memorandum of appeal to, this Court are, therefore, as they stand, cleary unsustainable.
2. The only question which I find at all arguable is whether, in view of the pleadings; as a whole and the form in which the issue was framed by the Court of first instance the plaintiff is not now entitled to an express finding on the particular question as to whether Salik did or did not predecease. Musammat Indrani together with an opportunity of producing fresh evidence on this point. I think the power of permitting the production of fresh evidence is one which this Court is bound, when sitting in second appeal, to use very sparingly and only when it can be shown that the party in whose, favour the exercise of such power is invoked has been misled by the action of the other parties to the case or by some mistake on, the, part of the Court below or by some other, cause, independent of any error on his own part. Under all the circumstances of this ease as already set forth, I am not prepared to grant the plaintiff the indulgence claimed. The result is that this appeal must fail and is hereby dismissed with costs.