1. In this case we think that the appellant's objection on the score of irregular reception of additional evidence by the lower appellate Court should prevail. The suit was in ejectment under Section 49 of the Bengal Tenancy Act.
2. If the defendant were an under-raiyat and the plaintiff's status was that of a raiyat the notice given for the purpose of founding a right to ejectment was sufficient. The great question between the parties was whether the defendant had a higher status than that of an under-raiyat or whether the plaintiffs, in particular, having regard to the transactions to which he had consented in the past year, must be taken to have conferred upon the defendant a higher interest than that of a mere under-raiyat. In both Courts that was the substantial point of controversy.
3. At the trial the tenant's parcha was put in. It appears also that the khatian was put in and there was a good deal of evidence of transactions by way of mortgage and otherwise made by the defendant with the plaintiff's consent, Now we may take it for the present purpose that in the Court below there was a considerable body of evidence in the plaintiff's favour, not only the khatian but other evidence appearing in the history of the parties. We may also take it that; the trial Court upon this question of status was in favour of the plaintiff, But when this matter went on appeal to the lower appellate Court what we find is this: we find that the appeal was heard and that apparently the plain-tiff's parcha had been produced on his be-half for the first time in appeal. There was no petition stating the reasons for the request for reception of additional evidence at that stage. There is nothing in the order shed; to show that the appellant's pleader consented to the additional evidence being put in. There is nothing in the order sheet to show why exactly the lower appellate Court thought it right to admit the additional evidence. In particular there is nothing in the order sheet to satisfy us that the lower appellate Court, when minded to let in the additional evidence, gave to the appellant an opportunity to say whether in those circumstances the appellant would desire to produce additional evidence in view of the evidence about to be let in. Now, it may be for anything we know, that in letting in this parcha the lower appellate Court did something which in fact has not really prejudiced the appellant's case. That, however, is not the question. The lower appellate Court has paid no attention to any of the safeguards provided by the Code.
4. The learned Judge has not recorded any reasons; he has not expressed in any way the grounds upon which he thought fit to act. We cannot assume that the appellant consented; we cannot assume that he was given an opportunity to say whether it would be necessary to call additional evidence on his behalf. In the circumstances we have to consider what is the right course to do in second appeal.
5. When coming to the judgment we find, that notwithstanding there was a body of evidence both ways in the trial Court, the really determining consideration in the mind of the lower appellate Court is the plaintiff's malikiparcha which had been filed in appeal. The first part of the judgment proceeds upon the basis that as that shows that the plaintiff's total bolding was only some 30 or 40 bighas, and that as the bulk of it was cultivated by burgadars, the plaintiff must be a raiyat.
6. The judgment then goes on to enquire whether the plaintiff has by his treatment conferred a higher status on the defendant and it negatives that. Then it comes to the question of the total area of the plaintiff's holding and certain other questions which lead the lower appellate Court to agree on that point with the Court below.
7. The position is this: Section 99 of the Code prohibits any decree being reversed on account of any error, defect or irregularity in any proceedings in the suit not affecting the merits of the case. The question is, have we any right to lay that this did not affect the funding of fact. It seems to us that the learned Judge of the lower appellate Court, by not following the Code, has put this Court in a position in which it is simply not entitled to say that this additional evidence has not affected the merits of the case. To do that we have to try the case on the evidence and then say whether the additional evidence had produced a different result. This is not what Section 99 intends.
8. As regards the right of appeal in such cases the right of appeal is given by Section 100, amongst others, for the ground ' a substantial error or defect in the procedure provided by this Code....which may possibly have produced error or defect in the decision of the case upon the merits.' It seems to us that the right view to take in this case in the circumstances is that we are not entitled to say that the admission of the additional evidence has not affected the merits of the case.
9. Under the circumstances we think that the proper order is to set aside the decree of the lower appellate Court and to send the matter back to that Court with a direction that the parties are to be at liberty to adduce further evidence, if they have any, the plaintiff may produce this parcha again to prove it, and the defendant may have an opportunity to adduce any additional evidence. The additional evidence, if any, will be taken by the lower appellate Court itself and not by the trial Court. In the circumstances the appeal succeeds. Costs will abide the result.
S.A. 1952 and 1953 of 1921
10. Our judgment in Appeal in 1951 of 1921 will govern these two appeals also.