Richard Garth, C.J.
1. I have had considerable doubt as to whether we ought not to remand this case for retrial.
2. The plaintiffs sue to recover possession of certain land which they say belongs to their zemindari.
3. The defendants, on the other hand, contend, that the land in question forms part of certain property which they hold under a nimhowla, subordinate to the howla of one Parbut Sirdar.
4. Both the lower Courts have found in favour of the plaintiffs; but it has been contended on appeal to this Court, that the Subordinate Judge has based his judgment upon certain documentary evidence, which was not legally admissible against the defendants. One document is a written statement filed in this suit by Sidam, one of the defendants, the son of Parbut Sirdar, in which he says, that the disputed land does not appertain to the howla of his father. This statement of Sidam, the Subordinate Judge appears to have treated as evidence against the other defendants, which he clearly had no right to do.
5. The other evidence consists of the proceedings in a suit brought by Raja Suttyanund Ghosal against the present defendants, in which a decision was given unfavorable to them, as regards their alleged nimhowla patta., These proceedings not being between the parties; to this suit, were also improperly received as against the defendants.
6. The question which we have now to determine is, whether we ought to remand the case on account of the improper reception of this evidence.
7. The 167th section of the Evidence Act provides, that ' the improper admission of evidence shall not be ground of itself for anew trial, if it shall appear to the Court before which the objection is raised, that, independently of the evidence objected to 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.
8. 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.
9. 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.
10. I am sorry to say I have great doubt whether, in the case of Watson v. Gopee Soonduree Dossee (24 W. R., 392), Mr. Justice BIRCH and myself were justified in deciding, as we did, that there was sufficient evidence (other than that improperly admitted) to justify the lower Court's judgment. I confess that it never struck me, until some time after that case had been decided, how much difficulty there was in most cases of second appeal in our attempting to deal with the sufficiency of the evidence.
11. 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 clearly from the judgment, a remand is unnecessary, because then the error committed by the lower Court has not affected the decision upon the merits. (See Section 578 of the Civil Procedure Code).
12. It, therefore, only remains for us in this case to see whether, independently of the evidence improperly admitted, the Subordinate Judge has arrived at his conclusion upon other grounds. Now, both Courts appear to have found, upon the evidence of a large number of witnesses, that the land in question forms part of the plaintiff's zemindari.
13. The evidence improperly admitted related to the proof, or rather the disproof, of the defendants' nimhowla patta. But the defendants, as it seems to me, were bound to prove that patta affirmatively. The onus of proving it lay on them; and without such proof their case must of necessity fail.
14. Now, as to this patta, the Subordinate Judge finds, as I understand him (quite irrespectively of the documents which have been improperly admitted), that ' no reliable evidence had been adduced by the defendants of the genuineness of their nimhowla patta;' and he says further, ' as that patta has not been proved, the disputed land could not be held to be the right of the defendants, even if it were within the boundaries given in the patta.'
15. He also says in conclusion, that ' there is no such satisfactory evidence on the record on behalf of the defendants, other documentary or oral, as would justify me in reversing the finding of the first Court.'
16. I am of opinion, therefore, that, in the present case, as the lower Court has found for the plaintiffs, upon evidence quite independent of that improperly admitted, a remand is unnecessary; and consequently that the appeal should be dismissed with costs.
17. I concur in holding that in this case a remand is unnecessary.
18. The Subordinate Judge has found that the defendants, upon whom the onus lay, have produced no satisfactory evidence, either documentary or oral, to prove that the lands in dispute formed part of their ' nimhowla;' whereas the plaintiff had clearly proved not only his zemindari right to, but his possession of, the said lands within twelve years of suit. It is clear, therefore, that the Subordinate Judge has, quite independently of the evidence improperly admitted, upon other grounds, confirmed the Munsif's decision, and decreed the plaintiff's claim. This second appeal must, therefore, be dismissed with costs.