Lala Girja Prasad and Others vs Jugal Kishore and Others

Coutts, J.—The plaintiffs in the suit out of which this appeal arises, sought for a declaration of their title to and for recovery of possession of 1 katha and 5 dhurs of land in Mauza Madhapur from which the allege they were dispossessed by the defendant No. 1. The plaintiffs based their title of a kabala dated the 29th of February 1837. The defendants, on the other hand, alleged that the land in suit belonged to one Kokai Teli, that on Kokai''s death his heirs transferred it to on of their landlords, Babu Nand Kumar Lal, that Nand Kumar Lal after his purchase built a house on the land east of the suit land and in de over the suit land to his nephew Jugal Kishore, defendant No. 1, and that the defendant No. 1 has been in possession ever since. The suit was contested by this defendant.

The Court of first instance found that the plaintiffs had failed to establish either their title or that they had been, in possession within 12 years of the institution of the suit and consequently the suit was dismissed. On appeal to the Subordinate Judge, although he says at the end of his judgment that the plaintiffs have failed to prove either their title to the disputed land or their possession over the same within the period of limitation, he has certainly found that the plaintiffs, have established their title because, he has found that the land in dispute is included within the area of the land which the plaintiffs have purchased by the kabala of 1837 (Exhibit 7). What he has found is that the plaintiffs have; not proved possession within 12 years; and/if this decision had been come to after a consideration of the evidence, aid if the judgment were ore in accordance with law, the finding would, have been a finding of fact which would be binding en us in second appeal, but the judgment is of a most unsatisfactory and perfunctory character. It is true that the learned Subordinate Judge has come to a finding but it is equally cleat that he has considered only a very small portion of, the evidence of which there is a very considerable mass on the record. The rest of the evidence he has not considered at all.

Moreover, it has been found by the Court of first instance that the land in dispute is parti land. If this is so, it would not ordinarily be land over which either the plaintiffs or the defendant could exercise possession; possession would then ordinarily be held to follow title; and the plaintiffs would be entitled to a decree. This point, which is a very important one, has not been considered at all by the learned Subordinate Judge and, as I have already; said, the judgment is of such a perfunctory character that it cannot possibly be considered to be in accordance with law.

I would set aside the decree of the learned Subordinate Judge and would remand the whole appeal to the lower Appellate Court for re-hearing and decision in accordance with law. Costs to abide the result.

Das, J.

I agree.