ALI AHMAD Vs. KISHAN PRASAD

JUDGEMENT

(1.) THIS is an appeal by the defendants arising out of a suit for possession and profits brought by the plaintiff-respondent. The plaintiff claims under a sale-deed in his favour by Johari made in the year 1912. The defendants deny the title of the plaintiff or his transferor and plead title in themselves and possession for more than 12 years. The First Court, in a careful judgment and after giving the parties the fullest opportunity of producing evidence, came to a conclusion adverse to the plaintiffs. I have read the whole of the order-sheet in the case very carefully, and I was led to do so because of the remark in the judgment of the lower Appellate Court that the suit was tried very perfunctorily by the Munsiff and this led to the admission of the additional evidence in appeal. The lower Appellate Court examined two new witnesses and admitted three documents as additional evidence when the case was before it in appeal. There might be some excuse for examining the two witnesses, one of whom was the, vendor of the plaintiff, but there is absolutely no reason given by the Judge for admitting the additional documentary evidence. THIS admission of additional evidence, at least so far as the documents are concerned, is contrary to the provisions of Order XLI, Rule. 27 of the Civil P. C. and the admission of such additional evidence has certainly prejudiced the defendants who had got a decree in their avour from the Trial Court. THIS appeal should have been decided without the admission of additional evidence. As to the admission of oral evidence the only reason which the learned Judge gives or admitting it is that it was necessary to enable him to pronounce judgment, but as to the documentary evidence he does not give even this reason, if it is a reason at all. I think the findings of the lower Appellate Court are vitiated by the admission of additional evidence without sufficient reason, see the case of Hansraj V/s. Shiam Sunder 63 Ind. Cas. 423 : 19 A.L.J. 407, therefore, allow this appeal, set aside the decree of the lower Appellate Court and send the case back to it for trial according to law after eliminating from its consideration the additional documentary evidence received by it in appeal. Costs here and hitherto will abide the event.