1. This appeal arises out of a title suit brought by the plaintiff against the' defendant Hari Ram Rabha. Plaintiff sought to eject the defendant from about 8 bighas of land,, on the ground that he was a trespasser and that the plaintiff was entitled to possession. It appears that the defendant No. 2 Rani Abhoyeswari Debi purchased certain lakheraj land in 1901. In 1902 plaintiff took settlement from the Rani of the whole 54 bighas of that land. In 1910 he brought a suit against the defendant for rent of the 8 bighas of which the defendant was in possession. In that suit defendant denied the relationship of landlord and tenant and the suit was dismissed on the ground that no such relationshipexisted. Plaintiff accordingly brought this suit in ejectment against the defendant. Defendant's case as put forward in his written statement was that he was a tenant of the Rani under a settlement from the lahherajdars who had sold to the Rani. Evidence was recorded and amongst other witnesses for the defendant one Chakar Mech was examined. It appears that this Chakar Mechhad left the locality in 1304 when he joined the military police and he had not been there since.
2. The Court of first instance found that there was a settlement in favour of the plaintiff by the Rani, though the learned Munsif threw some doubt on that settlement on the ground that the officer in charge of the Rani's affairs who had the making of the settlement was the plaintiff's father. The Munsif also found that the defendant failed to prove his tenancy from the time of the lakherajdars, but he came to the conclusion that the disputed area was held by Chakar Mech as a recorded tenant under the lakherajdar and formed part of his holding. He was further of opinion that Chakar had acquired occupancy rights in his holding before he enlisted in the military police in 1304 and that he had made over the land to Hari Rabha to hold on his account, on a verbal understanding that on Chakar's retirement from the military police he would get it back. During his absence Hari Rabha was to pay rent to the lakherajdar. It has been found also by both the Courts that in one instance, at any rate, Hari Rabha paid rent for Chakar's holding to the Rani (Exhibit A). On appeal, the learned Subordinate Judge appears to have accepted the findings of fact arrived at by the first Court without much consideration of the evidence.
3. The error that is apparent in the Subordinate Judge's judgment is that he has dismissed the plaintiff's suit on a case which was not that of the plaintiff and was not that of the defendant. So far from its being the case of the defendant, it is absolutely inconsistent with it. The learned Judge has dismissed the suit on a visw of Chakar's status which is inconsistent with defendanf's own plea, contrary to what Chakar himself claims and which the plaintiff has had no opportunity of contesting.
4. Under these circumstances we do not think that the present judgment of the learned Subordinate Judge can be supported. We are accordingly compelled to set aside his decree and remand the case to the Court of the Subordinate Judge for a rehearing of the appeal. Costs of this appeal will abide the result.