Appellate Division Cases
(Civil)
PARTIES
Md. Tahedul Islam being dead his heirs: l(a) Mst. Asma Bewa and ……Appellants
vs
Md. Mojibar Rahman being dead l(a) Mst. Jabeda Bewa and others …Respondent
JUSTICE
Md. Ruhul Amin J
M. M. Ruhul Amin J
Date of Judgment
22nd November 2005
Seeking declaration of title.
The Code of Civil Procedure Order 41, Rule 27, 33.
Sunil Krishna Banik Vs. Kailash Chandra Saha in 36 DLR (AD) 220.
The Court was not required to decide a matte which was beyond the pleading, that the document of the year 1927 was for 10 years and there was specific averment in the document of 1927 taht on the landlord and the lessee shall have no claim in respect of the land, that a document would not be admitted in evidence which would have no bearing on the decision and as such since the document of 1927 was for 10 years and that after the expiry of fixed period the land (14)
The provision of law relating to production of additional evidence at the appellate The general provision of law is that parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, before the appellate court except in a case where the Court from whose decree the appeal has been filed refused to admit evidence which ought to have been admitted in evidence or when the appellate Court requires any document to be produced or any with witness to be examined to enable it to pronounce the judgment (16)
The law is settled now that additional evidence as in Order 41, 27(1)(b) of the Code of Civil Procedure can only be produced when the Court feels the necessity thereof. The Court before allowing a party to produce additional evidence is required to “record the reason for its admission”. There is another aspect which the court is required to consider while allowing the party to produce additional evidence that the evidence so intense to be produced as additional evidence would have ” a determining influence on the courts below” or in other words the evidence so intense to be produced as additional evidence has the relevancy and that would have effect on the result of the suit (23)
Civil Appeal No. 246 Of 2001
(From the Judgment and Order dated June 24.1996 passed by the Hi«h Court Division in Civil Revision No. 809 of 1991)
ADVOCATES
Md. Fazlul Karim, Senior Advocate, instructed hy Md. Nawab Ali, Advocate-on-Record For the Appellants, M Mahmudul Islam, Senior Advocate, (Probir Neagi, Advocate with him) instructed bv Abu Siddique, Advocate-on-Record For Respondent Nos. l(a)-I(g) Not represented…Respondent Nos. 2-12
JUDGMENT
1. Md. Ruhul Amin J:- This is defendants, appeal by leave against the judgment dated June 24, 1996 of the High’Court Division in Civil Revision No. 809 of 1991 making the Rule absolute and thereupon setting aside the judgment and decree dated 29.8.1990 of the Court of District Judge, Gaibandha in Title Appeal No. 45 of 1988 whereby the appellate Court send the suit back to the trial Court for disposal of the same in the light of the discussion and direction made in the judgment. The revisional application was filed against the judgment and decree of the appellate Court reversing the judgment and decree dated February 28, 1988 of the Court of Senior Assistant Judge, Gaibandha in other Class Suit No. 324 of 1986 decreeing the same.
2. The suit was filed seeing declaration of title in respect of the land described in schedule ‘Ka’ attached to he plaint and the structure therein, The subject matter of the suit is decimal of land.
3. The suit was field stating, inter alia, that the land measuring 1 decimal was taken lease by the plaintiff and his maternal uncle Rahim Boksha Bepari by the kabuliyat date April 12,1939, that after amicable partition plaintiff got decimal of land as described in schedule ‘ka’ to the palint, that plaintiff sold the land got by amicable partition as well as the structure therein to Shafion Nessa by the kabala dated January 3,1941 who re-transferred the land to him by the kabala dated Decemberl6, 1946 and since then palintiff is possessing the land and carrying on business in the shop. Rahim Boksha Bepari sold his share to the extent of decimal of land to Haji Jalilur Rahman, the predecessor of the defendatn Nos. 1-10 and after his death his heirs defendant Nos. 1-10 are possession the land purchased by Haji Jalilur Rahman from Rahim Boksha Bepari, that R.S. Khatian in respect of the decimal of land has been prepared in the name of the plaintiff and he is paying rent, that Haji Jalilur Rahman filed other Class Suit No. 844 of 1975 in the Court of Munsif, (now Assistant Judge) 2nd Court, Gaibandha seeking rectification of the R.S. record but the same was dismissed on February 14, 1977, that upon suppression of the said fact defendant Nos. 1-10 filed petition before the Revenue Officer, Gobindaganj and the Revenue Officer by the order dated July 28, 1986 cancelled the R.S. record which stood in the name of the plaintiff. The said action of the Revenue Officer having had clouded plainitff’s title he was constrained to file the suit seeking relief as stated hereinbefore.
4. The suit was contested by the defendant Nos. 1-10 by filing written statement denying the material averments made in the plaint. It is their case that their predecessor Haji Jalilur Rahman by the kabala date May 7, 1941 purchased 1 decimal of land from Rahim Boksha Bepari and his brother, taht although C.S. record was prepared in the name of Rahim Boksha Bepari but as the land was acquired with the money of Rahim Boksha’s brother, as such Rahmim Boksha Bepari and his brother executed the deed in favour of Haji Jalilur Rahman, that Rahim Boksha Bepari let out land in suit with the structure to the plaintiff who is his nephew at the monthly rent of Rs. 1 taht the kabuliyat dated 12.04.1939 executed by palintiff and Rahim Boksha Bepari in respect of the land in suit is fictitious, that palintiff never took settlement of the land in suit and as such the transaction between the plaintiff and Shafion Nessa was fictitious, that palintiff taking advantage of monthly tenancy got the R.S. record prepared in his name and managed to pay rent, that when the defendants noticed the said fact they filed petition before the Revenue Officer for cancellation of the R.S. record mutating the name of the plaintiff and the Revenue officer correction the R.S. record in the name of the defendants, that Haji Jalilur Rahman by the Heba deed dated October 20,1975 transferred the land to the defendant Nos. 1-10.
5. The trial Court on consideration of the materials on record decreed the suit with the finding that no paper has been filed by the defendants to establish that palintiff is their tenant, that the documents showing transfer and re-transfer of the land in suit by the plaintiff and Shafion Nessa being documents of more than 30 years old can be considered genuine, that defendants did not file paper to show that Rahim Boksha Bepari was the owner of the entire land i.e 1 decimal of land, that the defendants also claimed taht Haji Jalilur Rahman transferred the land to them by Heba deed but the document has not been filed in the Court, that defendants predecessor filed suit seeking correction of the S.A. record but he same was dismissed upon suppression of the said fact the defendants got the khatian prepared in the name of the plaintiff cancelled and that the order of the Revenue Officer dated July 28,1986 canceling the khatian that stood in the name of the plaintiff was not sustainable in law. that the plaintiff has right, title and interest in the land in suit and in the shop standing therein.
6. The defendants went on appeal. Before the appellate Court the defendants filed 2 documents, namely, Heba deed dated October 20,1975 and the kabuliyat dated December 17, 1927. The appellate Court upon taking the said two documents into consideration observed that the trial Court while decreeing the suit did not make any decision in any respect as regard the documents namely kabuliyat and the Heba deed. It is pertinent to mention that the defendants did not file the Heba deed dated October 20,1977 and the kabuliyat dated December 17, 1927 before the trial Court and this being the position there was no occasion for the trial Court to make any comment on those two documents. It may also be mentioned that defendants did not take any step to dislodge the genuineness of the kabuliyat dated April 12,1939 by which the plaintiff and his maternal uncle Rahim Boksha Bepari took settlement in equal share 1 decimal of land as described in the schedule attached to the plaint.
7. The appellate Court was of the view that although C.S. Khatina was prepared in the name of Rahim Boksha Bepari but about the same the trial Court did not make any decision in either way, that trial Court was in error in arriving at the finding that plaintiff was not the tenant of the defendants since in arriving at the said finding the trial Court did not consider the documents i.e .C.S. khatina, kabuliyat and other papers, taht trial Court was in error in granting relief sought by the plaintiff without considering the documents filed by the parties as stated hereinbefore.
8. Before the appellate Court the defendant Nos. 1-10 filed two documents, namely Heba deed and the kabuliyat of 1927 and the said Court held since defendants documents namely Heba deed, the kabuliyat and the C.S. khatina prepared in the name of Rahim Boksha Bepari, R.S. Khatin and other papers were not discussed extensively and properly by the trial Court, as such for proper adjudication of the dispute of the parties it would be legal and proper to remand the suit to the trial Court and thereupon upon allowing the appeal sent back the suit to the trial Court for disposal taking into consideration the documents filed before the appeal late Court and the other materials already on record as well as in the light of the observations made by the appellate Court.
9. The palintiff then moved the High Court Division in revisional jurisdiction and obtained the Rule. The High Court Division made the rule absolute upon observing that the trial Court on consideration of the evidence was quite correct in arriving at the finding that the palintiff has right, title, interest and possession in the land in suit and the defendants failed to show that the plaintiff is their tenant in the land in suit, the High Court Division further observed that palintiff in support of his case that he and Rahim Boksha Bepari took settlement of 1 decimal of land brought on record the kabuliyat dated April 12,1939 (Ext. 6), the R.S. Khatian (Ext.l) and the ‘dakhilas’ (Ext.2) and also the fact that he as owner transferred the land in 1941 to Shafion Nessa and he re-purchased the same in 1964 from her and that as against the said evidence brought on record by the plaintiff the defendants in support of their claim that palintiff is their tenant in the land in suit did not produce any documentary evidence nor any reliable evidence except the evidence of D.W.I who is one of the defendants and that the defendants did not produce any evidence to show that Rahim Baksha Bepari was the owner of the entire land i.e 1 decimal of land as in the schedule’ka’ to the plaint.
10. The High Court Division observed that although defendants claimed that they have got the land by Heba-bil-ewaz deed but the same was not produced before the trial Court and taht defendants’ predecessor filed Title Suit No. 448 of 1975 against the plaintiff seeking declaration taht he is the owner of Idecimal of land of C.S. plot No. 482 listed in C.S.Khatian No. 259 but the same was dismissed, that the findings and the decisions arrived at by the trial Court are based on due consideration of the evidence on record and as such the appellate Court was not correct in observing that the trial Court decreed the suit without consideration the documents relating to the suit produced by the parties.
11. The High Court Division observed that D.W.I in his evidence categorically stated that the defendants have no paper to show that the plaintiff is their tenant and that he (D.W.I) is not aware on what basis plaintiff is possessing the land in suit. The High Court Division also observed taht from the materials on record it is seen that the defendants failed to adduce any evidence in support of their case that palintiff is their tenant in the land in suit and the finding of the trial Court that the plaintiff has been able to establish that he has right, title and interest in the land in suit is based on due consideration of the evidence and the appellate Court in reversing the judgment of the trial Court did not consider the evidence both oral and documentary. The High Court Division further observed taht the lower appellate Court sent back the case on remand for the purpose of adjudication of the same taking into consideration the document filed before it without arriving at a decision as to whether at all those document have any relevancy in disposing of the suit and that the evidence already on record is not sufficient for adjudication of the dispute between the parties.
12. Leave was granted to consider the contention that the trial Court disbelieved the case of the defendants only on the consideration that they did not produce any document in support of their claim that Rahim Boksha Bepari was the 16 annas owner of the land in suit and also could not prove that they had become owners of the land in suit by the Heba-bil-ewaz deed, but the defendants having had produced the aforesaid documents namely kabuliyat dated July 17,1927 executed by Rahim Boksha Bepari in favour of the landlord and the Heba-bil-ewaz deed dated October 20,1975 and in the written statement having had contended in respect of the said documents (in the written statement there was averment only in respect of the Heba-bilewaz deed) the High Court Division while reversing the judgment and decree of the lower appellate Court sending the suit back on remand to the trial Court for conclusive determination of the suit with reference to the said documents along with other documents which were already filed in the case on misconception of the provision of order 41 Rule 27and order 41, Rule 33 of the Code of Civil Procedure set aside the order of remand and thereupon affirmed the judgment of the trial Court. It was also the contention that the High Court Division was in error in depriving the defendants to produce the basic document in Court for consideration by which they got ownership of the land in suit.
13. The learned Counsel for the appellant submits that because of production of the kabuliyat of the year 1927 executed by Rahim Boksha Bepari alone as serious contention as to title of the plaintiff arose and taht in the context of the two kabuliyats, one of 1927 and other of 1939 as there was necessity of reconciliation of the contention of the parties, as such order of remand made keeping in view the que4stion of ends of justice was quite legal and as such the High court Division was in error in setting aside the judgment of the appellate Court, that because of the C.S. khatian which was prepared in the name of Rahim Boksha Bepari in the context ol~ the kabuliyat of 1927 and consequent thereupon kabulayat of 1939 being a malafide fact giving rise to serious contention and conflict as to the title of the parties and as such there having had necessity of reconciliation of the contest between the parties by allowing them to lead evidence in support of their respective claim, particularly the claim of the defendants, the appellate Court was quite correct in making the order of remand of the suit to the trial Court for disposal of the same upon taking into consideration the documents filed before the appellate Court. It has been submitted by the learned Counsel for the appellant that the suit i.e. Suit No. 488 of 1975 was filed by the palintiff for illegal gain. The learned Counsel for the appellant also submitted that the entry in the C.S. Khatina unless annulled the palintiff is not entitled to the relief sought in the suit.
14. The learned Counsel for the Respondent has submitted since there was no pleading of the defendants as to the kabuliyat of 1927, the trial Court was not required to decide about the same or in other words the Court was not required to decide a matte which was beyond the pleading, that the document of the year 1927 was for 10 years and there was specific averment in the document of 1927 taht on the landlord and the lessee shall have no claim in respect of the land, that a document would not be admitted in evidence which would have no bearing on the decision and as such since the document of 1927 was for 10 years and that after the expiry of fixed period the land having had went back to the landlord and thereupon Rahim Boksha Bepari, in whose name kabuliyat of 1927 stood and the plaintiff having had taken lease in 1939 of the land in suit jointly having equal share, the document of 1927 had no relevancy in deciding the contention of the parties in respect of the land in suit in the context of the later document i.e. kabuliyat of 1939 and that being so the appellate Court was quite in error in sending back the suit to the trial Court for disposal of the same taking into consideration the kabuliyat of 1927, taht since the kabuyliyat of 1927 has no relevancy for the disposal of the suit and consequently the Heba-bil-ewaz deed on the basis of which the defendants are claiming the entire land in suit, i.e. decimal of land, is also not relevant for the disposal of the suit and as such the appellate Court as in error in making the order of remand for adjudication of the suit taking the said documents into consideration, that additional evidence would be allowed by the appellate Court only when the same has relevancy to the subject matter of the suit and shall have effect on the result of the suit and that as the documents, i.e kabuliyat of 1927 and the Heba-bil- ewaz deed of October 20,1975 have no relevancy to the subjectmatter of the suit and there shall have no ffect on the result of the suit the appellate Court was in error in accepting the said 2 documents as additional evidence and thereupon sending back the suit to the trial Court for adjudication taking into the said documents.
15. The moot question in the appeal how far the appellate Court was free from error in allowing the defendants prayer for acceptance of the kabuliyat of 1927, and the Heba-bil- ewaz of 1975, or in other words in allowing the defendants to produce those documents as additional evidence without considering how far those documents in the background of the kabuliyat of 1939, genuineness whereof was not questioned by the defendants, was relevant for the disposal of the suit and that the documents filed by the defendants have any bearing on the result of the suit.
16.The provision of law relating to production f additional evidence at the appellate stage is in order 41, Rule 27 of the Code of Civil Procedure. The general provision of law is that parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, before the appellate court except in a case where the Court from whose decree theappeal has been filed refused to admit evidence which ought to have been admitted in evidence or when the appellate Court requires any document to be produced or any with witness to be examined to enable it to pronounce the judgment, or for any other substantial cause, then the appellate Court may allow such evidence or document to be produced, or witness to be examined. In the instant case condition i.e. refusal by the trial court admission of evidence which ought to have been admitted is absent. Now thee remains the other condition i.e. whether the Court requires the document as filed by the defendants for the purpose of enabling it to pronounce the judgment or for any other substantial cause.
17. The provision of Order 41, Rule 27 of the Code of Civil Procedure came up fro consideration in the case of Parsotim and others Vs. Lai Mohar and others reported in 58 Indian Appeals, 254 wherein it has been observed the provisions of “Order XLI, Rule 27, are clearly not intended to allow a litigant who has been unsuccessful in the lower Court to patch up the weak parts of his case and fill up omissions in the appellate Court Under Rule 27 (1) (b) it is only where the appellate Court “requires” it ( i. e., finds it needful) that additional evidence can be admitted. It may be required to enable the Court to pronounce judgment, or for any other substantial cause, but in either case it must be the Court that requires it. This is the plain grammatical reading of the sub clause. The legitimate occasion for the exercise of this discretion is not whenever before the appeal is heard a party applies to adduce fresh evidence, but “when on examining the evidence as it stands, some inherent lacuna or defect becomes apparent.” It may well be that the defect may be pointed out by a party, or that a party may move the Court to supply the defect, but the requirement must be the requirement of the Court upon its appreciation of the evidence as it stands. Wherever the Court adopts this procedure it is bound by rule 27(2) to record its reasons for so doing, and under rule 29 must specify to points to which the evidence is to be confined and record on its proceedings the points so specified.”
18. In the case of Cecil Waldron Andrew Vs. Helen Andrew reported in 9 D1R, 682 (PC) it has been observed ” that fresh evidence on appeal will not be permitted unless two conditions are satisfied. The first is that the new evidence was not available to the party seeking to use it at the trial or that reasonable diligence would not have made it so available. The second condition is that the fresh evidence if true, would have had, or would have been likely to have had, a determining influence on the Court below.”
19. In the case of Messrs Muhammad Siddiq Muhammad Umar and another Vs. The Australasia Bank Ltd. reported in PLD 1966, (SC) 684 it has been observed ” The rules of procedure are not made “for the purpose of hindering justice” and, as such, we should not give such a restricted interpretation to the provisions of rule 27 of Order XL! of the Code of Civil Procedure as would, in effect, amount to tying down the hands of the appellate court and stand in the way of doing complete justice in a cause. The rule merely prescribes that the requirement must be a genuine one and that the need for the additional evidence must be felt by the Court itself after it has examined the evidence already on the record and come to the conclusion that there is apparent some inherent lacuna or defect which hinders the due administration of justice. If it comes to this conclusion, then it has the power to call for additional evidence subject to the condition that it must record its reasons for doing so, in order that a higher Court may be able to ascertain that the need was not merely imaginary but based upon factual grounds.”
20. In the case of Sunil Krishna Banik and others Vs. Kailash Chandra Saha and others reported in 1984 BLD (AD) 320, (same case has been reported in 36 DLR (b) of Rule 27 (1) appears to have conferred discretion on the appellate court to allow additional evidence in order ” to enable it to pronounce judgment, or for any other substantial cause.” This discretion is not subject to any other limitation or restriction excepting what is indicated by the words used therein. To do justices the special preserve or domain of a Court of law and this has been stressed by the words used in clause (b) as aforesaid It is true that such admission should not be encouraged. Power to admit additional evidence should, therefore, be sparingly used.”
21. In the case of Mohammad Ali Akhand Vs. Bahatan Nessa and others reported in 18 BLD (AD) (1998), 50 it has been observed “this power can be exercised only where the Court requires further evidence for one of the two causes specified in the Rule”. It has been viewed by this Division that a party at the appellate stage would not be allowed to adduce additional evidence if allowing or production of additional evidence would amount to give the party an opportunity “to fish out evidence in order to prove their case” and to fill up the lacuna.
22. The consistent view is that additional evidence can be allowed by the Court on Code of Civil Procedure. We have already observed that the first occasion or situation for admission of additional evidence is absent in the instant case.
23. The law is settled now that additional evidence as in Order 41, 27(1 )(b) of the Code of Civil Procedure can only be produced when the Court feels the necessity thereof. The Court before allowing a party to produce additional evidence is required to “record the reason for its admission”. There is another aspect which the court is required to consider while allowing the party to produce additional evidence that the evidence so intense to be produced as additional evidence would have ” a determining influence on the courts below” or in other words the evidence so intense to be produced as additional evidence has the relevancy and that would have effect on the result of the suit.
24. The document i. e. kabuliyat dated 17.12.1927 is at page 60 of the additional paper book filed by the defendants. The learned Counsel for the Respondent upon referring to the kabuliyat dated 17.12.1927 has submitted that the same was for 10 years and that also referred to an averment in the said kabuliyat which reads ‘” In the background of the said averment in the kabuliyat dated 17.12.1927 which the defendants intended to produce before the appellate Court as additional evidence and the said Court allowed the prayer, it is evidence that after the expiry of the period for which Rahim Boksha Bepari took lease by the kabuliat dated 17.12.1927, the plaintiff and Rahim Boksha Bepan took fresh lease of the land by the kabuliyat dated 12.4.1939.
25. The learned Counsel for the Respondent submits that since the kabuliyat dated 17.12.1927 by efflux of time became non-effective and that Rahim boksha Bepari who took lease of the land in suit by the aforesaid kabuliyat having had taken fresh lease of the land along with the plaintiff by the kabuliyat dated 12.4.1939 the kabuiiyat of the year 1927 as has no relevancy to the subject matter of the suit and that also as would have no effect or bearing on the result of the suit the appellate Court without considering the vital aspect of the matter of admission of additional evidence in the background of the facts of the case was in serious error in allowing the defendants to introduce the kabuiiyat of the year 1927 as additional evidence and thus the appellate court was in error in accepting the said kabuiiyat as additional evidence although the same has no relevancy as well as bearing on the subject matter of the suit.
26. The defendants on the basis of Heba-bil ewaz deed dated October 20, 1975 executed by Haji Jalilur Rahman, father of the defendants are claiming the land in suit. It is the defendants case that Haji Jalilur Rahman purchased the land in suit from Rahim Boksha Bepari by the kabala dated May 7, 1941. It has already been seen that on the aforesaid date Rahim Boksha Bepari had interest only in \p decimal of land out of the land taken lease by him and the plaintiff by the kabuiiyat dated 12.4.1939. Haji Jalilur Rahman, The predecessor of the defendant Nos. 1-10 having had acquired 1/2 decimal of land from Rahim Boksha Bepari on the basis of the kabala dated May 7, 1941, the defendants by the Heba-bil Ewaz deed dated October 20,1975 can only claim 1/7 decimal of land wherein Haji Jalilur Rahman had interest at the time of making the Heba-bil-Ewaz deed. The plaintiff has filed the suit claiming \p decimal of land and the suit was decreed by the trial court in respect thereof. The defendants tried to establish in the trial Court that their predecessor Haji Jalilur Rahman acquired the entire suit land i. e. 1 decimal from Rahim Boksha Bepari and that they have got the land in suit from Haji Jalilur Rahman by Heba-bil-Ewaz deed. There was no averment about the mode of acquiring of title by Rahim Boksha Bepari in the entire land .The defendants in their pleading only mentioned about their acquisition of title by the heba of October 20, 1975 but the same was not produced before the trial Court. The defendants predecessor Haji Jalilur Rahman acquired interest in the land in suit to the extent of 1/2 decimal of land from Rahim Boksha Bepari who along with -V the plaintiff took lease of 1 decimal of land by the kabuiiyat dated 12.4.1939. This being the position the documents i. e. kabuiiyat of the year 1927nad the Hebe-bil-Ewaz of October 20, 1975 produced by the defendants before the appellate court as additional evidence had no relevancy to the subject matter of the suit and bearing on the result of the suit. The kabuiiyat of the year 1927 was in no way relevant for the purpose of adjudication of the suit since after the expiry of the period for which land of the said kabuiiyat was leased out to Rahim Boksha Bepari the same went back to the landlord and thereupon Rahim Boksha Bepari along with the plaintiff took fresh lease of the land in suit in equal share in the year on April 12, 1939. So in the year 1941 when Haji jalilur Rahman made purchase from Rahim Boksha Bepari, at that time Rahim Boksha Bepari had title only to the extent of In of the land in suit and that in the year 1941 Rahim Boksha Bepari legally 7 could have transferred 1/2 decimal of land ut of the entire land in suit, i. e. 1 decimal of land, to Haji Jalilur Rahman. This being the position introduction of the kabuiiyat of 1927 and the Heba-bil-Ewaz of the vear 1975 by the defendants to substantiate their claim of acquiring entire land in suit is in non way relevant for the purpose of adjudication of the suit or in other words for the determination of the interest of the plaintiff in respect of the land claimed by him.
27. The learned Counsel for the appellants submitted that because of the production of the kabuliyat of the year 1927 as serious contention regarding the title of the plaintiff has arisen and that the land in suit having been recorded in the C.S khatian in the name of Rahim Boksha Bepari, which has a presumptive value, as such for the purpose o\ resolution of the conflict so has arisen there is necessity of the documents filed by the defendants as additional evidence for effective adjudication of the suit and that also for ends of justice, the documents need by admitted as additional evidence.
28. In the background of the said submission the learned Counsel has referred us to the case of Sunil Krishna Banik and others Vs. Kailash Chandra Saha and others reported in 36 DLR (AD) 220 (same case has also been reported in BLD 1984 (AD)320. We are in full agreement with the principle of law enunciated in the reported case, but the fact is that in the instant case the documents which have been produced by the defendants as additional evidence and the court allowed the defendants to produce the same as additional evidence, the same in the background of the facts and circumstance as stated hereinabove had no relevancy to the subject matter of the suit and that would in no way have any bearing on the result of the suit. 29. We have already mentioned that the kabuliyat of the year 1927 was for limited period and that after the expiry of that limited period the land which was the subject matter of kabuliyat of 1927 was taken lease by Rahim Boksha Bepari and the plaintiff jointly in equal share. The land so taken lease jointly by Rahim Boksha Bepari and the plaintiff in the year 1939 is the subject matter of the suit. We have also mentioned hereinbefore that by the Heba-bil-Ewaz of October 20, 1975 the defendants have acquired only the interest which Haji Jalilur Rahman acquired from Rahim Boksha Bepari on May 7, 1941 i. e. Haji Jalilur Rahman by purchase from Rahim Boksha Bepari acquired interest in 1/2 decimal of land of the kabuliyat of April 12, 1939 which is in the name of Rahim Boksha Bepari and the plaintiff. This being the position the appellate court was in serious eiTor in allowing the defendants toproduce the said two documents as additional evidence and thereupon accepting the said documents as additional evidence and that in sending back the suit to the trial Court for fresh adjudication in the light of the documents which have no relevancy to the subject matter of the suit and would have no bearing on the result of the suit. In that state of the matter the High Court Division was not in error in interfering with the judgment of the appellate Court and thereupon restoring the judgment of the trial Court.
Accordingly the appeal is dismissed. There is no order as to cost.
Source: III ADC (2006) 278.