1. This is an appeal by the defendants. The First Court dismissed the suit and the lower Appellate Court has decreed it in the plaintiff's favour. Now, the judgment of the lower Appellate Court is attacked on two grounds: First, with regard to the procedure adopted by the learned Judge and, secondly, with regard to his findings as to title which are said to be defective. It is not necessary for us to deal with the second point because we think that the procedure adopted by the learned Judge was clearly incorrect and that the case must go back in order that the appeal should be re-heard by the lower Appellate Court.
2. Now, apparently what happened is this the bearing of the case was concluded on the 3rd February 1920 and judgment was reserved. When the learned Judge came to consider his judgment he found some difficulty apparently in arriving at a conclusion upon the materials on the record and, accordingly, he sent for, in the absence of the parties, the khasra papers, and looking at the papers he came to certain conclusions which ware contrary to the entries as appearing in the Record of Rights. Thus apparently he has drawn an inference in favour of the plaintiffs and adverse to the defendants from what he has found in these khasra papers. Now, it seems to us that he was clearly wrong in the procedure which be adopted. Assuming, as is suggested, that recourse might be had to the khasra papers the learned Judge certainly, before arriving at the conclusion at which he arrived, should have allowed the defendants an opportunity of being heard with regard to the conclusions which the Judge was prepared to draw from khasra papers, No Court has a right to look at any document or any papers other than those on the record unless he gives to the parties to the suit an opportunity of being heard and making their submissions with regard to what is contained in document outside the record to which the Judge desires to refer. We think there is no doubt that the whole judgment has been coloured by what the learned Judge has found in the khasra papers.
3. Then, again, it seems to us that he was certainly wrong in drawing the inference which he did from these papers. The inference under Section 103A of the Tenancy Act can only be drawn from the finally published Record of Rights, and not from the material upon which the finally settled Record of Rights is founded.
4. On behalf of the respondents we were urged to say that, even apart from the irregularity above-mentioned, there was evidence on the record from which the learned Judge could arrive at the decision at which he arrived. But, speaking for myself, I cannot but think that he approached the evidence of both the parties with his mind influenced by what he had found, or what he thought be had found, in the khasra paper.
5. Accordingly, this appeal succeeds and the age will go back to the lower Appellate Court in order that the appeal may be re-heard upon the materials upon the record and if it becomes necessary to refer to other matters in accordance with the provisions in that behalf contained in the Code of Civil Procedure, reference to such evidence must only be made in the presence of the parties and after hearing them upon the evidence. The question as to the admissibility of the khasra papers will be a matter for argument before the lower Appellate Court.
6. Costs of this appeal will abide the result of the re-hearing of the appeal by the lower Appellate Court.