1. This is an appeal from an order of remand made by the lower Appellate Court in a suit for ejectment and mesne profile. The subject matter of the litigation is the right of fishery in a tank let out by the plaintiff to the defendants on an yearly rent of Rs. 18, The kabuliyat executed by the tenants stated that the tenancy would last for a term of 9 years from 1316 to 1324 (san). The plaintiff instituted this suit on the allegation that the tenancy had terminated and yet the defendants were in occupation. The Court of first instance decreed the suit. Upon appeal the Subordinate Judge has reversed that decision, on the ground that evidence legally admissible had been erroneously excluded by the Trial Court. It appears that in the sixth paragraph of the written statement the defendants allege that the year in. respect of jalkars begins from the commencement of the rains, that is, from the month of Asarh, that the term of yearly settlement subsists till then, that old fishes are caught till that time and there is right to catch and take the same and that, according to this practice, settlement of the disputed Jalkar was taken in Sraban 1316, so that the term of the said settlement did not expire before Asarh 1325. The Court of first instance held that the expression need in the contract was unambiguous and that oral evidence was not admissible to show that the expression; (san) meant not the Bengali year, which commences from the first day of Baisakh and ends on the last of Chaitra, but another period which commences in Sraban and ends in Asarh. The Subordinate Judge has held that evidence was admissible to show that the term (san) has by custom and usage a special meaning in connection with tenancies of fisheries. In our opinion, the view taken by the Subordinate Judge on this point is correct, and is supported by Section 98 of the Indian Evidence Act.
2. It is well settled that various words in written documents which prima facie present no ambiguity, may be interpreted by extrinsic evidence of usage, and their peculiar meaning, when found in connection with the subject matter of the transaction, has been fixed by parol testimony of the sense in which they were usually received, when employed in cases similar to that under investigation. As an illustration of this principle, reference may be made to the decision in the case of Grant v. Maddox (1846) 15 M. & W. 737 : 16 L.J. Ex. 227 : 71 R. R. 815 : 153 E.R. 1048. In that case the plaintiff, by a written contract, agreed to perform at the defendant's theatre and the defendant agreed to engage her for three years and to pay her a salary of 5, 6 and 7 per week in those years respectively. It was ruled that parol evidence was admissible to show that according to the uniform usage of the theatrical profession, the plaintiff was to be paid only during the theatrical season, that is, during the term that the theatre was open for performance in each of those years. It was argued that the word 'year' was unambiguous, signifying the calender year which commences on the first day of January and terminates on the last day of December, and that consequently the defendant was bound to pay to the plaintiff at the agreed rate for the 52 weeks included in the year between its commencement and its termination. This contention was overruled, Similar illustrations are afforded by the decisions in Anon. (1575) 3 Dyer 345 a, pl. 5 : 73 E.R. 776. (4) (1769) Burr. S.C. 669, R. v. Newstead (1769) Burr. S.C. 669, R. v. Swyer (1830) 10 B. & C. 486 : 109 E.R. 531 : 8 L.J. (O.S.) K.B. 221, Myers v. Sarl (1860) 3 EI & EI. 306 : 122 R.R. 710 : 121 E. R. 457 : 30 L.J.Q.B. 9 : 7 Jur (N.S.) 97 : 9 W.R. 96. In our opinion, evidence was admissible in this case to show that the term (san) did not signify the Bengali year which commences on the first day of Baisakh and ends on the last day of Chaitra, but a different period specially applicable to jalkar tenancies as stated in the written statement.
3. But although the view taken by the Subordinate Judge upon the Question of admissibility of evidence is correct, we are of opinion that the order of remand made by him cannot be supported. The circumstance that evidence has been improperly excluded by the Trial Court does not justify a reversal of the decree made by that Court, The Code of Civil Procedure provides the method to be followed in a case of this description : Order XLI, Rules 27(1)(a), 28, 29 : it is open to the Judge either to take the evidence himself or to direct the Primary Court to take the evidence and to send it to the Appellate Court for consideration.
4. The result is that this appeal is allowed, the order of the Subordinate Judge set aside and the case remitted to him to be dealt with in accordance with law. As the appeal has not been opposed, there will be no order for costs in this Court.