1. The point raised by learned Counsel for the appellant in this Letters Patent appeal was never raised in any of the lower Courts nor even before the learned Single Judge of this Court.
2. The plaintiff filed a suit on the basis of a document of the year 1862 and claimed that the plaintiffs predecessors had granted a lease to the ancestors of the defendants with a condition that the lessees would vacate the land whenever the lessors wanted it. Defendants 1 to 3 were admittedly the descendants of the original lessees. Defendant No. i had contested the suit that he had nothing to do with the lease of 1862, and that he did not belong to the family of defendants 1 to 3 but was a tenant independently in his own right on payment of a certain rent. His plea found favour with the lower appellate Court and the suit was dismissed as against him.
3. Before the learned Single Judge the only point raised was whether defendant 4 belonged to the family of the original lessees and was therefore bound by the terms of the lease. The learn-ed Single Judge remitted an Issue for a finding and on return of the finding in favour of defendant 4, that he was a stranger and had nothing to do with the family of the lessees, the learned Single Judge dismissed the appeal.
4. The point that has now been raised before us that defendant 4 got the property as a licensee from defendants. 1 to 3 had never been raised in any of the Courts below and thus there is no material on the record on which this point can be decided. We think that we should not allow learned Counsel for the appellant to raise a new point in Letters Patent appeal, especially as the point raises questions of fact.
5. The appeal has no force and is dismissed with costs.