1. This is an appeal by the defendant against a judgment of the learned Additional District Judge of the 24-Perganas, affirming the decision of the Subordinate Judge at Alipore. The suit was brought to recover possession of a small piece of land. The question is whether it belongs to the plaintiff or to the defendant's estate. The case has had an unfortunate history. It was heard by a former District Judge of the 24-Perganas and an appeal was preferred to this Court on the 4th August 1911. The appeal was heard and the case was remanded to the lower Appellate Court. Clearly, the litigation has been pending for many years and as regards a small piece of land of this nature the Court would be reluctant to disturb the decision of the learned Judge of the lower Appellate Court, unless there are strong and cogent reasons why the judgment cannot be maintained. The case has been argued before us on these points: First of all, the learned Vakil for the appellant, relying on a statement in the judgment of this Court directing the remand, has urged that certain proceedings under Section 145 of the Cede of Criminal Procedure were not relevant under the provisions of the Indian Evidence Act and that the learned District Judge in this case has relied upon those proceedings under Section 145, Code of Criminal Procedure. I do not agree with that view. The learned Judge was bound to consider as a part of the history of the case, as he has done, these proceedings under Section 145, Code of Criminal Procedure. One cannot shut out those proceedings under Section 145, Code of Criminal Procedure, and leave that part of the story blank. It is quite obvious that the learned Judge has not relied on the reasons for the order; but the facts of the proceedings and the order, it seems to me, must be taken into consideration as a part of the history of the case.
2. The next point that has been relied on is that the learned Judge of the Court of Appeal below has misdirected himself in his judgment, because although he states but according to the defendant's story there were three persons owning shops on the land in dispute, only one Nilkamal has been examined as a witness in the case. The learned Judge was clearly in error in so stating. The record shows that all these three shopkeepers were examined and the learned Judge, when he was criticising the evidence of one of these shopkeepers on the footing that the other two had not given any evidence, clearly was in error and this goes to nullify the decision based upon the evidence of Nilkamal.
3. The next point that was urged was about the observations of the learned Judge about a public school that was erected without doubt by the Court of Wards, when in possession of the defendant's estate, on a portion of the property. That school, there seems to be no doubt from the plaintiff's own pleadings, was erected by the Court of Wards apparently out of the monies coming to their hands as the manager of the defendant's estate. The learned Judge seems to consider that, because under the constitution of the school the committee of management is formed from the residents of both the estates, therefore, the public at large own the school house. That does not follow at all. The school house may have vested and belonged to the defendant's estate, although the committee of management is formed from the residents of both the estates to carry on the school. It seems to me quite clear that the reasons that the learned Judge gives for disposing of this point about the erection of the school house on a portion of the property by the Court of Wards whilst in possession are quite inadequate.
4. Next it is said that it has not been found that the plaintiff was within twelve years of the institution of the suit in possession of the property. It seems to me quite clear that the plaintiff was not found to be in possession within twelve years of the suit, because the view that is taken is that the plaintiff tried to set up a hat on the land but was resisted and proceedings were taken under Section 145 of the Code of Criminal Procedure and that these proceedings terminated in favour of the defendant. It is quite impossible to say that an attempt to take possession within twelve years prior to the suit which proved unsuccessful was sufficient possession to support the plaintiff's suit. It is said also that the property was of a nature of which possession could not be enjoyed, that it was really waste land and, therefore, the principles that are laid down as regards waste lands ought to be followed and the possession must be taken to follow the title. There is no finding in this case as to whether this was wasteland or not. There were clearly some buildings on the property at the time. It appears to be so from the judgment. These principles as to waste lands cannot apply to cases where buildings have been erected on the property. In any case, the Judge ought to have given the facts from which it could be found that either the plaintiff was in possession with in twelve years prior to the suit or that the property was waste or continued to be waste and, therefore, the possession must be taken to go with the title. I think that, although the case has already been once remanded, the judgment of the learned Additional District Judge is not sufficient to dispose of the case and that, therefore, his judgment ought to be set aside and the case must be remanded to the lower Appellate Court to have the appeal re-heard. Costs will abide the result of the re-hearing of the appeal.
5. I agree.