1. These two appeals have arisen out of two suits in which the plaintiff claims paddy rent. The defendants in the suits maintain that the plaintiff is not entitled to paddy rent and that money rent only is payable. The trial Court in both cases decreed the suits for paddy rent. But on appeal the decrees were set aside and the suits were decreed at the money rent which the defendants claimed to have been payable. In Appeal No. 648 it is urged that the Court below was wrong in taking additional evidence without assigning any sufficient reasons therefor, and without giving sufficient opportunity to the plaintiff to rebut the evidence. Under Order 41, Rule 27, Civil P.C., wherever additional evidence is allowed to be produced by an appellate Court, the Court shall record the reason for its admission. There is no provision that the Court must give an opportunity to the plaintiff to rebut the evidence. We are concerned in the present case with the admissions in evidence by the appellate Court of the kabuliyat Ex. B from which it appears that the holding in question in Suit No. 408 was held by the defendant's predecessor at a money rent of Rs. 3-8-0. In his judgment the learned Subordinate Judge gives his reasons for admitting it, namely, that the defendant was a minor at the time the kabuliyat was executed and that he did not know of the execution of the kabuliyat before. So that the provisions of Order 41, Rule 27 have been carried out as the reason for admission has in fact been recorded.
2. Then it is urged that the fact that money rent was fixed in this kabuliyat for the year 1301 B.S., is not difficult to show that the rent for a period of 30 years later was not paddy rent. This of course is true. But this is not the only circumstance which the appellate Court has taken into consideration. He has considered the probabilities of the case. He says that the evidence as to payment of paddy rent is discrepant and that the story of payment of paddy rent to plaintiff in 1330 B.S. by the defendant's predecessor is evidently false, because the touji papers show that the jote stood in the name of the defendant from 1327, so that the defendant's predecessor died before 1327 B.S. Then it is urged that the documents of the years subsequent to 1301 B.S. when the kabuliyat was executed, should have been considered and particularly the touji papers put in without objection; but the touji papers have been in fact considered the Judge noting that the writer of the touji papers was not examined; and even the Munsif who gave a decree in favour of the plaintiff did not think it worth while to refer to the touji papers. He says it is hardly necessary to refer to the toujis upon which much comment has been made by the learned pleader for the defence. So that the touji papers were considered but not relied on to rebut the evidence showing that money rent was payable. If the rent was changed from money rent to paddy rent, there ought to have been some evidence showing when the change took place and that the defendant's predecessor agreed to pay paddy rent. The plaintiff claims that the lands were held on the same terms by the defendant's father and since at one time, that is, in 1301 B.S. he was holding the land at money rent presumably in the absence of any evidence to the contrary that money rent was paid in subsequent years although the kabuliyat was only for one year. In such cases it is usual for the tenants to hold on the same terms where they continue in occupation of the same holding.
3. Then it is urged that the Court was wrong in holding that certain farags which were filed by the defendant applied to the lands in suit and showed that rent for 1331 to 1332 was paid. The Judge says that as these farags relate to land only, they are necessarily for the lands in suit and that the defendants do not hold any other lands under the plaintiff. The kabuliyat Ex. 2 shows that the defendant does in fact hold other lands at money rent, this kabuliyat having been given by his predecessor for such lands. It is true that holding included a homestead. However there may be some doubt as to whether these farags relate to the lands in suit. They do not affect the merits of the case otherwise inasmuch as they do not indicate whether paddy rent or money rent is payable. But I think they are not conclusive evidence showing that rent of this holding was paid for the years 1330 to 1332 B.S. The finding that money rent and not paddy rent is payable is really a finding of fact and as it seems to have been supported by evidence duly considered by the appellate Court I think this finding should not be interfered with. The result is that the decree in this suit is modified to the extent that the plaintiff will get rent for the years 1330 to 1333 B.S. at the rate of Rs. 4-0-3. The rent being more than Rs. 3-8-0 fixed by the kabuliyat of 1301 B.S. is explained by the fact that the area has increased.
4. In Suit No. 58 out of which Appeal No. 649 arises it has been found that the toujis are not legally proved and that the plaintiff has totally failed to prove realization of paddy rent. It is true that the learned Subordinate Judge has referred to the evidence in the other suit, namely, Ex. B which he should not have done. But apart from this his judgment shows that the plaintiff has failed to prove the realization of paddy rent at any time. This is a finding of fact which I cannot interfere with. The appeals were heard together apparently with the consent of parties, so that I think the plaintiff cannot now complain that he has been prejudiced by the appeals being heard together. The result is that Appeal No. 649 is dismissed. Each party will bear their own costs throughout. Defendants to be ejected if the rent due is not paid within one month of the arrival of the record in the trial Court if not already deposited.