Lallubhai Shah, Ag. C.J.
1. This has been rather an unfortunate litigation as it commenced in 1914, and in 1924 we are hearing this appeal from an order remanding the suit for retrial on the merits.
2. The plaintiffs claimed to be the owners of certain lands described in the schedule to the plaint as belonging to the estate of Kankapura while the defendants who represent the estate of Dehvan contended that the suit was not maintainable as the Assistant Survey Settlement Officer had decided the questions, and that the lands belonged to the Dehvan estate. On these pleadings two issues were framed in the trial Court:-
(1) Is the suit for alteration of the decision of the Assistant Survey Settlement Officer as regards Dehvan and Kankapura unmaintainable?
3. The finding was that it was not maintainable.
(4) Do the lands described in Schedule A annexed to the plaint form part of the village of Kankapura and as such belong to the plaintiffs?
4. The finding was 'if necessary I would hold in the negative.'
5. On these findings the learned Assistant Judge dismissed the plaintiffs' suit. The plaintiffs appealed to the District Court and the learned District Judge framed in substance the same two issues. On the first point he disagreed with the trial Court and came to the conclusion that the suit was not barred by the provisions of ss 118 and 121 of the Bombay Land Revenue Code and that the dispute substantially related to the title to the several properties. The learned District Judge further held that, having regard to the meagre consideration of the evidence by the trial Court, there was no real decision upon the question of title with reference to the several lands, and accordingly reversed the decree of the trial Court and remanded the suit for disposal on the merits after giving the parties an opportunity to adduce further evidence. The defendant No. 2 has appealed to this Court from the order of remand and two points have been urged in support of the appeal: (1) The lower appellate Court was not right in its view that the suit was not barred by Section 121 of the Bombay Land Revenue Code. (2) In any case the lower appellate Court could have proceeded to decide the appeal on the merits on the evidence recorded by the trial Court and should not have remanded the case. The long delay that has occurred has been referred to as a further ground in support of the second contention.
6. As regards the first point, on looking to the order of the Assistant Survey Settlement Officer Exhibit 57 and the survey map, it is clear that this is not a question of any boundary line between two villages. The order of the Settlement Officer makes it abundantly clear that the real dispute then was as to the title to some of these lands. The lands now in suit are claimed by the plaintiffs as owners, and I do not find any dispute as to the boundary line of the two villages or of particular survey numbers. In fact the map shows that there are no two villages as such: there is one map relating to Dehvan, Wadi and Kankapura. The situation of the various lands in dispute also shows that it is not a question of the boundary lines of the respective numbers but of title thereto. The lower appellate Court appears to me to be right in holding that there was no bar to the suit in virtue of the provisions of Sections 118 and 121 of the Bombay Land Revenue Code. No other objection to the jurisdiction of the Court is taken.
7. As regards the second point, apparently there is some force in the argument urged on behalf of the appellant that the lower appellate Court could have proceeded to deal with the case on the merits as the evidence adduced by the parties was recorded. But, having regard to the nature of the dispute between the parties relating to the several lands, the consideration by the trial Court appears to have been too meagre. The learned trial Judge did not consider the finding on this issue to be necessary, and his treatment of the question has been too summary to be considered as a decision on the merits. In paragraphs 8 and 9 of the judgment this question has been dealt with, and having regard to the manner in which the trial Court has dealt with the question, it was open to the lower appellate Court to hold that practically there was no decision of the trial Court on the question of title. Though it does not appear from the judgment clearly as to why the learned District Judge came to the conclusion that further evidence should be allowed, it seems to us that under the circumstances it was within his power to allow further evidence; and we are not prepared to hold that the order is wrong. It does not appear what position the learned pleader for the respondent in the lower appellate Court took up at the hearing of the appeal on this question. We, therefore, confirm the order appealed from and dismiss the appeal with costs.
8. We desire to express a hope that this suit will not be further delayed and that it will be heard by the trial Court as soon as possible.