1. Although there is no map in this case, the relative position of the plots in suit is not open to any doubt. Plot No. 1, said to consist of 6 bighas, is on the west of plot No. 2 said to consist of 2 bighas. The latter is in a northernly direction from certain resumed chakran lands. The Court of first instance accepting the admission in the deposition of defendant No. 1, as to the plaintiff being in possession of some lands north of the resumed chakran lands, gave a decree to the plaintiff for the land in the second plot but not for the land of the first plot in suit.
2. On appeal to the Subordinate Judge, that officer pointed out that, on a proper reading of the defendant's deposition, the suit should have been decreed with regard to the 6 bighas in plot No. 1 also, and, in that view of the matter, he gave the plaintiff a decree for that plot also.
3. In second appeal two contentions have boon advanced, namely, first, that there was no such admission on the part of the defendant in his deposition entitling the plaintiff to a decree in respect of either plot, and, secondly, that the Subordinate Judge has failed to decide the issue of limitation which the Munsif omitted to decide merely because he did not give the plaintiff a decree fur the first plot.
4. With regard to the second contention, Dr. Preo Nath Sen, for the plaintiff-respondent, concedes that the case must go back to the lower appellate Court for the determination of the first issue of limitation, with regard to the plot of 6 bighas marked as (ka).
5. Now in connection with the first contention, several questions arise, and the preliminary question is whether this matter can be raised on second appeal. The authorities go to show that where the lower appellate Court has misread evidence, as opposed to misconstruing a document, that error cannot be set right in second appeal. The cases mentioned in the course of the argument are Himmut Ali Khadim v. Nyamutoollah Khadim 23 W.R. 250; Shib Chandra Roy v. Chandra Narain Mukerjes 32 C. 719 at p. 723; 724 1.C.L.J. 232 and Isawar Chunder Santra v. Satish Chunder Giri 30 C. 207 at p. 210 : 7 C.W.N. 126.
6. I have read the deposition of the defendant at page 14 of the paper book, and I am not at all satisfied that the construction adopted by the lower appellate Court is wrong. There is some difficulty no doubt with regard to the question of area, but that difficulty does not appear to be insuperable. Both Courts have found on reading the evidence, that the second plot (kha) belongs to the plaintiff, and when the defendant said that the land on the west of that plot also belonged to the plaintiff, ho could mean no other land than that of plot (ka) of six bighas. However that may be, I think this contention is not one which ought to be readily admitted for consideration in second appeal. It is not a case whore the entire deposition has been misconstrued, but it is a case of an admission made, which is not altogether ambiguous in its terms, and the inference, therefrom, is not an inference of law, but an inference of fact. In this view of the matter I disallow the first contention. But the case must go back to the lower appellate Court for a decision of the issue of. limitation as raised before the Court of first instance with regard to plot (ka).
7. Costs will abide the result.