1. The fasts of the case out of which this appeal has arisen are these.
2. The plaintiff brought a suit for recovery of possession of a 4-annas share in some 8 and odd kedars of land. Her case was that one Nabin Chandra Deb who was a co-sharer in a certain mehal Madanraja had opened a separate account for this share. The land now in dispute lies within this mehal. In 1906 Nabin made a gift of his share covered by the separate account No. 69 to his son-in-law Girish Chandra. Pour days later Girish granted a patni lease of the major portion of the land to his brother-in-law Satis who is the respondent in the present appeal. The rent reserved was Rs. 361. After that the mehal was sold several times for arrears of revenue. Finally in 1913 it was once more sold for arrears of revenue, and purchased by one Baikuntha, Dianath Ram (the husband of the plaintiff) and some others.
2. It was again put up for sale on Janua-ary 15th, 1915, and purchased by Dianath and one Naba Kishore. In 1916 Dianath executed a conveyance in favour of the present plaintiff his wife of 4-annas share of Estate No. 69. Her name was duly registered in respect of this share. In August 1918 Dianath made a deed of gift of the same share to the present plaintiff (his wife). She in September 1918, brought the present suit against one Atikulla for a declaration of her title and recovery of possession. Atikulla set up the title of the patnidar. Satis in defence. Satis was then added as a defendant and the suit proceeded. The trial Courts dismissed the suit holding that the patni was really in existence and could not be avoided or annulled. On appeal to the District Court the Subordinate Judge held tnat the patni lease was not a real transaction and gave a decree declaring the plaintiff's title and allowing her possession through Defendant No. 1 Atikulla. Defendant No. 2 Satis the added defendant appealed to this Court.
3. The ease was sent back to the lower appellate Court to decide the appeal after determining whether the patni tenure was a real transaction. The lower appellate Court held that the patni was a real transaction and so dismissed the appeal and confirmed the judgment of the trial Court which had dismissed' the suit. Against this decree and judgment the plaintiff has appealed to this Court. It is admitted that the decision of the appeal depends now entirely on the question whether the patni granted to Satis was or was not a real transaction. Mr. Chakravarti who has appeared for the plaintiff-appellant has raised three points.
4. (1) That the question of the registration of the patni was raised in the High Court and that Court decided then that certain evidence which has since been admitted was inadmissible. A consideration of the judgment; of the High Court to which I was myself a party makes if; quite clear that the High Court did not decide this point.
5. The next point which has more substance is that the lower appellate Court admitted in evidence certain documents which were not admissible because their admission does not come within the four corners of Order 41, Rule 27. The documents which it is contended were improperly admitted were cartain revenue challans A-f to A-f-12 and certain papers to prove that the patni tenure had been registered by the Deputy Commissioner.
6. Now Order 41, Rule 27 provides that the parties to an appeal shall not be entitled to produce additional evidence whether oral or documentary in the appellate Court unless (a) the Court from whose decree the appeal has been preferred has refused to admit evidence which ought to have been admitted, or (b) the appellate Court requires any document to be produced or witnesses to be examined to enable it to pronounce judgment or for any other substantial cause. There is a proviso that where additional evidence is allowed to be produced the appellate Court shall record the reason for its admission.
7. Now the present case does not admittedly fall within Sub-section (a). Neither does it fall under the first part of Sub-section (b). It is not suggested for one moment that the appellate Court required these documents to enable it to pronounce judgment for the evidence was produced at the instance of one of the parties and not at the instance of the Court. If, therefore, it is in any way admissible it must be obviously under the concluding portion of Sub-section (b) viz., for any other substantial reason. I have been referred to the case of Indrajit Pratap Bahadur Sahi v. Amar Singh A.I.R. 1923 P.C. 128 where their Lordships of the Privy Council remark that the defendants took the only and proper course, viz., to apply to the High Court which was in possession of the case to admit the additional evidence under either the general principle of law or under the specific provision of Rule 27 which lays down that the appellate Court may for any other substantial cause (viz., other than those specified) allow such evidence to be produced.
8. Their Lordships go on to state that id is desirable to observe that there is no restriction on the power of the Board to admit such evidence for the non-production of which at the initial state sufficient ground has been made out.
9. Mr. Chakravarti has contended that the case for the admission of fresh evidence in appeal must come strictly within the four corners of Order 41, Rule 27 and in support of his contention relies on the case of Kessowji Issur v. G.I.P. Ry. Go.  31 Bom. 381. This is also a decision of the Privy Council. No doubt their Lordships do state as follows:
Now, at this stage the question is, under what jurisdiction was the fresh evidence taken by the appellate Court? They had, as has been noticed, no jurisdiction to reverse the refusal of Mr. Justice Tyabji, appeal from his decision being excluded by statute. The 568th section of the Civil P.C. (now Order 41, Rule 27) can alone be looked to for sanction of these proceedings.
10. That the decision most strongly supports Mr. Chakravarti is evident but it seems to ma that it has bsen modified to some extent by the case of Indrajit Pratap Bahadur Sahi v. Amar Singh A.I.R. 1923 P.C. 128 which would allow the adducing of fresh evidence in appeal under either the general principles of law or under the specific provision of Order 41, Rule 27.
11. If, however, I understand the case of Indrajit Pratap Bahadur Sahi v. Amar Singh A.I.R. 1923 P.C. 128 correctly the additional evidence in that case was admitted under 'any other substantial cause.' However be that as it may, I cannot see how either under Order 41, Rule 27, or the general principle of law the evidence in the present case could possibly have been admitted for the first time at the appellate stage. What actually happened it is not too easy to discover from the record but we find on the 18th March a petition was put in by the appellant in which she stated that the Court had passed an order admitting these papers in. evidence. She strongly protested against their admission and asked that if they were admitted she should be allowed to adduce rebutting evidence. On this petition the learned Subordinate Judge passed the following order:
The documents are public records. The plaintiff raised no objection to the admissibility of these documents nor applied to produce any rebutting evidence though they were filed on the 25th August 1920, and 20th March 1923, and were not rejected or admitted before. I therefore, reject the plaintiff's application as frivolous a ad filed with an ulterior motive.
12. I confess I cannot understand the learned Subordinate Judge's order. Ha states the documents are public records. That o itself would not make them admissible for the first; time in appeal. He then goes on to state the plaintiff raised no objection to their admissibility o; asked to bring rebutting evidence though the documents were filed on 23th August 1920, and 20th March 1923.
13. Now the plaintiff had no opportunity for objecting to their admissibility until the appeal was actually heard which apparently was on the 18fch March, the date of the order. The question whether additional evidence is to be admitted or not in appeal has to be determined at the time when the appeal is actually heard, see : Kessowji Issur v. G.I.P. Ry. Co.  31 Bom. 381. Clearly, the plaintiff had no occasion or opportunity before to object to the admissibility of the documents because as I have pointed out this can only be determined at the time of hearing the appeal.
14. The learned Judge offered no reason as far as I understand his order for admitting the evidence. Neither in appeal before us is it suggested what reason there could be for admitting the evidence? It is not suggested that it is evidence which was not available to the defendant at the time of the hearing of the case and which ha could not with due diligence have discovered. Even if it were, the proper course would have bean to apply for a review of judgment. A party cannot be allowed to supplement his evidence in appeal unless some very good reason is given. None has been given or even suggested. The Judge was clearly wrong in allowing the additional, evidence to be given at the appellate stage.
15. It has been argued that in accordance with the provision of Section 167 of the Evidence Act the improper admission of evidence is not by itself a sufficient reason for ordering the appeal to be remanded for a finding on the admissible evidence if the Court is of opinion that independently of the evidence wrongly admitted there is sufficient evidence to justify the finding. But it must be borne in mind that this is a second appeal and that we are not judges of fact.
16. The principle by which the Court is to be guided in dealing in second appeal with evidence improperly admitted, has been discussed in Womes Ghunder Chatterjee v. Chunder Churn Roy Chowdhury  7 Cal. 293 where Garth, C.J., in dealing with the case dissented from his own decision in Watson & Co. v. Gopee Soonduree Dossee 24 W.R. 392 and laid down the rule which as far as I am aware has never been departed from in this Court that the only cases the High Co. in could itself dispose of in these circumstances were cases where independently of the evidence improperly admitted the lower Court has apparently arrived at its conclusion upon other grounds, sea also the cases of Ramini Pershad Narain Singh v. Mahanth Adaiya Gossain  31 Cal. 380 and Jagadish Chandra De v. Harihar De : AIR1924Cal1042 . Applying this test to the judgments now under appeal it cartainly cannot be said that the Subordinate Judge came to his conclusion independently of the inadmissible evidence for a perusal of his judgment will show that it is mainly based on the inadmissible evidence. In such a case it seems there is no alternative but to remand the case again to the Court of first appeal to decide the ease after excluding the evidence wrongly admitted, viz., Exs. A-f to A-f 12 and Ess. Ae, Ag. Ah.
17. Thara is a third ground also which is equally fatal to the order of the first appellate Court. When the Judge allowed the defendant, Satis, to adduce this fresh evidence in the appeal Court the plaintiff asked and asked quite rightly that he should be allowed to adduce evidence to rebut the new evidence. That he is entitled to do seems to be obvious. The learned Judge rejected the application by his order of 18th March 1924, apparently on the ground that the inadmissible evidence had bean on the record a long time and the plaintiff had made no application before to produce rebutting evidence. No doubt the inadmissible evidence had been kept with the record for a long time but it had not been admitted nor could it be admitted until the appeal was heard. Until the evidence was admitted the plaintiff could not ask for permission to bring evidence to rebut it. The appeal was heard on 18th March 1924. On the day when the evidence was admitted the plaintiff applied as he was obviously entitled to do to bring rebutting evidence which application the learned Judge for some reasons which is not easy to understand, stigmatized as frivolous and filed with an ulterior motive. It seems to me to have been a most reasonable application.
18. Mr. Pugh argues for the respondent that irrespective of the admissible evidence the appeal is concluded by the findings of fact by the lower appellate Court. His argument would appear to be this. The Defendant No. 2, Satis, the respondent in this case produced the document by which it was alleged the patni was created. He having done this it was for the plaintiff to show that the document was a benami one and that the lower Court having found there was not an iota of evidence on the plaintiff's side to prove it was fraudulent or benami that concludes the case. The argument has little or no substance for the following reasons. The plaintiff sued Atikulla the tenant in possession to evict him. Atikulla set up the title of the present respondent and this person was then added as a party. It was for Atikulla to prove that there was really an intermediate tenure between him and the zemindar. The document was only a piece of evidence to prove the existence of this tenure. Even supposing for the sake of argument that once the defendant had proved the document it was then for the plaintiff to show that the document did not represent a real transaction, the learned Subordinate Judge was not correct in holding that there was not an iota of evidence on the plaintiff's side to show that it was a fictitious transaction. As has been pointed out in the case of Bhubanmoyini Dasi v. Kumudbala Dasi : AIR1924Cal467 as benami transactions are very common in Indian practice - even a slight quantity of evidence to show that it was a sham transaction may suffice for the purposes. Here the learned Judge is quoting the words of Lord Hobhouse in the case of Uman Parshad v. Gandharp Singh  15 Cal. 20. No doubt, the person who impugned it must show something or other to establish it is a benami or sham transaction. In the present case, there is evidence, namely, the fact that Nabin, the owner, gifts the property to his son-in-law who at once grants a Lease of it to Nabin's own son.
19. This is a fact which would go to show that the transaction was a sham one and, therefore, it is not correct to say that there is not an iota of evidence as to the sham nature of the transaction. It may not be conclusive but it is some evidence. But after all as has been often pointed out, once both parties have given evidence the burden of proof is of little importance. The Judge clearly did not rely on this point of view of the case to decide it. If he had, he would not have discussed the whole of the evidence as he has done. But for the inadmissible evidence to which the Judge refers immediately before dealing with this part of the case it is quite possible he would not have been willing to accept so easily the genuineness of the transaction in spite of the circumstances under which it took place.
20. To sum up the case:
The conclusion to which I have come, first, is that the Judge has based his findings on inadmissible evidence. Secondly, that even if the evidence was admissible he was bound to have given the plaintiff an opportunity of rebutting it.
21. Much as I regret it, it seems to me that there is no alternative but to send back the case to the learned Subordinate Judge to decide the issue as to the genuineness of the patni lease on the admissible evidence before him excluding the documents I have mentioned above as inadmissible retaining the appeal on the file of the Court.
22. It is with regret that I find it necessary to differ from my learned brother in this case, but, in my opinion, this appeal should be dismissed with costs. It would, I think, be a calamity if the only course open to the Court is once more to remand this case to the lower appellate Court for further consideration. The suit, and also the appeal, is valued at Rs. 25 and it does not involve the consideration of any principle of law, the issue to be determined in the case being whether the creation of a patni tenure was or was not a genuine transaction. Yet the case has been dragging its way through various Courts for nearly eight years; it has twice been before the High Court on second appeal; and the issue which it is contended must again be sent down for ferial has already been determined on three occasions by the lower Courts. Nothing but the compelling force of law would induce me to acquiesce in an order by which this case should be sent back to be tried for the fourth time. In my opinion, however, it is neither necessary nor desirable that the case should be remanded for further consideration. The facts have been stated by my learned brother; they are simple, and I need not recapitulate them. On the last occasion upon which the case was before the High Court an order was passed that the case should be remanded to the lower appellate Court:
In order that the question whether the patni set up by the defendant was a bona fide tenure and acted upon may be decided and the oase disposed of according to law.
23. I am not quite clear as to the meaning of the term 'acted upon' in the order, for if the patni was created duly and bona fide its validity would not depend upon whether it was acted upon or not, although, no doubt, if the document by which the patni was created was not acted upon that fact might be some evidence that the transaction was net a genuine one. It is in that sense I presume that their Lordships intended the term to be understood. At the re-trial after remand the learned Subordinate Judge found that the patni was granted bona fide to the respondent, and had been acted upon for 17 years, and he dismissed the appeal with costs.
24. The appellant has again appealed to the High Court in second appeal, and contends that the decision of the learned Subordinate Judge was based upon certain inadmissible evidence which was improperly received for the first time in the lower appellate Court, that the decision appealed from thereby was vitiated, and that the case ought to be sent back to be re-heard according to law.
25. The evidence which the appellant contends ought not to have been admitted was (1) : 12 challans, from the Revenue Authorities for revenue paid in respect of the patni; (2) a certified copy of an order and of an amended order whereby the patni was specially registered under the Assam Regulation, 1886, Ch. IV, and a copy of an entry in the register relating to such registration. Now, it was not contended before us that these documents were not relevant and admissible; the complaint was that they had been tendered and improperly admitted in evidence for the first time in the lower appellate Court after remand. But an appellate Court is entitled in its discretion to admit additional evidence.
either under the general principles of law or under the specific provisions of Order 41, Rule 27 which lays down that the appellate Court may for any other substantial cause (viz., other than those particularly specified) allow such evidence or documents to be produced or, witnesses to be examined. Rules of procedure are not made for the purpose of hindering justice:
Per Mr. Ameer Ali in Indrojit Partap Bahadur Sahi v. Amar Singh A.I.R. 1923 P.C. 128 see also Imambandi v. Mutsaddi  45 Cal. 878.
26. The discretion of an appellate Court not restricted in respect of the admission of additional evidence as in a Court of review under Order 47, Rule 1, but the discretion is a judicial discretion which should be exercised with caution, since the reason for the restrictions that have been placed upon the right of litigants to adduce additional evidence in the later stages of litigation is to prevent perjury and the fabrication of false documents. On the other hand, when an appellate Court has duly admitted additional evidence, that otherwise is admissible, in the exercise of the power that it possesses in that behalf, it is only in rare and exceptional circumstances, such as those obtaining in Kessowji Issur v. G.I.P. Ry. Co.  31 Bom. 381 that the High Court will interfere with the discretion of the lower appellate Court and hold that the additional evidence was improperly admitted and cannot be taken into consideration : In the goods of Upendar Mohan Ghose v. Gopal Chandra Ghose  21 Cal. 484; Vathinatha Pillai v. Kuppa Thevar  42 Mad. 737; Ram Piari v. Kallu  23 All. 121; Young v. Thomas  2 Ch. 134 and Sanderson v. Blyth Theatre Co.  2 K.B. 533.
27. The documents in question were filed in the lower appellate Court on the 25th August 1920, and on the 20th March 1923, and the learned Judge admitted them as appears from the order of the 18th March 1924, upon the ground that the respondent had applied for leave to adduce the additional evidence a year before, that no objection had been taken to their admissibility, and that they were documents which emanated from a public source, and therefore it was unlikely that they had been fabricated. If the matter had rested there I should not have been prepared to interfere with the discretion of the Judge in admitting the documents : Goshain Tota Ram v. Raja Rickmunee Bullub  13 M.I.A. 77 and Ram Chunder Dutt v. Chunder Coomar Mundul  13 M.I.A. 181; Minakshi v. Velu  8 Mad. 373; Mew a Lal Sahu v. Kumerji Jha  10 C.L.J. 33. The learned Judge, however, while admitting the documents notwithstanding the protest of the appellant refused to allow the appellant to adduce evidence in rebuttal. That he ought not to have done; and in taking this course he cannot, in my opinion, be regarded as having exercised his discretion judicially. It cannot be said that the rights of the appellant may not have been prejudiced by the reception of the additional evidence in such circumstances : Ghoshain Tota Ram v. Raja Rickmunee Bullub  13 M.I.A. 77. I think, therefore, that it must be held that these documents were improperly admitted. What is the result? Under Section 167 of the Evidence Act, 1872, if it appears
that independently of the evidence objected to and admitted there was sufficient evidence to justify the decision the improper admission of the additional documents would not of itself be ground for a new trial or reversal of the decision of the lower appellate Court.
28. It is not pretended that apart from the documents to which objection is taken, there was not abundant evidence to justify the decision that the patni was bona fide created and acted upon, and if this Court was hearing the matter in first appeal, it would have been the clear duty of the Court, in my opinion, to dismiss the appeal. But it appears, having regard to Sections 100 and 101 of the Civil P.C. that the Court when hearing second appeal has not the same jurisdiction, and that where evidence has improperly been admitted the Court is compelled to remand the case for re-hearing unless the lower Court has not based its decision upon such evidence or unless independently of the evidence improperly admitted the lower Court has apparently arrived at its conclusion upon other grounds : Womes Chunder Chatterjee v. Chunder Churn Roy Chowdhury  7 Cal. 293; Palakdhari Rai v. Manners  23 Cal. 179; Baleshwar Bagarti v. Bhagirath Dass  35 Cal. 701; Banwarilal Singh v. Divarkanath Missir  29 C.L.J. 577; Jagdish Chandra De v. Harihar De : AIR1924Cal1042 .
29. It is a strange anomaly that the tpower of the High Court finally to determine an appeal is less restricted in connexion with first than it is with second appeals in which the decision of the lower appellate Court should be treated on broad lines, and ought not to be disturbed unless there has been a substantial miscarriage of justice but we must administer the law as we find it and it becomes necessary, therefore, to analyze the grounds upon Which the learned Subordinate Judge baaed his decision. The learned Judge appears to have considered the issue which he had to determine first in the light of the case presented on behalf of the respondent and afterwards in the light of that urged on behalf of the appellant, and came to the conclusion that from whichever standpoint the case was regarded the patni must be held to have been created bona fide and acted upon. He believed the oral evidence adduced on behalf of the respondent that Nabin executed the deed of gift in favour of his 'domesticated son-in-law' in order to fulfill his promise that if Gris came to live in his house he would make him a gift of some property; and that as Gris was in Government service and unable to attend to the management of the property he executed the patni in favour of the defendant Satis. Having come to the conclusion that the 'transaction was conceived in order that Nabin might' confer a benefit upon Gris the learned Judge proceeds to consider the oral and documentary evidence that the deed of gift and the patni had been acted upon. He finds that the first defendant, who admittely what a tenant with occupancy rights, had paid rent to Satis after the grant of the patni and that Satis had paid patni rent to Gris. He further found that the oral evidence was corroborated by the documents adduced by the respondent, rent receipts, collection papers, revenue challans, a receipt by the appellant's co-sharer, the 'registration of Gris' name in the Colletorate, a decree obtained by Satis in an ejectment suit, and the special registration under the. 'Assam Regulation of 1886, all tending to prove that the patni was a bona fide tenure. The conclusion at which he arrived was that the overwhelming documentary evidence added to the oval evidence on the defendents' (respondents') side will leave no room for doubt that the patni was really granted to the Defendant No. 2 and acted upon for the last 17 years.
30. In my opinion, it would be idle to contend that apart altogether from the evidence relating to the special registration and the revenue challans there was not abundant evidence to justify the decision of the lower Court. But it is clear that in considering the issue before him is the light of the evidence adduced by the respondent the learned Judge did base his conclusion to some extent upon the evidence which in the circumstances he ought not to have taken into account and as the High Court in second appeal is not entitled to examine the evidence in order to ascertain whether the remaining evidence was sufficient to justify the decision of the lower Court the case must be remanded, unless the lower Court
independently of the evidence improperly admitted has apparently arrived at its conclusion on other grounds.
31. As I apprehend his judgment there is no doubt that the learned Judge did base his decision on more than one ground for, apart altogether from the evidence adduced on behalf of the respondent the Judge arrived at the same conclusion after considering independently the case presented on behalf of the appellant. The execution of the document by which the patni was created not being challenged, the burden of proving that the tenure thereby created was not bona fide, or, in other words, that the transaction was not a genuine one was shifted upon the appellant. It cannot be doubted that that was the correct view to take of the legal position : see Sections 101 and 102 of the Evidence Act. The learned Judge, however, finds that the appellant had entirely failed to discharge the onus that lay upon him. He states that there is no an iota of evidence on the plaintiff's side that the patni is fraudulent or benami. No allegation of it is made in the plaint, nor in the petition by which the Defendant No. 2 was added as a defendant. The decision of a Court must not rest on suspicion and surmise but must be based on legal grounds established by legal testimony. The plaintiff must show something definite to establish that it is a sham transaction a the principle that the burden of proof lies upon the person who claims contrary to the terms of the deed, and alleges that the apparent is not the real state of things.
32. It has been held that Nabin's statements in the previous suits cannot be used as admissions or substantive evidence. Mere argument is no evidence. The statements of witnesses are oral evidence. The lower Court found that the plaintiff adduced no evidence to show that Nabin is in possession of the patni mahal, and that there is satisfactory, evidence to show that the pat-under Satis is in possession. So it is found that the patni and the gift are not fictitious transactions. In this part of his judgment the learned Judge based his decision upon a different and separate ground, namely, that the appellant bad utterly failed to discharge the onus probandi that lay upon him. This ground is entirely independent of the evidence improperly admitted, for it is based, not upon the evidence adduced by the respondent but upon the failure of the appellant to produce any evidence at all to support his contention that the patni tenure was part of a sham transaction.
33. In Womes Chunder Ghatterjee's case  7 Cal. 293 the Court refused to order a remand in circumstances not dissimilar from those m the case before us. In my opinion for these reasons it is neither necessary nor desirable that the present case should be remanded to the lower appellate Court in order that the issue as to whether the patni tenure was bona fide created and acted upon should once again be re-heard. The learned Judge regarding this issue from more than one point of view as I apprehend his judgment has arrived at the same conclusion, and one adverse to the appellant - upon separate and independent; grounds; and I am of opinion that the case ought not to be remanded and that the appeal should be dismissed with costs.