1881 (4) TMI 1

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..... in favour of the plaintiffs; but it has been contended on appeal to this Court, that the Subordinate Judge has based his judgment upon certain documentary evidence, which was not legally admissible against the defendants. One document is a written statement filed in this suit by Sidam, one of the defendants, the son of Parbut Sirdar, in which he says, that the disputed land does not appertain to the howla of his father. This statement of Sidam, the Subordinate Judge appears to have treated as evidence against the other defendants, which he clearly had no right to do. 5. The other evidence consists of the proceedings in a suit brought by Raja Suttyanund Ghosal against the present defendants, in which a decision was given unfavorable to th .....

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..... Court's finding. 10. I am sorry to say I have great doubt whether, in the case of Watson v. Gopee Soonduree Dossee (24 W. R. 392), Mr. Justice BIRCH and myself were justified in deciding, as we did, that there was sufficient evidence (other than that improperly admitted) to justify the lower Court's judgment. I confess that it never struck me, until some time after that case had been decided, how much difficulty there was in most cases of second appeal in our attempting to deal with the sufficiency of the evidence. 11. On further consideration, I think that the only cases which we may with propriety dispose of under such circumstances without a remand, are those where, independently of the evidence improperly admitted, the low .....

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..... n behalf of the defendants, other documentary or oral, as would justify me in reversing the finding of the first Court. 16. I am of opinion, therefore, that, in the present case, as the lower Court has found for the plaintiffs, upon evidence quite independent of that improperly admitted, a remand is unnecessary; and consequently that the appeal should be dismissed with costs. William Fraser McDonell, J. 17. I concur in holding that in this case a remand is unnecessary. 18. The Subordinate Judge has found that the defendants, upon whom the onus lay, have produced no satisfactory evidence, either documentary or oral, to prove that the lands in dispute formed part of their nimhowla; whereas the plaintiff had clearly proved not .....

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