1. We agree with the findings of the Courts below that the whole of plot A was sold to the plaintiff. The second appeal must fail with regard to that item. As regards plot B the District Judge has not come to any definite conclusion. If the 3rd defendant was a lessee to plant casuarina trees under defendants Nos. 1 and 2 before they sold the land to the plaintiff, his rights should be safeguarded. We must ask the District Judge to give a finding upon the following issues:
(1) Whether there was a valid and subsisting lease to the 3rd defendant when the property was sold to plaintiff?
(2) What are the rights which the 3rd defendant has under the said lease?
2. The finding must be submitted on the evidence on record.
3. The finding should be submitted within four weeks from this date and one week is allowed for filing objections.
4. [In compliance with the order contained in the above judgment, the District Judge of Chingleput submitted a finding that there was an oral lease to defendant No. 3 subsisting at the time of sale to plaintiff, the terms of which were that the defendants Nos. 1 and 2 were to plant casuarina trees on the land in dispute, that they were to get half the produce and that the defendant No. 3 was to retain the other half, and that the same was invalid for want of a registered instrument in writing as a lease of land for planting casuarina trees is not an agricultural lease to which Section 107 of the Transfer of Property Act does not apply.]
5. The second appeal then came on for further hearing on the 8th April 1915.
6. Mr. T. R. Ramachandra Iyer, for the Appellant, contended that the lease was for an agricultural purpose.
7. [Mr. Venkataraghavachariyar, for the Respondent, pointed out that the matter was covered by Murugesa Chetti v. Chinnathambi Goundan 24 M.P 421
8. The finding as to possession is unsatisfactory and ought not to be accepted.
9. Mr. O.P. Venkataraghavachariyar argued that the finding was perfectly clear and ought not to be disturbed.
10. We accept the finding of the District Judge that there was a lease in favour of the 3rd defendant but that it was invalid for want of registration. Mr. Ramachandra Aiyar has rightly conceded that in the face of the ruling in Murugesa Chetti v. Chinnathambi Goundan 24 M.P 421, he cannot successfully contend that the lease is one for agricultural purposes. The lease is for planting casuarina trees and the observations of Mr. Justice Shepherd in Murugesa Chetti v. Chinnathambi Goundan 24 M.P 421 exactly cover this case. We must, therefore, hold that there was no valid lease when defendants Nos. 1 and 2 sold the property to the plaintiff.
11. A further question was raised that the suit for a bare declaration is not maintainable. The District Munsif found that the 3rd defendant was in possession at the date of the suit: and he referred to a certain admitted act of possession by the 3rd defendant in September 1910. The District Judge has not considered this evidence. Moreover, he speaks of exclusive possession in one portion of his judgment. It is not clear whether the last sentence in paragraph 6 refers to such exclusive possession. We think it desirable that a fresh finding should be called for on the question as to whether the plaintiff was in possession at the date of the suit on the evidence on record.
12. The finding will be submitted in four weeks and seven days will be allowed for filing objections.
13. [In compliance with the order contained in the above judgment, the District Judge of Chingleput submitted a finding that the plaintiff was not in possession.]
14. This second appeal came on for final hearing on 16th December 1915.
15. Mr. O.P. Venkataraghavachariyar, for the Respondent.-The order calling for the finding was ultra vires. Peria Krishnasami Naik v. Aiyappa Naik 24 Ind. Cas. 924 : 1 L.W. 376. It is quite competent to this Bench to go behind the order calling for finding. Durga Chowdhrani v. Jewahir Singh 18 C.P 23 : 17 I.A. 122; Lukhi Narain Jagadeb v. Jodu Nath Deo 21 C.P 504 : 21 I.A. 39; Shivabasava v. Sangappa 29 B.P 1 : 8 C.W.N. 865 : 1 A.L.J. 637 : 6 Bom. L.R. 770 : Bhola Nath Nundi v. Midnapore Zemindary Company 31 C.P 503 : 31 1.A. 75 : 8 C.W.N. 425 : 14 M.L.J. 152. In any event, this is a case in which the plaintiff ought to be allowed to amend the plaint by inserting a prayer for possession. Nothing will be gained by driving the parties to a fresh suit, to which the appellant will have absolutely no defence as all the other points have been decided against him.
16. We accept the finding. The appeal must be allowed as regards plot B on the sole ground that plaintiff, having been out of possession at the date of the suit, was not entitled to sue for a bare declaration. The decree of the District Judge is reversed and that of the District Munsif is restored with costs in this and in the lower Appellate Court.