JUDGMENT 1. This is an appeal from the judgment and decree passed by Shri L.M. Ghosh, Additional District Judge, 10th Court, Alipore dated 27th June, 1972 in Title Appeal No. 551 of 1971 reversing those of Shri M.M. Mukherjee, Munsif, Additional Court, Sealdah, 24-Parganas, dated 24th April, 1971 in Title Suit No. 96 of 1968. 2. The plaintiffs are the appellants in this Court. The plaintiffs brought a suit for declaration of title and permanent injunction. The plaintiffs' case is that the suit property measuring 26 decimals of land in C.S. Dag No. 888 of Khatian No. 5 of Mouza Rahara originally belonged to Birsa Oraon and Karu Oraon and their names nave been recorded accordingly in the C.S. record of right. Birsa had a son named Hadra alias Gandru who predecease him leaving plaintiff Nos. 1 to 3 and proforma defendant No.3 as his heirs. Thereafter Birsa died leaving his wile Chumani, and the plaintiff and proforma defendant No.3 as heirs. On the death or Chumani, the plaintiffs and proforma defendant No.3 became the heirs in respect of the suit property. It is alleged that Birsa and Karu belonged to the aboriginals of Oraon tribes and by a notification No. 19722 L.R. dated 29th October, 1957 published in the Calcutta Gazette dated 7th November, 1957 it was declared that Oraons of Barrackpore Sub-division within the district or 24 Parganas were aboriginals and the provisions of Chapter VIIA or Bengal Tenancy Act were applicable to them. Next it is alleged that defendant No.1 purchased the suit land by practising fraud and without the permission of the Collector and in contravention of the provisions of Chapter VIIA of the Bengal, Tenancy Act by a Kobala dated 2nd July, 1957 from the said Chumani Oraon and plaintiff No.2 who was then a minor, without paying any consideration money. It is alleged that the said sale is void in law and as such, the defendant no. 1 did not acquire any right, title and interest in the suit property nor he is entitled to enter into the suit land and disturb the plaintiffs possession. Hence, the suit. 3. The defendant no. 1 alone contested the suit. It is alleged that the said sale is void in law and as such, the defendant no. 1 did not acquire any right, title and interest in the suit property nor he is entitled to enter into the suit land and disturb the plaintiffs possession. Hence, the suit. 3. The defendant no. 1 alone contested the suit. His case is that Birsa was the real owner, but in the revisional settlement the name of Karu proforma defendant No. 2 had been wrongly recorded and as such he has no right title and interest in the suit property. It is admitted that Birsa and Karu belonged to the aboriginal tribe, but it is denied that by practising fraud he had purchased the suit property. It was further stated that Chapter VIIA of the Bengal Tenancy Act was not applicable to this case. Lastly, it is stated that a joint petition of compromise by the plaintiff No. 1 and defendant No.1 was filed in court. The proforma defendant No.2 filed a separate written statement supporting the plaintiffs' case. As regards the petition of compromise filed between the plaintiff No.1 and defendant No.1. the learned Munsif found that the plaintiff No.3 who was contesting the suit and upon whom the right to sue survived along with plaintiff No. 1 on the death of the plaintiff No.2 did not sign the petition of compromise. The learned Munsif also on perusal of the petition of compromise found that 'the same was not in accordance with law. In the circumstances, the learned Munsif did not record the compromise and the petition of compromise was rejected on merits. The learned Munsif found that admittedly the vendor of the disputed property which the defendant No. 1 had purchased by a Kboala (Ext. 1) were aboriginals. The defendant No.3 (D.W.1) admitted in his cross examination that no permission was taken from the Collector at the time of purchasing the suit property. That being so, the transfer made on 2nd July, 1957 by Chumani Oraon and plaintiff No. 1 comes under the mischief of S.49G of the Bengal Tenancy Act, 1885 and the sale held on the 2nd July, 1957 must be declared to be invalid in the eye of law. In that view of his finding the learned Munsif decreed the suit. Being aggrieved the defendant No. 1 preferred an appeal before the learned District Judge. In that view of his finding the learned Munsif decreed the suit. Being aggrieved the defendant No. 1 preferred an appeal before the learned District Judge. The appeal was heard by the learned Additional District Judge. Before the learned court' of appeal below. on behalf of the defendants it was contended that the notification is dated 29th October. 1957 and the transaction in question took place on 2.7.57 and as such, according to the provisions of S.49A of the Bengal Tenancy Act the provisions of Chapter VIIA would not apply in cases of transfer before notification. On behalf of the plaintiffs it was, on the other hand contended that S. 49-O of the Act clearly lays down that the transfers which are made at least one year before the date of publication of notification under S.49A sub-s. (2) will not be affected by such notification. The learned Judge found that apparently there is some conflict between S. 49A and S-49-O of the Bengal Tenancy Act. He was also of opinion that it was to be considered how a reconciliation between the two sections could be brought about. Before the learned Judge an application was filed for filing additional written statement or for amendment by adding one paragraph to the effect that the land in suit is governed by the Non-agricultural Tenancy Act and not by Bengal Tenancy Act. Another application was filed under Order 41 rule 27 of the Code of Civil Procedure for acceptance as additional evidence the record-of-right. The learned Judge was of opinion that the defendants should be given a chance to file additional written statement and in that view of his finding the learned Judge set aside the judgment and decree passed by the learned Munsif and send the case back on remand for giving chance to the defendant No.1 for filing additional written statement. The learned Munsif was directed to accept the additional written statement, if filed, and after acceptance of the same, the learned court was further directed to give chance to both the parties to adduce further evidence in support of their respective cases and then decide the matter in accordance with law. The learned Munsif was directed to accept the additional written statement, if filed, and after acceptance of the same, the learned court was further directed to give chance to both the parties to adduce further evidence in support of their respective cases and then decide the matter in accordance with law. It was also ordered that perchance the defendant does not file additional written statement, the learned Munsif will decide on the existing record as to whether the pre-notification transfer will be hit by the provisions of Chapter VIIA of the Bengal Tenancy Act and then dispose of the matter. Being aggrieved by the aforesaid judgment passed by the learned Additional District Judge, the plaintiff have come up to this Court. 4. Mr. Sakti Nath Mukherji, learned advocate appearing on behalf of the appellants, in the first place, contends that the only question that was posed before the learned Judge was whether the transfer which was made before the date of notification would be saved, or the same would be hit by the provisions of the Bengal Tenancy Act as, admittedly, no permission for such transfer was obtained from the Collector. The learned Judge without coming to any decision on the said point allowed the defendant to make out a new case, namely that the suit land is governed by Non-agricultural Tenancy Act and not by Bengal Tenancy Act. The learned Judge was conscious of the fact that in the original written statement no such plea was raised. In the application under Order 41 rule 27 the defendant No. 1 wanted to have the record-of-rights admitted as additional evidence on the ground that in the record-of-right there is a note like "dakhal basat". This recording, according to Mr. Mukherji, does not at all show that the land in suit is governed by the Non-agricultural Tenancy Act. The only contention that was raised in the trial court was that Chapter VIIA of the Bengal Tenancy Act was not applicable. Mr. Mukherji very much challenges the order of remand. It is contended by Mr. This recording, according to Mr. Mukherji, does not at all show that the land in suit is governed by the Non-agricultural Tenancy Act. The only contention that was raised in the trial court was that Chapter VIIA of the Bengal Tenancy Act was not applicable. Mr. Mukherji very much challenges the order of remand. It is contended by Mr. Mukherji that there was absolutely no reason for the learned Judge to allow defendant No. 1 to make out a completely different case only when it was noticed by defendant No.1 that provisions of section 49-O of the Bengal Tenancy Act do not save the transfer in question and a new plea on the ground that the suit land is governed by the non-agricultural Tenancy Act was sought to be introduced. In this connection. Mr. Mukherji further submits that additional written statement cannot be allowed to be filed after the plaintiff has closed his evidence. It is true that amendment of written statement in suitable cases can be allowed to be made, even at a late stage. But that is not so in the case of additional written statement. In support of his contention that the learned court of appeal below ought not to have accepted additional evidence Mr. Mukherji first refers to a decision reported in AIR 1965 Supreme Court 1008 (The Municipal Corporation of Greater Bombay Vs. Lala Pancham & Ors). It has been held in this case that "under Order 41 Rule 27 the appellate Court has the power to allow a document to be produced and a witness to be examined. But the requirement of the said Court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. This provision dues not entitle the appellate Court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in a case. It does not entitle the appellate Court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way. In other words, it is only for removing a lacuna in the evidence that the appellate Court is empowered to admit additional evidence". It does not entitle the appellate Court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way. In other words, it is only for removing a lacuna in the evidence that the appellate Court is empowered to admit additional evidence". It was further held that "the power under clause (b) of sub-rule (1) of Rule 27 of Order 41 cannot be exercised for adding to the evidence already 'on record except upon one of the grounds specified in the provision. If the documents on record are relevant on the issue of fraud the Court could well proceed to consider them and decide the issue. But the appellate Court cannot order a fresh trial. Such a course is not permissible under Order 41 Rule 27, Civil Procedure Code, when it has not preceded under Order 41 Rule 25 or remanded the case under Order 41 Rule 23”. Mr. Mukherji next relies on a decision reported in AIR 1929 Patna 56 (Bishnu Dutt v. Ramji Prasad & anr.). In this case it has been held that "the rule is that if the trial has not been proper owing to some neglect on the part of the Court, the appellate Court has power to remand the case, but where the neglect or default is on the part of a party to the litigation, the appellate Court has no such power". Mr. Mukherji also seeks reliance on a Bench decision of this Court reported in AIR 1924 Cal. 396 (Jatindra Mohan Chakravarti & Ors. Vs. Bijoy Chand Mahatab). In this case it has been laid down "where the plaintiff does not produce the evidence that is necessary to establish his right in the trial Court, he cannot ask for a remand in order to prove this fact by new evidence at appellate stage of the proceedings". 5. Mr. Subodh Kumar Bhattacharya, learned advocate appearing on behalf the respondents, in the first place, contends that such an order of remand is not appealable. He also contends that the learned court below was right in accepting the additional evidence under Order 41 Rule 27 of the Code. In support of his contention he refers to the decisions reported in AIR 1966 Cal. 580 (Jagadish Ch. He also contends that the learned court below was right in accepting the additional evidence under Order 41 Rule 27 of the Code. In support of his contention he refers to the decisions reported in AIR 1966 Cal. 580 (Jagadish Ch. Bose v. Baijnath Shaw) ; 50 Indian Appeals 183; 44 Indian Appeals 218 (Brij Indar Singh V. Kanshi Ram & Ors.); 28 CWN 945 (Indra Bhusan Saha & Ors. Vs. Janardhan Saha & Ors.) ; and AIR 1951 Supreme Court 1. On going through these decisions and also considering the decisions referred to by Mr. Mukherji, I am of opinion that the learned Judge was not right in setting aside the judgment and decree passed by the learned Munsif and sending the case back for a fresh trial. The order of remand, in the circumstances stated before, cannot be supported and must be held to be illegal. It now remains to be seen whether by the notification which was published on the 7th November, 1957 and which declared that the Oraons of Barrackpore Subdivision within the district of 24 Parganas would be treated as aboriginal and the provisions of Chapter VIIA of the Bengal Tenancy Act were applicable to them would save a transfer dated 2nd July, 1957, that is prior to the date of notification and which admittedly was made without any permission of the Collector as provided in S. 49-F of the Bengal Tenancy Act. Section 49A(2) provides that the local Government may declare by notification published in the Calcutta Gazette that the provisions of Chapter VII shall, in. any district of local area, apply to such of the following aboriginals, caste or tribes as may be specified in the notification and that such caste or tribe shall be deemed to be aboriginals for the purposes of this Chapter. In the list of caste and tribes Oraons have been mentioned and by the notification in question Oraons of Barrackpore Sub-Divisions have been described as aboriginals. Section 49-O saves certain transfers. Section 49-O(b) is relevant for our present purpose. In the list of caste and tribes Oraons have been mentioned and by the notification in question Oraons of Barrackpore Sub-Divisions have been described as aboriginals. Section 49-O saves certain transfers. Section 49-O(b) is relevant for our present purpose. It provides that "nothing in this Chapter shall affect the validity of any transfer (not otherwise invalid) by a tenure holder, raiyat or under raiyat of his tenure or holding or any portion thereof, made bona fide, in the case of other caste or tribe to which this Chapter has been applied, at least one year before the date of the publication of the notification under S.49-A, sub-s. (2), in respect to such castes or tribes". Thus, it is clear that the notification has retrospective operation for a period of one year. Beyond that it has no retrospective operation and the transfers made beyond one year before the date of the publication of the notification are saved, even though these transfers were made without the permission at the Collector. This being the clear meaning of S. 49-O (b). I have no hesitation to hold that the present transfer being dated 7th July, 1957 and the notification being 7th November, 1957 the transfer was within one year from the date of notification and as such, such a transfer without the permission of the Collector cannot be held to be treated as valid. In such circumstances, I am of opinion that the decree passed, by the learned Munsif must be affirmed. 6. In the result, the appeal is allowed on contest. The judgment and decree passed by the learned Additional District Judge are set aside and those of the learned Munsif are restored. There will be, however no order for costs in this appeal. In view of the judgment passed in the appeal, no separate order need be passed on the alternative application. Let the records go down early. Appeal allowed.