MANINDRA NATH DAS Vs. RAM KINKAR KUNDU

JUDGEMENT

(1.) This is the defendants' appeal arising out of a suit under Section 77, Registration Act. The disputed document is a kobala, bearing date 1-3-1945. The defendants denied execution of this kobala. On their refusal to register it, it was presented for registration by the plaintiff on 13-3-1945. Registration was refused by the authorities under the Registration Act and, thereafter, en 3-1-1946, the present suit was brought by the plaintiff under Section 77 of that Act. The trial Court came to the conclusion that the execution of the disputed document by the defendants had not been satisfactorily proved and, in that view of the matter, he dismissed the plaintiffs suit. On appeal, that decision has been reversed by the learned Subordinate Judge whose judgment is based mainly upon the additional evidence of a lawyer witness Babu Kishorilal Das, who was examined by the court and whose evidence was admitted at the appellate stage. The defendants have now come up to this Court in Second Appeal.

(2.) The only point which has been urged by Mr. Guha in support of this appeal is that the reception of the additional evidence by the learned Subordinate Judge at the appellate stage was improper and not justified by the terms of the relevant provision of the Code, namely, Order 41, Rule 27 (1) (b). In my opinion, Mr, Guha's submission iss not without force in the circumstances of the present case.

(3.) The additional evidence in question was received and admitted by the learned Subordinate Judge in the course of the hearing of the appeal by his order No. 30, dated 18-7-1949, and the reasons, given by him for admission of that evidence, appear in that order in the following terms: