Hakington and Pratt JJ.
1. This appeal is preferred on behalf of the plaintiffs in-a suit for possession of land on declaration of title and for the value of the crops thereon.
2. The point of law on which the appellant relies arises on an oath, which was taken by one Syed Nizanruddin Haider in a proceeding relating to this property under Section 144 of the Criminal Procedure Code, the question being whether that oath is conclusive in the present proceedings.
3. The earlier proceedings, which related to this property were taken under Section 144 of the Criminal Procedure Code; and in these proceedings the present respondent, Syed Nizamuddin Haider, filed a petition, saying:
If Syed Mahommed Kasim, Mukhtear, swears on the Koran that the disputed property, namely, the heap of straw with paddy, belongs to Badlu Mia, then your petitioner will withdraw his claim and seek his relief in the Civil Court, or if the first party consents, your petitioner by swearing on the Koran will say that the disputed property, namely, the heap of straw with paddy now stacked in the farm, belongs to him.
4. On this petition of Syed Nizamuddin Haider, the present appellant, Syed Badiaddin Ahmed, endorsed a challenge of his own, and he said:
If Nizamuddin Haider by swearing on the Koran at the shrine of Shah Hossein say in the khelsa there is no jote and the straw is not the produce of that jote, I shall accept the same.
5. Syed Nizamuddin Haider took the required oath, and the learned Judge in the Lower Appellate Court has held that that oath is conclusive evidence against Badiaddin Ahmed, the plaintiff-appellant, not only in the proceedings under Section 144, Criminal Procedure Code, in which it was taken, but also in the subsequent proceedings taken in the Civil Court for possession, out of which this appeal has arisen.
6. In our opinion the oath is not binding as conclusive evidence in any proceeding other than that in which it was taken. What the parties had in their minds when this challenge was given was the proweding, which was then going on under Section 144 of the Criminal Procedure Code. There is nothing to indicate that it was intended that this oath should bind the person, at whose instance it was made, as being conclusive in any other proceeding except that under Section 144. All, therefore, that the challenge and the oath amount to is that they are evidence against the person, who gave the challenge and against whom on that challenge the oath was taken. It is evidence, but it is not conclusive evidence.
7. We think, therefore, that the case will have to go down to the Court of first instance for trial on the merits, upon such evidence as the parties think proper to adduce, with the observation that this piece of evidence relating to the oath is not conclusive on the matter in this proceeding.
8. Another point was taken by the appellant, and that is this: that whereas two persons are appellants in the present proceeding the oath in question was only taken on the challenge of one of them. The respondent replies to that by showing that the other appellant did not appear in the appeal in the Lower Appellate Court. That answer appears to u to be as good one, but it does not become of any great importance, because we are of opinion that the proper course is to remand the case for trial on the merits, as we have stated.
9. With these observations we remand the case.
10. Costs will abide the result.