1. This judgment cannot stand. We desire to pay every respect to the view taken by the lower appellate Court, and to the respect which he himself desires to pay to the opinions expressed in judgments by learned Judges of the High Court sitting in appeal. But the opinion of our learned brother, which the Judge of the lower appellate Court has followed in this case, was admittedly a mere dictum on a question of fact, which the learned Judge had no power to decide, because he was sitting in second appeal, and upon evidence which was not the same as the evidence in this suit, upon which the first Court had to determine and the lower appellate Court had to decide in appeal. If on the same set of facts an appellate Court with jurisdiction to review findings of fact, expresses a definite approval, or definite disapproval, of a particular finding, and the same set of facts comes before an inferior Court on a subsequent occasion in a later stage of the same litigation, undoubtedly the view expressed by the Judge of the Court below is the correct one.
2. The Privy Council have recently pointed out that, even on a question of fact, inferior Courts are bound to follow, on the same issues, findings of fact pronounced by a superior Court. But there is a broad distinction between a decision by a Court having jurisdiction to review facts, and an expression of opinion on admittedly imperfect material as to a future issue by a Judge determining a point of law with no authority to determine a question of fact. No doubt the Judge in the lower appellate Court felt himself limited and hampered by so clear an expression of opinion. But if he had analyzed the position, he would have seen that all that the Judge of the High Court had done was first definitely to state that he could not interfere with the findings of fact, and secondly to express a passing opinion that if the only evidence were the evidence of which he then happened to be aware, he could have accepted it. But the matter came before the lower appellate Court on a totally different footing with other evidence, and the lower appellate Court could not, whatever respect it might feel for the opinion of a Judge of the High Court, and even though it was willing to follow it, evade the responsibility of deciding the question of fact for himself upon the evidence before him, taking into account the dictum to which his attention was drawn in the High Court's judgment and which he would be free to follow, or to depart from, if he felt impelled to do so by other evidence.
3. We must, therefore allow the appeal, and inasmuch as the lower appellate Court has definitely expressed its view that if it had not been for the dictum which it followed it would have adopted the view of the first Court, we must restore the judgment of the Munsif with costs here and below, including in this Court fees on the higher scale.