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Jamini Mohan Bhattacharjee and ors. Vs. Narendra Mohan Chakrabarty - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in41Ind.Cas.71
AppellantJamini Mohan Bhattacharjee and ors.
RespondentNarendra Mohan Chakrabarty
Excerpt:
appeal decided without reference to admissible evidence - procedure--remand. - .....held to be admissible by this court in the judgment under appeal, and in so holding, we think, the learned judge was right. it follows, therefore, that when the district judge gave his judgment he came to his conclusions without considersing evidence which was legally admissible. as we are not judges of fact, the case should have under those circumstances been remitted to the district judge for re-consideration. we must do that now, and remand the case to the district judge for re-hearing to consider the case taking into account this document, the chitta, and in so re-hearing the case the learned judge will determine whether the issue of adverse possession arises upon the pleadings, and if so, whether it is sustained in law and fact.2. the appellant is entitled to the costs of the appeal.....
Judgment:

1. The District Judge held that the chitta (Exhibit 1) was inadmissible, though it is stated to have been admitted without objection in the first Court. It has, however, been held to be admissible by this Court in the judgment under appeal, and in so holding, we think, the learned Judge was right. It follows, therefore, that when the District Judge gave his judgment he came to his conclusions without Considersing evidence which was legally admissible. As we are not Judges of fact, the case should have under those circumstances been remitted to the District Judge for re-Consideration. We must do that now, and remand the case to the District Judge for re-hearing to consider the case taking into account this document, the chitta, and in so re-hearing the case the learned Judge will determine whether the issue of adverse possession arises upon the pleadings, and if so, whether it is sustained in law and fact.

2. The appellant is entitled to the costs of the appeal before us. As regards the costs of the appeal before Mr. Justice Newbould, they will follow the decision of the District Judge on remand.


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