Tottenham and Agnew, JJ.
1. We have been pressed to set aside the decree of the lower Appellate Court in this case upon the ground that the judgment is not in accordance with Section 574 of the Civil Procedure Code, that is, that the Judge has not categorically set down the points for determination, the decision thereupon, and the reasons for the decision. It is said that in the judgment as it stands there is nothing on which the appellant can satisfy himself whether or not he has good grounds for a second appeal The lower Appellate Court delivered a very short judgment in which it confirmed the decision of the first Court. We find upon examination that the only point really before the lower Appellate Court was this, whether or not the defendants were tenants or trespassers in respect of the land from which the plaintiff sought to eject them. The learned Counsel for the appellant has invited us to observe that the case was a very complicated one as set out in the pleadings and issues, and that the one point decided by the District Judge would by no means dispose of all the points raised. But we find that of the seven issues set down for trial, the 1st, 3rd, 4th, and 5th, were decided in favour of the plaintiff, and the plaintiff who was the appellant in the Court below had no reason to bring those issues up again. Four then out of the seven issues were decided in favour of the plaintiff. Two were decided in favour of the defendant, namely, the 2nd and 7th, or rather the decision on the 2nd issue made the decision of the 6th and 7th issues unnecessary. The 2nd issue was, 'was it obligatory on the plaintiff to serve the defendant with notice of ejectment.' It is now admitted that, unless the defendants were trespassers, it was obligatory on the plaintiff to serve them with notice of ejectment. If they were tenants at all, however low their station, they could not be ejected without notice. So that really the only point on which the lower Appellate Court's decision was required was, whether the defendants were tenants or trespassers. The Court below has decided that they were not trespassers but tenants of some kind or other. It is objected that the District Judge has not stated the particular evidence upon which he came to this conclusion, and that it was apparent from his judgment that he did not concur with the first Court in the construction put by that Court upon certain portions of the evidence.
2. We think that it would have been better no doubt if the lower Appellate Court had stated somewhat more fully upon what its conclusion was based. But we have no doubt upon perusal of its judgment that the Court below had read the evidence and meant to find upon that evidence as a whole that the defendants were not trespassers. The fact that the judgment was not drawn up in the manner prescribed by Section 574 is not, we think, a ground for a second appeal under Section 584, unless it can be shown that the judgment had failed to determine any material issue of law. It is evident, as I have already observed, that there was no material issue of law before the Court, excepting the issue whether tenants-at-will are liable to be ejected without notice, and on that question it is now admitted there can be no dispute. The only issue before the lower Appellate Court was simply one of fact. The manner in which the judgment has been drawn up could not be a substantial error in procedure which may possibly have produced any error or defect in the decision of the case upon the merits, for no doubt the Judge had in his own mind already decided the case before he wrote his judgment.
3. That this fact is not matter for a second appeal was laid down by the late Chief Justice Sir Richatd Couch in Doolee Chund v. Oomda Begum 18 W.R. 473. The proper course to be followed in such a case is said to be to require the Judge, if still holding office, to supplement his judgment by giving the reasons on which it is based. Where the judge is no longer holding that office, that course cannot be adopted. For that reason it cannot be adopted in this case. The Judge is no longer in the district from which this case came. It is clear, therefore, to us that the principal objection taken is not a ground in this case upon which a second appeal can be based. Another objection is taken in the written petition of appeal, that the lower Appellate Court was wrong in setting up for the defendants a case which they themselves did not set up, namely, that they are tenants-at-will. We find, however, that the lower Appellate Court did not hold that they-were tenants-at-will, but simply said that they were tenants, and, even if so low as tenants-at-will, they are still entitled to notice before being ejected.
4. We, therefore, find no reason for disturbing the judgment or decree of the lower Appellate Court. The appeal is dismissed with costs.