MANMATHA NATH HALDAR Vs. GIRISH CHANDRA ROY

JUDGEMENT

(1.) This is an appeal Under Section 15 of the Letters Patent from a judgment of my learned brother Patterson, J., reversing the decisions of the Courts below and decreeing the plaintiff's suit. It appears that the plaintiff who is the respondent before us brought a suit for the ejectment of the defendant from the lands which are comprised within a certain non- transferable occupancy holding. To this suit the original tenant has not been impleaded, the case of the plaintiff being that he, the original tenant, has transferred the entire holding to the defendant who is in possession thereof as trespasser, and the transfer not having been recognized by the plaintiff who is the landlord of the holding in question, the plaintiff is entitled to a decree in ejectment. The substantial defence to the suit is that the entire holding has not been transferred, that the original tenant still continues in possession of the holding and has never refused to pay rent and that there has been no abandonment, and that even quite recently the plaintiff has obtained a decree for rent and has been realizing rent from the original tenant. The transfer is alleged to have taken place in the year 1328 B.S., corresponding to the year 1921. Both the Courts below have come concurrently to the conclusion that there has been a transfer only of a part of the holding.

(2.) It appears that although the Munsif found that the defendant was a part purchaser of a non-transferable occupancy holding, that finding of the Munsif was not challenged before the Subordinate Judge. Before the Subordinate Judge the question debated was that since the institution of the suit or rather since the disposal of the suit in the first Court, the Record of Rights-has been published, and the Record shows that the defendant has been in possession of the entire holding. An application was made before the hearing of the appeal in the lower Court, for the reception of this finally published Record of Eights as additional evidence in the case and the Court rightly said that the application should be considered after the hearing of the appeal had commenced and after the Court had considered the question as to whether the additional evidence should be taken. But the Court did not pass any formal order admitting this Record of Eights in evidence, although it made reference to the Record of Eights in its judgment.

(3.) In the first place, it has now been definitely laid down by the highest authority that before a Court can admit an additional evidence it must record its reason for doing so. In a recent decision in the case of Parsotim Thakur V/s. Lal Mohar Thakur, 1931 P C 143, Sir George Loundes in delivering the judgment of their Lordships of the Judicial Committee, pointed out: that in a case coming Under Clause (1)(b), Rule 27, Order 41, it is only when the Court itself requires additional evidence, that is to say, finds it needful in order to pronounce judgment or for any other substantial cause, that such evidence can be admitted. The legitimate occasion for exercise of this discretion is when on examination of the evidence as it stands some inherent lacuna or defect becomes apparent. The defect may be pointed out by a party or a party may move the Court to supply the defect, but the requirement must be of the Court itself.