1. This appeal arise out of suit instituted by the plaintiff for declaration of his title by purchase of a homestead and for recovery of possession thereof by ejecting the defendants who according to the plaintiff are tenants-at-will with respect to the homestead. The Court of first instance declared the plaintiff's title and gave him a decree declaring his right to joint possession with the defendants to the extent of 8-annaa share. The plaintiff preferred an appeal and the learned Additional District Judge by his decree dated the 11th December 1923, decreed the plaintiff's suit in full. The defendants have thereupon preferred this appeal.
2. The plaintiff's case shortly stated was that in the subject-matter of this suit, namely, the homestead, one Kala Chand had nishkar right. Kala Chand's son Kali Kumar mortgaged the said homestead to Kula Chandra Bisharad. The latter sued on the mortgage, obtained a decree and in execution of it he put up the homestead to sale. One Nanda Lal Roy purchased the homestead at the auction-sale and from Nanda Lal the plaintiff purchased the same in July 1922. The plaintiff's case is that by this purchase he acquired 16-annas nishhar right to this homestead and that the Defendant No. 1 was a tenant-at-will in respect of this homestead paying a rent of Rs. 2 per annum. The plaintiff instituted the suit to eject the Defenda No. 1 and to recover khas possession the homestead. The defece Defendant No. 1 was that he was no tenant-at-will in respect of the home-stead but that his father, one Amar Chand who was a cousin of the said Kula Chandra Bisharad, was entitled to 8 annas nishkar right in the home stead. The case for the said defendant was that the homestead was made a gift of to Kula Chandra and Amar Chand on the occasion of the Saradh of a deceased person and that, therefore, they were entitled each to an eight-annas share therein. As I have already stated the defendants' case was accepted by the Court of first instance and the learned Judge on appeal has given the plaintiff a decree in full.
3. Four grounds have been urged on behalf of the appellants in support of this appeal. The first ground relates to the question of some additional evidence that was received by the learned Judge on appeal. The additional evidence consisted of certified copies of an award and a map made in connexion with some land acquisition proceeding. The land acquisition proceeding referrd to a plot of land bearing No. 897, the subject-matter of the present suit being Plot No. 772. Both these plots, according to the cases of both parties were made a gift of at the time of the Sradh to which I have referred and this additional evidence was adduced at the appellate stage of the case for the purpose of showing that in respoect of this plot, namely. Plot No. 897, the compensation money awarded in the land acquisition proceeding was appropriated by the plaintiff and the defendant in unequal shares, the plaintiff taking the major part of it and the defendant a very small portion, thus suggesting that in respect of the said plot the defendant was not an 8-annas co-sharer of the plaintiff and the plaintiffs' case, namely, that he was entitled to 16-annas right and the Defendant No. 1 was only a tenant was true.
4. What the exact circumstances were under which this additional evidence was received by the learned Judge are not deposed to in any affidavit filed on behalf of the appellants. The appellants ask us to speculate and infer that there was some irregularity in connexion with the reception of this additional evidence. What appears from the record, however, is that, on the 10th December 1923, during the argument or as the time when the arguments were going on, this additional evidence was filed on behalf of the plaintiff. The documents so tendered in evidence were reported to in the course of the arguments and they have been also referred to in the judgment which the learned Judge passed on the 11th December 1923. The documents, however, were not then marked as exhibits in the case and some days after the judgment was pronounced, namely, on the 25th February, 1924, a petition was put in on behalf of the plaintiff in which it was stated that the documents had been filed as aforesaid and referred to in the course of the argument, but that through oversight no exhibit mark had been put on them; and upon receipt of that petition the learned Judge seems to have called for a report from the peshkar, and on receiving the peshkar's report he made the order that the documents should be marked as exhibits in the case.
5. Now the appellant's first objection is that the documents should not have been received in the way that they have been by the learned Judge. As far as it can be made out from the record it is clear that it was not after the arguments were over, as has been suggested on behalf of the appellants, that the documents were filed in Court, but that it was during the arguments that they were so filed and both sides had opportunities to refer to those documents. Under these circumstances we have got to see whether the reasons which were given by the party producing the documents were sufficient or not for the reception of the said documents as additional evidence. In the petition which was filed along with these documents it is stated that the documents came into existence after the disposal of the suit in the Court of first instance and that consequently they could not possibly file them when the suit was pending in that Court. These documents are admittedly relevant for the purpose of the issues which arise in the suit, and there can be no question that the learned Judge was right in allowing the appellant before him an opportunity of producing those documents provided the other side, namely, the respondents before him, were not prejudiced in any way by the adoption of this course. It has not been shown to us by the appellants before us that there was prejudice caused to them by the reception of those documents. What has been urged before us is only this : that the reasons which are necessary to be recorded under the provisions of Order 41, Rule 27, Civil P.C. for the reception of additional evidence were not recorded by the learned Judge at the time when the documents were admitted. It has been urged that the omission to record these reasons is not merely an irregularity but an illegality which vitiated the reception of the said evidence. The point came up for consideration before this Court in a case reported as Gopal Singh v. Jhakri Rai  12 Cal. 37 and it was there laid down that the provisions of Section 568 of Act 14 of 1882, which corresponds to the provisions of Order 41, Rule 27 of the present Code as to appellate Court recording its reasons for admitting additional evidence, is directory merely and not imperative. There can be no doubt, as has been laid down in a series of decisions, that the powers conferred by the said rule should be very sparingly used. But when a proper case is made out for reception of additional evidence, I am of opinion, the mere non-recording of reasons for receiving that evidence amounts to nothing but a mere irregularity. In support of the position taken up by the appellants in connexion with this contention reliance has been placed upon the decision of this Court in the case of Gajadhar Prosad v. Lohia  24 C.L.J. 457.
6. That was a case where additional evidence was received after the arguments were over and when the party against whom that evidence was used had no opportunity of rebutting the same. In that case one of the grounds upon which, the reception of that evidence was condemned by this Court was that no reasons had been recorded by the learned Judge who admitted that evidence. That decision, however, is not a clear authority upon the question as to whether the mere omission to record the reasons would amount to such an illegality as would vitiate the reception of that evidence, because the learned Chief Justice expressly stated in his judgment in that case that he did not wish to rest his judgment merely upon the ground that no reasons had been recorded by the Court which received the additional evidence. Another decision of this Court which is not reported has also been referred to before us and that is the decision in Mohesh Chandra Shaw v. Bepin Behari Khan  49 I.C. 510. It does not appear, however, that the decision in the ease of Gopal Singh v. Jhakri Rai  12 Cal. 37, to which I have referred, was brought to the notice of the learned Judges who decided that case. I am clearly of opinion that if a proper case is made out for the reception of additional evidence, and if there is no likelihood of any prejudice being caused to the party against whom such evidence is sought to be used the mere fact that reasons have not been recorded by the Court which received that evidence would not amount to an illegality but would amount only to an irregularity.
7. The second ground urged on behalf of the appellants is that the learned Judge was in error in relying upon an entry in the Record of Bights as raising a presumption in favour of the plaintiff that he had 16 annas nishkar right in the land and that the Defendant No. 1 was a tenant under him at a rent of Rs. 2. The objection that is taken on behalf of the appellants in this respect is that the Plot No. 772 of the Eecord of Eights which is the subject-matter of this suit is situate within the Municipal limits of the town of Brahmanberiah and that the Bengal Tenancy Act does not apply to the said area and that, therefore, no presumption attaches to the entry in the Record of Eights which has not obviously been made under the provisions of Ch. 10 of the Bengal Tenancy Act. As regards this contention it does not appear that there has been any notification such as is contemplated by Section 1 of the Act, and in the absence of any such notification the mere fact that the land is situate within the Municipal area is not sufficient to enable us to hold that Ch. 10 of the Bengal Tenancy Act does not apply to it.
8. In the course of the argument it was suggested on behalf of the appellants that the provisions of that Chapter do not also apply inasmuch as the land in suit is homestead land. The answer of the respondent to this contention, however, is that this objection was not taken in any of the Courts below, nor indeed has it been taken in the grounds of appeal before this Court, and if any such objection had been taken in proper form it would perhaps have been open to the respondent to prove by planing proper materials before the Court that although the subject-matter of the suit is homestead land at the present moment at some time or other previously it partook of the character or formed a part of an agricultural holding and that, therefore, the provisions of Ch. 10 applied thereto. There is considerable substance in the objection which has been taken on behalf of the respondent as there is no indication anywhere in the record suggesting that it was ever objected to on behalf of the appellants at any stage of the proceedings that by reason of the fact that the plot in dispute is homestead land the provisions of that chapter did not apply.
9. If any such objection had been taken it would have been necessary for us to consider whether in view of the cases of this Court, namely, Sashi Kanta Acharjya v. Sandhya Moni Dasya A.I.R. 1921 Cal. 236 and Chand Mia Munshi v. Tukamia : AIR1924Cal667 , in which it has been laid down that although the provisions of Ch. 10 of the Bengal Tenancy Act may not be applicable to a certain land, the presumption arising under Section 103B of the Bengal Tenancy Act applies to entries made in respect thereto, or whether in view of the decision in the ease of Ramdas Mokhopadya v. Bipra Das Pal Choudhury 27 Ind. Cas. 446, it should not be held that such entry is altogether inadmissible in evidence. The question, however, does not arise in the present case for the reasons that I have given.
10. The next contention urged on behalf of the appellants is to the effect that the learned Judge has wrongly placed the onus of proof on the defendants and that he should have held that inasmuch as it was the admitted case of both parties that gifts made at the time of Sradhs were taken in equal shares jointly by the plaintiff and Defendant No. 1 and because it has been found by the Court of first instance that the land in suit had been made a gift of in equal shares to the parties, the onus wag upon the plaintiff to show that in this particular instance he was entitled to the sixteen annas of the nishkar right in the land. As a proposition of law, no doubt, it is perfectly correct, but I do not see that the learned Judge has made any mistake in the way in which he has dealt with the question. The question of onus is not very material after the whole of the evidence has been adduced by the parties and gone into in the case. The learned Judge, it appears, was unable to place much reliance upon the oral testimony which had been adduced on behalf of the parties. Ho relied more upon the subsequent conduct of the parties in relation to the land in suit and on a consideration of the evidence relating to such conduct which he has set out in great detail in his judgment he has come to the conclusion that the plaintiff had received a gift of the sixteen annas nishkar right in respect of this land, This is a finding which I do not think it is possible for the appellants to challenge in second appeal.
11. The last ground urged on behalf of the appellants is that the learned Judge was wrong in declaring the plaintiffs' nishkar right to the land inasmuch as the sale certificate shows that what he purchased was merely a jote right thereto, and if if; was a raiyati right which was purchased by the plaintiff the fact that Defendant No. 1 had in a mortgage executed by him in favour of Kula Chandra stated that he was the holder of a joto right would not show that he was holding rights subordinate to the plaintiff in respect of this land. It is true that there is some confusion in the sale certificate as to the description of the exact right which the plaintiff had purchased. But reading the sale certificate in conjunction with the mortgage and the mortgage-decree it cannot be said that what has been found by the learned Judge is altogether unfounded. Besides, the learned Judge has relied upon the mortgage which wa3 executed by the father of the Defendant No. 1 in favour of Kula Chandra as evidence showing that the father of the Defendant No. 1 admitted therein that he was a tenant under Kali Kumar. This admission the learned Judge has relied upon, and he has also held that it was not due to mistake. If this admission is relied on it is clear that the defendant was in possession of the homestead not as co-sharer of Kula Chandra but as tenant paying rent to him. In any case it having been found that Defendant No. 1 was a tenant at will which was the case set up on behalf of the plaintiff there is no reason to interfere at his instance with the decree declaring the plaintiff's title which has been passed in the case.
12. I am, therefore, of opinion that all the grounds that have been urged in support of this appeal fail and the appeal should be dismissed with costs.
13. I agree.