TMI Blog1951 (3) TMI 27X X X X Extracts X X X X X X X X Extracts X X X X ..... plaintiff, who was the first defendant's rever- sionary heir after his death. The plaint comprised a half share of land measuring 395 kanals in the village of Kadduw- al, another half share of land measuring 837 kanals and 11 marlas in the village of Pattar Kalan, and four houses in the latter village. In the pedigree attached to the plaint showing the relationship of the parties, the plaintiff claims Sehja Singh as his 4th ancestor. Jodha Singh and Jai Singh are shown as Sehja Singh's sons. Defendant No. 1, Inder Singh, is Jodha Singh's grandson. It is alleged that the parties are Jar agriculturists governed by the customary law in matters of alienation of ancestral property and succession, and that as a sonless proprietor und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... option as the period of limitation had expired long before he was born. In the result, the suit was dismissed. The plaintiff preferred an appeal to the court of the District Judge. He filed an application under Order XLI, rule'27, and section 151, Civil Procedure Code, for leave to adduce additional evidence. The document he wanted to be taken on record and considered, and of which it was alleged that he was not aware at the trial, was a kami beshi statement relating' to Mauza Pattar Kalam, which contained a note that the third son, Pohlo, gave up his interest in the ancestral property in favour of his brothers. A copy of the statement was filed along with the appeal memorandum. The application was naturally opposed on behalf of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the settlement of 1849-50. Munshi Niaz Ahmad is the office Qanungo in the Jullundur Tahsil and he brought the rauntakhib asami-war of the record of rights preserved at the Tahsil Office. Both of them gave evidence about the relevant entries found in the registers. The District Judge reversed the decision of the Subordi- nate Judge and decreed the plaintiff's suit on the strength of this additional evidence. He held that the entries relied on for the appellant were genuine and not forged and that as Pohlo had relinquished his share, the land in Manza Pattar Kalan was ancestral qua the plaintiff. He further found that the suit was not barred and was within time under article 120 of the Indian Limitation Act, but that the adoption se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ground that such alienation is contrary to custom. In view of this finding, no other question arose in the case for decision. Leave was, however, granted to appeal to His Majesty in Council and this is how this appeal is now before us. It was strenuously argued by the learned counsel for the appellant that it was not open to the High Court to inter- fere with the discretion exercised by the District Judge in allowing additional evidence to be adduced and that even assuming that there was an erroneous finding of fact, it must stand final as a second appeal can be entertained only on the specific grounds mentioned in section 100 of the Civil Procedure Code. There is, however, a fallacy underly- ing this argument. The discretion to receive and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pronounce a judgment; to put it the other way round, it does not appear, and it was not stated, that the District Judge felt himself unable to come to a decision without copies of the settlement registers that were sought to be put in before him for the first time. On the other hand, the District Judge made up his mind to admit the certified copies of the kami beshi and muntakhib asami- war registers even before he heard the appeal. The order allowing the appellant to call the additional evidence is dated 17th March, 1942. The appeal was heard on 24th April, 1942. There was thus no examination of the evidence on the record and a decision reached that the evidence as it stood disclosed a lacuna which the court required to be filled up for pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidently out of place in the copy retained in the Tahsil Office, there is no such remark in the copy which is preserved at the Sadar Office. Even otherwise it does not stand to reason why a remark to this effect should have been made in this column. The way in which these entries were said to have been traced also throws a lot of suspicion on their genuineness. We find ourselves in entire agreement with these obser- vations of the learned Judges. It is no doubt true that a finding of fact, however erroneous, cannot be challenged in a second appeal, but a finding reached on the basis of additional evidence which ought not to have been admitted and without any consideration whatever of the intrinsic and palpable defects in the nature of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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