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Ahamed Ali Vs. Madbab Ram Namasudra and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in86Ind.Cas.646
AppellantAhamed Ali
RespondentMadbab Ram Namasudra and anr.
Excerpt:
civil procedure code (act v of 1908). order xli, rule 22 - appeal--additional evidence, admission of--procedure--opposite party, whether entitled to adduce evidence in rebuttal. - .....against defendant no. 2. against that decree defendant no. 1 alone appealed and on that appeal the learned subordinate judge has dismissed the suit on the ground that the plaintiff's suit was barred by limitation. it appears that the lower appellate court has not entered into the question as to whether or not chandra was owner of the entire share sold by him to the plaintiffs or all that he sold was his own interest in a share in the property in which the defendant was a co-sharer. the main ground upon which the lower appellate court dismissed the suit, namely, of limitation, was based upon a consideration of two documents which were marked as a and b by the learned subordinate judge which were for the first time brought before the appellate court. from the order-sheet of the learned.....
Judgment:

Chakravarti, J.

1. This is an appeal by the plaintiff and arises out of a suit brought by the plaintiff for recovery of certain properties on the basis of a conveyance, which the plaintiff obtained from two persons, Bishnu and Chandra in the year of 1310 of certain land covered by patta No. 20 and the land in suit is claimed to be a part of the patai land. The plaintiff's case further was that the defendants were holding the land in suit as his tenants and that the plaintiff's title was denied in the rent-suit brought by the plaintiff and that suit having failed the plaintiff brought this suit for ejectment against the defendants. The defence of the defendants appears to be that the plaintiff was not their landlord and that they themselves were owners of taluk No. 20 which was sold to the plaintiff by Chandra alone. The defendant's contention was that Chandra was only part owner, being one of the brothers of the defendants and that, therefore, he had only a share in the patai land and not the entire share which was sold by him to the plaintiff. It appears that the Court of first instance gave a decree to the plaintiff on contest against defendant No. 1 and ex parte against defendant No. 2. Against that decree defendant No. 1 alone appealed and on that appeal the learned Subordinate Judge has dismissed the suit on the ground that the plaintiff's suit was barred by limitation. It appears that the lower Appellate Court has not entered into the question as to whether or not Chandra was owner of the entire share sold by him to the plaintiffs or all that he sold was his own interest in a share in the property in which the defendant was a co-sharer. The main ground upon which the lower Appellate Court dismissed the suit, namely, of limitation, was based upon a consideration of two documents which were marked as A and B by the learned Subordinate Judge which were for the first time brought before the Appellate Court. From the order-sheet of the learned Subordinate Judge it appears that on the 21st November 1921 he recorded an order which runs thus: 'The documents filed by the plaintiff be kept with the record.' No attempt was then made on behalf of the defendants-appellants there to ask the Court to accept these documents in evidence and mark them as exhibits in the case. That they were actually marked and when marked does not appear from the order-sheet. In admitting additional evidence the lower Appellate Court was bound to record its reasons for the admission of additional evidence tendered before it. If the learned Subordinate Judge had heard the parties upon that matter when the documents were tendered it might be quite possible that the plaintiff might have also if additional evidence was going to be admitted, given fresh evidence to rebut the evidence furnished by the additional evidence so tendered. From the record we do not know what really passed. The learned Subordinate Judge refers to these documents in the judgment. We think that the lower Appellate Court should have given an opportunity to the plaintiff to adduce further evidence if the Court was inclined to admit fresh evidence on behalf of the defendants at the appellate stage. In this case it was also necessary for the ends of justice that the plaintiff should be given an opportunity to adduce fresh evidence because it appears that the plaintiff had produced two kabuliyats before the Munsif but they do not bear any mark as exhibits. Both the kabuliyats if admitted in evidence would be of considerable weight on the question as to whether the defendants were the tenants of the plaintiff or not. The learned Subordinate Judge seems to be under a misapprehension that those kabuliyats were not on the record. It might be that the learned Subordinate Judge was thinking that the kabuliyats were not exhibited in the case. But, however, that may be it appears to us that as opportunity was given to the defendants to adduce fresh evidence in the appeal, the plaintiff also should have been given an opportunity to adduce, fresh evidence including the kabuliyats in support of his case.

2. We, therefore, think that the case should go back to the learned Subordinate Judge for giving the plaintiff an opportunity to adduce all further evidence he intends to adduce in the case after the evidence adduced by the defendants has been admitted and marked as exhibits in the case. We think, that the learned Subordinate Judge before finally determining the case ought to go into the question whether the plaintiff was a co-sharer of the defendants or not, or his purchase was limited to a share only.

3. Costs will abide the result.

Ewart Greaves, J.

4. I agree.


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