AMINA BIBI Vs. AKSHOY KUMAR SEN

JUDGEMENT

(1.) In this appeal which has been pressed only as regards item 1 of property namely plot No. 1 of the schedule to the plaint the substantial question in controversy, such as it was before the Court below, was whether that property was originally acquired by one Ijjatannessa Bibi or had belonged previously to her father Nasirulla. By reason of some documents which the appellant has discovered during the pendency of the appeal the question has been placed before us for our consideration in a somewhat altered form namely whether it had not belonged to Ijjatannessa Bibi's mother who is said to have been one Mariam Bibi. The appellant has applied for the reception of the said documents as evidence at this stage. Order 41, Rule 27, of the Code as explained by the decisions of the Judicial Committee in the cases of Kessowji Issur V/s. G. I. P. Ry. (1907) 31 Bom 381 and Parsotim V/s. Lal Mohan 1931 P C 143 would not enable us to receive these documents as additional evidence, even though we may find that notwithstanding the exercise of due diligence on her part the documents were not within her knowledge, which is the only ground on which the appellant takes her stand for her application--such a condition legitimately forming a ground for an application for review. The rule so far as it is partinent here, enjoins that the appellate Court would require such evidence to be produced to enable it to pronounce judgment. The application such as it is, namely, an application by the appellant for receiving additional evidence must accordingly be rejected.

(2.) We have heard the appeal on the materials that are on the record. The earliest document relating to the property that we have before us is the kabuliat of Ijjatannessa dated 1852 (Ex. 1). That document according to plaint was the foundation of her title. We find however that when on a false allegation that Ijjatannessa had died, her son Fazlur Rahman applied for a Redemption Certificate in 1889, a patta dated 4 February 1873, in favour of Ijjatannessa, in connexion with this very property was filed by him. There was then a proceeding as the result of which upon a compromise between the mother and the son the Redemption Certificate (Ex. 12) was issued in favour of Fazlur Rahman. The importance of the aforesaid facts seems to have been lost sight of at the trial; neither the parties nor the Court having referred to them at any stage of the trial. Before any decision can be pronounced with confidence, it is, in our opinion, necessary that there should be a further investigation into these facts, the parties being allowed to adduce all such evidence as they may and as would bear upon the history of the holding up to the date of the said Redemption Certificate. It is only fair to refer to another aspect of the case to which the plaintiff--respondent has referred and which would arise for consideration in case it be held that the original acquisition of Ijjatannessa on which the plaintiff has rested his title is either negatived or not established. It has been argued on his behalf that in that event there are enough findings of fact in the judgment appealed from on which it may be held that Ijjatunnessa and her descendants had acquired a good and indefeasible title by adverse possession. The findings, such as they are, are in respect of facts which would be sufficient to indicate that she and her descendants were the sole owners. But when a question of acquisition of title by adverse possession has to be determined much clearer, fuller and more definite evidence relating to the different points of time have to be brought in. The evidence, such as it is, as bearing on the question of title by adverse possession, is in such a state that no definite opinion, one way or the other, can be pronounced. The parties should be allowed to adduce such evidence on this point also as they may desire to do.

(3.) We therefore set aside the decree appealed from and send the case back to the Court below to hold a further trial, allowing the parties to adduce further evidence on the two points noticed above. The appellant has not pressed her appeal in so far as it relates to Plot No. 2 of the schedule to the plaint. The appeal as regards that plot will stand dismissed. The appellant in our judgment was primarily to blame for the insufficiency of evidence on the record and we accordingly order that she shall pay the costs of this appeal to the respondent. Let the additional papers which are now sought to be filed be sent to the lower Court along with the record of this case. Derbyshire, C. J.