1. This is an appeal under the Letters Patent of this Court from a decision of my learned brother Mr. Justice Cuming. The suit was brought by the plaintiff for assessment of rent and. for the recovery of arrears. The learned Munsif, who tried the case, decided that the plaintiff was entitled to recover rent for the period in suit at the rate of Rs. 4-6-8 pies with usual cesses and damages therein and that he should recover enhancement at the progressive rate mentioned in the judgment. The defendants appealed and the learned Subordinate Judge allowed the appeal and dismissed the suit. He held that the lands is suit were not liable to be assessed with rent.
2. At the hearing of the appeal in the High Court, my learned brother, Mr. Justice Cuming was of opinion that the appeal should be dismissed and my learned brother Mr. Justice Mukerji was of the opinion that the matter should be remanded to the lower appellate Court in order that the appeal might be reheard and disposed of in accordance with law in the light of the learned Judge's judgment. The result was that the opinion of Mr. Justice Cuming prevailed and the appeal was dismissed. Consequently the plaintiff has appealed under the Letters Patent to this Court. Three main matters were argued by the learned vakil who appeared for the plaintiff. The first was that the learned Subordinate Judge had improperly relied upon a recital in a kobala which was marked Ex. A and dated the 31st of Aswin, 1281 B.S. which corresponds to the year 1874 That was a document, whereby one of the defendants' predecessors, Govinda by name, purported to sell the plaint lands with other lands to his sister alleging that the lands were his nishkar brahmattar and that his father Gopinath was in possession of these lands in nishkar right.
3. Both the lower Courts seem to have come to the conclusion that this was a benami document, but the learned Subordinate Judge considered that, even though it were a benami document, the recital in the kobala had some value, having been made by the person in possession so far back as 1874. Both the learned Judges of the Division Bench of this Court agreed that the recital in the kobala should not have been admitted in evidence.
44. My learned brother Mr. Justice Cuming, however, was of the opinion that the admission did not vitiate the decision of the lower appellate Court. Ho came to the conclusion that the Court did not rely upon this piece of evidence in coming to its decision. He thought that the judgment was really based on the inference which the Court drew from the long and uninterrupted possession without paying rent. On the other hand, my learned brother, Mr. Justice Mukerji came to the conclusion that it was impossible to say to what extent the learned Judge's mind was influenced by this piece of evidence which was improperly admitted.
5. There is no doubt about the principle upon which this matter should be dealt with. That has been laid down by this Court in the case of Woomesh Ch. Chatterji v. Chundee Churn Roy Choudhuri  7 Cal. 293. The learned Chief Justice said at page 295:
The 167th section of the Evidence Act provides. That the improper admission of evidence shall not be ground of itself for a new trial, if it shall appear to the Court before Which the objection is raised, that, independently of the evidence objected to and admitted there was sufficient evidence to justify the decision. It seems to me, however, that there is great difficulty in applying the provisions of this section to the generality of cases which come before the High Court on second appeal, and the difficulty arises thus.
On second appeal we have no power to deal with the sufficiency of the evidence; we have only a right to entertain questions of law. And our duty being thus confined, it seems to me, that when evidence has been wrongly admitted by the Court below, this Court has, generally speaking, no right to decide, whether the remaining evidence in the case, other than that which has been improperly admitted, is sufficient to warrant the finding of the Court below.
We cannot decide that question, as it seems to me, without examining in detail that other, evidence, and determining, as a question of fact whether it is sufficient of itself to warrant the lower Court's finding.
6. My learned brother Mr. Justice Cuming did not act on that principle. The evidence was not examined by the Division Bench, but the learned Judge apparently relied upon the further observation of the learned Chief Justice at page 296 where he is reported to have said as follows:
On further consideration, I think that the only cases, which we may with propriety dispose of under such circumstances without a remand, are those where, independently of the evidence improperly admitted, the lower Court has apparently arrived at its conclusion upon other grounds. Where this appears pretty clear from the judgment, a remand is unnecessary, because then the error committed by the lower Court has not affected the decision upon the merits.
7. I regret that I am unable to agree with my learned brother Mr. Justice Cuming on this part of the case. I say 'regret' because I should have liked to have agreed with him and disagreement with him means that this case has to be remanded. But I am unable to say that it is apparent from the judgment of the learned Subordinate Judge that he decided the case upon other evidence independently of the recital in the kobala to which I have referred. The second point is that the lands in suit were recorded in the record of rights as being in the possession of the defendants or their predecessors with the remark that the lands were liable to foe assessed with rent although no rent had been paid.
8. The entry to which I have referred is, under the provisions of Section 103-B of the Bengal Tenancy Act, evidence of the matter referred to in such entry and it shall be presumed to be correct until it is proved by evidence to be incorrect.
9. I have read the judgment of the learned Subordinate Judge more than once and although he referred to the entry in the record-of-rights three times. I am not satisfied that he approached the case from the right point of view having regard to the provisions of Section 103-B. In the first place, he referred to the entry when he stated the plaintiff's case at the beginning of his judgment. The second time he referred to the settlement proceedings and stated that the lands were recorded as jote Gopinath and the third time he stated that during the cadastral survey the lands were recorded in the defendants' possession. Except when he was dealing with the statement of the plaintiff's case, the learned Subordinate Judge referred to the entry in the record-of-rights merely for the purpose of showing that the lands were in the possession of the defendants and their predecessors.
10. I agree with my learned brother Mr. Justice Mukerji that the learned Subordinate Judge does not seem to have approached this case from the point of view that the entry in the record-of-rights had to be accepted as correct until it had been proved by evidence to be incorrect. For these two reasons I agree with my learned brother Mr. Justice Mukerji that this case ought to be remanded. I do not lay much stress on the third point which was referred to by the learned vakil because I think that it is quite open to this Court to read the learned Subordinate Judge's judgment as meaning that upon the evidence ho inferred that there had been a grant of rent-free title to the defendants' predecessors. The result is that in my judgment the order of Mr. Justice Cuming should be set aside and the case should be remanded to the lower appellate Court in order that the appeal may be re-heard and decided in accordance with law.
11. I endeavoured to see whether it was possible for this Court to determine the issue of fact and to dispose of this appeal without remanding it. I find that under Section 103 of the Code of civil Procedure, the power of the High Court with regard to such an appeal as this is limited. The issue of fact in this case was determined by the Court below, and we have no jurisdiction to dispose of the appeal finally here much as I should have liked so to do.
12. As regards the costs of the hearing before the Division Bench Mr. Justice Mukerji's directions will stand, and there will be no order as to costs of the Letters Patent appeal. Costs of the first hearing in the lower appellate Court will abide the event of the second hearing.
13. I agree.
14. I agree.
15. On the appeal being subsequently reheard the judgment was as follows.
16. This is a re-hearing of the Letters Patent Appeal No. 6 of 1926. It was heard by my learned brothers and me on the 16th of this month, and this Court came to the conclusion that the order which was suggested by my learned brother Mr. Justice Mukerji should be carried out, namely, that the case should be remanded to the lower appellate Court in order that the appeal might be re-heard, and we expressed regret that we were not able to decide finally the matters which were in controversy because of the limitation involved in the provisions of Section 103 of the Civil P.C.
17. My learned brother Mr. Justice Panton and I had signed the judgment, but my learned brother Mr. Justice Graham had not signed it. We then discovered that Act VI of 1926, which amended Section 103 of the Civil P.C. had come into force in February 1926 and consequently was in force at the time when we heard the appeal. My learned brothers and I considered that this Court had jurisdiction to re-hear the appeal and decide the case in accordance with the provisions of the amended Section 103 and both the learned advocates who appear for the respective parties in this appeal have agreed that this Court has jurisdiction to re-hear it.
18. Section 2 of Act VI of 1926 provides as follows:
In Section 103 of the Code of Civil Procedure, 1908, for the words 'but not determined by the lower appellate Court' the words' which has not been determined by the lower appellate Court or which has been wrongly determined by such Court by reason of any illegality, omission, error or defect such as is referred to in Sub-section (1) of Section 100 shall be substituted.
19. In view of that alteration I have no doubt that this Court has jurisdiction to decide finally the issues with which this Court dealt in its judgment on the 16th of June 1926.
20. The main issue in the case is whether the entry in the record-of-rights has been shown to be incorrect.
21. The entry in the record-of-rights with regard to the property in suit is as follows:
Rent assessable but not taken and realised.
22. That record-of-rights was finally published in the year 1913. No steps were taken on behalf of the defendants to have that entry in the record-of-rights corrected or altered, and it was not until 1922 when the plaintiff brought this suit for the purpose of recovering rent from the defendants that the defendants for the first time asserted that the entry in the record-of-rights was incorrect.
23. The provision relating to this matter is Section 103-B(5) of the Bengal Tenancy Act and it is so well-known that it is hardly necessary to read it. The words are as follows:
Every entry in record-of-rights finally published shall be evidence of the matter referred to in such entry and shall be presumed to be correct until it is proved by evidence to be incorrect.
24. The only question in this case, which I think it is necessary to consider at present, is whether the defendants by the evidence, which has been produced in this case, have shown that the entry in the record-of-rights is incorrect.
25. The defendants rely principally upon two matters, first : that they and their predecessors have been in possession of the land in suit for a long period; and secondly, that they have not paid any rent.
26. The time during which the defendants have been in possession, in my judgment, has been left indefinite and I am not prepared to hold that, when the period during which the defendants have been in possession is left in an indefinite and nebulous state, that is sufficient, even when taken with the fact that no rent has been paid to show that the entry in the record-of-rights is incorrect.
27. The learned advocates who appeared for the respective parties in this case have dealt with the evidence on the one side and on the other and have drawn our attention to the material documents, but I am not prepared to say that the defendants have succeeded in showing that the entry in the record-of-rights is incorrect.
28. The result, in my judgment, is that the decree of the lower appellate Court must be set aside and that the judgment of the learned Munsif in this respect must be restored.
29. A further point, however, was taken by the learned advocate for the defendants, namely, that the learned Munsif was wrong in holding that the rent was liable to be enhanced under Section 30(b) of the Bengal Tenancy Act at the progressive rate which is mentioned in his judgment. It was pointed out by the learned advocate that the learned Munsif in an. earlier part of his judgment bad proceeded in accordance with the provisions of Section 7 of the Bengal Tenancy Act, which is a section in the chapter which relates to tenure-holders. He further drew our attention to the entry in the record-of-rights, which being translated is 'holder of a middleman's interest,' and he further relied upon the finding of the learned Munsif that the plaintiff's contention that the defendants were ordinary occupancy-holders was incorrect-He, therefore, argued that the learned Munsif was wrong in applying Section 30(b): to this case.
30. The learned advocate for the plaintiff in his reply was constrained to admit that there was really no answer on this part of the case to the argument which-had been advanced on behalf of the defendants.
31. In my judgment the argument on behalf of the defendants in this respect is correct.
32. Consequently the decree in this case must be confined to the decree that the plaintiff is entitled to recover for the period in suit rent at the annual rate of Rs. 4-6-8 pies with the usual cesses and damages therein. The parties will pay that own costs in all the Courts.
33. I am of the same opinion.
34. I am also of the same opinion.