KEBAL RAMADAS Vs. RAJANI KANTA ROY

JUDGEMENT

(1.) In this case we think that the appellant's objection on the score of irregular reception of additional evidence by the lower appellate Court should prevail. The suit was in ejectment under Section 49 of the Bengal Tenancy Act.

(2.) If the defendant were an under-raiyat and the plaintiff's status was that of a raiyat the notice given for the purpose of founding a right to ejectment was sufficient. The great question between the parties was whether the defendant had a higher status than that of an under-raiyat or whether the plaintiffs, in particular, having regard to the transactions to which he had consented in the past year, must be taken to have conferred upon the defendant a higher interest than that of a mere under-raiyat. In both Courts that was the substantial point of controversy.

(3.) At the trial the tenant's parcha was put in. It appears also that the khatian was put in and there was a good deal of evidence of transactions by way of mortgage and otherwise made by the defendant with the plaintiff's consent, Now we may take it for the present purpose that in the Court below there was a considerable body of evidence in the plaintiff's favour, not only the khatian but other evidence appearing in the history of the parties. We may also take it that; the trial Court upon this question of status was in favour of the plaintiff, But when this matter went on appeal to the lower appellate Court what we find is this: we find that the appeal was heard and that apparently the plain-tiff's parcha had been produced on his be-half for the first time in appeal. There was no petition stating the reasons for the request for reception of additional evidence at that stage. There is nothing in the order shed; to show that the appellant's pleader consented to the additional evidence being put in. There is nothing in the order sheet to show why exactly the lower appellate Court thought it right to admit the additional evidence. In particular there is nothing in the order sheet to satisfy us that the lower appellate Court, when minded to let in the additional evidence, gave to the appellant an opportunity to say whether in those circumstances the appellant would desire to produce additional evidence in view of the evidence about to be let in. Now, it may be for anything we know, that in letting in this parcha the lower appellate Court did something which in fact has not really prejudiced the appellant's case. That, however, is not the question. The lower appellate Court has paid no attention to any of the safeguards provided by the Code.