ALTAF ALI CHOUDHURY Vs. SRIMATI JARINA BIBI

JUDGEMENT

(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.