1. In this appeal the, question raised is whether the plaintiffs' suit is barred by limitation under Article 3 of Schedule III of the Bengal Tenancy Act. Both the Courts below decreed the plaintiffs' suit for recovery of possession of the property in dispute and the defendants have preferred the present appeal. The decree passed by the lower Appellate Court is supported by the finding arrived at by that Court to the effect that the tenancy was neither an occupancy nor an under raiyati one. The learned Judge therefore finds that Article 3, Schedule III. Bengal Tenancy Act does not apply in this case. This finding virtually makes the status of the defendants that of a tenure-holder. The controversy between the parties centred round the question whether the defendants' interest in the land was that of an occupancy raiyat or of a tenure-holder. The plaintiff's are the tenants of the defendants' tenant. Their case^ is that the defendants are the landlords of their landlord. The questions, therefore, that arise are, first, whether as the defendants are the landlords of the plaintiff's landlord, Article 3 of Schedule III applies to this case; secondly, whether the defendants are raiyats within the meaning of that article. The first question was not determined by the lower Appellate Court, and the defendants' appeal to that Court was dismissed on the finding that they were neither occupancy nor under-raiyats. With reference to this question the learned Vakil for the appellants contends that the finding of the lower Appellate Court is not based on legal evidence. It appears that under the Talukdars, Gumani and Nakari hold a non-transferable occupancy and under them Tilak Saha - the pfedecossor-in-title of the defendants - held a bekayemi jama. Gumani and Nakari surrendered their holding and the learned Judge says that Tilak then became a tenant under the Talukdars of the village. He does not say how Tilak on the surrender of the tenancy by the superior landlord became a tenant directly under the Talukdars-whether there was a fresh settlement with Tilak or whether by virtue of the surrender by the superior landlord he became a tenant directly under the Talukdars. The learned Judge further does not state the circumstances under which Tilak who had a bekayemi jama under the raiyat of a non-transferable occupancy holding obtained a kayemi maurashi jama under the landlords. These are no doubt omissions in the judgment of the lower Appellate Court. But on a consideration of the evidence before him, the learned Judge has come to the conclusion that the tenancy is neither an occupancy nor an under-raiyati one. We are not justified in second appeal in disturbing that finding of fact.
2. The appellants have, however, raised another point.
3. They say that the record-of-rights which has been prepared with reference to the land in dispute could not be produced in time before the lower Appellate Court and that the case should, therefore, be re-tried in the light of the record-of-rights which raises a presumption in favour of the appellants. It appears that the record-of-rights was published after the decision of the suit by the first Court, but before the lower Appellate Court pronounced its judgment. The appellants have filed an affidavit to show that with all diligence they were not in a position to produce the record-of-rights in the lower Appellate Court before the hearing of the appeal, and we are satisfied that they were unable to produce it through no laches on their part. That is an important piece of evidence which should be taken into account in determining the present question. As this evidence could not be produced before the lower Appellate Court, we are of opinion that it should be considered in determining the status of the defendants by the Courts which are entitled to deal with facts. We therefore propose to admit the record-of-rights in evidence under Order 41, Rule 27 on the application of the appellants. The course which we propose to adopt is justified by the observations made by their Lordships of the Privy Council in the case of Raja Indrajit Pratab Bahadur Sahi v Ainar Singh A.I.R. 1923 P.C. 128. A similar course was followed in the case of Bhairab Chandra Dutt v. Kali Kumar Dutt A.I.R. 1923 Cal. 606. The order that we make in this case is that this case should be remitted to the Court of first instance in order that that Court may try the question of the status of the defendants after admitting the record-of-rights as evidence in the case. The defendants will be entitled to adduce such evidence, if any, as is necessary to prove the record-of-rights. The plaintiffs will be entitled to adduce such evidence as they consider necessary to rebut the presumption arising from the record-of-rights. It is not intended that there should be a de novo trial, or that fresh evidence in respect of other points involved in this litigation should be adduced. The Court of first instance will then dispose of the case according to law.
4. The result is that this appeal is allowed, the decrees of the lower Courts are set aside, and the case sent back to the Court of first instance to be re-tried according to the observations made above. The costs of this appeal will abide the result.