1. This is an appeal from a decision of the learned District Judge of Chittagong, affirming the decision of the Munsif of the same place. The plaintiff brought the suit to recover possession of certain lands on the annulment of an encumbrances. Both the Courts below have decided the case in favour of the plaintiff. The present appeal has been brought by some of the defendants, and the first point that has been raised is as to whether the Courts below ought not to have found that the suit had abated and no proper case had been made for setting aside the abatement. The facts are these:---The suit was instituted on the 18th April 1911. In June 1912 the original defendant No. 5, died. On the 19th June 1914 the plaintiff applied to substitute the heirs of the deceased defendant No. 5 and an order was, however, made ex-perte After that the substituted defendants applied for and obtained further time in order to file their written statement. In their written statement they did raise the case that the suit had abated and no grounds had arisen for setting aside the abatement. But when the issues were settled, no express issue was framed as to whether a case entitling the Court to set aside the abatement had or had not arisen. The evidence which lay in a very small compass on the plaintiffs' side was to the effect that the defendant No. 5 died in Rangoon and that the plaintiff did not know of the death earlier. The evidence on the defendants' side was practically nil, In the course of his judgment on the issue as to limitation the Munsif did make-some remarks that are said to have reference to this point. Bat that does not appear to be so. It is also a most important matter that in the judgment of the learned District Judge no reference is made to this matter at all. It is said on an affidavit made by one of the parties, whose name I have forgotten but who describes himself as the son of late Sanaulla and who does not know a word of English and had had the affidavit interpreted to him and signed his affidavit after an explanation in the Vernacular, that the learned Judge totally misapprehended the case, and that this point' was raised and pressed; and this deponent states that, although he is unaware of the language of the Court, he knows all these facts of his own knowledge. A man who can state that must have got an elastic conscience; a man who does not know the language of the Court obviously cannot know these facts of his own knowledge. I may as well pledge my oath that I who am ignorant of the Bengali language understand what two Bengali gentlemen speak in their own language. It is quite clear that this affidavit is a valueless affidavit and no attention ought, to be placed on it at all. The point now made is that it was the real point in the case and must have been taken in the lower Courts. I am not satisfied that it was so. If it had been raised and if a. proper issue had been framed on it, then the plaintiff having stated that the defendant No. 5 died in Rangoon would have produced evidence which might have satisfied the Court that he did not know and could not have known of the death of the defendant No. 5 before the date on which he first came to know of it. It is no use keeping such a point aside to be raised in second appeal with a view to get the case remanded and re-tried on a further issue. But the point must be raised and taken at the outset and an issue framed on it.
2. The next point is that the learned Judge has altogether made a mistake about the case that he had to try. A certain day, as is called, of the property sought to be recovered bears the number 746. It consists of a tank. It is quite true that that tank like other tanks usually has banks, because it is impossible to dig a tank on the ground without having taken out a certain amount of the earth to contain the water and also, if one so wishes, to enjoy the fish. Otherwise, unless one gets some of the improved and modern forms of locomotion to reach the tank he must have to walk to and from the tank so as to enjoy either the water or the fish. It is quite obvious that it was not in the contemplation of the parties with reference to property valued at Rs. 20 only that the parties should reach this tank by any of the more modern methods of locomotion. It has been found that dag No. 746 is a tank. It is a tank no doubt and it is a tank existing from before the defendants' lease and, on the authorities of, this Court, such a tank is not a protected interest within the 4th exception to Section 37 of Act XI of 1859. That gets rid of the second point.
3. The third point is that there was a lease held by the defendants. The document was not put in evidence. The Judge said that he must do the best he could without .the document as the defendants failed to give it in evidence. The appellants now say that they ought to have been given some time to produce the document. They had some time and a good deal of time too. I do not see any reason why they should, have any further time and it is not a, matter that should be raised in second appeal.
4. In the result the appeal fails and must be dismissed with costs.
5. I agree.