JUDGMENT

Agha Haidar, J. - This is a defendant's appeal arising out of a suit for a declaration that the house in dispute was the property of the plaintiff and was therefore not liable to attachment and sale in execution of the decree obtained by Shadi Earn, defendant 1, against Shib Earn, defendant 2. In 1925 Shadi Ram (defendant 1) held a mortgage in his favour from Dasaundhi now dead and represented by Shib Earn, (defendant 2). In 1932 Shadi Ram obtained a decree against Dasaundhi on foot of his mortgage. The property in suit was sold but the decree was not fully satisfied. On 14th January 1933, a personal decree was obtained by the decree-holder against Dasaundhi and in that decree a number of houses were attached and put up for sale. Mt. Atri raised objections in respect of three houses. Her objections were dismissed and the suits which she brought for declaration of title in respect of those houses were also dismissed on 5th December 1933.

2. We are at present concerned with house No. 3064 only as to which there has been no decision so far. This house was attached and Mt. Atri brought the present suit for the declaration already mentioned. The case for the plaintiff is that the house belonged to her husband Raman and she was entitled to it in her capacity as his widow. She filed six receipts (Exs. P-l to P-6) for the years 1931 to 1935 issued by the Municipality in order to show that throughout this period she had been paying the Municipal taxes as owner. The relevant registers for the years 1931 to 1935 were sent for and the receipts were duly proved. She had filed a number of other receiptsalso but they were not formally proved and were ordered to be returned to her. In the trial Court one Abdul Habib, a Municipal clerk, was examined as a witness on behalf of the plaintiff and stated that he had not brought the registers for years prior to 1931 because they had not been summoned. The trial Court dismissed the plaintiff's claim. The plaintiff Mt. Atri preferred an appeal to the learned District Judge on 23rd February 1935. On 25th February 1935, notices were issued to the respondents mentioning 16th April 1935, as the date of the hearing of the appeal. On this date it appears that the pleaders for the parties were present before the Court. There is nothing whatsoever to show that any arguments were heard in the appeal. In fact there are indications that no arguments were addressed to the Court on that day. The Court however made the following order:

Lala Devi Dayal for appellant and Lala Nand Kishore for respondent. Muharrir House-tax Register relating to No. 3064 to be called with House-tax registers for the last 20 years. Lala Nand Kishore wants to send for the execution file showing when the house was attached. He can do so. He should put in details of the file he wants to be called.

3. On 29th May 1935, the case was again put up for hearing and the registers summoned by the Court were produced by Abdul Habib, Municipal clerk, who was summoned with the registers. Abdul Habib also prepared a goshwara apparently under the orders of the Court. Arguments were heard on 13th June 1935, and the judgment was delivered on the same day. These registers seem to have influenced the mind of the Judge to a very considerable extent and he arrived at the conclusion on a consideration of the evidence that the defendant-decree-holder had failed to prove that Dasaundhi owned this house. He further held that possession is presumptive evidence of title and it must therefore be held that the plaintiff's husband was the owner of the house and the plaintiff was in possession after his death as his widow. The appeal was accordingly accepted and the plaintiff's suit decreed. The defendant Shadi Ram has come up to this Court in second appeal. The learned Counsel for the appellant has argued that the District Judge was not justified in summoning additional evidence in the appeal and that in doing so he had contravened the provisions of Order 41, Ru