1. The main contention urged in this appeal is that the Subordinate Judge did not correctly consider the evidence in the case. The plaintiff claims the eastern wall of the defendant's house as his. The Subordinate Judge held that the plaintiff was not the owner of the wall. He relied upon the custom prevailing in a Brahmin village, according to which the eastern wall of a house belongs to the owner of the site to the east of that house; in other words, the western wall of a house belongs to the owner of the house. In this case, it has been found that the plaintiff's site was vacant all along. Notwithstanding that the plaintiff claims the eastern wall of the defendant's house as his, the custom relied upon by him is admitted to exist by the defence witnesses. Even the defendant admits:
In our village each owner is entitled to the western main wall of his house.
2. It is also in evidence that if the owner of the western site builds his eastern wall on a portion of the eastern site, the eastern wall belongs to the owner of the eastern site. The Subordinate Judge has not considered that evidence. He simply refers to the custom and says that in as much as the plaintiff's site was vacant all along, be is not entitled to the ownership of the eastern wall of the defendant's house. If this custom is a binding one, then the plaintiff would be entitled to succeed. I think the Subordinate Judge has evidently overlooked the evidence and that is the reason why he has not made any reference to it. As it is an important piece of evidence, affecting the merits of the case, I think the Subordinate Judge should be asked to record a finding on that point, after considering the whole of the evidence.
3. As there are other questions involved in the ease which he has not disposed of, I set aside the judgment of the Subordinate Judge and direct him to restore the appeal to file and dispose of the case, in the light of the observations herein made.
4. Costs will abide the result.
5. The appellant will have refund of the Court-fee.