1. This is an appeal by the defendant and arises out of a suit commenced by the plaintiffs for recovery of possession of the lands described in the plaint about 13 1/2 cottas in area after establishment of their title to the same.
2. The defence of the defendants was that the plaintiffs or their vendor Harinath had no title to the suit land which originally belonged to one Barani Bewa, defendants' grandfather's sister who made a verbal gift of the land to the defendant's father Jharu Mondal and that the defendant after inheriting the land from Jharu Mondal sold the land to Durga Prasad, who is the appellant before me. The Munsiff decreed the plaintiff's suit. Against this decision an appeal was taken by the defendants to the Court of the Subordinate Judge of Rajshahi and the learned Subordinate Judge after taking additional evidence at the appellate stage has affirmed the decision of the Munsiff.
3. A second appeal has been taken to this Court by defendant 7 who has purchased the interest of defendants 1 to 4 and Sir Benode Mitter appearing for defendant 7 has contended that the case should be remanded to the lower appellate Court on account of various errors of procedure which have affected the merits of the case. It is said that the lower appellate Court having proceeded to decide the appeal by the reception of inadmissible evidence the appeal should be reheared after excluding the additional evidence and other inadmissible documentary evidence. It appears that the plaintiff's case was that the jote in question belonged to one Harinath and that they purchased from Harinath, the said jote on 13th August 1919 and that Harinath and after him plaintiffs possessed the land in suit through their tenant one Chhabuli who is defendant 5 in the present litigation. The case of the defendant, as I have indicated, is that the jote originally belonged to Barani and that Barani made an oral gift to her nephew Jharu Mondal, that defendants 1 to 4 are the heirs of Jharu and that they were possessing the disputed land through defendant 5. There was previous rent suit against Chhabuli which was instituted by the present plaintiffs on the basis of their purchase of the jote from Harinath and on the basis of a re-settlement in Barga of the disputed lands with defendant 5 in the year 1326 corresponding to 1907. In that suit it was decided that there was no relationship of landlord and tenant between the present plaintiffs and defendant 5 and it was held that the plaintiffs were not possessing disputed land through Chhabuli i.e. defendant 5,, In that suit it was also held that the entry in the Record-of-Rights that Hari Nath was possessing the land through defendant 5 was a doubtful entry. The learned District Judge who decided the appeal from the decision of the rent suit found that the circumstances were such as to show that there was no relationship of the landlord and tenant between plaintiffs and defendant 5 and there was no agreement to pay Barga rent. The learned District Judge left open the question of plaintiffs' titles.
4. The grounds taken by Sir Binode Mitter fall substantially under four heads. It is argued in the first place that the Subordinate Judge ought not to have allowed appellants' evidence to be taken at the appellate stage for the purpose of considering as to whether the dakhilas filed by the defendant are genuine or not. It appears that both sides produced dakhilas in the Court of the first instance from the sherista of the landlord and the Munsiff with reference to the dakhilas of the defendants said that they did not relate to the disputed land. The Munsiff said this:
Thus I must hold that the defendants' dakhilas Ex. B. Series, if they are genuine do not refer to the suit land or that such dakhilas have been manufactured with the help of landlord's gomastha who has nothing to lose by the issue of spurious dakhilas in duplicate.
5. After hearing the appellant the learned Subordinate Judge on 5th August 1927 recorded the following order:
Heard the learned pleaders of both sides. It is very important in this case to find out which set of dakhilas is true. The result of the case hinges much upon it. Both parties are to take proper steps for enlightening the Court on the point. After taking evidence on that point I shall hear the appeal.
6. It appears that in pursuance of this order on 29th October 1927 when the appeal was finally taken up, the appellant examined one of the landlords, Babu Girija Bhusan Bai, who produced a number of documents Ex. 9 to 9z, 9z to 9z28 and Ex. 10 which had been used in evidence. It is complained on behalf of the appellant that Order 41, Rule 27, Civil P.C., does not authorize the appellate Court to take additional evidence in such circumstances. It appears to me, however, that the additional evidence was taken for the purpose of giving the defendants an opportunity of establishing by production of further evidence that the dakhilas given by the landlord were genuine. It seems to me that in the circumstances the defendant cannot now complain that the additional evidence was wrongly taken. In this connexion I may refer to an observation of their Lordships of the Judicial Committee in the case of Jagarnath Pershad v. Hanuman Pershad  36 Cal. 833. Their Lordships said this (at p. 839).
On the argument of the appeal it was objected that the examination of three witnesses by the Court of appeal was irregular; but it appears that the examination was taken with the assent of both sides. It is not open, the refore, to any body to complain of it now.
7. Therefore this ground of appeal must fail. It was argued in the second place that as it was decided in the rent suit as between plaintiffs and defendant 5 that defendant 5's possession was not the possession of the plaintiff that question is res judicata between the plaintiff and defendant 5. I think this contention is sound but even if full effect is given to this contention that does not affect the decision of this appeal for the effect of the decision of the Court of appeal below is that there was no relationship between plaintiffs and defendant 5 in the year 1326 and plaintiffs alleged their re-settlement in the Barga with defendant 5. The present suit was instituted in 1923 within 12 years of 1326 i.e. 1919; consequently, even if plaintiffs cannot show that the possession of Chhabuli was not his possession since 1326 his suit cannot be held to be barred by the statute of limitation.
8. The third ground taken was that the lower appellate Court has relied on certain recitals in another document which was not interpartes and which was with respect not to disputed land but to some other parcel of land. It appears to me, however, that no reference has been made by the lower appellate Court to this document which is Ex. 3 in the case but the lower appellate Court has not referred to it at all. This ground of appeal must fail.
9. It was argued in the fourth place that the lower appellate Court was in error in stating that there was no evidence to rebut the khatian whereas, the previous rent decree was good evidence to rebut the entry in the khatian which showed that defendant 5 was a tenant under Harinath through whom the plaintiffs claimed. It appears, however, that the learned Subordinate Judge did consider the effect of Ex. K which is the decree in the rent suit and he said rightly that the effect of that decree is that the Court did not believe the resettlement with Chhabuli by the plaintiffs in 1326 and found the absence of relationship of land-lord and tenant between them. As I have said the effect of that is that Chhabuli's possession was not the possession of the plaintiffs from after 1919 and this does not affect the question of limitation.
10. As all the grounds raised in this appeal fail this appeal must be dismissed with costs.